EMU mixity : overlap between EU and Member States action in economic governance

Over the last 10 years, economic and monetary policy has been the object of inventive solutions, whose conformity with the constitutional order of the European Union (hereafter ‘EU’) was often dubious.[1] Those sui generis legal and institutional responses to the crisis also raised interrogations about the preservation of the balance between the more powerful and the economically weaker Member States.[2] Those measures gave rise, furthermore, to a series of reflections concerning the shift of economic policy towards the executive power, to the detriment of the legislative power and democratic representation in decision making.[3] Indeed, the measures that were justified by the economic urgency, in which certain Member States of the eurozone found themselves, often involved a strengthening of the intergovernmental approach. In the field of economic policy, we can clearly observe this tendency to go the intergovernmental way. In addition to the leading role taken by the EU’s most intergovernmental bodies (the European Council and the Eurogroup), we have seen the conclusion of a number of international law treaties to support the stability of the EU’s Economic and Monetary Union. Unlike the other contributions in this book, this one does not concern the external action of the Union and its Member States, but their joint action ‘internally’, within the framework of a policy whose conduct involves a special form of cooperation based on a combination of EU law and international law. We will, however, draw a comparison between the field of joint external action of the Union and its Member States and the 118internal EU field of economic policy. Economic policy is a domain of EU action in which recourse to international agreements between groups of Member States, acting outside the EU legal framework, has been confirmed to be a valid option,[4] leading to forms of hybrid or mixed economic governance – thereby replicating, to some extent, the forms of governance created by mixed agreements. Such a comparison is relevant, in that it raises some interesting questions relating to the joint action of the EU and its Member States: in particular, as we shall see, the question of the allocation of responsibility and that of the distribution of competences between Member States and the EU. For this purpose, we will firstly (in section II) highlight the essentially shared nature of the EU’s competence in the economic ‘branch’ of the Economic and Monetary Union (hereafter ‘EMU’), allowing for a juxtaposition of EU action and Member States agreements, as mainly exemplified by the European Stability Mechanism (hereafter ‘ESM’). We will then (in section III) examine two concrete examples of joint/mixed action of the EU and the Member States: that of the creation and operation of the Single Resolution Mechanism, which is part of the Banking Union; and that of the Memoranda of Understanding adopted in connection with financial assistance to eurozone states, in which we observe joint action by the ESM and by some EU institutions. This will enable us (in section IV) to highlight the eminently hybrid nature of this complex legal regime, and compare it with the equally hybrid character of the mixed agreements in the domain of external relations