Yesterday the anti-austerity party Syriza won a large victory in Greek elections and seems certain to become the government, probably in coalition with a smaller party. What is the likely impact upon the EU’s economic and monetary union?
The starting point is Syriza’s election platform. As discussed in more detail in this Open Europe blog post, that party’s aim is not to leave the EU or even the single currency, but rather to renegotiate Greece’s debts and the related austerity obligations. In particular, it wants part of Greece’s debt to be forgiven, and the terms of the remaining debt to be renegotiated, along with an abolition of the austerity demands made upon Greece as condition of previous bail-outs.
But whatever the political and economic arguments for this programme, it potentially faces some legal hurdles. There are limits on forgiving debt or ending austerity, as set out in the EU Treaties and the case law of the CJEU, which I discussed in a previous blog post (which this post updates).
In particular, according to Article 136(3) TFEU, any financial assistance to a eurozone Member State must be subject to ‘strict conditionality’. This is consistent with the CJEU ruling in Pringle, which stated that the ‘no-bailout’ rule in the EU Treaties (Article 125 TFEU) allowed Member States to offer each other financial assistance on the condition that it took the form of loans, rather than a direct assumption of Greek government debt by other Member States. Moreover, the CJEU pointed out, the ESM Treaty (the treaty between eurozone Member States which governs bail-outs) required that in the event of non-payment, the loans would remain payable, and had to be charged an appropriate level of interest.
So it’s not possible for Member States to drop all conditionality as regards loans to Greece, to forgive debt as such or to loan money interest-free. But it is open in principle to reduce the stringency of the conditions somewhat, to reduce the interest rates payable and to lengthen the repayment period – although there is always the risk that some litigant will try to convince a national court or the CJEU that this is going too far. Moreover, the rules in the EU Treaties only bind EU institutions and Member States, not private parties, third States or international organisations (although it might be argued that Member States are constrained as members of the IMF not to violate the no-bailout rule indirectly). So any renegotiation or default as regards such creditors is not subject to EU law rules in principle, although of course other legal rules might be applicable. And as the Open Europe analysis points out, the bulk of the debt is owed to the Eurozone.
The case law does not rule out a short period of non-repayment of principal or interest, as long as the loans remain payable and subject to interest. Nor does it specifically address the possible conversion of loans into bonds, as some in Syriza have suggested.
Overall, it’s hard to see how the relatively modest renegotiation which EU law would permit would do enough to reduce Greece’s mountain of debt significantly, or to satisfy the voters which supported a Syriza-led government.
The renegotiation of loans might not be the only possibility to help out Greece. For example, arguably the Treaties do not rule out a form of (supplementary) unemployment insurance system as between Eurozone Member States, or support for another Member State’s social spending, as long as it would not take the form of paying off another State’s debts as such.
There is the ultimate possibility of leaving the euro, either at the behest of Greece itself or the other eurozone Member States. As I pointed out in the previous post, it isn’t legal to leave the Eurozone (or to force a Member State out) without that State leaving the EU. On that point, while it’s open to any Member State to leave the EU, it’s not legal to force a Member State out. At the end of the day, though, the European Central Bank holds the trump cards, since it could force a Member State to leave monetary union in practice by stopping the supply of money to that State. The independence of the ECB prevents politicians from ordering the bank to take such a radical step, but it might act on its own initiative.
Quite apart from its very dubious legality and severe economic effects, such a move would be a huge political mistake. The result might not be an increase in support for those moderate parties that reluctantly supported austerity, but rather for the far-right neo-Nazi Golden Dawn party, which came third in the elections.
The better course for the EU is to take this opportunity to re-engage with the millions of EU citizens who are affected or angered by austerity, and re-orient the EU towards ending that austerity, instead of generating more of it. Although this is more easily said than done, it should never be forgotten that the initial rationale for the EU was not austerity, but economic growth which raised living standards for the population as a whole. So in voting for a party which promised the latter, Greeks have reaffirmed, not rejected, the Union’s traditional raison d’etre, reminding it that the Union cannot maintain its social or political legitimacy if it becomes no more than a mechanism for enforcing austerity.
Barnard & Peers: chapter 19