Thomas Pringle v The Government of Ireland, Ireland and the Attorney General

Transcription

1 I r i s h J o u r n a l o f E u r o p e a n L a w V o l u m e 1 7 I s s u e 1 Thomas Pringle v The Government of Ireland, Ireland and the Attorney General Joe Noonan and Mary Linehan * The European Union is renowned for its Member States' ability to devise flexible workarounds to overcome thorny problems that at first may seem insurmountable. The various crises that enveloped the Member States and the EU itself after 2008 posed existential challenges to the euro currency. Extraordinary measures were adopted in the face of those challenges. One of those measures was the establishment of a new institution to be called the European Stability Mechanism (ESM) by means of a treaty outside the EU legal order. The legality of these measures was questioned in the Irish Courts by Independent TD for Donegal South West, Thomas Pringle. The Supreme Court referred three questions to the Court of Justice of the European Union. The Court of Justice rejected the claim that the ESM workaround was of a character that breached the limits of the EU treaties. In doing so it accepted the ultima ratio approach urged on it by the ESM s defenders that in the last resort the Court should not act in a way that would risk imperilling the single currency. This article by Mr Pringle's solicitors examines some procedural and substantive aspects of the case. The judgment unfolds like a story, and even though the reader knows or can hazard a pretty good guess at the ending that the Court of Justice of the European Union (CJEU) will find that the ESM is lawful the story is compelling nonetheless, since the last part of the judgment is also the denouement in which the CJEU saves the ESM from the most potent challenge to its legality. In doing so, the judgment reveals much that is of interest about the nature of legal reasoning, in particular the blend of text, background purpose, and teleology that constitutes the very essence of legal discourse. 1 The various judgments delivered by the High Court, 2 the Supreme Court 3 and the Court of Justice of the European Union (CJEU) 4 in this extraordinary case together run to over 300 pages in length. Since the key EU law questions in the case were referred by the Supreme Court to the Luxembourg Court in early August 2012 there has been a steady flow of scholarly analysis of the issues and of the reasoning adopted by the Courts, particularly by the CJEU. Craig captures the compelling nature of the story in his remarks quoted above. The objective of this article is not so much to revisit or reanalyse the arguments or the outcome in detail, but rather to describe the origin and purpose of the case, and to discuss its remarkably high speed progress through the judicial system. To that end we briefly discuss the legal principles at issue in the case; we describe important procedural features of the litigation; and we set out for the first time details of the interventions made by members of the Court during the oral argument at the CJEU. We begin however by recalling elements of the treaty basis which underpin the EU and which define the role of the CJEU, the Court that was to give the decisive ruling on the Pringle case. Union Legal Values (1): expression The EU is an extraordinary enterprise operating through a complex carefully calibrated structure. It comprises 28 Member States together with the institutions of the EU. The legal relationship between the Member States themselves and between those States and the institutions of the EU is set out in the Treaty on European Union (TEU) 5 and the Treaty on the Functioning of the European Union (TFEU). 6 That relationship is based on certain shared values, as is clear from Article 2 TEU, which provides that the Union is founded on the value of respect for human dignity, freedom, democracy, * Partners in Noonan Linehan Carroll Coffey, Solicitors, Cork, info@nlcc.ie. 1 Paul Craig, Pringle: Legal Reasoning, Text, Purpose and Teleology (2013) 20(1) MJ 3. 2 Pringle v The Government of Ireland & Ors [2012] IEHC Pringle v The Government of Ireland & Ors [2012] IESC Case C-370/12 Pringle [2013] OJ C 26/15, judgment of 27 November 2012 nyr. 5 Consolidated Version of the Treaty on European Union [2012] OJ C 326/13. 6 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47. August

2 Thomas Pringle v Government of Ireland Joe Noonan/Mary Linehan equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are said to be common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between men and women prevail. The EU thus is founded on explicit values, one of which is the rule of law. The Pringle case tested the practical vitality of the rule of law at a critical time in EU history. This old rule of law term is familiar, frequently used, but rather less often is it explained. One of the finest discussions of the meaning of the term is by Bingham. In his exquisite short book, The Rule of Law, 7 Bingham lists eight principles which for him together constitute and define the rule of law. They are: The law must be accessible and so far as possible intelligible, clear and predictable; 8 Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; 9 The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation; 10 Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers, and not unreasonably; 11 The law must afford adequate protection of fundamental human rights; 12 Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve; 13 Adjudicative procedures provided by the state should be fair; 14 and The rule of law requires compliance by the state with its obligations in international law as in national law. 15 Three Decisions under Scrutiny Mr Pringle sought to draw on those principles when inviting the courts in Ireland and in Luxembourg to assess whether certain measures adopted at the highest levels of government of the Member States and within the supreme EU political institution, the European Council, complied with the rule of law: specifically whether they were consistent with certain Irish constitutional provisions and with certain EU treaty obligations. In essence the rule of law is a restraint on the rule of politicians. Mr Pringle perceived a conflict between three specific political decisions which were intended to have profound legal and financial consequences and the legal and constitutional framework within which the exercise of decision-making powers of such import was circumscribed. That perceived conflict led him to take court action. Those three decisions were: (1) to adopt and ratify a new treaty to be known as the Treaty on the European Stability Mechanism (ESM Treaty); 16 this decision was made by 17 of the (then) 27 Member State Governments, and was to be approved where necessary in accordance with their domestic constitutional requirements; (2) to amend Article 136 of the TFEU to allow for the setting up of a euro currency stability mechanism. This decision was made using a simplified amendment procedure under Article 48(6) TEU which was intended for use only for a limited class of treaty amendments. This decision was made unanimously by the European Council, the (then) 27 strong EU institution made up of the heads of Government of the Member States; and 7 Tom Bingham, The Rule of Law (Penguin Books 2011). 8 ibid ibid ibid ibid ibid ibid ibid ibid Treaty Establishing the European Stability Mechanism < tesm2.en12.pdf> accessed 14 July [2014] 17 (1) IJEL 130

3 I r i s h J o u r n a l o f E u r o p e a n L a w V o l u m e 1 7 I s s u e 1 (3) to activate the ESM treaty obligations before the Article 136 TFEU amendment came into effect; this decision was made by the Governments of the 17 signatory States with the agreement of the European Council. Union Legal Values (2): enforcement by way of effective remedy At EU level the CJEU is the body charged with responsibility for overseeing adherence to the treaties by the Member States and by the institutions of the EU. In this it complements the work of national courts and legal systems. The Court s task includes protecting the vitality of the rule of law principle as described in Article 2 TEU. This is explicitly required by Article 19 TEU which provides that the Court shall ensure that in the interpretation and application of the Treaties the law is observed. Reflecting the essential complementary role of the national courts, this Article requires that Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. To breathe life into this complementary relationship between national courts and the EU Court, Article 267 TFEU grants the CJEU jurisdiction to give preliminary rulings on matters concerning the interpretation of the treaties, or the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. In the widespread chaos following events in the financial markets in 2008 critical questions arose in several Member States and within the EU itself as to how to address the continuing aftermath. A particularly critical situation in Greece led to the establishment of two new emergency funding mechanisms, the EFSF (European Financial Stability Fund) and the EFSM (European Financial Stability Mechanism). The latter was a special fund operated under the control of the European Commission. The former however was novel in structural terms as it took the form of a private company incorporated in Luxembourg under the control of nominees of the Member States but constituted and functioning outside the EU legal framework, that is, outside the legal order of the EU. The first element of novelty, an extra-eu character, was to be retained when establishing its intended successor, the European Stability Mechanism. Creating the ESM In 2010 a decision was taken by the European Council to establish a permanent EU crisis mechanism to be known as the European Stability Mechanism. The mechanism was in substance to be a funding vehicle that was to be legally established on terms contained in a new international treaty the ESM Treaty. As with the EFSF, the ESM was set up outside the EU but unlike the EFSF the ESM would have its own founding treaty which governed its operations and which defined the obligations of the ESM Member States to the ESM and to each other. Certain advisory roles were ascribed to the ECB and the EU Commission by the new treaty. Provision was made for the CJEU to have a role in resolving certain types of disputes that might arise. The purpose of the ESM was to preserve the EU s single currency, the euro, which was then seen to be under existential threat. The ESM Treaty was first signed on behalf of all of its founding members in July However, after signing, further changes were thought necessary and a revised treaty was signed in February By this time, there had been some questions raised about the nature of the relationship between the ESM as an institution, the Member States of the EU and the EU institutions themselves. Partly as a response to some of those concerns, the European Council decided to amend Article 136 TFEU by the addition of the following new paragraph which would become Article 136(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. Explanatory materials released at the time indicated that this amendment was seen by the European Council as being necessary in order to allow Member States to set up and participate in the ESM. Neither that amendment nor the ESM itself was met with universal acclaim. August

4 Thomas Pringle v Government of Ireland Joe Noonan/Mary Linehan German Federal Constitutional Court: preliminary condemnation The efforts to deal with the multiple crises tended to be government led and coordinated at the level of the European Council. Certain governments did not always engage fully with their respective parliaments. This led to significant discontent for example in Germany s Bundestag where an action was brought by members of the Bundestag to the Federal Constitutional Court complaining that parliament was being kept out of the information loop in breach of constitutional obligations on the Federal Government. Ultimately the Karlsruhe Court upheld that complaint and found that: With regard to the establishment of the European Stability Mechanism, the Federal Government has infringed the Bundestag s rights to be informed under Article 23.2 sentence 2 GG. 17 Estonian Constitutional Court Divided There was disquiet also in Estonia where the Chancellor of Justice (broadly comparable to the Irish office of Ombudsman) brought proceedings before the Supreme Court seeking to declare Article 4(4) of the ESM Treaty to be in conflict with the Estonian Constitution. The Estonian Supreme Court delivered its judgment on 12 July 2012 and found by a 10:9 majority that: Such an interference with the financial competence of the Riigikogu [Estonian parliament] brings about also an interference with the principle of a democratic state subject to the rule of law and of the state's financial sovereignty since indirectly the people's right of discretion is restricted. 18 However the Court decided ultimately that there was no conflict with the Constitution stating the objectives justifying the interference are sufficiently significant. 19 The Supreme Court judgments, on both sides of the argument, are sharply written and make for pungent reading even in translation. Oireachtas Guillotined In Ireland the legislation necessary to authorise the State s ratification of the ESM Treaty was put through the Dáil by means of the guillotine procedure. That precluded close parliamentary analysis of the terms of the treaty and their implications for Ireland. The debate tended instead to be reduced to set piece presentations with only limited time for debate: thus the ESM was portrayed as a fund which was vital to the survival of Ireland s economy and to the survival of the euro currency. Government speakers insisted that there was no responsible alternative to ratification. In accordance with advice to the Government from the Attorney General, a separate Treaty on Stability, Co-ordination and Governance (TSCG) was put to a referendum vote in May A key argument advanced by those advocating a positive vote in the TSCG referendum was that ratification would open the door to ESM funding. That message elided the fact that the two treaties were separate legal instruments and that access to ESM funding was to be determined in accordance with the provisions of the ESM Treaty. There were no guarantees of funding access - whether by virtue of ratification of the TSCG or otherwise. The Government was advised by the Attorney General that no referendum would be necessary to adhere to the ESM Treaty. Mr Thomas Pringle, an independent TD representing Donegal South West, believed the ESM Treaty raised fundamental questions both under Irish constitutional law and at the level of the EU Treaties. These concerns were raised by him in the Dáil and conveyed by letter to the Taoiseach but no substantive reply was forthcoming. The ESM Treaty required Ireland to pledge a sum of over 11 billion to the new Luxembourg based institution. This would require an initial staged payment of over 1.27 billion and a commitment to provide the balance if and when called upon. The Treaty did not give Ireland or any other Member State any entitlement to receive payments out of the fund. Any such payments were to be contingent on unanimous approval of all members of the fund s Board of Governors. That approval could only be given if the payment was indispensible in order to avert a threat to the stability of the euro area as a whole BvE 4/11, pt II, s 1 < accessed 14 July Constitutional judgment , para 153 < accessed 14 July ibid para 209. [2014] 17 (1) IJEL 132

5 I r i s h J o u r n a l o f E u r o p e a n L a w V o l u m e 1 7 I s s u e 1 Mr Pringle s Concerns Mr Pringle s concerns were that the ESM Treaty had such profound implications for the State that it should be put to referendum. He considered that the powers to be given to the ESM infringed Irish sovereignty, particularly in terms of control over budgetary matters. He believed that the ESM, which was to be established as a freestanding body outside the EU legal framework, would cut across that framework and undermine the rule of law which is a principle enshrined in the EU Treaties. He argued that the ESM s stated purpose of protecting the euro would infringe on EU monetary policy which is reserved as an area of exclusive competence for the EU. He argued also that the narrow focus of the ESM on the protection of the currency could run counter to the broader objectives of the EU as set out in Article 2 TEU. He was also concerned at the fact that the ESM would not be subject to the checks and balances carefully stitched into the EU Treaties and that it would not be answerable to the CJEU in the same way as the EU institutions. Mr Pringle was faced with a dilemma. He had failed to obtain answers to his detailed questions. The legislation was being enacted speedily in Spring 2012 with a declared deadline of ratifying and implementing the terms of the ESM Treaty by July He believed that this would be unlawful and merited judicial scrutiny. Ireland is unusual in that citizens are entitled under the Constitution to ask the courts to review government actions, including actions taken on the international level, to ensure that those actions conform to the constitutional limits on government. Mr Pringle therefore was in the relatively unusual position (in EU terms) of having a right of access to court to question the legal validity not just of the decision of his own government, but also in effect the decisions taken by the Irish Government and the other 16 governments which had signed the ESM Treaty and the decision taken by the European Council which of course included An Taoiseach. He decided to bring his concerns to the High Court. Tight Timelines Due to the proximity between the end of the legislative process and the ESM start date, the timescale for the courts to examine the issues raised was exceptionally tight. Clearly no court would presume to interfere with the operation of the Oireachtas as it was still deliberating. The matter could therefore only be justiciable after the legislation had been enacted. That would be a mere matter of weeks before the ESM was to be activated. Indeed once the legislation was on the books, the Government would be in a position to commit the State under international law to the obligations imposed under the Treaty by depositing the instrument of ratification forthwith. Mr Pringle s legal advisors wrote to the State indicating that an application to court would be necessary and inviting them to agree a timetable for proceedings. The State s initial response was that the matter could be dealt with after a series of procedural stages where pleadings would be exchanged over a number of months, ultimately leading to a trial at a date no earlier than October This leisurely timetable was not accepted by Mr Pringle. Proceedings were issued and served on 13 April An application to court for directions and for an early hearing date was heard on 21 May The State s position regarding the timetable changed and instead the matter was now said by it to be one of exceptional urgency. An early trial date was fixed. High Court Seeks Reference, Rejects other Claims The trial of the action commenced in the High Court on 19 June 2012 before a single judge, Ms Justice Mary Laffoy. 20 The hearing continued for seven days. During the course of the hearing the State advised the Court that its decision would have to be delivered no later than 9 July 2012 in order to meet deadlines agreed between the signatory States for making the ESM operational. At the conclusion of the hearing on 29 June 2012 judgment was reserved. On 9 July 2012 the decision of the Court was announced: one aspect of the case was to be the subject of a preliminary reference to the CJEU. The other elements of the case were to be dismissed. A written judgment was not available at that time but was to become available on 17 July The question to be referred to Luxembourg was what was described as the temporal component 21 of one of the questions raised by Mr Pringle - 20 Pringle v Ireland (n2). 21 ibid s VIII B(4). August

6 Thomas Pringle v Government of Ireland Joe Noonan/Mary Linehan whether it would be lawful for Ireland to ratify the ESM Treaty before the Decision to amend Article 136 of the TFEU came into force in January Given that the amendment to Article 136 was said by Mr Pringle to be necessary in order for the Member States to operate the ESM treaty provisions, the Court had a doubt as to whether the States could activate the treaty before the amendment was in force. An appeal was lodged by Mr Pringle to the Supreme Court against the dismissal of his other claims. That Court immediately grasped the importance and scale of the issues and, unusually, directed that the parties attend before it on two occasions on the one day for directions to be given in relation to the prosecution and trial of the appeal. These case management hearings took place on the morning and afternoon of 20 July The Court directed an expedited hearing which was to commence in four days time. Supreme Court Enlarges the Reference, Rejects Crotty Claim The appeal before the seven judges of the Supreme Court opened on 24 July On the afternoon of that day the Court delivered to the parties a draft of a question it proposed to send to the CJEU. The Court heard argument on the domestic constitutional grounds over a period of one day and reserved its judgment. The Court heard argument on the EU law issues on the 26 July 2012, the second of the two day hearing. The parties meanwhile had considered the draft question prepared by the Supreme Court and had agreed the wording of a total of three questions believed to be necessary for incorporation into the preliminary reference to the CJEU. These were submitted to the Supreme Court which decided by way of judgment and ruling delivered on 31 July 2012 to transmit these three questions to the CJEU. On that date also the Court dismissed other elements of the claim, with reasons to be delivered later. The three questions referred by the Supreme Court may be summarised as follows: Whether the ESM Treaty was compatible with the EU Treaties; Whether the amendment to Article 136 TFEU to facilitate the ESM was lawful. A focus of this question was whether it was permissible for EU Heads of Government to amend the TFEU by use of the simplified amendment procedure; Whether eurozone states were entitled to join the ESM before the Article 136 TFEU amendment came into force. At the time, the earliest date that the amendment could come into effect was 1 January The Supreme Court delivered its reserved judgments on the national constitutional issues on 19 October The Court dismissed Mr Pringle s appeal on these issues by a 6:1 majority, Mr Justice Adrian Hardiman dissenting. The Supreme Court transmitted the preliminary reference to the CJEU on 3 August 2012 and asked the CJEU to apply the accelerated procedure to the hearing of the matter due to the importance and urgency of the issues. 23 The Luxembourg Express The CJEU ordered that the matter would be dealt with speedily and directed the parties to file their submissions by 14 September The matter was set for hearing at the Court in Luxembourg on 23 October Exceptionally the Court would sit as a full court, with all of its 27 judges participating. This was the first time a full Court had been assembled to deal with a preliminary reference. The Grand Chamber was full to overflowing for the hearing. Those present noted the number of diplomatic corps cars parked outside the court building as every Member State made sure to have high level representation in the courtroom throughout the day long hearing. The active participants in the hearing in addition to counsel for Mr Pringle and the Irish State, included legal representatives for 22 Pringle v Ireland (n3) < accessed 14 July Pringle v Ireland (n3) < pendocument> accessed 14 July [2014] 17 (1) IJEL 134

7 I r i s h J o u r n a l o f E u r o p e a n L a w V o l u m e 1 7 I s s u e 1 the Commission, the European Parliament and the European Council, as well as the United Kingdom, Germany, France, Spain, Italy, Netherlands, Greece, Belgium, Slovakia, Austria and Cyprus. Mr Pringle's counsel elaborated on the detailed written submissions 24 after which counsel representing Ireland and the other interveners responded. A number of the judges were clearly exercised by the issues they had to address. The following questions put by some of the judges, as noted by the authors who were present with Mr Pringle and counsel at the hearing, 25 serve to give a sense of the particular concerns they held. ******************* Advocate General Kokott I have one question to the Commission and one to the Council. Question to the Commission is the Commission bound to participate in the ESM or may it at any time refuse to act? Question to the Council on the meaning of Article 136(3) TFEU which is supposedly meant to create certainty but may be a restraint. It may provide assistance if indispensible to safeguard the euro area as a whole and its Member States. The ESM therefore might provide assistance to an individual Member State. Is this consistent with the conditions in Article 136(3) TFEU? There must be a risk to the stability to the euro area as a whole. Judge Rosas Question for the Commission regarding Article 37 ESM on dispute settlement. Paragraph 3 says that disputes between Member States and the ESM can be referred to the Court. Do you think paragraph 3 covers disputes between the ESM and Member States and if so how do you square that with Article 273 TFEU? It only speaks of disputes between Member States. Question to the Commission in the Greek presentation we heard that it could not be done under Article 48.6 TEU (simplified revision procedure) because there would be a conferral of new competence. If so isn t Mr Pringle s case which you have cut into slices, one which should be put back together. There has been a creation of an independent entity in international law and at the same time the Union isn t mandated to act, so it is a hybrid situation circumventing the need for proper treaty amendment. I have not heard an argument why this is wrong. So looking at Article 13 of the ESM Treaty the Commission has important roles especially under paragraph 4, which says it will sign the memorandum of understanding for the ESM. So the ESM is not even negotiating but the Commission is. The ESM just approves it. This is an indication. Why is the circumvention argument not valid? Judge Bay Larsen Question for the Council. You say the Court can only review the external qualities and give a limited interpretation of what that is. More so than the Commission, you say that there cannot be two different hierarchies for treaty provisions under the ordinary procedure and the special revision procedure. Spain said the treaties are the property of the Member States. Isn t it after all the Member States and the Council who chose not to use the ordinary procedure but the simplified revision procedure? That comes with a price - wider scrutiny by the Court. Interpretation is slightly wider because the jurisprudence you cite refers to the ordinary procedure not the simplified revision procedure. Judge Vajda Question to the Commission. 24 Written observations of Thomas Pringle submitted pursuant to Article 23 of the Protocol of the Statute of the Court of Justice < accessed 28 July Thomas Pringle was represented in his action by John Rogers SC, Paul Callan SC, Roland Budd BL and Jonathan Tomkin BL, instructed by Noonan Linehan Carroll Coffey. August

8 Thomas Pringle v Government of Ireland Joe Noonan/Mary Linehan Tasks outside the treaties must be administrative only and consistent with the treaties. Article 13 of the ESM Treaty sets out the tasks of the Commission, including the assessment of risk to the financial stability of the euro area as a whole, the public debt sustainability, the needs of a Member State. Those seem very far from mere administrative tasks. The Commission will produce a report under Article 13 and the report will include a substantive economic assessment. The role of the ECB in monetary policy, I need help with this. The role of the ECB is limited to monetary policy. So how is it compatible with the Bangladesh case law for the ECB to engage in economic policy? That is the chapter headed Monetary Policy. Article 20 TEU (Mr Pringle s written observations at 3115 and 3116) refers to enhanced cooperation and codifies the Bangladesh case law. Does the Commission accept Article 20 applies? He says you could use the institutions by Article 20 TEU. We all agree economic policy is non-exclusive. You say Article 20 was not used here and the Member States have a power. What is the basis for the Member States using the institutions outside Article 20? You say it is not in Article 20 TEU so you rely on the Bangladesh case law only? Last question, regarding what is happening here, we as a Court must bear in mind Article 2 the Rule of Law. Did not the Commission say in 2012 post-bacardi that extra conditions apply if outside the EU? Therefore namely effective Judicial Review to ensure Rule of Law is observed is a concern of us citizens of the EU. Judge (name not noted) Purchasing of government bonds is clearly prohibited by the European Central Bank and all national central banks. The ESM has such a power. Not only in the secondary market. Explain why it is not a circumvention of the prohibition. At first glance it seems so. I might be wrong but that is how it looks. You say this has nothing to do with monetary policy because so far I believe it does have something to do with monetary policy. ******************* There is no published transcript of the hearing and there is no public record of the discussion of the members of the Court and the lawyers for the Member States and the institutions at the hearing. The Judges deliberate in private in accordance with Article 27 of the Court s Rules of Procedure. 26 Our note of the Judges questions is the only publicly available verbatim record of (part of) the discussion. The formal CJEU answer to the Supreme Court reference does not and indeed may not disclose dissent. A single judgment was delivered one month after the hearing date. 27 The Court rejected claims made by certain participants in the hearing that the questions referred should be regarded as inadmissible. Having found the questions admissible, the Court then rejected Mr Pringle s arguments and found that adherence to the ESM Treaty was compatible with EU law. The CJEU also found that the amendment to Article 136 TFEU was not legally necessary as a prerequisite to activation of the ESM. Conclusion The Luxembourg Court s decision was reported worldwide as soon as it was announced by the President of the Court. The Court permitted the delivery of the decision to be televised live a first for the Court. The decision has been the subject of numerous academic papers. The significance of the decision is well expressed by Craig: 26 Rules of Procedure of the Court of Justice < accessed 14 July Case C 370/12 Pringle (n4). [2014] 17 (1) IJEL 136

9 I r i s h J o u r n a l o f E u r o p e a n L a w V o l u m e 1 7 I s s u e 1 The judgment unfolds like a story, and even though the reader knows or can hazard a pretty good guess at the ending that the Court of Justice of the European Union (CJEU) will find that the ESM is lawful the story is compelling nonetheless, since the last part of the judgment is also the denouement in which the CJEU saves the ESM from the most potent challenge to its legality. In doing so, the judgment reveals much that is of interest about the nature of legal reasoning, in particular the blend of text, background purpose, and teleology that constitutes the very essence of legal discourse. 28 Craig has written elsewhere 29 on comparable legal difficulties presented by the Treaty on Stability Coordination and Governance, another non-eu treaty having intra-eu effects. Tomkin shares Craig's concern that inconsistent application of EU law poses serious threats and elaborates on his own concerns: When attention is devoted to avoiding one particular hazard, it can be all too easy to fall into another. In seeking to avoid restrictions on the provision of financial assistance or the requirement to amend the Treaties using the ordinary revision procedure, the Member States and Institutions proceeded to adopt measures that may be considered to impact adversely on the quality of European democracy. The adoption of measures that are inconsistent with or circumvent prohibitions or obligations laid down in the Union Treaties gives the impression that legal principles and provisions, which are negotiated and adopted by democratically mandated representatives of the Member States, may be subordinated and ancillary to considerations of a political nature. This writer subscribes to the view that selective or inconsistent application of Union law risks undermining the integrity of the legal reasoning within the Union legal order. 30 The EU is renowned for its Member States' ability to devise flexible workarounds to overcome thorny problems that at first may seem insurmountable. The various crises that enveloped the Member States and the EU itself after 2008 posed existential challenges. Extraordinary measures were adopted in the face of those challenges. One of those measures was the establishment of the ESM by means of a treaty outside the EU legal order. The EU s Court rejected the claim that the ESM workaround was of a character that breached the limits of the EU treaties. In doing so it accepted the ultima ratio approach urged on it by the ESM s defenders in the Court s Grand Chamber: that in the last resort the Court should not act in a way that would risk imperilling the single currency. It will be for the reader to decide how well that approach aligns with Bingham s rule of law principles. 28 Craig, Pringle: Legal Reasoning, Text, Purpose and Teleology (n1) Paul Craig, The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism (2012) 37(3) EL Rev Jonathan Tomkin, Contradiction, Circumvention and Conceptual Gymnastics: The Impact of the Adoption of the ESM Treaty on the State of European Democracy (2013) 14(1) German Law Journal 169, 188. August

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