The ECB’s constitutive powers

The ECB’s powers are a specific instance of constitutive powers, whereby it creates the law that it applies. These powers are not a prerogative of the ECB, but raise particular constitutional concerns, given its potentia as holder of the modes of money creation and the constitutional design of the EMU. The constitutive nature of the ECB’s powers has an explanatory and a normative value. First, it explains the conundrum of the degree of judicial review over matters involving monetary policy. The judicial clash in Weiss on the role of courts in relation to the actions of the ECB shows that both full and limited review are untenable, for different reasons. Secondly, it postulates a shift in understanding the role of law in relation to the action of executive bodies. The question, then, is whether law can support political accountability, irrespective of concrete instances of judicial review. This path will be explored by analysing the scope of the duty to give reasons in EU law.