Page - 153 - in Austrian Law Journal, Volume 2/2018

ALJ 2018 European Monetary Fund 153 The latter approach is more convincing for the following reasons: First, there is – as outlined above - a qualitative difference between the attainment of an objective by Member States and by the EU. Moreover, the first approach suffers from dogmatic flaws: It mixes up ‘necessity’ within the meaning of Article 352 TFEU with the requirements of the general subsidiarity principle enshrined in Article 5(3) TEU. Both aspects, however, need to be clearly separated: Only once the competence establishing ‘necessity’ for EU action is given, can the exercise of this competence be measured against the general subsidiarity principle. While the latter approach is generally more convincing, one must not forget that the case under consideration is special insofar as the Member States have acted outside the EU legal framework but nevertheless conferred jurisdiction upon the ECJ for certain disputes. Hence one of the key reasons for allowing parallel action by the EU is not given in the case under consideration. On that basis one might deny the existence of ‘necessity’. However, such an interpretation would ignore all the other essential features of EU law mentioned above. Moreover, there is the risk that Member States could escape their obligations by unilaterally withdrawing from the international treaty. In conclusion, it can therefore be argued that action by the EU is necessary in the case under consideration, despite the fact that the Member States have already taken measures in the form of the ESMT. d. No Specific Legal Base in the Treaties Given the subsidiary nature of Article 352 TFEU, it only applies when no specific legal base in the EU Treaties exists. As already outlined above this criterion is met in the case at hand. In Pringle, the ECJ held that Articles 2(3) and 5(1) TFEU restrict the role of the Union in the area of economic policy to the adoption of mere coordinating measures. Hence, the provisions of the TEU and the TFEU do not confer any specific power on the Union to establish a stability mechanism: ‘[…] as regards whether Decision 2011/199 affects the Union’s competence in the area of the coordination of the Member States’ economic policies, it must be observed that, since Articles 2(3) and 5(1) TFEU restrict the role of the Union in the area of economic policy to the adoption of coordinating measures, the provisions of the TEU and TFEU do not confer any specific power on the Union to establish a stability mechanism of the kind envisaged by Decision 2011/199’.81 e. Further Aspects: Unwritten Conditions According to the jurisprudence of the ECJ, Article 352 TFEU also contains an unwritten condition. In Opinion 2/9482 the Court held, that the flexibility clause ‘being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of [Union] powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the [Union]. On any view, [Article 352] cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the treaty without following the procedure which it provides for that purpose’ (Emphasis added).83 This jurisprudence was later confirmed in Opinion 2/13. Here the 81 Case C-370/12, supra note 71, para. 64. 82 Opinion C-2/94, ECLI:EU:C:1996:140. 83 Id. para. 30.