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.

The ECB as a political actor: a ‘fourth branch’ of government?

This paper takes as a starting point the ECB’s evolving role in the EMU since the Eurozone crisis. Firstly, it explores the extent to which the ECB’s role has de facto expanded – even though its primary objective has remained intact at the formal legal level (maintaining price stability) – and has turned the ECB into a political actor in the EMU’s constitutional framework (into the “de facto existential guarantor or economic sovereign of the Euro area” in Tucker’s words) despite it being a technocratic institution. Secondly, it examines whether this expansion of the ECB's role has unsettled the formal allocation of competences between the EMU and its Member States, given the impact of the ECB’s discretionary power on the Member States' fiscal policy (and the broad discretion that the CJEU has attributed to the ECB in Weiss and Gauweiler). Has this turned the ECB into a de facto “independent fourth branch” of government of the member states (possibly along with other EU institutions)?

Benjamin Constant in Frankfurt: The Neutral Power of the ECB

When observing the constitutional function of the ECB, scholars are faced with a riddle: how is it possible that a technocratic institution can muster enough constitutional authority to maintain the unity of the Eurozone with unconventional monetary policies?
The paper explores a specific research hypothesis: within the Eurozone, the ECB perceives its own constitutional role in terms of a neutral power. This should be understood in Benjamin Constant's terms: a power that reigns but does not govern. The paper intends to show that the source of ECB’s power is the fundamental norm of the Eurozone: the fetish of the value of the common currency. Accordingly, the ECB is – materially and symbolically – the institutional guardian of this fundamental norm. The paper will illustrate this point by looking at the principle that guided the implementation of the Asset Purchase Programmes: market neutrality.

Is there a democratic gap in the Banking Union?

The creation of the Banking Union in 2012 entailed an additional transfer of competence to the European Union (EU). As Member States continue to play an important role in this policy area, original democratic accountability mechanisms had to be devised whereby both the European Parliament and national parliaments play an important role. Also, the European Parliament's role is not limited to holding the European Central Bank to account, but it is called to control the actions of other EU agencies. This presentation aims to offer a balance of the state of democratic accountability in the Banking Union ten years after its creation. In particular, it seeks to provide an all-encompassing view with a view to identifying potential gaps.