유럽재정규율에 대한 법적 검토 - 과도적자시정절차 및 재정안정성확보 조치에 대한 사법적 판단을 중심으로 -

Article 104, Clause 1 of the former EC Treaty (current TFEU Article 126) regulates member states to avoid excessive fiscal deficit. In addition, a fiscal regulation in the EU level was implemented through Stability and Growth Pact. However, measures on the breach of fiscal rules under the SGP were not operated as regulated in the above Treaty and Pact. The example is the case in which corrective measures were not imposed when Germany and France breached the fiscal rules. As a self-reflection for such, the improvement of resolution method by the Council, automatic corrective measures, and active judicial review by the ECJ on violations of corrective orders were applied in the enactment process of the Six-pack and New Fiscal Compact. The Commission raised a lawsuit requesting to cancel the pertaining decision regarding the resolution by the Council that did not impose corrective measures over Germany and France. The Commission recommended that the Council take measures over the two member states. However, based on the political considerations, the Council decided to suspend the excessive fiscal deficit corrective procedure. ECJ held that such decision by the Council was unlawful by breaching Art. 104 EC. As problems were deducted during the operation process of Six-Pack. However, as the financial situation of some member states continuously deteriorated, imposing burden on the entire EU, a need to further strengthen the fiscal rules was raised, and as a result, New Compact, a multi-party agreement, was able to be formed. New Compact has its main contents as establishment of fiscal rules to strengthen national debt management, medium-term objectives and corrective measures. Member states have to make it an obligation to compose of such rules at least matching the level of act domestically. On the other hand, EFSF was formed to overcome the financial crisis, however, due to its form as a SPV and limit coming from its temporary character, ESM was launched in the scope of EUR 700 billion. It was suggested that such may be unconstitutional within Germany, because it could give rise to a result of breaching the provisions of fiscal soundness under the Grundgesetz. The Federal Constitutional Court of Germany upheld the constitutionality of EFSF for the reason of respecting the decision by the legislature and upheld the constitutionality of ESM, under the condition of setting the upper limit of the allocation as EUR 190 billion and guaranteeing the German legislature with the right to participate in decision-making and right to receive reports.