Chapter 2 gives scholars and students across disciplines, but also policymakers, trade unionists, and social movement activists, a clear account of the arcane new economic governance (NEG) regime that European Union leaders adopted after 2008. The chapter avoids jargonistic academic language as well as the Euro-speak of the EU’s economic governance documents when describing the setup and operation of the NEG regime. This is important if one wants to understand its internal contradictions and change the operation and policy direction of the EU’s NEG regime.

This chapter explores the role accorded to the principle of equality of Member States in the case law of the Court of Justice and national courts reviewing measures of financial assistance. At the same time, it investigates the extent to which the common interest, as the expression of the principle of solidarity, features as a consideration before those courts. The chapter opens with a brief description of financial assistance measures to gain a sense of how their versatile nature influenced judicial review. It then analyses judicial review of the European Stability Mechanism and the resulting Memoranda of Understanding at the national level in respect of access, remedies, and the interpretation of the principles of solidarity and equality. An analogous exercise is then conducted in respect of the EU courts. The chapter lastly reflects upon judicial interactions taking place between the EU and the national level and comments on the overall status of legal accountability in the EU judicial space.

In his chapter Nicholas Haagensen seeks to articulate the processes of legal construction and elaboration in a novel area of EU financial and monetary law. Using qualitative methods, he explains how EU lawyers, first, built a novel legal structure – the European Stability Mechanism (ESM) – during the Eurozone crisis in the years 2010 to 2012, and second, how they defended their construction before the CJEU. While attempting to resolve the legal tensions arising between the EU legal order and the ESM legal framework, the CJEU backed the mutation of Europe’s Economic and Monetary Union (EMU) with its ruling in the Pringle judgement. The establishment of the ESM – an international financial institution – outside EMU, while still being intimately connected to the EU legal order, instigated a mutation of EMU through the introduction of international law modalities into its EU law foundations. Drawing on interviews with lawyers from the European Commission, the Council, the European Parliament and the ECB, as well as the legal observations of all the parties to the Pringle case, the chapter explains and maps the process of legal construction and elaboration of changes to the EMU legal structure.

Chapter 6 examines whether the instruments of conditional financial assistance enacted since the crisis are genuinely reconcilable with the boundaries of EMU inscribed in the Treaties as a matter of EU law. This is necessary because the text of the Treaty is but the litmus paper for determining whether a legal instrument coheres with much deeper constitutional boundaries underlying the EU legal order. It concludes, unavoidably, that conditional financial assistance under Article 136(3) TFEU and the ESM is simply not reconcilable with the legal architecture in the treaties under the analytical framework developed by the ECJ. This emerges from an analysis of the allocation of competences (within which it does not together sit) and the substantive provisions of Articles 121-126 TFEU (to which it does not adhere). This provides the first testable indication that the emerging new model is incompatible with much deeper the boundaries underlying the EU legal order.

The EU is cloaked in expressions of solidarity. Despite the fundamental role that solidarity plays, cracks have appeared and become more evident across Member States. The euro – a transnational single currency – was a bold endeavour when first established, and its adoption was expected to generate a leap forward for by making European integration stronger, and more resilient. The prolonged battle of the sovereign debt crisis that emerged in 2009 tested the limits of solidarity: a confrontation waged on multiple levels, playing into constitutional frameworks and socio-economic divisions, and exacerbating fault-lines between states. Yet despite frequent arguments made to the contrary, solidarity was a feature of the financial crisis, albeit of a particular kind. The legitimate expectation of what role different concepts of solidarity ought to have played (particularly where fiscal redistribution is concerned), compared to the role it actually served, ensured that an expectations deficit opened. This chapter examines solidarity within the EU’s legal framework in the context of the Eurozone crisis. It analyses the ramifications of the idea of solidarity, variously defined, and the implications it may have for the future direction of the Union as it faces ever-greater challenges.