internalrules. The ECB enjoys by dint of preciseTreaty formulation formal‘public access-
free’statusthat can only be lifted by changing theTreaty.
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
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
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.
The ECB lost thebattle against the European
Anti-Fraud Ofﬁce (OLAF) in 2003
but not the war. The ﬁnancial crisis in 2008 and the
highly distinctive body of normative sources created or developed since then
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.
The Court of
Justice gave itsblessing to this practice,
de facto broadeningthe ECB’s hitherto narrowly
deﬁned 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 nature’and 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-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.
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 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.
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