XX ECJ,
Case C-370/01, Pringle, ECLI:EU:C:2012:756, at. 158.
ECJ, Case C-370/01, Pringle, ECLI:EU:C:2012:756, at 162, and ECJ, Cases C-8/15 to C-10/95, Ledra,
ECLI:EU:C:2016:701, at 56.
XXII Luxembourg common courts have also jurisdiction regarding disputes emerging from the loan agreement
adopted between the Commission, the Portuguese government and the Bank of Portugal (Article 14, n.º 2,
executive
version
of
24
and
25
May
2012,
available
at
www.efsf.europa.eu/attachments/efsf_portugal_ffa.pdf).
XXIII ECJ, Case C-370/01, Pringle, ECLI:EU:C:2012:756, at 173-174.
XXIV See Article 199 (g) of the Portuguese Constitution. This provision was invoked to justify the competence
of the Government to sign both the MoU and the loan agreements with the IMF, the EFSM and the EFSF
(see Resolution 8/2011, published in Diário da República, II Série, 95, 17 May 2011). It is also mentioned in an
opinion of the Portuguese Secretary of State for the Presidency of the Council of Ministers that endorses the
constitutionality of both the MoU and the loan agreements (see paras. 13 e 14 of the opinion included in
Annex II to the loan agreement signed between the Commission, the Portuguese Government and the Bank
of
Portugal;
executive
version
of
24
and
25
May
2012,
available
at
www.efsf.europa.eu/attachments/efsf_portugal_ffa.pdf). At least regarding the competence to adopt the loan
agreements, the opinion of the Secretary of State is not in accordance with Article 161 (h) of the Constitution
that requires the Government to ask for Parliament´s authorization ‘to contract and grant loans and engage in other
lending operations, apart from floating debt operations, laying down the general terms and conditions governing such loans and
lending operations, and setting the upper limit for guarantees to be given by the Government in any given year’.
XXV The Portuguese President ratifies international treaties [Article 135 (b) of the Constitution] and signs
resolutions of the Parliament and from the Council of Ministers that approve international agreements
[Article 134 (b) of the Constitution].
XXVI ‘Decision of the Representatives of the Governments of the Euro Area Member States Meeting within
the Council of the European Union’, published as Note 9614/10 of the General Secretariat of the Council, p.
2, available at http://register.consilium.europa.eu/pdf/en/10/st09/st09614.pt10.pdf.
XXVII This provision authorizes the Council to adopt specific measures to those Member States whose
currency is the Euro with the scope of: i) strengthening the coordination and surveillance of their budgetary
discipline; and ii) setting out economic policy guidelines for them, while ensuring that they are compatible
with those adopted for the whole of the Union and are kept under surveillance.
XXVIII MEMO/11/227, available at http://europa.eu/rapid/press-release_MEMO-11-227_en.htm. During
the ‘European Debt Crisis’, the Ecofin and the Eurogroup regularly adopted joint declarations and press
releases
(e.
g.
Ecofin
Communication
9614/10,
available
at
http://register.consilium.europa.eu/pdf/en/10/st09614.en10.pdf). This communication technique is
questionable vis-à-vis the principle of transparency (Article 1 of the TEU), as it joins one institution of the
Union (Ecofin) and an informal political body (Eurogroup) that have members that do not coincide [the
Ministers for Finance of all Member States (Ecofin) and the Ministers for Finance of Eurozone Member
States (Eurogroup)] and are involved in different bailout mechanisms [EFSM (Ecofin) and the EFSF
(Eurogoup)]. The Court of Justice recently declared that the Eurogroup is not among the different
configurations of the Council and ‘cannot be equated with a configuration of the Council or be classified as a body, office or
agency of the European Union within the meaning of Article 263 TFEU’ (Joined Cases C-105/15 P to C-109/15 P,
Mallis and others, ECLI:EU:C:2016:702, at 61).
XXIX This decision was published in the OJ L 159/88 with the date of approval of 30 May, later corrected to
17 May in a corrigendum (see OJ L 178, p. 15). No legal consequences stem from this mistake because the
Portuguese State is the sole addressee of the Decision (Article 5). According to Article 297 (2) (§3) TFEU the
effects of decisions are produced upon notification of the addressee.
XXX The swiftness in the signature of the MoU was due to the fact that the first disbursement of the financial
assistance was linked to its entry into force [Article 1 (4) Decision 344/2011/EU]. The emergency of the
moment probably explains why the Council Implementing Decision is not numbered in the preamble of the
MoU.
XXXI On 3 May 2011, a slightly modified version of the MoU was signed between the Portuguese Government
and the right-wing opposition parties (PPD/PSD and CDS/PP) (English version available at
http://aventadores.files.wordpresscom/2011/05/memorando_troika-en.pdf). The bailout request was made
just after the resignation of the Portuguese (Socialist) Government following the Parliament´s refusal to
adopt further austerity measures included in a fourth version of the Stability and Growth Pact presented to
XXI
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