‘Accountable Independence’ of the European Central Bank: Seeing the Logics of Transparency

• Published date: 01 March 2017
• Date: 01 March 2017
• DOI: http://doi.org/10.1111/eulj.12211

‘Accountable Independence’of the European

Central Bank: Seeing the Logics of

Transparency

Deirdre Curtin*

Abstract: The European Central Bank (ECB) emergedfrom the financial crisi s not only as

the institutional ‘winner’butalsoasthemostcentral—and powerful—supranation al

institution of our times. This article challenges the so-called ‘accountable independence’of

the ECB across the range of tasks it carries ou t. Citizens ‘see’the ECB today especially

for its role in promoting austerity and its involvement as part of the troika and otherwise

in the economicdecision making of troubledMember States. Far from ECB monetarypolicy

heraldinga ‘new democratic model ’, the ECB today suffers from a clear deficit in democracy.

In between the grandiose concept of ECB ‘independence’and the more performative ECB

‘accountability’lies ‘transparency’. Across the range of ECB pr actices there is a need to take

the related concepts of ‘transparency’and of (democratic) ‘accountability’more seriously,

both in conceptual terms and in their relationship to one another.

1

I Introduction

‘Seeing’the European Central Bank ( ECB), a notoriously secret ive and defensive

institution, is not only a matter of newspaper reports, press conferences, formal powers

and evolving practices, institutional and otherwise. It also crucially depends, for analysis,

on the public availability of information.On the outside (much) more is known aboutthe

ECB and its operations th an was previously the case . This is due to a combination of

leaked information, parliamentaryenquiries, Ombudsman activityand court cases. There

are clear legal limits however. The ECB itse lf is, moreover, not only passively se en by

others but also activel y expresses voice through i ts own ‘words’. Those words may be

expressed in its annual rep orts, in speeches made by its P resident or members of its

Executive Board (publicly and to parliaments), in interviews or speeches by members of

its Governing Committee (largely Presidents of national central banks). The discretion it

enjoys over what to relea se, when and how is reinforced in the Treaty and in its own

* Professor of European Law,European University Institute, Florence.Part of the research enabling thisarticle

was carriedout while a Fellowat the Wissenschaftskollegin Berlin (2014–2015). A series of interviewswere held

at the ECB in Frankfurtduring 2015 andI amgrateful to the ECB and its servicesfor the information provided

at that time.Earlier versions of thispaper were presented at workshops in Berlin,Amsterdam, Paris, Salzburg

and Florencein 2015 and 2016 and I am grateful to theparticipants for very helpfulcomments. I have greatly

benefited from further discussio ns with Vigjilenca Abazi, Fabian Amtenbrink, Madalina Bus uioc, Dieter

Grimm, Maarten Hillebrandt, Claire Kilpat rick, Ida Koivisto, Paivi Leino, Tatevik Manchuryan, Albert

Meijer, Christoph Möllers, Christy Petit, Uwe Puetter, Marijn van der Sluis, Agnieszka Smoleńska, Bruno

de Witte and Chiara Zilioli. I am verygrateful to Silvia Steininger and also to MichałKrajewski for excellent

research andediting assistance. Anyerrors or inaccuracies aremine alone.

European LawJournal, Vol. 23, No. 1-2, August 2017,pp. 28–44.

© 2017 John Wiley & Sons Ltd.

internalrules. The ECB enjoys by dint of preciseTreaty formulation formal‘public access-

free’statusthat can only be lifted by changing theTreaty.

1

The ECB’s internalrules on the

classification of documentsfurther reinforce zonesof secrecy and its autonomy in deciding

what to release, to whom and when.

An often overlookedadditional element in analysing the ECB is what maybe termed its

‘double government’.

2

This term refers to the unquestionably important role played by

ECB economists and lawye rs in giving voice both in terms of pol icy substance and

economic analysis and in terms of its nature as an independent and (to some extent)

autonomous institution. The ‘words’used by the staff economists in particular are well

known and often referred to by other eco nomists. Less well known b ut particularly

informative are the observations made by the Legal Service of the ECB before the Court

of Justice of the European Uni on (CJEU) in Luxembourg in a series o f cases brought

either by other institutions or by private citizens (seeking access to its documents). These

observations are not publicly availa ble, however—not even long after cases have been

decided.

3

Precisely in the wording used in these observations one can see a new actor on

the European stage long in denial of its status a nd the formal application o f general

horizontalrules of the EU. Through on-going scholarshipof its (leading) in-house lawyers

and through arguments made behind closeddoors in Luxembourg, the case is madefor an

ECB that is not only visibly ‘independent’(of national polit ical influence) but also rather

‘autonomous’inits exercise of its functions.

4

The ECB lost thebattle against the European

Anti-Fraud Office (OLAF) in 2003

5

but not the war. The financial crisis in 2008 and the

highly distinctive body of normative sources created or developed since then

6

gave the

ECB new—and incremental—ways of claiming autonomy in practice.

The ECB emerged not only as the institutional ‘winner’in a variety of senses from the

financial crisis but also as the most central—and powerful—supranational institution of

our times. In response to th e sovereign debt crisis, th e ECB adopted non-standar d

measures reaching beyo nd the traditional scope of moneta ry policy.

7

The Court of

Justice gave itsblessing to this practice,

8

de facto broadeningthe ECB’s hitherto narrowly

defined constitutional mandate. In parallel, t he ECB has been given new and assumed

1

Article 15 TFEU only applies to ECB and CJEU ‘docum ents of an administrative nature’and not more

generally.

2

See P. Conti-Brown, The Power and Independence of theFederal Reserve (PrincetonUniversity Press, 2016),at

84 et seq.

3

The ECB eventually providedme with a number of legal observations by the ECB in long-finished cases.This

raisesa more general point of judicialtransparency in 2017:why should observationsmade by (all) public insti-

tutionsand Member Statesnot be immediatelypublicly available?At the very leastthey should be madesystem-

aticallyavailable (by the CJEU)once judgment has beenrendered withoutindividuals having tochase them up

with no guarantee of success andno transparency for other interested parties.

4

See, in general, B. Dutzler,The European System of Central Banks: An Autonomous Actor? The Quest for an

InstitutionalBalance in EMU (Springer, 2003).

5

Case C-11/00, Commission of the European Communities, ECLI:EU:C:2003:395. See, too, an earlier article

arguing the ECB’s case by (also) the (at that time) Deputy General Counsel at the ECB: C. Zillioli and M.

Selmayr, ‘The European Central Ba nk: An Independent Specializ ed Organization of Community Law’,

(2000) 37 CommonMarket Law Review,591–643.

6

For a very detailedand helpful analysis,see C. Kilpatrick, ‘AbnormalSources and InstitutionalActions in the

EU SovereignDebt Crisis:ECB Crisis Managementand the SovereignDebt Loans’,inL.AzoulaiandM.Cre-

mona (eds), EU Legal Acts: Challenges and Transformations (Oxford University Press,forthcoming, 2017).

7

For instancethe Outright Monetary Transactions (OMT)programme.

8

See Case C-62/14,Gauweiler, ECLI:EU:C:2015:400.

European Law Journal Volume 23

©2017JohnWiley&SonsLtd. 29