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The creation of a single market and the continuing concentration and integration at the European level have created phenomena that can neither be governed by nationally based policies nor left to the working of unregulated markets.1 According to the European Court of Justice, one of the cardinal aims of the Treaty is to create a single economic region, free from internal restrictions, in which an economic and customs union may be progressively achieved. This requires, among other things, that the parities between the currencies of the various Member States remain fixed2 until all national currencies in the Economic and Monetary Union (the EMU), have been replaced by the single currency, the Euro. The European Central Bank,3 acts as the sovereign within the sphere of Community monetary policy.
The cornerstone of the Bank's meaningful position is its exclusive right to issue money and responsibility over its value.4 The primary objective of the ECB is to maintain price stability in the Euro area.5 Not disregarding this objective it shall also support the general economic policies and objectives of the Community as laid down in Article 2 EC. This provision establishes a clear hierarchy of objectives.6 The ECB is bound by the same principles as the other EU organs7, i.e. the principles of legitimacy8 and proportionality.9 Placing all central rules regulating the ECB in the Treaty and Statute which constitute primary law with direct effect on and within Member States gives the System a strong law-based status and strengthens its independence even further. Since the Treaty can only be changed if all Member States agree on and ratify amendments, the Statute has a very high legal, de facto constitutional status.10
According to Gros, the organisational structure and mode of operation of the Bank, however important these dimensions are, cannot solely determine its future performance. More essential is the general mandate for monetary policy the ECB pursues and its relationship to political authorities, summarised under the headings of independence and accountability.11 The Union is, in accordance with Art. 6(2) TEU and well-established case law of the ECJ, bound to respect fundamental rights. Still, an independent central bank running an autonomous monetary policy questions the foundations of legitimacy and accountability, the general basis of democratic decision-making being the participation of those affected.
The system of monetary decision-making has deliberately been distanced from the conventional politically organised and democratically legitimated system of decision-making12 in order to make it immune to political pressure. By leaving the concept of price stability undefined, some flexibility has been achieved. At the same time, however, it has become difficult to control the accountability of the ECB and secure that it functions in a legitimate manner. Therefore the most central question becomes whether it is possible to function in an independent and legitimate manner at the same time, fulfilling both the substantive and procedural requirements for legitimacy. Is the ECB too independent? Democracy based on representation assumes a symmetrical relationship between power and accountability - when public power is implemented someone must be able to be held accountable for it.13 Public power is used within the EU and by ECB without, if nothing else, the traditional forms of political accountability which otherwise should follow automatically.
According to doctrine, an autonomous central bank is seen as a prerequisite for price stability,14 the general opinion appearing to be that monetary sovereignty cannot be divided.15 Thus, are there different categories of decision-making so that undemocratic decision-making by a central bank can be regarded as more legitimate than if it took place in the auspices of another organ?16 It has also been suggested that undemocratic decision-making could, nevertheless, be justified through profitable results. The objective of this paper is to consider the implementation of ECB's law-making powers and its effects in light of the principle of democracy and the requirements of legitimate decision-making. In this paper, democracy is seen as the most central way to create legitimacy, even if other measures are introduced as well.
1 Hirst, Paul and Thompson, Grahame (1996), p. 156.
2 As stated by the ECJ, as soon as this requirement ceases to be met the process of integration envisaged by the Treaty will be retarded or prejudiced. Case Schluter v. Hauptzollamt Lörrach, p. 1661.
3 Or the abbreviation ESCB used for the European System of Central Banks as no distinction is here made between these two. Therefore the terms "the ECB or "the Bank" are used to cover both.
4 Art. 106 EC: `The ECB shall have the exclusive right to authorise the issue of banknotes within the Community.'
5 EC Treaty includes no definition of "price stability" which gives the Bank relatively free hands to both define and implement the objective. According to Gros and Thygesen "if the ESCB had indeed repeated the listing of objectives set for the Community in general, regular political reassessments of the relative weight of the different objectives would have become legitimate. Such reassessments are essentially political decisions, which could not be delegated to an institution outside the centre of the policy-making process. A simple and single-valued objective is therefore arguably the only basis on which monetary policy could be delegated to the ESCB and subsequently monitored by the political authorities and the public." Gros, Daniel and Thygesen, Nils (1992), p. 408. The authors suggest, however, that in order to make delegation and monitoring transparent the objective should have been made more explicit. Idem.
6 Art. 2 ESCB Statute, Art. EC; Pipkorn, Jörn (1994), s. 286.
7 The ECB and
ESBC are not mentioned in Art. 7 EC where the other organs are enumerated and
their establishment is only mentioned in Art. 8 EC: `ESCB and ECB shall be
established in accordance with the procedures laid down in this Treaty.' The
difference between ECB and the other EU organs is also visible in Art. 234(b)
EC which establishes the ECJ's competence to give preliminary rulings
concerning the validity and interpretation of acts of the institutions of the
Community and of the ECB (emphasis added).
According to Piris, however, this should not lead one to
believe that the ECB and the ESCB are subordinate or second-tier bodies. They
constitute an institutional system of an almost autonomous nature whose
independence is guaranteed from a legal point of view and over which the
Community institutions have little or no power and whose powers to adopt
regulations, decisions, recommendations and opinions are modelled on those of
the Council. Piris, Jean-Claude (1994), s. 452 (footnote).
8 Article 8 EC establishes specifically that ECB and ESCB shall act within the limits of the powers conferred upon them by the EC Treaty and by the Statute.
9 Art. 5.3 EC. The principle of subsidiarity can only be used in areas, which do not fall within the exclusive competence of the Community. Art. 5 EC.
10 Gros, Daniel (1998), p. 356. The Council can make minor technical amendments but changes in ECB's powers or objectives require the same procedure as changing the EC Treaty and acceptance by all Member States. Art. 107.5 EC and art. 41 of the Statute establish a simplified amendment procedure, namely that specific articles of the Statute can be amended by the Council, acting by qualified majority on a recommendation from the ECB and after consulting the Commission or unanimously on a proposal from the Commission and after consulting the ECB. In either case the assent of the European Parliament is required.
11 Gros, Daniel (1998), p. 348.
12 Dashwood, Alan et al. (1996), p. 629.
13 Agné, Hans (1998), p. 19.
14 E.g. Louis, Jean-Victor et al (1995), p. 62; According to Smits it is believed that only with such autonomous institutions can the strict monetary policy necessary to ensure price stability to be properly implemented. Smits, René (1996), p. 327.
15 E.g. Hahn, Hugo (1991), p. 799.
16 It is possible to question the varying degree of autonomy usually given to central banks. Still, it is extremely rarely challenged that a central bank fulfils its obligations best when independent.