rights.LXXI
The intervention of the Court of Justice during the bailout was also crucial to preserve
some degree of intergovernmentalism in the EU. The economic and financial policies of a
debtor Member State were dictated during three years by EU institutions (the ECB and the
Commission) that essentially deferred to the interests of creditor Member States expressed
in the decisions of an informal institution created at the margin of the EU political system
(the Eurogroup). These EU institutions were also used in international financial
mechanisms (first the EFSF and afterwards the ESM) that are not sufficiently accountable
to the European Parliament or to national parliaments (Fischer-Lescano 2014: 39-40;
López Escudero 2015: 425-428). A judicial counterweight was thus crucial to mitigate this
increasing legitimacy (and democratic) deficit in European integration.
By signalling in Ledra that it will review the compatibility of ESM memoranda with the
Charter in order to assess the fulfilment of the obligations of the Commission as the
guardian of the Treaties,LXXII the Court of Justice took a stance that could had anticipated
years before in Fidelidade Mundial and Via Directa.LXXIII
Professor at Faculdade de Direito da Universidade Nova de Lisboa (Lisbon Nova Law School). Member of
CEDIS – I & D Research Center for Law and Society. Email: fpereiracoutinho@fd.unl.pt.
I Portugal. Memorandum of Understanding on Specific Economic Policy Conditionality. Second Update – 9
December 2011, para. 1.8., i) (European Commission, 2011: 86-87).
II Portugal. Memorandum of Understanding on Specific Economic Policy Conditionality. Second Update – 9
December 2011, para. 1.8., i), footnote 15 (European Commission, 2011: 86-87).
III ECJ, Case C-264/12, Fidelidade Mundial, EU:C:2014:2036, and ECJ, Case C-665/13, Via Directa,
EU:C:2014:2327. On 5 November 2013, the Tribunal do Trabalho de Lisboa sent another request for a
preliminary ruling that challenged bailout measures. In Case C-566/13, Jorge Ítalo Assis dos Santos, OJ 2014/C
31/2, the Court of Justice was questioned on the compatibility with the prohibition of discrimination laid
down in Articles 20 and 21 of the Charter of the suspension of the holiday and Christmas allowances of
retired workers of the Portuguese central bank (Banco de Portugal) included in Article 77 of the State Budget
for 2013 (Law 66-B/2012, of 31 December). The reference also included questions of possible interference
by the Government on the central bank´s autonomy and independence (Article 130 TFEU) and on the
breach of the prohibition of monetary financing of Member States by central banks (Article 123 TFEU). The
case was removed from the docket of the court by an order of the President of the Court of Justice of 25
March 2014 (OJ C 31, 1. 2. 2014.).
IV ECJ, Case C-264/12, Fidelidade Mundial, EU:C:2014:2036, at 22, and ECJ, Case C-665/13, Via Directa,
EU:C:2014:2327, at 16.
V ECJ, Case C-128/12, Sindicato dos Bancários do Norte, EU:C:2013:149, at 7.
VI ECJ, Case C-128/12, Sindicato dos Bancários do Norte, EU:C:2013:149, at 10-14.
VII ECJ, Case C-264/12, Fidelidade Mundial, EU:C:2014:2036, at 20.
VIII ECJ, Case C-264/12, Fidelidade Mundial, EU:C:2014:2036, at 20, and ECJ, Case C-665/13, Via Directa,
EU:C:2014:2327, at 14.
IX ECJ, Case C-128/12, Sindicato dos Bancários do Norte, EU:C:2013:149, para. 12, and ECJ, Case C-665/13, Via
Directa, EU:C:2014:2327, a 13.
X I will only marginally discuss the compatibility of the MoU with the Portuguese Constitution. Article 8 (4)
of the Portuguese Constitution recognizes that the legal authority of EU law in the Portuguese legal order
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