Predictability in legislation is probably one of the weakest points of the EU legal response. It should be remembered here that legal certainty requires individuals to be able to ascertain unequivocally what their rights and obligations are (C-208/06, para. 69). Where should individuals find those rights and obligations? Is it in the Memorandum of Understanding (MOU)? Is it in the Council decision? Is it only in national law?
Even setting aside MOUs and focusing on Council decisions, their legal effect might prove to be undeciphreable. Council Decisions do not affect individuals directly, as settle by the General Court in ADEDY. But does this lack of individual direct concern really depend on the wording of the Decision or is the Decision actually a directive, as we could infer from the General Court’s reasoning? If this is the case, are we then in some sort of an Oleificio Borelli case law situation? Should the introduction of coercive fines or deposits in the macroeconomic imbalance procedure (in addition to those in the excessive deficit procedure) change our legal assessment of the legal effect of previous stages or the possibility to contest them judicially? In any case, is not the ongoing revaluation of the adequacy of the national economic programme (and translated in modified Council implementing decisions) relevant when analysed from the point of view of legal certainty and legitimate expectations?
Pablo Martin Rodriguez
(Legal certainty after the crisis în EU Law after the Financial Crisis, Intersentia, la pp. 284-5)