Effective Judicial Protection against ‘Technical’ Law-making: The Case for Proportionality and the European Central Bank at the European Court of Justice

In reviewing legal acts adopted in the context of the financial crisis, the European Court of Justice has often resorted to proportionality. However, in general, a softened review seems to apply, as law-makers are left with a margin of political discretion which is the broadest where their normative choices – yet touching upon sensitive political interests – qualify as most ‘technically’ complex.
It is assumed that proportionality links with a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. The paper outlines the fundamentals of the ‘culture of justification’ with which proportionality is infused. Furthermore, it analyses two judgments delivered by the Court of Justice concerning the activity of the European Central Bank in the context of the crisis – namely, Gauweiler and Weiss, and it highlights the peculiar ontology of law that transpires from these judgments and tests its consistency with the ‘culture of justification’.