Soft-law mechanisms, hard institutional impacts: how the European
Ombudsman is enhancing the European Central Bank’s transparency framework
by Camila VILLARD DURAN, Assistant
professor of Law, University of São Paulo (Brazil), Oxford-Princeton Global Leaders
Fellow, Woodrow Wilson School - Princeton University (USA).
Looking back
to central bank history, one may notice that conventionally these institutions
were not supposed to be accountable to general public, but mainly to political
powers of their countries.[1]
Yet, in the
last three decades, the most important institutional change for central banks
was the attribution of political autonomy over monetary policy as well as the
establishment of mechanisms for “operational transparency”. The main goal of
monetary stability was another feature of this political movement. Having an
exclusive aim, or a wellGdefined hierarchy of goals,
was supposed to make the performance assessment straightforward. Therefore,
accountability and transparency mechanisms[2] were designed by law to assure that
currency management could be evaluated by parliaments and heads of government.
Nonetheless,
since the 1990s, central bank regulations or statements related to operational
transparency were also set up, though focused on market communication and
economic efficiency of monetary actions. For instance, central bank, by their
own initiatives, defined specific inflation targets for interest rate policy
(the case for the ECB and after 2012 the United States’ Federal Reserve) or decided
to publish minutes (the ECB after 2015).[3] This precise type of accountability
mechanism has emerged as soft law, i.e. outside of the battles of the
political arena.
In my opinion, it has gone unnoticed in the economic literature, which
refers to them only as mechanisms of “operational transparency” (Duran, 2012).
Nonetheless, these central bank regulations established an institutional
framework for potential greater social accountability (Duran, 2015).
These “soft” instruments complemented the legal structure for monetary policy
transparency construed by hard law and parliamentary initiatives.
The 2008 financial crisis, however, challenged this institutional
framework for transparency in currency management.
Firstly, the quantitative easing policies (QEs) became the “new normal”
for central banks, since interest rate decisions exhausted its effects.
Moreover, the intellectual consensus on the neutrality of money was contested
and central banks gained more power and complex responsibilities related to
financial stability (Goodhart, 2010; Aglietta, 2011; Borio, 2011). For
instance, the ECB is in charge of banking supervision in the framework of the
Single Supervisory Mechanism (SSM). This mandate creates new legal realities
and challenges in relation to the independence of the institution. It also
raises questions on how to keep ECB (new and old) powers in check.[4]
It was already complex for citizens and political actors to assess
central bank decisions through legal instruments related to operational transparency
in traditional monetary policy (soft or hard law in nature). What could be said
about the quantitative easing policies and new regulatory functions acquired
after the 2008 crisis ? In democratic and global integrated societies, how to
assure supervision and evaluation of complex public actions taken by monetary authorities
?
I argued (Duran, 2012; Duran, 2015) that the role of law in policy-making,
notably in monetary policy, is changing: from (i) ex
ante framework to control the implementation of public policies (precise
definition of instruments and legal quantitative limits to central bank
actions)[5] towards
(ii) an ex post form of supervision, i.e. through the establishment of
accountability and transparency procedures (by means of targets and goals
combined with instruments for ex post evaluation and possibly
application of judicial or other types of sanctions).[6]
This movement was already noticed in modern monetary policy, but this
trend tends to be reinforced in the 2008 aftermath in a more complex financial
environment and with new mandates for central banks. These challenges call for
the re-imagination of transparency mechanisms in monetary policy and banking
supervision.[7] This is
also a way to re-legitimate central bank actions in a post-crisis world. Thus
how to improve the role of law in central bank transparency, notably at the ECB
? How to deal with the trade-offs between transparency and confidentiality in
financial and monetary matters ?
This research proposes to assess how a non-judicial body in Europe, the
Ombudsman, is contributing to enhance the legal framework for the ECB
transparency and broadening citizens’ oversight of central bank actions. This
is particular important in the actual context of a growing complexity of ECB’s
mandates and responsibilities.
The Ombudsman has a very interesting hybrid nature: it is formally a
parliamentary body, but operates as a quasi-judicial forum through
individual complaints. It also has the power to initiate its own inquiries. It
is designed to assure the respect of the rule of law by European institutions
by investigating denunciations of “acts of maladministration”. The Ombudsman
“illustrates a classic logic of parliamentary accountability” (Magnette, 2003: 678).
This research aims, at first, to map the Ombudsman’s cases involving the
ECB since its creation, and then to analyze how they are contributing to
broaden the general public’s oversight of monetary regulation beyond markets
and politicians. This paper presents the initial assessment of these cases and
tries to contribute to the legal literature on how law can assure social
accountability of central banks. In the next section, I present the literature
gap on central bank transparency and accountability. I also propose one legal
perspective, which might bridge this gap. In the third section, I present my
first assessment of the Ombudsman’s cases involving the ECB and its monetary
regulation. Even though Ombudsman’s pronouncements are non-binding (a very
different feature if one compares to Courts), this European institution has
been promoting identifiable impacts on ECB transparency. Its soft-law nature is
contrasted with hard effects generated by few cases involving the central bank
since 1999, as I will explore below. A brief conclusion follows.
Since the
1990s, the literature on transparency and accountability of central banks is
very proficient (de Haan et al., 1998; Amtenbrink, 1999; Bini-Smaghi and
Gros, 2001; Van den Berg, 2005; Blinder, 2004; Lybek, 2005; De Haan and Osterloo, 2006; Dincer and Eichengreen, 2007; Goodfriend,
2007; BIS, 2009; Laurens et al., 2009; Van der Cruijsen
et al., 2010a; 2010b).[8] Yet, I argued elsewhere (Duran, 2012;
Duran, 2015) this literature (1) had essentially an economic perspective (i.e.
focus on efficiency of monetary policy and central bank communication towards
market agents), (2) accountability
instruments were fused with transparency tools and the main literature did not
sufficiently pay attention to the differentiation between ex ante and ex
post institutional mechanisms to keep monetary power in check; and (3) the
growing relevance of soft law was not identified by this intellectual field, as
the main institutional innovation of central banks in the last decades.
Another
literature gap is related to the analysis of checks and balances, notably for
the ECB, from the perspective of judicial and non-judicial bodies, i.e. the
Court of Justice of the European Union (CJEU) and the European Ombudsman. Few studies have been focused on judicial review. For instance, I may
mention the collection of articles on the CJEU’s decision related to the
implementation of the Outright Monetary Transactions (OMT) by the central bank
(the “Gauweiler case”) published as special section
at the German Law Journal (2015). However, these articles focus rather on the
implications for the constitutional design of monetary policy instead of how
the CJEU is contributing (or not) to enhance general public’s oversight of
monetary decisions.[9]
It has not
come to my notice a study focused specifically on the relationship between the
European Ombudsman and the ECB. Magnette (2003) and Cadeddu (2004) analyzed the political role and the
institutional functions of the European Ombudsman. At some point, they both
mentioned cases related to the ECB (Magnette, 2003:
688-689; Cadeddu, 2004: 166, note 19). However, they
did not focus on the effects produced by the Ombudsman’s decisions on the ECB
framework.
The European
central bank was designed as a very independent institution. However, monetary
decisions have wide social impacts. The ECB allocates resources among different
social groups, i.e. creditors and debtors. Thus, despite the complexity of
central bank decisions, “technical” issues on money are political in nature and
define winners and losers in European society. Therefore, in democratic
contexts, there is a demand for legal mechanisms that could maintain monetary
power in check.
If the legal
structure for monetary policy is becoming more and more ex post in
nature, as I suggested above, the Ombudsman is an important institution for
this system. By means of an ex post control of governance procedures,
the European Ombudsman can indirectly reach the content of
monetary decisions by giving voice to stakeholders outside parliaments and
markets.
The key
Ombudsman’s institutional attributes, which may impact the framework for
monetary power’s oversight are: (i) its investigative
power, (ii) its openness to complaints by any European citizens or residents
without formalities, and (iii) its “contradictory” procedures, where
complainant and administration dialogues and can reach an agreement. Its
technical specialization on governance issues and good administrative practices
reshapes citizen’s arguments and can put them in similar level of knowledge as
European bureaucracies. In addition, it works through repressive measures that
may generate effects on European institution’s reputation and prestige – a sort
of sanction very feared by central banks.
The Ombudsman
has the potential to exercise political pressure on institutions in Europe,
being a relevant “source of diffuse power” (Magnette,
2003: 682). It is a type of “soft justice”, which may suit the framework for
the oversight of European monetary power. Therefore, it is a matter of
empirical question: how and in which conditions the Ombudsman has been influencing
the ECB transparency?
The ECB has
the confidentiality of its monetary deliberations guaranteed by treaty. Article
132(2) of the Treaty on the Functioning of the EU (TFEU) delegates the
disclosure of decisions up to the ECB itself. Protocol 4 of the TFEU states
that the Governing Council’s regular meetings are confidential and only the
central bank decides to announce them. Politically, “the power to decide the
degree of transparency and the level of social accountability concerning
monetary decisions is granted to the ECB” (Duran, 2015: 114-115).
Therefore, the
European Ombudsman can particularly contribute to broadening the oversight
scope of the ECB. Up to present, it decided 9 (nine) cases concerning the
central bank, which involved complaints related to the management of monetary
policy as well as other institutional matters.[10] The majority of the cases (6/9) were initiated by
European citizens or residents, which reveals a high degree of Ombudsman’s
openness and facilitated access (Table 1, below). Other cases comprised
complaints by a member of the Parliament (1) and a non-governmental
organization (1), as well as a procedure initiated by the Ombudsman’s own
initiative.
Table 1. European Ombudsman’s cases concerning the
ECB and the institutional design of monetary regulation
|
Case
denomination and official number |
Opened on |
Ombudsman |
Complainant |
Any
improvement on the ECB transparency? |
|
|
1. AnaCredit |
1993 |
2015 |
Emily O’Reilly |
Member of the
European Parliament[11] |
Yes [most relevant] |
|
2. Eurozone convergence criteria |
356 |
2014 |
Emily O’Reilly |
European citizen or resident
(German citizen) |
No. It was a missed opportunity |
|
3. Group of Thirty |
1339 |
2012 |
P. Nikiforos Diamendouros |
NGO[12] |
Yes |
|
4. ECB communication with Spanish authorities |
2016 |
2011 |
P. Nikiforos
Diamendouros |
European citizen or resident
(Spanish lawyer) |
Yes |
|
5. Language for ECB communication – case II
|
1008 |
2006 |
P. Nikiforos Diamendouros |
European citizen or
resident (French) |
No. Actually, it had
a negative impact. |
|
6. Exchange rate policy
|
3054 |
2004 |
P. Nikiforos
Diamendouros |
European citizen or resident |
Yes |
|
7. Euro banknotes
|
1939 |
2002 |
P. Nikiforos Diamendouros |
European citizen or
resident |
Yes |
|
8. Language for ECB communication – case I
|
281 |
1999 |
Jacob Söderman |
European citizen or resident |
No. Actually, it had a negative
impact |
|
9. Rules governing public access to documents |
0I/1 |
1999 |
Jacob Söderman |
Ombudsman (own
initiative) |
Yes |
Among all
these cases, two thirds (6/9) had a clear and identifiable contribution to ECB
transparency and accountability (Table 1, above). In my qualitative analysis, I
am not concerned with the case’s result, i.e. if the Ombudsman found any
maladministration in relation to the complainant’s allegations. Anyway, in all
of these cases, the Ombudsman declared there was no maladministration on
the part of the ECB.
However, the
Ombudsman’s particular contribution was elsewhere: by manipulating its
(independent and soft) powers and establishing an institutional channel between
the complainant and the ECB on transparency matters. Also, the Ombudsman vocalized issues related to governance transparency.
In cases 1, 3,
4, 6, 7 and 9 (Table 1, above), the ECB seems to change its behavior to respond
to the Ombudsman’s demands on transparency, or the Ombudsman used the procedures
to vocalize significant arguments on central bank transparency. All Ombudsmen
contributed to this movement (Emily O’Reilly, P. Nikiforos
Diamandouros and Jacob Söderman).
In case 2, no relevant impact on ECB transparency policy was identifiable, but
in cases 5 and 8 there was, in fact, a negative impact, as I will explain
below.
The AnaCredit case (Case 1, Table 1, above) was the most
remarkable one. By means of a complaint, a member of the European Parliament
(MEP) manifested his concerns on the AnaCredit
regulation to be issued by the ECB. The AnaCredit is
“a project to set up a dataset containing detailed information on individual
bank loans in the euro area, harmonized across all member states”.[13] The central bank intention is to create a
European analytical credit datasets. The MEP was concerned that this regulation
may be a breach of higher-ranking EU law, particularly rules and principles
concerning data protection. Furthermore, according to him, the ECB should carry
out a public consultation before issuing this type of regulation, since it
concerns millions of people in Europe.
In her
decision, the Ombudsman O’Reilley noted that the ECB
was (currently) examining the MEP substantive concerns and has consulted the
Data Protection Supervisor in Europe. Her first assessment was that, as prima
facie, the legal basis for the AnaCredit did not
seem to be wrong. However, in relation to the public consultation, she provoked
the ECB to take action. In her words,
“I note from material
published by the ECB on 11 November 2015 that the Bank ran a 'merits and costs'
procedure, in which 'representatives of the banking industry were directly
involved', mainly via the respective NCBs [national central banks]. It is further
stated that the industry was informed on many occasions and extensively in
writing. There is also mention of a possible
public consultation should the ECB Governing Council consider an
extension of the scope of the AnaCredit dataset in the future. Given that it has not
been possible for my services to find a published report on the 'merits and
costs' procedure, it is difficult to
gauge to what extent stakeholders and the wider public have been given an
opportunity to provide structured input on this important initiative.
The regulation to be adopted will affect millions of individuals; adopting it
without ensuring the most appropriate consultation of stakeholders and the
wider public may undermine the public trust of AnaCredit,
irrespective of its merits. I
understand there is no legal impediment to the ECB giving all stakeholders
including the wider public an opportunity to voice their views.”
(European Ombudsman, my emphasis, Fragments of the Ombudsman’s decision on
the Case AnaCredit, 1693/2015/PD).
The
Ombudsman’s decision was issued on 20 November 2015. On 4 December, the ECB
published a draft regulation for the AnaCredit
project and opened a period of more than 50 days for public consultation. The
ECB also clarified that it would “provide feedback on how the observations
received were assessed and taken into account in the Regulation”.[14] The central bank also explained the confidential
rules of the project: “[d]ata will be treated
according to strict confidentiality rules as set out under existing European
law, and will only be accessible to the [aforementioned] users and for the
foreseen uses.”[15]
Therefore, the
ECB reacted positively to the Ombudsman’s decision promoting, almost
immediately, a public consultation for the AnaCredit
regulation (instead of considering only a “possible future consultation”) and,
by its website, tried to address the initial concerns on data protection. Also,
it is important to remark the Ombudsman’s sentences: she clearly vocalized the
interests of other stakeholders, besides industry and national central banks.
Possibly, this
case had another effect related to the announcement of a research fellowship on
ECB transparency in 9 December 2016. The second edition of the “ECB Legal
Research Programme” called for papers on a “comprehensive analysis of the principle of transparency,
including in view of the case law of the relevant courts and the practice of nonGjudicial subjects (e.g. the European Ombudsman) [which]
would be relevant to determine whether transparency demands prevail over other
competing requirements (related to central bank activities), favoring a more
limited scrutiny.”[16] It shows that the ECB is carefully
considering the arguments presented by the Ombudsman and the MEP.
The second
case, which had a relative impact on the ECB, was the contestation made by a
NGO on the central bank president’s membership of the Group of Thirty (Case 3,
Table 1, above). The NGO stressed that this membership could jeopardize ECB
independence, since private market agents were also members of this Group. In
fact, this Group was considered, by the complainant, as a “lobbying vehicle”.
In 2013, in his final decision, the Ombudsman P. Nikiforos
Diamandouros analyzed in detail the Group of Thirty’s
membership and financial support. It found a great variety of interests inside
the institution and did not characterize it as a private market’s lobby group.
In fact, he understood that this Group is a very diverse forum, in which ideas
on monetary regulation could be exchanged in an open dialogue. He emphasizes
that the ECB should dialogue in other forums as well, not only the Group of
Thirty.[17]
Another
particular contribution of this case was in the Ombudsman’s “further remarks”. Diamandouros stressed that the European economic crisis
increased the public visibility and expectations in relation to the ECB and its
role. He noted “further responsibilities are likely to be entrusted to the ECB
in the future, in particular as regards the supervision of banks. These
developments mean that not only the ECB, but the EU as whole, has a vital
interest in ensuring hat the ECB further raises the quality of its
communication with the public”.[18] He invited the ECB to include the
information on the President’s Group of Thirty membership in his CV at the
central bank website and encouraged the bank “to take steps to further raise
the quality of its communication with the public”.[19] The ECB responded to the Ombudsman demand and
included this information on its President’s CV.
Three cases
with significant impacts (Case 4, 6 and 7, Table 1, above) concerned European
citizens’ demands to access ECB documents or information. The most valuable
one, in terms of the qualitative content of arguments brought forth by the
Ombudsman, was the Case 4 (“ECB communication with Spanish authorities”). In
this case, a Spanish lawyer asked for access to a document sent by the ECB to
political authorities in Spain. The central bank refused the demand based on
the exception concerning protection of economic and monetary policy interests
(Article 4(1) (a), second indent of Decision ECB/2004/3). However, in the
European citizen’s view, the ECB decision was not issued with appropriate
statement of reasons.
In this case,
the Ombudsman mentioned cases-law at the CJEU to identify the European legal
regime on the “statement of reasons”. In his words,
the Court of Justice “has clearly held that, when processing an application for access to
documents, the institutions must carry out a specific examination of each
document concerned. The mere fact that a document concerns an interest
protected by an exception is not, in itself, sufficient to justify the
application of that exception. On the contrary, the institution in question
must, in principle, explain how
disclosure of the document could specifically and effectively undermine the
interest protected by the exception invoked. In addition to that, the
risk of protected interests being undermined must be reasonably foreseeable and
not purely hypothetical.”[20]
(European Ombudsman, Fragments of Fragments of the Ombudsman’s decision on the Case
2016/2011/ER, my emphasis).
During this
inquiry, the ECB
reviewed its position and send to the complainant a more appropriate statement
of reasons, describing the content of the letter and explaining the sensitivity
of the issue, as well as the central bank’s reasons and intentions underlying
the letter’s issuance. In his further remarks, the Ombudsman asked for more
transparency and more concern on the part of the ECB. In his words,
“the European Central Bank [should] continue to
regard the disclosure of documents to the public, and the reasoning of
decisions refusing disclosure, not only as legal obligations, but also as an
opportunity to demonstrate its commitment to the principle of transparency and
thereby to enhance its legitimacy in the eyes of citizens.”[21]
The Cases 6
and 7 (“Exchange rate policy” and “Euro banknotes”) concerned the same matter:
the ECB did not explain sufficiently its reasons for not providing information
related to, respectively, its exchange rate policy and statistics on stock and
flows of euro banknotes. In the latter case, Diamandouros
warned the ECB he could not accept that the central bank “is entitled” to rely
on an intellectual argument related to “irrational behavior” from public (such
as the idea of run on banknotes in countries where there are less stock). The
ECB did not offer “evidence to substantiate this argument which, moreover, does
not appear to relate to any of the exceptions” contained in the central bank
regulation (Article 4, Decision ECB/2004/3).[22] Therefore, the Ombudsman stressed that economic
ideas are not accepted as reasons for reducing central bank transparency.
Case 9 (“Rules
governing public access of documents”) also produced a relevant impact and it
was the first one involving the ECB. It was an inquiry on the Jacob Söderman’s initiative concerning different European
institutions and the issuance of their rules governing public access to
documents. The first ECB regulation regarding this issue was the Decision
1998/12 and the Ombudsman identified some problems in it. The most relevant
problem identified was: the ECB only regulated the access of so-called
“administrative documents” and did not mention the procedures to have access to
the Governing Council decisions on monetary policy, such as the meetings’
minutes. The dialogue with the ECB, during the inquiry, seemed to be tension.
The ECB remembered the Ombudsman that, according to the TFEU, it was not
obliged to disclosure its decisions. The Ombudsman replied saying that the
central bank can disclosure if it decides to, and the regulation should govern
this procedure. He referred to different cases-law at the CJEU.
It is
difficult to identify a casual relationship between this Ombudsman’s decision,
issued on 24 September 1999, and the developments on the ECB transparency
policy during the 2000s. However, it is important to note that this inquiry was
the first to establish an institutional dialogue between these two European
institutions and, after this first one, the ECB seems to be more cordial and
attentive to the Ombudsman’s demands and remarks. Also, the Ombudsman clearly
vocalized a particular concern with the Governing Council’s minutes, which
contain the most relevant decisions for the European monetary policy.
The ECB
decided to regularly publish minutes only in 2015,[23] but it issued a better regulation concerning
access to documents in 2004 (ECB Decision 2004/3), in which there are no more
distinctions between “administrative documents” and other decisional papers.
The regulation applies for any document formalized by the ECB, which could have
as a source the Ombudsman’s concern.[24]
One case had
no particular impact on ECB transparency (Case 2, “Eurozone convergence
criteria”, Table 1, above). It was a missed opportunity for the Ombudsman to
contribute to the central bank governance. However, in cases 5 and 8,
concerning a common issue (i.e. the “language of ECB communication”), it seems
that the Ombudsman contributed negatively with the transparency of European
monetary decisions.
In case 2
(“Eurozone convergence criteria”), Ombudsman O’Reilley
received a complaint by a European citizen, in which that he/she argues the ECB
was not publishing statistics on convergence criteria in “user-friendly” form,
like a check box. The ECB replied that it publishes the relevant data on annual
reports and by other means. Moreover, it stressed that member states are called
upon to steer their fiscal and other policies in compliance with other criteria
in addition to the convergence one.
The Ombudsman
did not identify a duty on the part of the ECB to publish the information in
the way the complainant asked for and did not develop further remarks. However,
in this case, I believe the Ombudsman could contribute more to ECB transparency
encouraging the central bank to invest in a less complicated form to
communicate with European community. The US Fed, for instance, has been
investing in a website for financial education and it contains clear
explanations about the Federal Reserve system and its functioning.[25] The Ombudsman could have used this kind of
complaint to remember the ECB that there is more alternatives to create a
friendly environment for the understanding of complex matters in European
monetary and economic policy.
In cases 5 and
8, I believe the main negative contribution was the acceptance by the Ombudsman
(Diamandouros and Söderman,
respectively) of a precise ECB argument, i.e. that there are two different
documents about monetary decisions: one to be addressed to experts and
financial markets, concerning “technical issues” in monetary policy and
published in English; others to be shared with the European community and
written in all languages.
This “differentiated
language regime” drew a line between monetary decisions (technical issues)
and “general information”. Nevertheless, the so-called “technical”
decisions have allocational effects on social groups.
In both cases, the Ombudsman did not explore the monetary argument and allowed
the ECB to be less transparent for the general public. Of course, there is a
concern on cost-efficiency to publish ECB documents in all community languages,
however an intermediate approach should have been explored by the central bank
to assure its legitimacy.
This paper
presents an ongoing research and an initial exam of the European Ombudsman’s
decisions involving the ECB. I believe that this institution has been
contributing to expand the transparency in monetary policy. Despite its soft-law
powers, the Ombudsman is promoting hard effects on the ECB accountability.
However, there is more room to improve it. At least in three cases (3/9), the
Ombudsman did not contribute or impacted negatively in central bank governance.
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[1] For an account on the history of accountability mechanisms of the
European Central Bank, the United States’ Federal Reserve and the Brazilian
Central Bank, see Duran (2012). For the foundational book on this subject, see Amtenbrink
(1999).
[2] In Duran (2012; 2015), I distinguished accountability from mechanisms of
transparency: “[f]rom the point of a political and legal view, transparency is
a precondition (i) to legitimate monetary policy
implemented by [...] independent CBs [central banks] and (ii) for the
accountability of these institutions – it enables social forums and political
institutions to monitor and evaluate their operation” (Duran, 2015: 121).
[3] In February 2015, the ECB decided to publish its minutes. The Financial
Times attributed this decision to “public pressure for more accountability
after the global financial crisis [which] has forced traditionally secretive
rate setters to open up” (European Central Bank opens up with release of
minutes' G 19 February 2015).
[4] It is important to note that new obligations related to confidentiality
and professional secrecy are also required. For instance, the ECB has to
combine the growing demand for transparency with specific procedures of
professional secrecy established particularly by two Directives of the European
Union – e.g. Directive 2014/59/EU (articles 84(5) and 98) and Directive
2013/36/EU (articles 59(2)). The ECB has been working with sensible information
related to public debt and budgetary deficits of countries in the eurozone. It must also deal with confidential information
in relation to the exercise of new powers in financial regulation.
[5] Historically, a legislative rule, which defined a ceiling for reserve
requirements, or precise limits for issuance of paper money by central banks.
[6] Historically, a legislative rule, which defined a ceiling for reserve
requirements, or precise limits for issuance of paper money by central banks.
[7] A recent article on the perspective of the ECB democratic accountability
in the framework of the SSM is Grandrud and Hallerberg (2015).
[8] The literature not focused on central banks, but especially relevant for
the concept of accountability in European and international contexts is: Bovens (2007a; 2007b; 2010), Grant and Keohane
(2005), Scott (2006) and Dowdle (2006).
[9] For a contribution related to the CJEU review of the European Council
decisions, see Abazi
and Hillebrandt (2015).
[10] I am not including in my empirical research cases related to the ECB’s
legal regime for employees and other service contracts. These rules are not
aimed at the general public concerns on the management of money, the focus of
this paper.
[11] The MEP is Sven Giegold, a German politician
(Group of the Greens/European Free Alliance).
[12] This organization is the Corporate Europe Observatory (CEO), a NGO based
in Brussels which works on exposing the power of lobby
groups in Europe.
[13] ECB website.
[14] See the ECB announcement at:
https://www.ecb.europa.eu/stats/money/aggregates/anacredit/html/index.en.html
[15] See the ECB announcement at:
https://www.ecb.europa.eu/stats/money/aggregates/anacredit/html/index.en.html
[16] See the announcement at:
https://www.ecb.europa.eu/pub/conferences/html/20151209_lrp.en.html
[17] In his words,
“[...] the obligation to maintain an
"open" dialogue with civil society also implies that the dialogue
should be balanced, affording diverse interlocutors an appropriate opportunity
to debate issues of relevance to the work of the ECB. This observation does not
imply that members of the decision-making bodies of the ECB should seek only to
engage with those civil society groups that encompass, internally, the entire
diversity of views on issues of relevance to the work of the ECB. Indeed, it is
unlikely that such all-encompassing groups exist. Rather, it means that efforts
should be made to discuss the work of
the ECB in diverse fora, in addition to discussing the work of the ECB
in the context of entities such as the Group of Thirty.”
(European Ombudsman, Fragments of the Ombudsman’s decision on the Case 1339/2012/FOR, my
emphasis).
[18] Fragments of the Ombudsman’s
decision on the Case 1339/2012/FOR, European Ombudsman, my
emphasis.
[19] Fragments of the Ombudsman’s decision on the Case 1339/2012/FOR,
European Ombudsman, my emphasis.
[20] The
cases-law were: Case C-506/08 P Sweden v MyTravel and Commission,
judgment of 21 July 2011, not yet published in the ECR, paragraph 76; Case
T-250/08 Bachelor v Commission, judgment of 24 May 2011, not yet
published in the ECR, paragraph 78; Case T-166/05 Borax Europe v Commission,
judgment of 11 March 2009, not yet published in the ECR, paragraph 88; Joined
Cases C-514/07 P, C-528/07 P and CG532/07 P Sweden and Others v API and
Commission, judgment of 21 September 2010, not yet published in the ECR, paragraph
72; Joined Cases C- 39/05 P and C- 52/05 P Sweden and Turco v Council
[2008] ECR I-1429, paragraph 43; Case T- 2/03 Verein
für Konsumenteninformation
v Commission [2005] ECR II-1121, paragraph 69; Sison
v Council, cited in footnote 5, paragraph 75.”
[21] European Ombudsman, Fragments of
the Ombudsman’s decision on the Case 2016/2011/ER.
[22] European Ombudsman, Fragments of
Fragments of the Ombudsman’s decision on the Case 1939/2002/IJH.
[23] However, since its creation, the ECB established an institutional practice
of organizing press conferences after the Governing Council’s meetings.
[24] However, only interviews can confirm this hypothesis.
[25] The website is: https://www.federalreserveeducation.org.