Abstract
There is a growing amount of case-law on the decisions taken by the European central Bank (ECB) on monetary and economic policy. Such judicial activism is unusual in this field, if we consider that in the United States there is no instrument provided by law or case-law to review in court the monetary policy decisions taken by the Federal Reserve. In Europe, on the other hand, judges play an important role, at the national as well as supranational level. The role of the European Court of Justice (ECJ) in the field of monetary policy was clearly defined in the Maastricht Treaty and the acts of the ECB are subject to judicial review. This feature is normally recognized as the basis of the ‘rule of law’, which also applies to the ECB. At the domestic level, we count a number of decisions enacted by some Constitutional or Supreme Courts that review ECB’s actions for their repercussions on their internal constitutional orders. When the national courts were asked to adjudicate on the validity of the ECB’s decisions on the basis of European Union (EU) Law, they requested a preliminary ruling to the ECJ on the interpretation of EU law. This is the case of the Irish Supreme Court that in the landmark Pringle case expressed doubts on the competence of EU Member States to conclude the European Stability Mechanism (ESM) Treaty under EU Law. This is even more the case of the German Constitutional Court (GCC). This tribunal has been playing a central role in the interpretation of the constitutional values surrounding the power of the ECB and its role within the EU. The reason for such judicial activism has to be found in the specific mechanisms of recourse to the German court. Access to the GCC is simple: it is available to anyone who has grounds for thinking that their fundamental rights have been breached by a public power (socalled direkte Verfassungsbeschwerde). Another reason can be found in the history of monetary policy in Germany, on the belief that monetary policy can be differentiated from economic policy and the special role played by the German central bank in the German constitutional order, that has been influencing the debate about the role of the ECB in the EU. This chapter deals with the case-law of the ECJ in the field of monetary policy, by focusing on three key judgments. The first is the so-called ‘OLAF case’ decided in 2003. In this judgment the Court outlined the independent position of the ECB vis-à-vis the other institutions within the legal framework of the EU and, furthermore, defined the extent of its powers and the meaning of its independence. The second is the Gauweiler case, which went further and cast doubts on the competence of the ECB via-à-vis the Member States and its power to define the extent of its own competences. The last is the recent Weiss case, on which the final judgment has been recently enacted by the ECJ, after the GCC had made a preliminary ruling to its European counterpart. As in Gauweiler, in Weiss the GCC criticized the extent of the ECB’s decision in the field of monetary policy; in its opinion, it impinged on the States’ competences in the field of economic policy and contravened the principle of non-monetization of the States’ budgets. The analysis of these cases will reveal that in this domain the ECJ has managed to set up a consistent standard of judicial review. First, it requires a close oversight on the purpose of the ECB’s mandate; second, it inquires whether the instruments chosen are appropriate to achieve the ECB legal mandate; and finally, it controls if the effects produced at macroeconomic level are proportionate to the objectives. The Weiss case adds a scrutiny on the instruments used by the European System of central banks (ESCB) in order to ascertain if the modalities foreseen to implement an unconventional programme of monetary policy runs counter to EU Law, even indirectly.