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

Published date01 March 2017
Date01 March 2017
Accountable Independenceof the European
Central Bank: Seeing the Logics of
Deirdre Curtin*
Abstract: The European Central Bank (ECB) emergedfrom the nancial crisi s not only as
the institutional winnerbutalsoasthemostcentraland powerfulsupranation al
institution of our times. This article challenges the so-called accountable independenceof
the ECB across the range of tasks it carries ou t. Citizens seethe 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 decit in democracy.
In between the grandiose concept of ECB independenceand the more performative ECB
accountabilitylies transparency. Across the range of ECB pr actices there is a need to take
the related concepts of transparencyand of (democratic) accountabilitymore seriously,
both in conceptual terms and in their relationship to one another.
I Introduction
Seeingthe 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 (20142015). 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
beneted 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. 2844.
© 2017 John Wiley & Sons Ltd.
internalrules. The ECB enjoys by dint of preciseTreaty formulation formalpublic access-
freestatusthat can only be lifted by changing theTreaty.
The ECBs internalrules on the
classication 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.
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 wordsused 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, howevernot even long after cases have been
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 inuence) but also rather
autonomousinits exercise of its functions.
The ECB lost thebattle against the European
Anti-Fraud Ofce (OLAF) in 2003
but not the war. The nancial crisis in 2008 and the
highly distinctive body of normative sources created or developed since then
gave the
ECB newand incrementalways of claiming autonomy in practice.
The ECB emerged not only as the institutional winnerin a variety of senses from the
nancial crisis but also as the most centraland powerfulsupranational 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.
The Court of
Justice gave itsblessing to this practice,
de facto broadeningthe ECBs hitherto narrowly
dened constitutional mandate. In parallel, t he ECB has been given new and assumed
Article 15 TFEU only applies to ECB and CJEU docum ents of an administrative natureand not more
See P. Conti-Brown, The Power and Independence of theFederal Reserve (PrincetonUniversity Press, 2016),at
84 et seq.
The ECB eventually providedme with a number of legal observations by the ECB in long-nished 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.
See, in general, B. Dutzler,The European System of Central Banks: An Autonomous Actor? The Quest for an
InstitutionalBalance in EMU (Springer, 2003).
Case C-11/00, Commission of the European Communities, ECLI:EU:C:2003:395. See, too, an earlier article
arguing the ECBs 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,591643.
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).
For instancethe Outright Monetary Transactions (OMT)programme.
See Case C-62/14,Gauweiler, ECLI:EU:C:2015:400.
European Law Journal Volume 23
©2017JohnWiley&SonsLtd. 29

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