Euroopan unionin talous- ja rahaliiton vaikutukset kansalliseen finanssivaltaan

Abstract

Olennaisena osana Euroopan unionin kokonaisuutta on sen talous- ja rahaliitto (Economic and Monetary Union, EMU). Suomi on ollut mukana talous- ja rahaliiton yhteisvaluuttavaiheessa eli kolmannessa vaiheessa sen alkamisesta asti. Tutkimuksessa tarkastellaan oikeudellisesta näkökulmasta Euroopan unionin talous- ja rahaliiton vaikutuksia suhteessa Suomen valtiontaloudelliseen päätösvaltaan eli finanssivaltaan. Tutkimuksessa selvitetään niitä unionin talous- ja rahaliiton jäsenyydestä aiheutuvia oikeudellisia vaikutuksia ja reunaehtoja, jotka kohdistuvat Suomen julkista talousarviotaloutta koskevaan päätösvaltaan sekä samalla Suomen taloudelliseen täysivaltaisuuteen.

Talous- ja rahaliiton toiminta voidaan jakaa finanssipolitiikkaan ja rahapolitiikkaan. Tutkimuksessa keskitytään tarkastelemaan näistä osa-alueista nimenomaan finanssipolitiikkaa, jolla tarkoitetaan julkisen talouden tuloja ja menoja koskevia ratkaisuja. Talous- ja rahaliitossa finanssipolitiikkaa ohjataan poliittisen ohjauksen lisäksi oikeudellisesti sitovan sääntelyn avulla. Keskeisen perustan finanssipolitiikan oikeudelliselle ohjaukselle muodostavat EU:n perussopimusten määräykset sekä niitä tarkentavat niin sanotun vakaus- ja kasvusopimuksen normit. EMU:n kolmannen vaiheen valtioihin kohdistuu erityinen budjettikuri, jossa julkisen talouden alijäämän ja julkisen velan sallituille enimmäismäärille on asetettu tietyt viitearvot. Jäsenvaltioiden julkisten talouksien tasapainoisuus on EMU:ssa erityisen valvontamenettelyn kohteena ja liialliset julkisen talouden alijäämät voivat johtaa sanktioiden määräämiseen.

Euroopan unionin ja EMU:n jäsenyyden oikeudelliset vaikutukset ovat samalla EU-oikeudellisten oikeussäännösten vaikutuksia. Tutkimuksessa on esitetty oikeussäännösten vaikutusten kahtiajaon teoria, jossa vaikutukset jaetaan normatiivis-teoreettisiin ja tosiasiallisiin vaikutuksiin. Oikeussäännösten normatiivis-teoreettiset vaikutukset määrittyvät oikeusnormien perusteella, kun taas tosiasiallisissa vaikutuksissa on kyse henkilöiden tosiasiallisen käyttäytymisen ja toiminnan perusteella ilmenevistä vaikutuksista.

Talous- ja rahaliiton vakaussääntely rajoittaa oikeudellisesta näkökulmasta katsottuna selvästi Suomen kansallisen finanssipolitiikan harjoittamisen mahdollisuuksia. Budjettikurinormit kaventavat erityisesti mahdollisuuksia julkisyhteisöjen velanottoon. EMU:n lisäksi Suomen valtiontaloudellista päätösvaltaa rajoittavat myös muut unionijäsenyyden velvoitteet, kuten esimerkiksi velvoite suorittaa unionille vuotuiset jäsenvaltion maksuosuudet. Euroopan unionin ja sen talous- ja rahaliiton jäsenyyden aiheuttamasta kansallisen finanssivallan kaventumisesta huolimatta jäsenyys on myös tietyssä mielessä laajentanut valtiontaloudellisen päätösvallan alaa, sillä unionin ja EMU:n jäsenenä Suomella on aikaisempaa laajempi oikeus osallistua ylikansallisen tason talousasioita koskevaan valmisteluun ja päätöksentekoon.

The Effects of the Economic and Monetary Union on National Fiscal Power

A Study of the Legal Implications of the Stability Regulations

1 Introduction

Finland s membership in the European Union has generated many kinds of legal and constitutional effects. One of the areas of the influences like this is the effects concerning national fiscal and budgetary powers of Finland. A notable part of the effects of the EU-membership is established through the Economic and Monetary Union (EMU) of the EU.

The Economic and Monetary Union has been one of the main goals of the European Union since the Union was founded. The third stage of the EMU started in 1999 and a single currency which is a significant instrument of the third stage became operative at the beginning of 2002. At the moment a majority of the Member States of the EU have entered into the common euro-currency, which means that these states are entirely participating in the third stage of the Economic and Monetary Union.

The policies of the EMU can be divided up into two main areas: fiscal policy and monetary policy. Fiscal policy refers to actions which are made for controlling and affecting public finances, i.e. public revenue and expenditure. The formal decisions of fiscal policy are often made by national Parliament. Differently, the concept of monetary policy means the policy which is practised by the central bank and the purposes of the policy are for example to avoid excessive inflation and to maintain the stability of economy and economic growth. The possibilities of national Parliament to affect the content of monetary policy are small.

This study examines the legal effects of Finland s membership on the Economic and Monetary Union which focus on the parliamentary fiscal and budgetary powers. Therefore the main question of the study is how the Economic and Monetary Union of the EU has influenced the self-determination of state finances and the national budgetary power in Finland. The self-determination concerning state finances can be called the fiscal sovereignty. One of the goals of the research is also to clarify the fiscal rules and the regulations of budgetary discipline in the Economic and Monetary Union.

When it comes to the division of the policies of the EMU this study particularly concentrates on the regulation concerning fiscal policy in the Economic and Monetary Union when the monetary policy and its regulations are paid less attention to. The research may be placed into three branches of jurisprudence: constitutional law, fiscal administration law and European Community law.

One significant aim of this research is to systematize and analyse the concept of the effects of legal regulations. In this study a duality concerning these effects is constructed and the effects are divided into two groups: normative-theoretical and factual effects of the legal regulations. Often the concept of the effects of legislation is used to refer to the factual effects. Then the effects of the legal provisions are seen as empirical facts. Ultimately the factual effects are always arisen from human actions and behaviour which may then set off some additional effects like economic or environmental effects. The research and examination of the factual effects of the legal regulations must be made with the empirical methods.

In this study the effects of the legal rules are examined mainly as normative effects using so called normative-theoretical approach. This is to say that the concept of the effects of legislation is understood in a normative way: in the first place the object of the examination is the contents of regulations and not the factual actions or behaviour of people. The normative-theoretical effect of a legal rule means that a normative state of affairs changes due to this rule somehow.

The normative states of affairs are theoretical entities composed of legal rights and duties. Thus the normative-theoretical effect of the legal regulation means that the particular realm of certain legal rights or legal duties (or both) changes. The parliamentary fiscal and budgetary powers examined in this study are examples of normative states of affairs which are changed by the legal fiscal rules of the European Union. The normative approach of the examination also appears in the methods of this study; the main research method then being legal dogmatics.

2 The Fiscal Rules in the Economic and Monetary Union

The decision-making of fiscal policy has been left to the national level in the EMU but there exist several conditions and legal provisions which restrict the discretion of national authorities. The fiscal rules in the EMU can be divided into two parts. The first part is composed of the provisions of co-ordination of economy and fiscal policy (Articles 98 and 99 of EC Treaty). The second group is comprised of the budgetary discipline rules (Articles 101 104 EC) (Note: The numbering of the articles will change when the Treaty of Lisbon comes into effect. See: Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 115 of 9 May 2008).

These provisions of the EC Treaty are supplemented and specified by the Stability and Growth Pact which was adopted in 1997. The Stability and Growth Pact is not just one single contract but it is comprised of the resolution of the European Council and two Council regulations (1466/97 and 1467/97). In 2005 these two regulations were revised by two new council regulations (1055/2005 and 1056/2005).

The co-ordination on economic policy includes the monitoring process called multilateral surveillance (Art. 99 EC). If the economic policy of a Member State is not consistent with the broad guidelines adopted by the Council or if it may risk the proper function of the EMU, the Council may make necessary recommendations to the Member State concerned.

There are four principles which supervise the national budgetary policy of the Member States: 1) prohibition of monetary financing of public deficits by any type of credit facility of central bank (Art. 101 EC), 2) prohibition of establishment of privileges for public authorities at financial institutions (Art. 102 EC), 3) the Community or a Member State shall not be liable for the debts of the central administration or the public sector of any Member State (no bail out -rule) (Art. 103 EC), 4) responsibility of a Member State to avoid excessive government deficits (Art. 104 EC).

The main element of the budgetary discipline is the duty of a Member State to avoid excessive deficit. The concept deficit is defined as a net borrowing of the public finances. There is a special procedure provided in Article 104 EC for controlling and monitoring the deficits of the Member States. The regulations concerning multilateral surveillance (Art. 99 EC) can be seen as softer law than the provisions of excessive deficit procedure (Art. 104 EC): the multilateral surveillance has not a direct or binding legal impact on the Member States and this procedure does not include any sanction mechanism as does the excessive deficit procedure.

According to Article 104 of EC Treaty the reference values of government deficit and government debt are specified in the Protocol on the excessive deficit procedure annexed to the EC Treaty. The Protocol states that the reference value of the planned or actual government deficit is 3 % of gross domestic product (GDP) at market prices. That means that the deficit should not arise over this limit in a Member State; the Commission and the Council shall examine this criterion when they estimate whether an excessive deficit exists in a Member State. The protocol additionally provides that the reference value of the total government debt is 60 % of GDP (Art. 1 of the Protocol).

There is a special procedure provided in Article 104 of the EC Treaty for controlling and monitoring the deficits of the Member States. There are several stages of the deficit procedure. The first stages are based on the monitoring of the budgetary situation in Member States by the Commission and the Council. After that the Council may decide whether an excessive deficit exists in a Member State. The Council may also give recommendations and a notice to the Member State to take measures for the deficit reduction within a specified time-limit. As a last resort the Council may decide to impose particular sanctions for a Member State.

Some Member States have had difficulties to fulfil the conditions of the EC Treaty and the Stability and Growth Pact. One of the best-known cases concerning the implementation of the excessive deficit procedure is the case of Germany and France which took place in 2003 2004. The sum of the case was that the Commission brought an action to the Court of Justice of the European Communities challenging the Council because the Council had not made the actions which the Commission had recommended against Germany and France. Instead, the Council had decided to suspend the excessive deficit procedure with regard to Germany and France and in addition had addressed new recommendation to these Member States without the initiative of the Commission. In its judgement (C-27/04) the Court of Justice annulled the Council conclusions about suspending the procedure and addressing new recommendations.

The Council is the only institution which has competence to make the final decision in the excessive deficit procedure. That is why it is practically impossible to enforce the Council to make a decision even if the judgement of the Court of Justice exists. Moreover, it has to be noticed that there is a certain required majority needed for the decision in the Council, so it is difficult to take measures against the will of the biggest Member States. Hence, on account of the credibility of the fiscal rules it would be important that the institutions of the European Union should comply with the regulations which they have themselves legislated.

3 The Effects of the EMU Membership Regarding the Constitutional Fiscal Power in Finland

The Economic and Monetary Union of the EU is not consisted only of political and economical intentions but also of legally binding regulations. Therefore the effects of the membership of the EMU are also normative effects besides the factual effects like the political and the ecomomic effects. The normative effects of the EMU membership examined in this study mean the influences of the fiscal rules of European Community law which have relevance to the constitutional competence, the authority and the discretion of national Parliament.

According to the Finnish constitution Parliament of Finland has the highest competence to decide on public finances. Thereby also the decisions on budgetary deficits and public debt eventually belong to national Parliament. As a Member of the EMU Finland has to adapt its budgetary and fiscal policies to the rules of the Economic and Monetary Union. In account of this, the fiscal rules of the EMU restrict the fiscal power of Finnish Parliament as well as the national fiscal sovereignty of Finland.

During the EMU membership Finland cannot get into debt as it might do if it was not a member of the third stage of the EMU. Hence, it may be concluded that the authority and discretion of Finnish Parliament concerning budgetary deficits and public debt is narrowed by the fiscal rules of the Economic and Monetary Union.

Basically the national legislation in Finland allows an unlimited level of deficit and debt. The constitution only assigns the authority concerning these decisions to Parliament. As the European Community law (through the fiscal rules of the EMU) orders that there may not be too much deficit and debt in national finances, there seems to be contradiction between the national constitution and the European Community law. In this situation, according to the principle of priority of EC law the fiscal rules of the EMU override the national constitution and other national regulations.

Despite the budgetary discipline of the EMU there is still quite a lot of space for national fiscal policy. In judicial words, even if some fiscal sovereignty has been transferred to the European Union from a Member State there is still fiscal power left on the national level. Nevertheless, some Member States may have problems to fulfill the requirements of the Economic and Monetary Union when it comes to the limits of budgetary deficits and public debt. The compliance of the fiscal rules may be difficult especially during the times of economic recession and financial crisis.

There are other effects of the membership in the European Union concerning national fiscal sovereignty and fiscal powers of Finland than the effects caused directly by the Economic and Monetary Union. These effects are for example as follows: 1) Finland has the duty to budget the membership fees of the European Union, 2) the institutions of the union may practise state auditing besides the Finnish auditing authorities, 3) discretionary power of Member State concerning state aids is limited and 4) the Community has the harmonisation power of indirect taxation.

The previous effects are mostly restrictive influences regarding the national fiscal sovereignty. In addition there can be seen effects of the EU membership which enlarge the national fiscal sovereignty. For example, Finland may participate the economic and financial decision-making in the institutions of the European Union. As for parliamentary budgetary powers Finnish Parliament is also empowered to take part in the preparation of the budget and finances of the European Union on national level.

The amount of Finland s remaining national fiscal power depends a lot on how actively Finland is using its possibility to participate in economic and financial decision-making in the European Union. The parliamentary budgetary power is definitely restricted somehow on national level. The essential issue for Finland and its Parliament is to use the power that still exists as well and reasonably as possible.