ESM Treaty - Text - Ratification Processes and Legal Cases

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TREATY
ESTABLISHING THE EUROPEAN STABILITY MECHANISM
BETWEEN THE KINGDOM OF BELGIUM, THE FEDERAL REPUBLIC OF GERMANY,
THE REPUBLIC OF ESTONIA, IRELAND, THE HELLENIC REPUBLIC,
THE KINGDOM OF SPAIN, THE FRENCH REPUBLIC,
THE ITALIAN REPUBLIC, THE REPUBLIC OF CYPRUS,
THE GRAND DUCHY OF LUXEMBOURG, MALTA,
THE KINGDOM OF THE NETHERLANDS, THE REPUBLIC OF AUSTRIA,
THE PORTUGUESE REPUBLIC, THE REPUBLIC OF SLOVENIA,
THE SLOVAK REPUBLIC AND THE REPUBLIC OF FINLAND
THE CONTRACTING PARTIES, the Kingdom of Belgium, the Federal Republic of Germany,
the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French
Republic, the Italian Republic, the Republic of Cyprus, the Grand Duchy of Luxembourg, Malta,
the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of
Slovenia, the Slovak Republic and the Republic of Finland (the "euro area Member States" or
"ESM Members");
COMMITTED TO ensuring the financial stability of the euro area;
RECALLING the Conclusions of the European Council adopted on 25 March 2011 on the
establishment of a European stability mechanism;
WHEREAS:
(1) The European Council agreed on 17 December 2010 on the need for euro area Member States
to establish a permanent stability mechanism. This European Stability Mechanism ("ESM")
will assume the tasks currently fulfilled by the European Financial Stability Facility ("EFSF")
and the European Financial Stabilisation Mechanism ("EFSM") in providing, where needed,
financial assistance to euro area Member States.
(2) On 25 March 2011, the European Council adopted Decision 2011/199/EU amending
Article 136 of the Treaty on the Functioning of the European Union with regard to a stability
mechanism for Member States whose currency is the euro
1
adding the following paragraph to
Article 136: "The Member States whose currency is the euro may establish a stability
mechanism to be activated if indispensable to safeguard the stability of the euro area as a
whole. The granting of any required financial assistance under the mechanism will be made
subject to strict conditionality".
(3) With a view to increasing the effectiveness of the financial assistance and to prevent the risk
of financial contagion, the Heads of State or Government of the Member States whose
currency is the euro agreed on 21 July 2011 to "increase [the] flexibility [of the ESM] linked
to appropriate conditionality".
(4) Strict observance of the European Union framework, the integrated macro-economic
surveillance, in particular the Stability and Growth Pact, the macroeconomic imbalances
framework and the economic governance rules of the European Union, should remain the first
line of defence against confidence crises affecting the stability of the euro area.
(5) On 9 December 2011 the Heads of State or Government of the Member States whose
currency is the euro agreed to move towards a stronger economic union including a new fiscal
compact and strengthened economic policy coordination to be implemented through an
international agreement, the Treaty on Stability, Coordination and Governance in the
Economic and Monetary Union ("TSCG"). The TSCG will help develop a closer coordination
within the euro area with a view to ensuring a lasting, sound and robust management of public
finances and thus addresses one of the main sources of financial instability. This Treaty and
the TSCG are complementary in fostering fiscal responsibility and solidarity within the
economic and monetary union. It is acknowledged and agreed that the granting of financial
assistance in the framework of new programmes under the ESM will be conditional, as
of 1 March 2013, on the ratification of the TSCG by the ESM Member concerned and, upon
expiration of the transposition period referred to in Article 3(2) TSCG on compliance with the
requirements of that article.
(6) Given the strong interrelation within the euro area, severe risks to the financial stability of
Member States whose currency is the euro may put at risk the financial stability of the euro
area as a whole. The ESM may therefore provide stability support on the basis of a strict
conditionality, appropriate to the financial assistance instrument chosen if indispensable to
safeguard the financial stability of the euro area as a whole and of its Member States. The
initial maximum lending volume of the ESM is set at EUR 500 000 million, including the
outstanding EFSF stability support. The adequacy of the consolidated ESM and EFSF
maximum lending volume will, however, be reassessed prior to the entry into force of this
Treaty. If appropriate, it will be increased by the Board of Governors of the ESM, in
accordance with Article 10, upon entry into force of this Treaty.
(7) All euro area Member States will become ESM Members. As a consequence of joining the
euro area, a Member State of the European Union should become an ESM Member with full
rights and obligations, in line with those of the Contracting Parties.
(8) The ESM will cooperate very closely with the International Monetary Fund ("IMF") in
providing stability support. The active participation of the IMF will be sought, both at
technical and financial level. A euro area Member State requesting financial assistance from
the ESM is expected to address, wherever possible, a similar request to the IMF.
(9) Member States of the European Union whose currency is not the euro ("non euro area
Member States") participating on an ad hoc basis alongside the ESM in a stability support
operation for euro area Member States will be invited to participate, as observers, in the ESM
meetings when this stability support and its monitoring will be discussed. They will have
access to all information in a timely manner and be properly consulted.
(10) On 20 June 2011, the representatives of the Governments of the Member States of
the European Union authorised the Contracting Parties of this Treaty to request the
European Commission and the European Central Bank ("ECB") to perform the tasks provided
for in this Treaty.
(11) In its statement of 28 November 2010, the Euro Group stated that standardised and identical
Collective Action Clauses ("CACs") will be included, in such a way as to preserve market
liquidity, in the terms and conditions of all new euro area government bonds. As requested by
the European Council on 25 March 2011, the detailed legal arrangements for including CACs
in euro area government securities were finalised by the Economic and Financial Committee.
(12) In accordance with IMF practice, in exceptional cases an adequate and proportionate form of
private sector involvement shall be considered in cases where stability support is provided
accompanied by conditionality in the form of a macro-economic adjustment programme.
(13) Like the IMF, the ESM will provide stability support to an ESM Member when its regular
access to market financing is impaired or is at risk of being impaired. Reflecting this, Heads
of State or Government have stated that the ESM loans will enjoy preferred creditor status in
a similar fashion to those of the IMF, while accepting preferred creditor status of the IMF
over the ESM. This status will be effective as of the date of entry into force of this Treaty. In
the event of ESM financial assistance in the form of ESM loans following a European
financial assistance programme existing at the time of the signature of this Treaty, the ESM
will enjoy the same seniority as all other loans and obligations of the beneficiary
ESM Member, with the exception of the IMF loans.
(14) The euro area Member States will support equivalent creditor status of the ESM and that of
other States lending bilaterally in coordination with the ESM.
(15) ESM lending conditions for Member States subject to a macroeconomic adjustment
programme, including those referred to in Article 40 of this Treaty, shall cover the financing
and operating costs of the ESM and should be consistent with the lending conditions of the
Financial Assistance Facility Agreements signed between the EFSF, Ireland and the Central
Bank of Ireland on the one hand and the EFSF, the Portuguese Republic and Banco de
Portugal on the other.
(16) Disputes concerning the interpretation and application of this Treaty arising between the
Contracting Parties or between the Contracting Parties and the ESM should be submitted to
the jurisdiction of the Court of Justice of the European Union, in accordance with Article 273
of the Treaty on the Functioning of the European Union ("TFEU").
(17) Post-programme surveillance will be carried out by the European Commission and by
the Council of the European Union within the framework laid down in Articles 121
and 136 TFEU,
HAVE AGREED AS FOLLOWS:

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CHAPTER 1
MEMBERSHIP AND PURPOSE
ARTICLE 1
Establishment and members
1. By this Treaty, the Contracting Parties establish among themselves an international financial
institution, to be named the "European Stability Mechanism" ("ESM").
2. The Contracting Parties are ESM Members.
ARTICLE 2
New members
1. Membership in the ESM shall be open to the other Member States of the European Union as
from the entry into force of the decision of the Council of the European Union taken in accordance
with Article 140(2) TFEU to abrogate their derogation from adopting the euro.
2. New ESM Members shall be admitted on the same terms and conditions as existing
ESM Members, in accordance with Article 44.
3. A new member acceding to the ESM after its establishment shall receive shares in the ESM in
exchange for its capital contribution, calculated in accordance with the contribution key provided
for in Article 11.
ARTICLE 3
Purpose
The purpose of the ESM shall be to mobilise funding and provide stability support under strict
conditionality, appropriate to the financial assistance instrument chosen, to the benefit of ESM
Members which are experiencing, or are threatened by, severe financing problems, if indispensable
to safeguard the financial stability of the euro area as a whole and of its Member States. For this
purpose, the ESM shall be entitled to raise funds by issuing financial instruments or by entering into
financial or other agreements or arrangements with ESM Members, financial institutions or other
third parties.
CHAPTER 2
GOVERNANCE
ARTICLE 4
Structure and voting rules
1. The ESM shall have a Board of Governors and a Board of Directors, as well as a
Managing Director and other dedicated staff as may be considered necessary.
2. The decisions of the Board of Governors and the Board of Directors shall be taken by mutual
agreement, qualified majority or simple majority as specified in this Treaty. In respect of all
decisions, a quorum of 2/3 of the members with voting rights representing at least 2/3 of the voting
rights must be present.
3. The adoption of a decision by mutual agreement requires the unanimity of the members
participating in the vote. Abstentions do not prevent the adoption of a decision by
mutual agreement.
4. By way of derogation from paragraph 3, an emergency voting procedure shall be used where
the Commission and the ECB both conclude that a failure to urgently adopt a decision to grant or
implement financial assistance, as defined in Articles 13 to 18, would threaten the economic and
financial sustainability of the euro area. The adoption of a decision by mutual agreement by the
Board of Governors referred to in points (f) and (g) of Article 5(6) and the Board of Directors under
that emergency procedure requires a qualified majority of 85% of the votes cast.
Where the emergency procedure referred to in the first subparagraph is used, a transfer from the
reserve fund and/or the paid-in capital to an emergency reserve fund is made in order to constitute a
dedicated buffer to cover the risks arising from the financial support granted under that emergency
procedure. The Board of Governors may decide to cancel the emergency reserve fund and transfer
its content back to the reserve fund and/or paid-in capital.
5. The adoption of a decision by qualified majority requires 80 % of the votes cast.
6. The adoption of a decision by simple majority requires a majority of the votes cast.
7. The voting rights of each ESM Member, as exercised by its appointee or by the latter's
representative on the Board of Governors or Board of Directors, shall be equal to the number of
shares allocated to it in the authorised capital stock of the ESM as set out in Annex II.
8. If any ESM Member fails to pay any part of the amount due in respect of its obligations in
relation to paid-in shares or calls of capital under Articles 8, 9 and 10, or in relation to the
reimbursement of the financial assistance under Article 16 or 17, such ESM Member shall be
unable, for so long as such failure continues, to exercise any of its voting rights. The voting
thresholds shall be recalculated accordingly.
ARTICLE 5
Board of Governors
1. Each ESM Member shall appoint a Governor and an alternate Governor. Such appointments
are revocable at any time. The Governor shall be a member of the government of that ESM Member
who has responsibility for finance. The alternate Governor shall have full power to act on behalf of
the Governor when the latter is not present.
2. The Board of Governors shall decide either to be chaired by the President of the Euro Group,
as referred to in Protocol (No 14) on the Euro Group annexed to the Treaty on the European Union
and to the TFEU or to elect a Chairperson and a Vice-Chairperson from among its members for a
term of two years. The Chairperson and the Vice-Chairperson may be re-elected. A new election
shall be organised without delay if the incumbent no longer holds the function needed for being
designated Governor.
3. The Member of the European Commission in charge of economic and monetary affairs and
the President of the ECB, as well as the President of the Euro Group (if he or she is not the
Chairperson or a Governor) may participate in the meetings of the Board of Governors as observers.
4. Representatives of non-euro area Member States participating on an ad hoc basis alongside
the ESM in a stability support operation for a euro area Member State shall also be invited to
participate, as observers, in the meetings of the Board of Governors when this stability support and
its monitoring will be discussed.
5. Other persons, including representatives of institutions or organisations, such as the IMF, may
be invited by the Board of Governors to attend meetings as observers on an ad hoc basis.
6. The Board of Governors shall take the following decisions by mutual agreement:
(a) to cancel the emergency reserve fund and transfer its content back to the reserve fund and/or
paid-in capital, in accordance with Article 4(4);
(b) to issue new shares on terms other than at par, in accordance with Article 8(2);
(c) to make the capital calls, in accordance with Article 9(1);
(d) to change the authorised capital stock and adapt the maximum lending volume of the ESM, in
accordance with Article 10(1);
(e) to take into account a possible update of the key for the subscription of the ECB capital, in
accordance with Article 11(3), and the changes to be made to Annex I in accordance with
Article 11(6);
(f) to provide stability support by the ESM, including the economic policy conditionality as
stated in the memorandum of understanding referred to in Article 13(3), and to establish the
choice of instruments and the financial terms and conditions, in accordance with Articles 12
to 18;
(g) to give a mandate to the European Commission to negotiate, in liaison with the ECB, the
economic policy conditionality attached to each financial assistance, in accordance with
Article 13(3);
(h) to change the pricing policy and pricing guideline for financial assistance, in accordance with
Article 20;
(i) to change the list of financial assistance instruments that may be used by the ESM, in
accordance with Article 19;
(j) to establish the modalities of the transfer of EFSF support to the ESM, in accordance with
Article 40;
(k) to approve the application for membership of the ESM by new members, referred to in
Article 44;
(l) to make adaptations to this Treaty as a direct consequence of the accession of new members,
including changes to be made to the distribution of capital among ESM Members and the
calculation of such a distribution as a direct consequence of the accession of a new member to
the ESM, in accordance with Article 44; and
(m) to delegate to the Board of Directors the tasks listed in this Article.
7. The Board of Governors shall take the following decisions by qualified majority:
(a) to set out the detailed technical terms of accession of a new member to the ESM, in
accordance with Article 44;
(b) whether to be chaired by the President of the Euro Group or to elect, by qualified majority, the
Chairperson and Vice-Chairperson of the Board of Governors, in accordance with
paragraph 2;(c) to set out by-laws of the ESM and the rules of procedure applicable to the Board of Governors
and Board of Directors (including the right to establish committees and subsidiary bodies), in
accordance with paragraph 9;
(d) to determine the list of activities incompatible with the duties of a Director or an alternate
Director, in accordance with Article 6(8);
(e) to appoint and to end the term of office of the Managing Director, in accordance with
Article 7;
(f) to establish other funds, in accordance with Article 24;
(g) on the actions to be taken for recovering a debt from an ESM Member, in accordance with
Article 25(2) and (3);
(h) to approve the annual accounts of the ESM, in accordance with Article 27(1);
(i) to appoint the members of the Board of Auditors, in accordance with Article 30(1);
(j) to approve the external auditors, in accordance with Article 29;
(k) to waive the immunity of the Chairperson of the Board of Governors, a Governor, alternate
Governor, Director, alternate Director or the Managing Director, in accordance with
Article 35(2);(l) to determine the taxation regime applicable to the ESM staff, in accordance with
Article 36(5);
(m) on a dispute, in accordance with Article 37(2); and
(n) any other necessary decision not explicitly provided for by this Treaty.
8. The Chairperson shall convene and preside over the meetings of the Board of Governors.
The Vice-Chairperson shall preside over these meetings when the Chairperson is unable
to participate.
9. The Board of Governors shall adopt their rules of procedure and the by-laws of the ESM.
ARTICLE 6
Board of Directors
1. Each Governor shall appoint one Director and one alternate Director from among people of
high competence in economic and financial matters. Such appointments shall be revocable at any
time. The alternate Directors shall have full power to act on behalf of the Director when the latter is
not present. 2. The Member of the European Commission in charge of economic and monetary affairs and
the President of the ECB may appoint one observer each.
3. Representatives of non-euro area Member States participating on an ad hoc basis alongside
the ESM in a financial assistance operation for a euro area Member State shall also be invited to
participate, as observers, in the meetings of the Board of Directors when this financial assistance
and its monitoring will be discussed.
4. Other persons, including representatives of institutions or organisations, may be invited by the
Board of Governors to attend meetings as observers on an ad hoc basis.
5. The Board of Directors shall take decisions by qualified majority, unless otherwise stated in
this Treaty. Decisions to be taken on the basis of powers delegated by the Board of Governors shall
be adopted in accordance with the relevant voting rules set in Article 5(6) and (7).
6. Without prejudice to the powers of the Board of Governors as set out in Article 5, the Board
of Directors shall ensure that the ESM is run in accordance with this Treaty and the by-laws of the
ESM adopted by the Board of Governors. It shall take decisions as provided for in this Treaty or
which are delegated to it by the Board of Governors.7. Any vacancy in the Board of Directors shall be immediately filled in accordance with
paragraph 1.
8. The Board of Governors shall lay down what activities are incompatible with the duties of a
Director or an alternate Director, the by-laws of the ESM and rules of procedure of the Board
of Directors.

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ARTICLE 7
Managing Director
1. The Managing Director shall be appointed by the Board of Governors from among candidates
having the nationality of an ESM Member, relevant international experience and a high level of
competence in economic and financial matters. Whilst holding office, the Managing Director may
not be a Governor or Director or an alternate of either.
2. The term of office of the Managing Director shall be five years. He or she may be
re-appointed once. The Managing Director shall, however, cease to hold office when the Board of
Governors so decides. 3. The Managing Director shall chair the meetings of the Board of Directors and shall participate
in the meetings of the Board of Governors.
4. The Managing Director shall be chief of the staff of the ESM. He or she shall be responsible
for organising, appointing and dismissing staff in accordance with staff rules to be adopted by the
Board of Directors.
5. The Managing Director shall be the legal representative of the ESM and shall conduct, under
the direction of the Board of Directors, the current business of the ESM.
CHAPTER 3
CAPITAL
ARTICLE 8
Authorised capital stock
1. The authorised capital stock shall be EUR 700 000 million. It shall be divided into seven
million shares, having a nominal value of EUR 100 000 each, which shall be available for
subscription according to the initial contribution key provided for in Article 11 and calculated in
Annex I. 2. The authorised capital stock shall be divided into paid-in shares and callable shares. The
initial total aggregate nominal value of paid-in shares shall be EUR 80 000 million. Shares of
authorised capital stock initially subscribed shall be issued at par. Other shares shall be issued at
par, unless the Board of Governors decides to issue them in special circumstances on other terms.
3. Shares of authorised capital stock shall not be encumbered or pledged in any manner
whatsoever and they shall not be transferable, with the exception of transfers for the purposes of
implementing adjustments of the contribution key provided for in Article 11 to the extent necessary
to ensure that the distribution of shares corresponds to the adjusted key.
4. ESM Members hereby irrevocably and unconditionally undertake to provide their
contribution to the authorised capital stock, in accordance with their contribution key in Annex I.
They shall meet all capital calls on a timely basis in accordance with the terms set out in this Treaty. 5. The liability of each ESM Member shall be limited, in all circumstances, to its portion of the
authorised capital stock at its issue price. No ESM Member shall be liable, by reason of its
membership, for obligations of the ESM. The obligations of ESM Members to contribute to the
authorised capital stock in accordance with this Treaty are not affected if any such ESM Member
becomes eligible for, or is receiving, financial assistance from the ESM.
ARTICLE 9
Capital calls
1. The Board of Governors may call in authorised unpaid capital at any time and set an
appropriate period of time for its payment by the ESM Members.
2. The Board of Directors may call in authorised unpaid capital by simple majority decision to
restore the level of paid-in capital if the amount of the latter is reduced by the absorption of losses
below the level established in Article 8(2), as may be amended by the Board of Governors
following the procedure provided for in Article 10, and set an appropriate period of time for its
payment by the ESM Members3. The Managing Director shall call authorised unpaid capital in a timely manner if needed to
avoid the ESM being in default of any scheduled or other payment obligation due to ESM creditors.
The Managing Director shall inform the Board of Directors and the Board of Governors of any such
call. When a potential shortfall in ESM funds is detected, the Managing Director shall make such
capital call(s) as soon as possible with a view to ensuring that the ESM shall have sufficient funds
to meet payments due to creditors in full on their due date. ESM Members hereby irrevocably and
unconditionally undertake to pay on demand any capital call made on them by the
Managing Director pursuant to this paragraph, such demand to be paid within seven days of receipt.
4. The Board of Directors shall adopt the detailed terms and conditions which shall apply to
calls on capital pursuant to this Article.
ARTICLE 10
Changes in authorised capital stock
1. The Board of Governors shall review regularly and at least every five years the maximum
lending volume and the adequacy of the authorised capital stock of the ESM. It may decide to
change the authorised capital stock and amend Article 8 and Annex II accordingly. Such decision
shall enter into force after the ESM Members have notified the Depositary of the completion of
their applicable national procedures. The new shares shall be allocated to the ESM Members
according to the contribution key provided for in Article 11 and in Annex I.2. The Board of Directors shall adopt the detailed terms and conditions which shall apply to all
or any capital changes made under paragraph 1.
3. Upon a Member State of the European Union becoming a new ESM Member, the authorised
capital stock of the ESM shall be automatically increased by multiplying the respective amounts
then prevailing by the ratio, within the adjusted contribution key provided for in Article 11, between
the weighting of the new ESM Member and the weighting of the existing ESM Members.
ARTICLE 11
Contribution key
1. The contribution key for subscribing to ESM authorised capital stock shall, subject to
paragraphs 2 and 3, be based on the key for subscription, by the national central banks of
ESM Members, of the ECB's capital pursuant to Article 29 of Protocol (No 4) on the Statute of the
European System of Central Banks and of the European Central Bank (the "ESCB Statute")
annexed to the Treaty on European Union and to the TFEU.
2. The contribution key for the subscription of the ESM authorised capital stock is specified in
Annex I. 3. The contribution key for the subscription of the ESM authorised capital stock shall be
adjusted when:
(a) a Member State of the European Union becomes a new ESM Member and the ESM's
authorised capital stock automatically increases, as specified in Article 10(3); or
(b) the twelve year temporary correction applicable to an ESM Member established in accordance
with Article 42 ends.
4. The Board of Governors may decide to take into account possible updates to the key for the
subscription of the ECB's capital referred to in paragraph 1 when the contribution key is adjusted in
accordance with paragraph 3 or when there is a change in the authorised capital stock, as specified
in Article 10(1).
5. When the contribution key for the subscription of the ESM authorised capital stock is
adjusted, the ESM Members shall transfer among themselves authorised capital stock to the extent
necessary to ensure that the distribution of authorised capital stock corresponds to the adjusted key.
6. Annex I shall be amended upon decision by the Board of Governors upon any adjustment
referred to in this Article.
7. The Board of Directors shall take all other measures necessary for the application of
this Article CHAPTER 4
OPERATIONS
ARTICLE 12
Principles
1. If indispensable to safeguard the financial stability of the euro area as a whole and of its
Member States, the ESM may provide stability support to an ESM Member subject to strict
conditionality, appropriate to the financial assistance instrument chosen. Such conditionality may
range from a macro-economic adjustment programme to continuous respect of pre-established
eligibility conditions.
2. Without prejudice to Article 19, ESM stability support may be granted through the
instruments provided for in Articles 14 to 18.
3. Collective action clauses shall be included, as of 1 January 2013, in all new euro area
government securities, with maturity above one year, in a way which ensures that their legal impact
is identical. ARTICLE 13
Procedure for granting stability support
1. An ESM Member may address a request for stability support to the Chairperson of the Board
of Governors. Such a request shall indicate the financial assistance instrument(s) to be considered.
On receipt of such a request, the Chairperson of the Board of Governors shall entrust the
European Commission, in liaison with the ECB, with the following tasks:
(a) to assess the existence of a risk to the financial stability of the euro area as a whole or of its
Member States, unless the ECB has already submitted an analysis under Article 18(2);
(b) to assess whether public debt is sustainable. Wherever appropriate and possible, such an
assessment is expected to be conducted together with the IMF;
(c) to assess the actual or potential financing needs of the ESM Member concerned.
2. On the basis of the request of the ESM Member and the assessment referred to in paragraph 1,
the Board of Governors may decide to grant, in principle, stability support to the ESM Member
concerned in the form of a financial assistance facility3. If a decision pursuant to paragraph 2 is adopted, the Board of Governors shall entrust the
European Commission – in liaison with the ECB and, wherever possible, together with the IMF –
with the task of negotiating, with the ESM Member concerned, a memorandum of understanding
(an "MoU") detailing the conditionality attached to the financial assistance facility. The content of
the MoU shall reflect the severity of the weaknesses to be addressed and the financial assistance
instrument chosen. In parallel, the Managing Director of the ESM shall prepare a proposal for a
financial assistance facility agreement, including the financial terms and conditions and the choice
of instruments, to be adopted by the Board of Governors.
The MoU shall be fully consistent with the measures of economic policy coordination provided for
in the TFEU, in particular with any act of European Union law, including any opinion, warning,
recommendation or decision addressed to the ESM Member concerned.
4. The European Commission shall sign the MoU on behalf of the ESM, subject to prior
compliance with the conditions set out in paragraph 3 and approval by the Board of Governors.
5. The Board of Directors shall approve the financial assistance facility agreement detailing the
financial aspects of the stability support to be granted and, where applicable, the disbursement of
the first tranche of the assistance.
6. The ESM shall establish an appropriate warning system to ensure that it receives any
repayments due by the ESM Member under the stability support in a timely manner. 7. The European Commission – in liaison with the ECB and, wherever possible, together with
the IMF – shall be entrusted with monitoring compliance with the conditionality attached to the
financial assistance facility.
ARTICLE 14
ESM precautionary financial assistance
1. The Board of Governors may decide to grant precautionary financial assistance in the form of
a precautionary conditioned credit line or in the form of an enhanced conditions credit line in
accordance with Article 12(1).
2. The conditionality attached to the ESM precautionary financial assistance shall be detailed in
the MoU, in accordance with Article 13(3).
3. The financial terms and conditions of the ESM precautionary financial assistance shall be
specified in a precautionary financial assistance facility agreement, to be signed by the
Managing Director. 4. The Board of Directors shall adopt the detailed guidelines on the modalities for implementing
the ESM precautionary financial assistance.
5. The Board of Directors shall decide by mutual agreement on a proposal from the
Managing Director and after having received a report from the European Commission in
accordance with Article 13(7), whether the credit line should be maintained.
6. After the ESM Member has drawn funds for the first time (via a loan or a primary market
purchase), the Board of Directors shall decide by mutual agreement on a proposal from the
Managing Director and based on an assessment conducted by the European Commission, in liaison
with the ECB, whether the credit line continues to be adequate or whether another form of financial
assistance is needed.
ARTICLE 15
Financial assistance for the re-capitalisation of financial institutions of an ESM Member
1. The Board of Governors may decide to grant financial assistance through loans to an
ESM Member for the specific purpose of re-capitalising the financial institutions of that
ESM Member. 2. The conditionality attached to financial assistance for the re-capitalisation of an
ESM Member's financial institutions shall be detailed in the MoU, in accordance with Article 13(3).
3. Without prejudice to Articles 107 and 108 TFEU, the financial terms and conditions of
financial assistance for the re-capitalisation of an ESM Member's financial institutions shall be
specified in a financial assistance facility agreement, to be signed by the Managing Director.
4. The Board of Directors shall adopt the detailed guidelines on the modalities for implementing
financial assistance for the re-capitalisation of an ESM Member's financial institutions.
5. Where applicable, the Board of Directors shall decide by mutual agreement, on a proposal
from the Managing Director and after having received a report from the European Commission in
accordance with Article 13(7), the disbursement of the tranches of the financial assistance
subsequent to the first tranche. ARTICLE 16
ESM loans
1. The Board of Governors may decide to grant financial assistance in the form of a loan to an
ESM Member, in accordance with Article 12.
2. The conditionality attached to the ESM loans shall be contained in a macro-economic
adjustment programme detailed in the MoU, in accordance with Article 13(3).
3. The financial terms and conditions of each ESM loan shall be specified in a financial
assistance facility agreement, to be signed by the Managing Director.
4. The Board of Directors shall adopt the detailed guidelines on the modalities for implementing
ESM loans.
5. The Board of Directors shall decide by mutual agreement, on a proposal from the
Managing Director and after having received a report from the European Commission in
accordance with Article 13(7), the disbursement of the tranches of the financial assistance
subsequent to the first tranche.

[ang]

ARTICLE 17
Primary market support facility
1. The Board of Governors may decide to arrange for the purchase of bonds of an ESM Member
on the primary market, in accordance with Article 12 and with the objective of maximising the cost
efficiency of the financial assistance. 2. The conditionality attached to the primary market support facility shall be detailed in the
MoU, in accordance with Article 13(3).
3. The financial terms and conditions under which the bond purchase is conducted shall be
specified in a financial assistance facility agreement, to be signed by the Managing Director.
4. The Board of Directors shall adopt the detailed guidelines on the modalities for implementing
the primary market support facility.
5. The Board of Directors shall decide by mutual agreement, on a proposal from the Managing
Director and after having received a report from the European Commission in accordance
with Article 13(7), the disbursement of financial assistance to a beneficiary Member State through
operations on the primary market ARTICLE 18
Secondary market support facility
1. The Board of Governors may decide to arrange for operations on the secondary market in
relation to the bonds of an ESM Member in accordance with Article 12(1).
2. Decisions on interventions on the secondary market to address contagion shall be taken on
the basis of an analysis of the ECB recognising the existence of exceptional financial market
circumstances and risks to financial stability.
3. The conditionality attached to the secondary market support facility shall be detailed in the
MoU, in accordance with Article 13(3).
4. The financial terms and conditions under which the secondary market operations are to be
conducted shall be specified in a financial assistance facility agreement, to be signed by the
Managing Director.
5. The Board of Directors shall adopt the detailed guidelines on the modalities for implementing
the secondary market support facility.
6. The Board of Directors shall decide by mutual agreement, on a proposal from the Managing
Director, to initiate operations on the secondary market. ARTICLE 19
Review of the list of financial assistance instruments
The Board of Governors may review the list of financial assistance instruments provided for in
Articles 14 to 18 and decide to make changes to it.
ARTICLE 20
Pricing policy
1. When granting stability support, the ESM shall aim to fully cover its financing and operating
costs and shall include an appropriate margin.
2. For all financial assistance instruments, pricing shall be detailed in a pricing guideline, which
shall be adopted by the Board of Governors.
3. The pricing policy may be reviewed by the Board of Governors. ARTICLE 21
Borrowing operations
1. The ESM shall be empowered to borrow on the capital markets from banks, financial institutions or other persons or institutions for the performance of its purpose.
2. The modalities of the borrowing operations shall be determined by the Managing Director, in
accordance with detailed guidelines to be adopted by the Board of Directors.
3. The ESM shall use appropriate risk management tools, which shall be reviewed regularly by the Board of Directors.CHAPTER 5
FINANCIAL MANAGEMENT
ARTICLE 22
Investment policy
1. The Managing Director shall implement a prudent investment policy for the ESM, so as to ensure its highest creditworthiness, in accordance with guidelines to be adopted and reviewed regularly by the Board of Directors. The ESM shall be entitled to use part of the return on its investment portfolio to cover its operating and administrative costs.
2. The operations of the ESM shall comply with the principles of sound financial and risk management. ARTICLE 23
Dividend policy
1. The Board of Directors may decide, by simple majority, to distribute a dividend to the
ESM Members where the amount of paid-in capital and the reserve fund exceed the level required
for the ESM to maintain its lending capacity and where proceeds from the investment are not
required to avoid a payment shortfall to creditors. Dividends are distributed pro rata to the
contributions to the paid-in capital, taking into account the possible acceleration referred to in
Article 41(3).
2. As long as the ESM has not provided financial assistance to one of its members, the proceeds
from the investment of the ESM paid-in capital shall be returned to the ESM Members according to
their respective contributions to the paid-in capital, after deductions for operational costs, provided
that the targeted effective lending capacity is fully available.
3. The Managing Director shall implement the dividend policy for the ESM in accordance with guidelines to be adopted by the Board of Directors. ARTICLE 24
Reserve and other funds
1. The Board of Governors shall establish a reserve fund and, where appropriate, other funds.
2. Without prejudice to Article 23, the net income generated by the ESM operations and the
proceeds of the financial sanctions received from the ESM Members under the multilateral
surveillance procedure, the excessive deficit procedure and the macro-economic imbalances
procedure established under the TFEU shall be put aside in a reserve fund.
3. The resources of the reserve fund shall be invested in accordance with guidelines to be adopted by the Board of Directors.
4. The Board of Directors shall adopt such rules as may be required for the establishment, administration and use of other funds. ARTICLE 25
Coverage of losses
1. Losses arising in the ESM operations shall be charged:
(a) firstly, against the reserve fund;
(b) secondly, against the paid-in capital; and
(c) lastly, against an appropriate amount of the authorised unpaid capital, which shall be called in
accordance with Article 9(3).
2. If an ESM Member fails to meet the required payment under a capital call made pursuant to
Article 9(2) or (3), a revised increased capital call shall be made to all ESM Members with a view
to ensuring that the ESM receives the total amount of paid-in capital needed. The Board of
Governors shall decide an appropriate course of action for ensuring that the ESM Member
concerned settles its debt to the ESM within a reasonable period of time. The Board of Governors
shall be entitled to require the payment of default interest on the overdue amount.
3. When an ESM Member settles its debt to the ESM, as referred to in paragraph 2, the excess capital shall be returned to the other ESM Members in accordance with rules to be adopted by the Board of Governors. ARTICLE 26
Budget
The Board of Directors shall approve the ESM budget annually.
ARTICLE 27
Annual accounts
1. The Board of Governors shall approve the annual accounts of the ESM.
2. The ESM shall publish an annual report containing an audited statement of its accounts and
shall circulate to ESM Members a quarterly summary statement of its financial position and a profit
and loss statement showing the results of its operations.
ARTICLE 28
Internal Audit
An internal audit function shall be established according to international standard ARTICLE 29
External audit
The accounts of the ESM shall be audited by independent external auditors approved by the Board
of Governors and responsible for certifying the annual financial statements. The external auditors
shall have full power to examine all books and accounts of the ESM and obtain full information
about its transactions.
ARTICLE 30
Board of Auditors
1. The Board of Auditors shall consist of five members appointed by the Board of Governors for
their competence in auditing and financial matters and shall include two members from the supreme
audit institutions of the ESM Members - with a rotation between the latter - and one from the European Court of Auditors. 2. The members of the Board of Auditors shall be independent. They shall neither seek nor take
instructions from the ESM governing bodies, the ESM Members or any other public or
private body.
3. The Board of Auditors shall draw up independent audits. It shall inspect the ESM accounts
and verify that the operational accounts and balance sheet are in order. It shall have full access to
any document of the ESM needed for the implementation of its tasks.
4. The Board of Auditors may inform the Board of Directors at any time of its findings. It shall,
on an annual basis, draw up a report to be submitted to the Board of Governors.
5. The Board of Governors shall make the annual report accessible to the national parliaments
and supreme audit institutions of the ESM Members and to the European Court of Auditors.
6. Any matter relating to this Article shall be detailed in the by-laws of the ESM CHAPTER 6
GENERAL PROVISIONS
ARTICLE 31
Location
1. The ESM shall have its seat and principal office in Luxembourg.
2. The ESM may establish a liaison office in Brussels.
ARTICLE 32
Legal status, privileges and immunities
1. To enable the ESM to fulfil its purpose, the legal status and the privileges and immunities set
out in this Article shall be accorded to the ESM in the territory of each ESM Member. The ESM
shall endeavour to obtain recognition of its legal status and of its privileges and immunities in other
territories in which it performs functions or holds assets. 2. The ESM shall have full legal personality; it shall have full legal capacity to:
(a) acquire and dispose of movable and immovable property;
(b) contract;
(c) be a party to legal proceedings; and
(d) enter into a headquarter agreement and/or protocols as necessary for ensuring that its legal
status and its privileges and immunities are recognised and enforced.
3. The ESM, its property, funding and assets, wherever located and by whomsoever held, shall
enjoy immunity from every form of judicial process except to the extent that the ESM expressly
waives its immunity for the purpose of any proceedings or by the terms of any contract, including
the documentation of the funding instruments.
4. The property, funding and assets of the ESM shall, wherever located and by whomsoever
held, be immune from search, requisition, confiscation, expropriation or any other form of seizure,
taking or foreclosure by executive, judicial, administrative or legislative action.
5. The archives of the ESM and all documents belonging to the ESM or held by it, shall
be inviolable. 6. The premises of the ESM shall be inviolable.
7. The official communications of the ESM shall be accorded by each ESM Member and by
each state which has recognised the legal status and the privileges and immunities of the ESM, the
same treatment as it accords to the official communications of an ESM Member.
8. To the extent necessary to carry out the activities provided for in this Treaty, all property,
funding and assets of the ESM shall be free from restrictions, regulations, controls and moratoria of
any nature.
9. The ESM shall be exempted from any requirement to be authorised or licensed as a credit
institution, investment services provider or other authorised licensed or regulated entity under the
laws of each ESM Member

[ang]

ARTICLE 33
Staff of the ESM
The Board of Directors shall lay down the conditions of employment of the Managing Director and
other staff of the ESM. ARTICLE 34
Professional secrecy
The Members or former Members of the Board of Governors and of the Board of Directors and any
other persons who work or have worked for or in connection with the ESM shall not disclose
information that is subject to professional secrecy. They shall be required, even after their duties
have ceased, not to disclose information of the kind covered by the obligation of
professional secrecy.
ARTICLE 35
Immunities of persons
1. In the interest of the ESM, the Chairperson of the Board of Governors, Governors, alternate
Governors, Directors, alternate Directors, as well as the Managing Director and other staff members
shall be immune from legal proceedings with respect to acts performed by them in their official
capacity and shall enjoy inviolability in respect of their official papers and documents. 2. The Board of Governors may waive to such extent and upon such conditions as it determines
any of the immunities conferred under this Article in respect of the Chairperson of the Board of
Governors, a Governor, an alternate Governor, a Director, an alternate Director or the
Managing Director.
3. The Managing Director may waive any such immunity in respect of any member of the staff
of the ESM other than himself or herself.
4. Each ESM Member shall promptly take the action necessary for the purposes of giving effect
to this Article in the terms of its own law and shall inform the ESM accordingly.
ARTICLE 36
Exemption from taxation
1. Within the scope of its official activities, the ESM, its assets, income, property and its
operations and transactions authorised by this Treaty shall be exempt from all direct taxes.
2. The ESM Members shall, wherever possible, take the appropriate measures to remit or refund
the amount of indirect taxes or sales taxes included in the price of movable or immovable property
where the ESM makes, for its official use, substantial purchases, the price of which includes taxes of this kind. 3. No exemption shall be granted in respect of taxes and dues which amount merely to charges
for public utility services.
4. Goods imported by the ESM and necessary for the exercise of its official activities shall be
exempt from all import duties and taxes and from all import prohibitions and restrictions.
5. Staff of the ESM shall be subject to an internal tax for the benefit of the ESM on salaries and
emoluments paid by the ESM, subject to rules to be adopted by the Board of Governors. From the
date on which this tax is applied, such salaries and emoluments shall be exempt from national
income tax.
6. No taxation of any kind shall be levied on any obligation or security issued by the ESM
including any interest or dividend thereon by whomsoever held:
(a) which discriminates against such obligation or security solely because of its origin; or
(b) if the sole jurisdictional basis for such taxation is the place or currency in which it is issued,
made payable or paid, or the location of any office or place of business maintained by the ESM. ARTICLE 37
Interpretation and dispute settlement
1. Any question of interpretation or application of the provisions of this Treaty and the by-laws
of the ESM arising between any ESM Member and the ESM, or between ESM Members, shall be
submitted to the Board of Directors for its decision.
2. The Board of Governors shall decide on any dispute arising between an ESM Member and
the ESM, or between ESM Members, in connection with the interpretation and application of this
Treaty, including any dispute about the compatibility of the decisions adopted by the ESM with this
Treaty. The votes of the member(s) of the Board of Governors of the ESM Member(s) concerned
shall be suspended when the Board of Governors votes on such decision and the voting threshold
needed for the adoption of that decision shall be recalculated accordingly.
3. If an ESM Member contests the decision referred to in paragraph 2, the dispute shall be
submitted to the Court of Justice of the European Union. The judgement of the Court of Justice of the European Union shall be binding on the parties in the procedure, which shall take the necessary measures to comply with the judgment within a period to be decided by said Court.ARTICLE 38
International cooperation
The ESM shall be entitled, for the furtherance of its purposes, to cooperate, within the terms of this
Treaty, with the IMF, any State which provides financial assistance to an ESM Member on an
ad hoc basis and any international organisation or entity having specialised responsibilities in
related fields.
CHAPTER 7
TRANSITIONAL ARRANGEMENTS
ARTICLE 39
Relation with EFSF lending
During the transitional phase spanning the period from the entry into force of this Treaty until the
complete run-down of the EFSF, the consolidated ESM and EFSF lending shall not exceed
EUR 500 000 million, without prejudice to the regular review of the adequacy of the maximum
lending volume in accordance with Article 10. The Board of Directors shall adopt detailed
guidelines on the calculation of the forward commitment capacity to ensure that the consolidated lending ceiling is not breached. ARTICLE 40
Transfer of EFSF supports
1. By way of derogation from Article 13, the Board of Governors may decide that the EFSF
commitments to provide financial assistance to an ESM Member under its agreement with that
member shall be assumed by the ESM as far as such commitments relate to undisbursed and
unfunded parts of loan facilities.
2. The ESM may, if authorised by its Board of Governors, acquire the rights and assume the
obligations of the EFSF, in particular in respect of all or part of its outstanding rights and
obligations under, and related to, its existing loan facilities.
3. The Board of Governors shall adopt the detailed modalities necessary to give effect to the
transfer of the obligations from the EFSF to the ESM, as referred to in paragraph 1 and any transfer
of rights and obligations as described in paragraph 2. ARTICLE 41
Payment of the initial capital
1. Without prejudice to paragraph 2, payment of paid-in shares of the amount initially
subscribed by each ESM Member shall be made in five annual instalments of 20 % each of the total
amount. The first instalment shall be paid by each ESM Member within fifteen days of the date of
entry into force of this Treaty. The remaining four instalments shall each be payable on the first,
second, third and fourth anniversary of the payment date of the first instalment.
2. During the five-year period of capital payment by instalments, ESM Members shall accelerate
the payment of paid-in shares, in a timely manner prior to the issuance date, in order to maintain a
minimum 15 % ratio between paid-in capital and the outstanding amount of ESM issuances and
guarantee a minimum combined lending capacity of the ESM and of the EFSF of EUR 500 000
million.
3. An ESM Member may decide to accelerate the payment of its share of paid-in capital. ARTICLE 42
Temporary correction of the contribution key
1. At inception, the ESM Members shall subscribe the authorised capital stock on the basis of
the initial contribution key as specified in Annex I. The temporary correction included in this initial
contribution key shall apply for a period of twelve years after the date of adoption of the euro by the
ESM Member concerned.
2. If a new ESM Member's gross domestic product (GDP) per capita at market prices in euro in
the year immediately preceding its accession to the ESM is less than 75 % of the European Union
average GDP per capita at market prices, then its contribution key for subscribing to ESM
authorised capital stock, determined in accordance with Article 10, shall benefit from a temporary
correction and equal the sum of:
(a) 25 % of the percentage share in the ECB capital of the national central bank of that
ESM Member, determined in accordance with Article 29 of the ESCB Statute; and
(b) 75 % of that ESM Member's percentage share in the gross national income (GNI) at market
prices in euro of the euro area in the year immediately preceding its accession to the ESM.The percentages referred to in points (a) and (b) shall be rounded up or down to the nearest multiple
of 0,0001 percentage points. The statistical terms shall be those published by Eurostat.
3. The temporary correction referred to in paragraph 2 shall apply for a period of twelve years
from the date of adoption of the euro by the ESM Member concerned.
4. As a result of the temporary correction of the key, the relevant proportion of shares allocated
to an ESM Member pursuant to paragraph 2 shall be reallocated amongst the ESM Members not
benefiting from a temporary correction on the basis of their shareholding in the ECB, determined in
accordance with Article 29 of the ESCB Statute, subsisting immediately prior to the issue of shares
to the acceding ESM Member.
ARTICLE 43
First appointments
1. Each ESM Member shall designate its Governor and alternate Governor within the two weeks
of the entry into force of this Treaty.
2. The Board of Governors shall appoint the Managing Director and each Governor shall appoint
a Director and an alternate Director within the two months of the entry into force of this Treaty. CHAPTER 8
FINAL PROVISIONS
ARTICLE 44
Accession
This Treaty shall be open for accession by other Member States of the European Union in
accordance with Article 2 upon application for membership that any such Member State of the
European Union shall file with the ESM after the adoption by the Council of the European Union of
the decision to abrogate its derogation from adopting the euro in accordance with Article 140(2)
TFEU. The Board of Governors shall approve the application for accession of the new
ESM Member and the detailed technical terms related thereto, as well as the adaptations to be made
to this Treaty as a direct consequence of the accession. Following the approval of the application for
membership by the Board of Governors, new ESM Members shall accede upon the deposit of the
instruments of accession with the Depositary, who shall notify other ESM Members thereof. ARTICLE 45
Annexes
The following Annexes to this Treaty shall constitute an integral part thereof:
1) Annex I: Contribution key of the ESM; and
2) Annex II: Subscriptions to the authorised capital stock.
ARTICLE 46
Deposit
This Treaty shall be deposited with the General Secretariat of the Council of the European Union
("the Depositary"), which shall communicate certified copies to all the signatories. ARTICLE 47
Ratification, approval or acceptance
1. This Treaty shall be subject to ratification, approval or acceptance by the signatories.
Instruments of ratification, approval or acceptance shall be deposited with the Depositary.
2. The Depositary shall notify the other signatories of each deposit and the date thereof.
ARTICLE 48
Entry into force
1. This Treaty shall enter into force on the date when instruments of ratification, approval or
acceptance have been deposited by signatories whose initial subscriptions represent no less
than 90% of the total subscriptions set forth in Annex II. Where appropriate, the list of ESM
Members shall be adjusted; the key in Annex I shall then be recalculated and the total authorised
capital stock in Article 8(1) and Annex II and the initial total aggregated nominal value of paid-in
shares in Article 8(2) shall be reduced accordingly.2. For each signatory which thereafter deposits its instrument of ratification, approval or
acceptance, this Treaty shall enter into force on the day following the date of deposit.
3. For each State which accedes to this Treaty in accordance with Article 44, this Treaty shall
enter into force on the twentieth day following the deposit of its instrument of accession.
Done at Brussels on the second day of February in the year two thousand and twelve in a single
original, whose Dutch, English, Estonian, Finnish, French, German, Greek, Irish, Italian, Maltese,
Portuguese, Slovak, Slovenian, Spanish and Swedish texts are equally authentic, which shall be deposited in the archives of the Depositary which shall transmit a duly certified copy to each of the Contracting Parties.

http://www.european-council.europa.e...tesm2.en12.pdf

[ang]

ANNEX I
Contribution Key of the ESM
ESM Member ESM key (%)
Kingdom of Belgium 3,4771
Federal Republic of Germany 27,1464
Republic of Estonia 0,1860
Ireland 1,5922
Hellenic Republic 2,8167
Kingdom of Spain 11,9037
French Republic 20,3859
Italian Republic 17,9137
Republic of Cyprus 0,1962
Grand Duchy of Luxembourg 0,2504
Malta 0,0731
Kingdom of the Netherlands 5,7170
Republic of Austria 2,7834
Portuguese Republic 2,5092
Republic of Slovenia 0,4276
Slovak Republic 0,8240
Republic of Finland 1,7974
Total 100,0

ANNEX II
Subscriptions to the authorised capital stock
ESM Member Number of shares Capital subscription
(EUR)
Kingdom of Belgium 243 397 24 339 700 000
Federal Republic of Germany 1 900 248 190 024 800 000
Republic of Estonia 13 020 1 302 000 000
Ireland 111 454 11 145 400 000
Hellenic Republic 197 169 19 716 900 000
Kingdom of Spain 833 259 83 325 900 000
French Republic 1 427 013 142 701 300 000
Italian Republic 1 253 959 125 395 900 000
Republic of Cyprus 13 734 1 373 400 000
Grand Duchy of Luxembourg 17 528 1 752 800 000
Malta 5 117 511 700 000
Kingdom of the Netherlands 400 190 40 019 000 000
Republic of Austria 194 838 19 483 800 000
Portuguese Republic 175 644 17 564 400 000
Republic of Slovenia 29 932 2 993 200 000
Slovak Republic 57 680 5 768 000 000
Republic of Finland 125 818 12 581 800 000
Total 7 000 000 700 000 000 000

[ang]

The above is a copy of the ESM Treaty and in my opinion a copy of this Treaty should have been distributed to every home with the Fiscal Compact Treaty booklet from the Referendum Commission.

[C. Flower]

The above is a copy of the ESM Treaty and in my opinion a copy of this Treaty should have been distributed to every home with the Fiscal Compact Treaty booklet from the Referendum Commission.

And also subject of a Referendum ?

[Holly]

Of course, you are right, ang. The people will be voting on a document that none of them have even read.

[ang]

And also subject of a Referendum ?

Most Definitely

I am hoping that Thomas Pringle and his Court challenge to ESM will bring about a referendum.

Of course, you are right, ang. The people will be voting on a document that none of them have even read.

Thank you Holly

I'm again angry at the further display of hostility from an elected Irish Govt. towards the Irish people who elected them.

[DCon]

Turns out German firms are not big fans

EUROPE’S PERMANENT bailout fund is a legal and financial “black box” that should be rejected by German MPs, according to an association representing the country’s family-owned companies.

A protest letter signed by 350 of Germany’s best-known companies such as Kärcher, Henkel and Würth attacks the bailout fund and disputes what it calls the “myth that Europe can only survive as a transfer union”.

“The coercion and consequences of a common currency are beginning to divide European peoples permanently,” said the statement. “Not every means is permitted to save the euro – and those who want to save the euro at any price risk the price being Europe.” With its statement the association joins a growing wave of protest against the European Stability Mechanism in Germany.

http://www.irishtimes.com/newspaper/...317568965.html

[C. Flower]

Turns out German firms are not big fans

http://www.irishtimes.com/newspaper/...317568965.html

Unfortunately for them, it will not survive if it does not become a transfer union, with a core of mutual social responsibility and a democratic structure. This is in no way going to happen to these top down, elitist institutions of the wealthy, for the wealthy.

[C. Flower]

Pringle's action is to be heard this month - it seems to me that for justice to be done, it should have been heard before the Referendum.

The action is on the ESM and on the "enabling" changes to Article 136.

http://www.thomaspringle.ie/?m=20120522HIGH COURT: A LEGAL action by Independent Donegal South West TD Thomas Pringle over the “far-reaching” effects of the May 31st referendum on the fiscal treaty will be heard by the High Court next month.

Mr Pringle claims the Government intends to use a Yes vote in the referendum to push through another treaty in relation to the European Stability Mechanism (ESM) and to change an existing treaty on the functioning of the EU itself, without putting these matters to a vote.

Mr Pringle contends the Government’s plans to ratify the treaty establishing the ESM and approve the related amendment to article 136 of the treaty for the functioning of the EU are unlawful.

He claims both these measures breach the Constitution and EU law.

While the TD’s court action will not affect the holding of the referendum, he says, if the court finds the ESM treaty is unlawful, there will be a question over the validity of any Yes vote in this month’s referendum.

In court yesterday, John Rogers SC, for Mr Pringle, said both sides had agreed on a timetable for an expedited hearing. The case, which is expected to last five days, was fixed for hearing on June 19th.

Mr Rogers told Mr Justice Roderick Murphy the High Court may find it necessary to make a reference of an issue to the European Court of Justice. The case will be mentioned before the court again on June 6th.

Mr Pringle wants the court to consider whether the ESM treaty is in breach of existing EU principles which have been approved in previous referendums.

He also wants the court to examine the legality of an amendment to an existing treaty which, he says, will be pushed through without a vote if the May 31st referendum is passed.

That matter relates to amendment of article 136 of the treaty on the functioning of the European Union, and Mr Pringle argues the court should look at this amendment before any further action is taken by Government to approve it.

[C. Flower]

A good letter from the Peoples' Association (who are they?) on the ESM.

http://www.paw.ie/index.php?option=c...125&Itemid=136

Dear Representative,

I call upon you to listen to those whom you represent, who elected you to your current position and trusted that you would ensure a voice for your constituency.

I must ask you to postpone any amendment to Article 136 of the Treaty on the Functioning of the European Union or ratification of the ESM Treaty until after the people have voted on 'The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union'. That would allow we the people of Ireland to have fair voice, without any inherent threat i.e. having already signed up to an €11billion payout, from which Ireland would not be able to access funding, if we voted 'No'. It would also ensure that a fair debate could take place and people would be free to make their own informed decision without such undue and unfair pressure.

In actual fact, we the People's Association Watchdog request a referendum on the proposed amendment to Article 136 of the TFEU, the ESM Treaty AND The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. Surely you know that the ESM is the actual mechanism whereby the conditionality is attached and we at PAW would assert that a referendum is required on all three parts of the ESM treaty as they come into direct conflict with Articles 1, 5, 6.1 and 6.2 of Bunreacht na hEireann.

You will recall the words of Mr. Justice Hederman in relation to the ratification of the Single European Act: "... it appears to me that the essential point at issue is whether the State can by any act on the part of its various organs of government enter into binding agreements with other states, or groups of states, to subordinate, or to submit, the exercise of the powers bestowed by the Constitution to the advice or interests of other states, as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies. The State's organs cannot contract to exercise in a particular procedure their policy-making roles, or in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers not the disposers of them ...".

In this way, the Court held that it is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution, nor to transfer their powers to other bodies, unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. (9 April 1987, Supreme Court 1986 No. 12036P). The ESM does in fact facilitate and enable the transfer of governmental powers to another body.

Indeed, Mr Justice Walsh reminded us that: "... Article 6 of the Constitution refers to the powers of government as being derived from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. It must follow therefore that all the powers of government are to be exercised according to the requirements of the common good. The essential nature of sovereignty is the right to say Yes or to say No... "

Using the above principles, the questions which require an answer are:

(a) Does the ESM treaty transfer governmental powers to other bodies?

(b) Is the state entering into binding agreements which will subordinate the powers of the
constitution to the interests of other states?

(c) Is the state disposing of their powers which has been bestowed upon them by the
constitution?

(d) Is the ESM being exercised according to the common good of the Irish people, or purely
in order to 'save' the currency known as the Euro?

(e) Will the Irish people be able to exercise our sovereign right to say yes or no without fear
or favour?

In considering the above questions, you must also consider, whether or not it is repugnant to the articles of the constitution and to this effect we at PAW must draw your attention to the following Articles which it would entirely undermine:

Article 1. The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

With respect, the Irish nation will not be determining and developing it's economy in accordance with it's own genius and traditions, because if it is subject to the conditionalities of the ESM, this places such endeavour entirely beyond Ireland's control. Indeed, the nation is decidedly not being given the choice of determining it's relations with other nations, because the people are being denied the opportunity to decide whether or not they agree to a binding agreement which allows for a significant loss of Ireland's economic sovereignity.

Article 5. Ireland is a sovereign, independent, democratic state.

Again, with all due respect, in ratifying the ESM, Ireland is handing over economic control of its finances, in order to comply with the terms of the Treaty's conditionality, which is, in effect, giving away the nation's hitherto economic soverignity.

Article 6. 1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

This is probably the most insidious part of the ESM, because not only does it cede the power of the people to decide questions of national economic policy in accordance with the common good, it is giving away economic sovereignty to an oligarchy, which is an undemocratic organisation that holds itself immune from either scrutiny or accountability.

Article 6.2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

The totality of the three steps establishing ESM should not be allowed to happen without referring each step to the people of Ireland by way of Referendum because it is in violation of
Article 15.4.1 of the Irish Consitution: The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

I would like to draw your particular attention to central Article of the Treaty Establishing the European Stability Mechanism (ESM) which clearly show a loss of sovereignty to the people of Ireland if it is ratified:

Article 3. The purpose of the ESM shall be to mobilise funding and provide financial assistance, under strict economic policy conditionality, to the benefit of the ESM Members which are experiencing or are threatened by severe financing problems, if indispensable to safeguard the financial stability of the euro area as a whole.

In summary, I as a citizen of Ireland and a member of the People's Association Watchdog am calling upon you as an elected representaive of the people to defer any any amendment of Article 136, any ratification of the ESM or of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union aka 'The Fiscal Compact' and offer the people of Ireland a choice without fear or favour, on all three elements establishing the ESM, i.e. a properly informed Referendum.

Yours sincerely

[C. Flower]

Almost incredible that there is any dispute over the requirement of a Referendum for the ESM.

Thomas Pringle is seeking an injunction of ratification of the ESM pending referral to the European Court of Justice.

http://www.independent.ie/national-n...y-3146223.html

In those circumstances, Ms Justice Mary Laffoy has adjourned to Tuesday the continuing hearing of Mr Pringle's action in which he contends the ESM Treaty breaches the Irish Constitution, EU law and EU Treaties - the Treaty on the Functioning of the EU (TFEU) and the Treaty of the EU (TEU) - on grounds including those treaties do not allow for bailouts.

The ESM Treaty provides for the creation of a new ESM financial institution, akin to a bank, to provide bailout funding on strict conditions to distressed states in the Eurozone. The 17 Eurozone states are required to make a capital contribution to the new institution with Ireland's contribition set at €11.14bn.

In his claim of unconstitutionality, Mr Pringle alleges the ESM Treaty breaches the Irish Constitution on grounds including it dilutes the State's fiscal sovereignty. He claims the ESM Treaty and Fiscal Stability Treaty, approved by a referendum here last month, are interlocked and the ESM Treaty should, and must, be put before the people in a referendum.

In its defence, the Government denies the ESM Treaty is unconstitutional or breaches the EU Treaties and EU law. It also denies the Stability Treaty is dependent on the validity and effect of the ESM Treaty or on the proposed amendment of Article 136 of the TFEU.