Abstract
The international bailout granted to Portugal between 2011 and 2014 was conditional
on the adoption by the Portuguese State of austerity measures included in a memorandum
of understanding (MoU) signed by the European Commission on behalf of the European
Union (EU) and the Member States. The MoU was never published in an official journal or
even translated into the Portuguese language. Its implementation caused a significant
decrease in the level of protection of social rights.
The compatibility of the MoU with core principles of the rule of law and with the EU´s
social Constitution was never tested in court. A systemic failure in the jurisdictional system
of the EU immunized the MoU to any judicial challenge. At the apex of the system, the
Court of Justice of the EU declined to answer preliminary references submitted by
Portuguese lower courts that questioned the compatibility with the Charter of Fundamental
Rights of the EU of national budgetary measures that implemented the MoU. At the
bottom, Portuguese courts either failed to properly identify the EU law acts that were the
source of national austerity measures or disregarded their role as common EU law courts
of ordinary jurisdiction when they bypassed the opportunity to refer a question for a
preliminary ruling of the Court of Justice challenging the validity of the MoU.
Key-words
Bailouts, Charter of Fundamental Rights of the European Union, Social Constitution
of the EU, Financial crisis, Portugal, Memorandum of Understanding
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