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23 This limitation is maintained by Article 15(3) TFEU, even if the ECB is bound by the general obligation to conduct its work ‘as openly as possible’ in Article 15(1) TFEU. See also the European Central Bank, Annual Report 1996 86 (1997), available at: http://www.ecb.europa.eu/pub/annual/html/index.en.html (last accessed: 27 June 2013).Google Scholar

24 According to Article 10 of the Rules of Procedure of the General Council of the European Central Bank (ECB/2004/12) O.J. L 230/63, 30 June 2004) the ‘proceedings of the General Council, and of any committee or group dealing with matters falling within its competence, shall be confidential unless the General Council authorizes the President to make the outcome of their deliberations public'.Google Scholar

25 Steuer, von Helmut, Finnischer Zentralbankchef verteidigt EZB (16 Sept. 2011) Handelsblatt, where Erkki Liikanen, Director of the Bank of Finland and a Member of the ECB Board argues that the current practice of nondisclosure of meeting protocols for 30 years is far too excessive, available at: http://www.handelsblatt.com/politik/international/umstrittene-anleihenkaeufe-finnischer-zentralbankchefverteidigt-ezb/7140166.html (27 June 2013). Even the CJEU has had the opportunity of addressing the public access regime of the ECB – see Case T-436/09, Julien Dufour v the European Central Bank, Judgment of 26 October 2011, in which the General Court rejected the ECB's argument that ex- Article 255 EC and Regulation No 1049/2001 do not apply to its actions: the ECB itself referred, in recital 2 in the preamble to the decision Decision 2004/258, to the joint declaration relating to Regulation No 1049/2001, concluding that ‘[t]he regime on public access to ECB documents … should be revised accordingly’ (at para. 166). The Court confirmed that the databases held by the ECB indeed constituted a ‘document’ that the applicant had the right of access to and in particular ‘obtain the right to use them in the sense that he may ask the ECB to use them in order to carry out searches in its databases, in accordance with search criteria that he himself would define, and communicate the results thereof to him’ (at para. 183).Google Scholar

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27 Art. 3(2) of the Council Regulation.Google Scholar

28 Harden, Ian, The Fiscal Constitution of EMU, in Legal Framework of the Single European Currency 72–93 (Paul Beaumont and Neil Walker (eds), 1999).Google Scholar

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33 The best-known case is Manfred Brunner and Others v. the European Union Treaty, Bundesverfassungsgericht (2. Senat) 12 October 1993, Cases 2 BvR 2134/92 and 2159/92 [hereinafter “Brunner and Others v the European Union Treaty”]. The case has also been published in 69(2) CML Reports 57–108 (1994).Google Scholar

34 In addition to Denmark, the UK enjoys a permanent derogation from the EMU based on the Treaty. For a more detailed discussion of the legal status of these two states and the other States not participating in the third stage, see e.g. Francis Snyder, supra note 22, at 93–95 and 98.Google Scholar

35 E.g. Brentford, Philip, Constitutional Aspects of the Independence of the European Central Bank, 47 ICLQ 108 (1998).Google Scholar

36 Brunner and Others v the European Union Treaty, supra note 33, at 104.Google Scholar

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38 Resolution of the European Council on the Stability and Growth Pact Amsterdam, 17 June 1997, O.J. C 236, 02/08/1997, at 1.Google Scholar

39 See Article 140 TFEU.Google Scholar

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44 Article 10(1) and (2) TEU.Google Scholar

45 Article 10(3) TEU, Article 11 TEU.Google Scholar

46 Article 12 TEU; Protocol No 1 on the role of National Parliaments and Protocol Nr 2 on the application of the principles of subsidiarity and proportionality.Google Scholar

47 See Article 121(4) TFEU (ex-Article 99(4) TEC), 126(5) TFEU (ex-Article 104(5) EC) and Article 126(6) TFEU (ex-Article 104(6) TEC).Google Scholar

48 See Article 126(13) TFEU (ex- Article 104(13) TEC).Google Scholar

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51 Declaration No. 30 on Article 126 of the Treaty on the Functioning of the European Union.Google Scholar

52 Article 3 TFEU includes a list of areas in which the Union has exclusive competence; Article 4 TFEU includes a list of the “principal areas” in which the Union and the Member States have shared competence; and Article 6 TFEU defines the areas where the Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States.Google Scholar

53 Article 5(1) TFEU: “The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies. Specific provisions shall apply to those Member States whose currency is the euro.”Google Scholar

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58 A third group consists of the measures intended to further the development of the bank union through shared supervision, deposit insurance and resolution competences. These measures fall outside the scope of the current contribution.Google Scholar

59 This is of course not the first time Member States had borrowed to each other bilaterally; see Jean-Victor Louis, Guest editorial: The No-Bailout clause and rescue packages, 47 Comm. Mkt. L. Rev. 985 (2010).Google Scholar

60 Council Regulation (EU) No 407/2010 of 11 May 2010, establishing a European financial stabilization mechanism, O.J. L 118, 12 May 2010.Google Scholar

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64 European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU) O.J. L 91/1, 6 April 2011. The European Council decided that the following paragraph shall be added to Article 136 TFEU: “3. The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”Google Scholar

65 European Council decision 2011/199/EU. Article 48(6) TEU provides for a simplified revision procedure that enables the European Council to revise all or part of the provisions of Part Three TFEU relating to the internal policies and action of the Union. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements and cannot be used to increase the competences conferred on the Union in the Treaties.Google Scholar

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68 November 2011 six-pack, adopted by the Council to improve budgetary discipline, on the one hand, and economic surveillance, on the other, including Regulation amending Regulation 1466/97 on the surveillance of member states budgetary and economic policies; Regulation amending regulation 1467/97 on the EU's excessive deficit procedure; Regulation on the enforcement of budgetary surveillance in the euro area; Regulation on the prevention and correction of macroeconomic imbalances; regulation on enforcement measures to correct excessive macroeconomic imbalances in the euro area; and a Directive on requirements for the member states’ budgetary frameworks. These measures where concluded in two parts; first, a preventive part that was based on Art. 121 TFEU and including Council Regulation (EC) 1466/97, amended by Council Regulation 1055/2005 and Regulation 1175/2011 of EP and Council and second, a corrective part based on art. 126 TFEU and protocol 12 on excessive deficit procedure including Council Regulation (EC) 1467/97, amended by 1056/2005 and 1177/2011 and Council Regulation (EC) 479/2009, amended by 679/2010 and 679/2010.Google Scholar

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74 In Finland, for example, the Constitutional Committee of the Parliament has in several occasions emphasized the right to get information and possibilities to influence the decision-making in the instruments. For a discussion of some of the findings of the Finnish Constitutional Committee, see Päivi Leino-Sandberg and Janne Salminen, Eurokriisin demokratiaulottuvuuksia (The democratic dimensions of the euro crisis), in 3 Lakimies 390–413 (2013); Päivi Leino and Janne Salminen, The Euro Crisis and Its Constitutional Consequences for Finland, submitted to European Constitutional Law Review; Kaarlo Tuori, The European Financial Crisis – Constitutional Aspects and Implications, EUI Working Papers Law 2012/28 (2012).Google Scholar

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87 Agamben, Giorgio, State of Exception 9 (Kevin Attell (tr.) 2005).Google Scholar

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91 This objective is also emphasized in the Preamble of the agreement itself: “Bearing in mind that the objective of the Heads of State or Government of the euro area Member States and of other Member States of the European Union is to incorporate the provisions of this Treaty as soon as possible into the Treaties on which the European Union is founded […]”Google Scholar

92 This does not mean that the words “transparency” or “openness” would not have been mentioned during the process: In October 2012 the European Council took the opportunity to stress that “[t]he process towards deeper economic and monetary union should build on the EU's institutional and legal framework and be characterized by openness and transparency towards Member States which do not use the single currency and by respect for the integrity of the Single Market.”⁹² Openness and transparency are thus, it needs to be pointed out, not directed at decision-making in relation to citizens, but to countries that are currently not in the euro. European Council conclusions of 18 October 2012, supra note 4, at para. 3. A similar reference can be found in the recent European Council Conclusions of 14 December 2012, supra note 3, at para. 4‥Google Scholar

93 For an example of such discussion, see Case T-590/10 Gabi Thesing and Bloomberg Finance LP v the European Central Bank, which concerned access to information concerning the Greek government deficit and debt.Google Scholar

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