The Sui Generis Framework for Implementing the Law of EMU: A Constitutional Assessment

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Table of Contents: I. Introduction. – II. Key features of the general framework of implementing and adapting EU law. – III. Sui generis aspects of the framework governing the implementation of the law of EMU. – III.1. The ECB’s implementing function under SSM. – III.2. Enforcement as a separate executive function from implementation under art. 291 TFEU. – III.3. The exception of Council implementation under art. 291(2) TFEU. – IV. A constitutional assessment. – IV.1. The ECB’s implementing function under the SSM. – IV.2. Implementation by the Council. – V. Conclusion.

Abstract: This Article compares the implementation of EMU law with the framework governing the implementation of EU law in general to determine whether that general framework has been complemented, adapted or transformed by the developments in the area of EMU Law. This Article finds that the legal framework governing the implementation of EMU law indeed deviates from the default framework. However, part of the sui generis framework for implementing EMU law is constitutionally mandated. On the other hand, it is less clear whether the ECB is entitled to supplement legislation or whether in fact it can only implement legislation. A second problematic aspect that this Article identifies is the significant role that the Council takes in implementing EMU law. Finally, it is in the area of EMU law that the Court identified a distinct type implementing power that is not covered by art. 291 TFEU or by other explicit legal bases in the Treaties that directly confer an executive power on the Council. The new type of power is not necessarily restricted to EMU law and can in principle be identified in other areas of EU law, showing the ramifications that the development of EMU law has on other areas of EU law.

Keywords: implementing acts – delegated acts – comitology – SGP – enforcement – institutional balance.

European Papers, Vol. 6, 2021, No 3, pp. 1463-1484
2499-8249 - doi: 10.15166/2499-8249/534

* Assistant Professor of EU Law, Maastricht University,


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