The limited functional independence of the ECB

The limited functional independence of the ECB, E.L. Rev. 2004, 29(1), 115-123

E.L. Rev. 2004, 29(1), 115-123 European Law Review 2004 The limited functional independence of the ECB Nikolaos Lavranos © 2016 Sweet & Maxwell and its Contributors

Subject: Banking and finance Keywords: EC law; European Central Bank; Fraud; Investigations Legislation: Treaty establishing a Constitution for Europe 2004 Case: Commission of the European Communities v European Central Bank (C11/00) (Unreported, July 10, 2003) (ECJ)

*115 In the judgment in Case C-11/00, Commission v ECB the Court of Justice had for the first time the opportunity to adjudicate on the position of the European Central Bank (“ECB”) within the institutional system of the EC. The Court had the choice between two opposing positions. Either the ECB had to be considered to be completely independent from the Community institutions and thus operating outside the framework of EC law. Or the ECB had to be considered to enjoy only a limited, functional independence that ensures the proper execution of its monetary tasks whilst at the same time placing the ECB firmly within the framework of EC law and thus subjecting the ECB to all relevant primary and secondary Community law. The Court and the Advocate General clearly opted for the latter position arguing that the enjoyment of a high degree of independence cannot be construed as resulting in placing the ECB completely outside the Community law system. This reasoning is in line with the intentions of the “Masters of the Treaties” who never wanted to establish an ECB that would operate outside the framework of the ECB.

Introduction In times of economic recession which most EU Member States currently face, the external pressure on the European Central Bank (“ECB”) to adopt measures that would stimulate--in the view of some of the EU Member States--their economies but which the ECB considers inappropriate is mounting. Moreover, a number of Member States, in particular France and Germany, have openly undermined the so-called “stability pact” by violating its norms. Finally, the long discussions on the succession of the first ECB President, Wim Duisenberg, is another sign of attempts by Member States to exert influence on the ECB. All these examples share one common background, namely, the wide political and legal independence of the ECB coupled with the extensive transfer of essential competences in the field of monetary policy from the Member States to the ECB. Indeed, right from the beginning of the establishment of the predecessor of the ECB, the European Monetary Institute (EMI), two aspects have been highly important and were pushed in particular by Germany. First, a far-reaching political and legal independence of the ECB (Article 108 EC), similar to the German Bundesbank and secondly, very strict monetary conditions as prescribed in the stability pact in order to ensure a strong euro. In the judgment in Case C-11/00, Commission v Council 1 the Court of Justice was requested by the Commission to adjudicate for the first time on the scope and limits of the independence of the ECB vis-à-vis the Community legislature. This judgment thus concerns the basic question of institutional balance between on the one hand the institutions of the EC (Article 7 EC) and on the other hand the ECB (Article 8 EC).

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*116 After a summary of the facts of the case, this note will analyse the Court's reasoning and, where appropriate, Advocate General Jacobs' reasoning regarding the central question as to whether the ECB is part of the Community law system and as to the scope and limit of its independence.

The facts The fight against fraud to the detriment of the financial interests of the EC is an important issue considering the fact that every year billions of euros are lost as a consequence of fraudulent activities. 2 In order to intensify the fight against fraud, the Amsterdam Treaty inserted Article 280(4) EC by which a legal basis for the Community legislature was established in order to adopt legal acts for the protection of the financial interests of the EC. In a first step, OLAF (Office de Lutte Anti-Fraude) was established in 1999 under the direction and supervision of the Commission. 3 OLAF is the central office endowed with the competence to fight fraud and to increase fraud prevention on the Community level. 4 In a second step, Regulation 1073/1999 was adopted on the basis of Article 280(4) EC which endows OLAF with far-reaching investigative powers in order to fight fraudulent activities against the financial interests of the EC. 5 As Article 1(3) of Regulation 1073/1999 states, OLAF shall conduct investigations “within the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties”. The ECB itself apparently assumed that it did not fall within the scope of the Regulation and thus adopted its own anti-fraud measures for the protection of its own financial interests--which in its view are to be distinguished from the financial interests of the EC. 6 The core element of the measures was to establish an anti-fraud committee within the Directorate for Internal Audit of the ECB which shall be responsible for the investigation of fraud affecting the financial interests of the ECB. More importantly, this anti-fraud committee is made exclusively competent for the anti-fraud investigation within the ECB, thereby excluding OLAF. The Commission considered that with this decision the ECB willingly refused to co-operate with OLAF, thereby violating Regulation 1073/1999. Consequently, by an application lodged at the Court of Justice on January 14, 2000, the Commission started an action on the basis of Article 230 EC against the ECB for annulment of Decision 1999/726/EC on fraud prevention adopted by the ECB on October 7, 1999. 7 Hence, the central issue of the dispute is whether the ECB can be qualified as an “institution, body, office or agency established by, or on the basis of, the Treaties”, thereby falling within the scope of the Regulation. If that would indeed be the case, OLAF has the power to investigate within the ECB. This in turn raises the question whether EC *117 law can be applied to the ECB or whether the ECB is so independent that it operates completely outside the framework of Community law. Finally, it should be noted that the Court ruled on the same day in a similar procedure against the European Investment Bank (“EIB”) which also refused to comply with the Regulation and instead adopted its own anti-fraud measures. 8 The judgment which is essentially the same, thereby treating the EIB very similar to the ECB as regards their relationship with EC law, is of importance as will be discussed later on.

The judgment The main issue the ECJ had to decide was to determine whether the ECB is an institution of the Community and to define the scope and limits of the independence of the ECB.

The ECB as an institution of the Community The wording of Article 8 EC first part reads as follows:

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The limited functional independence of the ECB, E.L. Rev. 2004, 29(1), 115-123

“A European System of Central Banks and a European Central Bank shall be established in accordance with procedures laid down in this Treaty [ … ]”. Accordingly, the ECB has been established on the basis of the EC Treaty. If this is applied to the scope of Regulation 1073/1999 then one must conclude that the ECB falls within its scope. That is also the point of view of the Commission. In contrast, the ECB argued that it cannot be considered to be a “body established by, or on the basis of, the EC Treaty” within the meaning of the Regulation given the particular position it enjoys under the Treaty. While the ECB accepts that it does not “exist in a legal world totally distinct from that of the Community”, and that the Community legislature may adopt general measures applicable to the ECB, it referred to the fact: (i) that the ECB is not a Community institution within the meaning of Article 7 EC; (ii) that the EC Treaty has conferred upon the ECB legal personality distinct from the legal personality of the European Community; (iii) that the ECB has its own internal decision-making bodies; (iv) that those bodies have been granted original powers under the Treaty to adopt legally binding measures; (v) that the accounts of the ECB are not to be examined by the Court of Auditors; and (vi) that the ECB is to act independently of the Community institutions in the execution of its tasks. However, Advocate General Jacobs clearly disagreed when he concluded as follows: “It follows, as the Commission points out, from those considerations that the ECB forms an integral part of the Community framework. The particular position of the ECB within that framework--which distinguishes it from, on the one hand, the institutions and, on the other hand, the agencies and offices created by secondary Community law--cannot, in my view, lead to the conclusion that the ECB is not a body forming part of the Community. The ECB is subject to the general principles of law which form part of Community law and promotes the goals of the Community set out in Article 2 EC through the implementation of the tasks and duties laid upon it. It may therefore be described as the Central Bank of the European Community; it *118 would be inaccurate to characterise it, as have some writers, as an organisation which is ‘independent of the European Community’, a ‘Community within the Community’, a ‘new Community’ or, indeed, as something falling outside the notion of a body established by, or on the basis of, the EC Treaty in Regulation No 1073/1999.” 9 While the Court did not explicitly state that the ECB is part of the Community, it concluded without any difficulties that the ECB has indeed been established by the EC Treaty and thus falls within the scope of Regulation 1073/1999. 10 Hence, the ECB must be qualified as an “institution, body, office or agency established by, or on the basis of, the Treaties” within the meaning of Regulation 1073/1999. As a result, the ECB is bound by all Community law, including Regulation 1073/1999.

The scope and limit of the independence of the ECB Undoubtedly the most important issue of this case was to determine the exact scope and limit of the independence of the ECB. According to the ECB its independence conferred to it by Article 108 EC applies not only to the basic tasks set out in Article 105(2) EC but to all of the tasks and duties which the ECB has under the Treaty and the Statute. More specifically, the ECB argued that its powers must be shielded from “all sources of external influence”. The very existence of the powers of OLAF under Regulation 1073/1999 could be considered a source of external influence, since the threat of those powers being exercised is capable of putting the members of the Executive Board and the Governing Council under pressure. While the ECB accepts that the risk of OLAF's powers being used in this way is minimal, it stressed that the independence of the ECB is a question of form, or appearance, as well as substance. Economic agents, who may not be familiar with the institutional structure of OLAF, might fear that the Commission is given the possibility of influencing the ECB by exercising the extensive powers of OLAF which, according to the ECB, may be compared to those of a criminal investigation. Thus, the application of Regulation 1073/1999 might undermine the confidence of the financial markets in the ECB and in the euro. The Commission responded to these arguments by emphasising that the independence of the ECB within the Treaty is functional (fonctionnel) and limited to what is necessary for the accomplishment of its particular tasks. Moreover, the Commission claimed

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that the ECB has not shown how the power of OLAF to conduct internal investigations might in concreto affect or inhibit the exercise of those tasks. In that regard, the Commission pointed out that the task of OLAF under Regulation 1073/1999 is only to establish the facts, and that it is for the ECB itself or, as the case may be, the national judicial authorities to take appropriate action. Thus, according to the Commission, OLAF is no more capable of influencing the decision-making of the ECB than the internal anti-fraud system of the ECB. The Opinion of Advocate General Jacobs already indicates that the wide interpretation of the ECB is difficult to sustain when he argued: *119 “As is evident from this summary, the Treaty and the Statute confer upon the ECB a high level of independence which is equivalent to, or perhaps greater than, the independence of the national central banks which prevailed prior to the reforms undertaken at national level in order to comply with the requirements for entry into the Monetary Union. However, the principle of independence does not imply a total isolation from, or a complete absence of cooperation with, the institutions and bodies of the Community. The Treaty prohibits only influence which is liable to undermine the ability of the ECB to carry out its tasks effectively with a view to price stability, and which must therefore be regarded as undue.” 11 The Court remarked that a far-reaching independence is not completely unknown within the Community law system, as the examples of the Commission or the Court indicate. 12 The purpose of granting such a far-reaching independence is to ensure that these institutions can function properly without influence or pressure from outside. 13 However, this does not mean, as the Court emphasised, that granting independence isolates the ECB from the EC and thus from the application of Community law to it. 14 On the contrary, the ECB contributes to the attainment of the aims of the EC and is submitted to the control mechanisms of the Court of Auditors as well as the Court. 15 Accordingly, the independence of the ECB does not preclude the application of Community law to the ECB. 16

Comment This judgment in which the ECB was involved for the first time before the Court of Justice is important because it defined the institutional balance between the Community legislature and the ECB. Both the Advocate General and the Court left no doubt that the ECB is part of the Community law system and therefore subject to all relevant primary and secondary EC law. With this unequivocal conclusion the ECJ rejected all attempts that tried to argue that the ECB “constitutes a Community of its own, a Community within the Community, which makes the ECB an autonomous specialized organization of Community law”. 17 This line of argument presented by Zilioli and Selmayer was strongly rejected by Torrent and others who had argued that the ECB is an institution of the Community and thus bound by Community law. 18 More importantly, this judgment also defined the scope and limit of the independence of the ECB. This issue has been hotly debated in the past and it is appropriate to summarise *120 the discussion. The central question of that discussion concerns the concept of functional autonomy or functional independence of the ECB. Brentford defines the functional autonomy of the ECB on the basis of its tasks and competences which it has received in order to fulfil those tasks. 19 The starting point is Article 105 EC (price stability). The attainment of that objective requires independence which is enshrined in Article 108 EC that prohibits Member States or the Community legislature to influence the ECB in the execution of its tasks. Moreover, Brentford points towards the autonomy of the ECB personnel, its financial autonomy and its regulatory independence which together make up the functional independence the ECB. Zilioli and Selmayer also take those points into consideration when they define the functional independence of the ECB. However, they focus in particular on the far-reaching independence granted to the ECB by Article 108 EC and the legal

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personality of the ECB that allows it conclude agreements with third states and other international organisations. 20 For these reasons, they argue that “the ECB is not a Community institution but a separate and autonomous entity which, though linked with the Community, rather constitutes a ‘Community of its own’, a ‘Community within the Community’; this makes the ECB an autonomous specialized organization of Community law”. 21 In their second extensive contribution to this discussion, Zilioli and Selmayr essentially repeat those arguments but in addition emphasise that “the independence in Article 108 EC does not provide for any exceptions or restraints” and that the “decision-making process inside the ECB is not even subject to a politician's suspensory right of veto”. 22 In contrast, Torrent rejects this line of argumentation and argues that the ECB is the Central Bank of the EC and that it contributes to the achievement of the aims of the Community. 23 Moreover, he underlines that “it is not exceptional for the Community to create bodies endowed with legal personality, however, this practice has never been interpreted to mean putting these bodies outside the Community”. 24 Accordingly, the discussion revolves around the interpretation of Article 105 EC that enumerates price stability as the main tasks of the ECB and Article 108 EC that grants the ECB a far-reaching independence. Whereas Zilioli and Selmayr interpret the independence of the ECB as necessarily resulting in a complete independence from the Community legislature and thus isolation from Community law, otherwise the aim of price stability could not be effectively achieved by the ECB, Torrent limits the independence of the ECB in the sense that it provides the necessary room for manoeuvre for the ECB to execute its monetary tasks while at the same time considering the ECB to be fully part of the Community law system. The Court of Justice and the Advocate General clearly reject the ideas of Zilioli and Selmayer and thus follow the line of argument of Torrent. The Court accepts the *121 independence of the ECB as guaranteed by Article 108 EC, while at the same time emphasising the point that this does not imply a complete independence or isolation from Community law. On the contrary, the Court understands the independence of the ECB as a functional one, limited as far as the proper execution of its monetary tasks defined in Article 105 EC requires the protection of its independence from external pressures and influences. In other words, Articles 105 and 108 EC must be read together in the sense that as far as the achievement of price stability requires independence, the ECB enjoys a limited, functional independence in order to adopt the in its view necessary measures without pressure from the Member States or the Community legislature. For the rest, the ECB remains fully subjected to all relevant primary and secondary Community law. The same applies in analogy to the EIB as the Court ruled on the same day in another similar case involving the EIB. 25 This is insofar an important point as Zilioli and Selmayer also argued in their contributions that the ECB must be distinguished from the EIB. 26 The reason for attempting to distinguish both banks can be found in a judgment of the Court dating back to 1988. 27 In that judgment the Court already determined that the EIB is part of the Community law system and thus subject to EC law, irrespective of the fact that the EIB enjoys a far-reaching independence. Zilioli and Selmayer obviously were aware of that judgment and tried to find arguments that would make that judgment not applicable to the ECB. However, with these recent judgments the Court continues its earlier case law and applies it equally to the ECB. The Court correctly defined the institutional balance between the ECB and the Community legislature. The “Masters of the Treaties” never intended to create an ECB outside the Community law system. On the contrary, the ECB has been established to help attain the objectives of the EC by providing price stability. Not more and not less. Moreover, the ECB was never endowed with the competence to adopt anti-fraud measures, which, however, does not mean that it should not help to fight fraud by cooperating with OLAF as much as possible. In other words, the ECB can and should co-operate with OLAF without having to give up its limited, functional independence. In fact, the ECB has accepted this judgment and stated that it will adopt the necessary steps in order to comply with it. 28 More generally, it appears appropriate to have a look at the situation concerning the ECB in the Union as anticipated by the

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Draft Constitutional Treaty presented by the European Convention. 29 In the first place, it can be noted that the ECB is still not mentioned in the list of institutions of the Union (Article I-18) but is listed in a separate provision (Article I-29). In the second place, the legal personality and own budget of the ECB continues to be guaranteed by Article I-29. In the third place, the independence of the ECB remains unchanged and is now contained in Article III-80 of the Draft Constitutional Treaty. Meanwhile, the ECB gave its opinion on the Draft Constitutional Treaty concerning the provisions that deal with its position. 30 In the context *122 of this contribution the following remarks of the ECB's opinion merit attention. First, the ECB welcomes the provisions of the Draft Constitutional Treaty as it “simplifies and clarifies the legal and institutional framework of the European Union” and considers that “it enhances the Union's ability at both the European and international level”. 31 Secondly, the ECB emphasises that the provisions of the Draft Constitutional Treaty “will not entail any changes to the substance, and that the tasks, mandate, status and legal regime of the ECB and of the ESCB remain substantially unchanged”. 32 Thirdly, regarding its institutional status within the Union the ECB stresses that “Article I-29 preserves the ECB's substantive features, in particular its independence, including financial independence, legal personality and regulatory capacity, specifically the power to issue legally binding acts. The ECB therefore understands that the framework created by the Draft Constitution does not imply, and is not meant to imply, any change to the substance of the current institutional status of either the ECB or the ESCB”. 33 Fourthly, the ECB is not entirely happy with the titles used as headings for Title IV entitled “The Union's Institutions” and Chapter I of the same title with the heading “The Institutional Framework”. The ECB proposes in order “to increase the clarity, consistency and soundness of its institutional status, if not for purely editorial reasons”, 34 to swap the titles. Accordingly, Title IV should be entitled “The Institutional Framework of the Union”, while Chapter I should be entitled “The Union's Institutions”. Within Chapter I, the institutions of the Union and the ECB would continue to be listed in separate provisions, Articles I-18 and I-29, respectively. In this way the ECB argues, “the ECB would be part of the ‘institutional framework of the Union’, without being within the list of the “Union's institutions”. The Union's institutions would of course also be part of the “institutional framework of the Union”. 35 Finally, the ECB would like to see the term “independent” used in Article I-29 of the Draft Constitutional Treaty be extended into “completely independent” as used for the Commission (Article I-25(4)) and the Court of Auditors (Article I-30(3)). 36 The ECB explains, that it “understands this difference in terminology as being merely linguistic and reflecting no qualitative difference between the independence of these institutions and that granted to the ECB, but would suggest for reasons of consistency that the terms be aligned”. 37 The proposed changes of the ECB are indeed useful to clarify its position within the institutional framework of the Union without being an institution of the Union. In general, the provisions of the Draft Constitutional Treaty--even if amended according to the proposals of the ECB--do not change the current status of the ECB. The only point that could be interpreted as an attempt to reverse the judgment of the Court is the proposal to extend the expression “independence” into “complete independence”. This could be interpreted as a reference to the “complete independence theory” developed by Zilioli and Selmayer and defended by the ECB before the Court. However, the full sentence of Article 29(3) of the Draft Constitutional Treaty in which the term is placed refers to the exercise of the tasks of the ECB. Thus, the term “complete independence” would have to *123 be understood in the limited, functional sense, namely, only as far as the exercise of the monetary tasks of the ECB is concerned. This would be in line with the judgment of the Court. Accordingly, the ECB will also enjoy in the future only a limited, functional independence that ensures that it can exercise its monetary functions without interference, whilst at the same time being part of the institutional framework of the Union and thus bound by all relevant Union law. In substance, the reasoning of the Court of Justice must also be welcomed. For the sake of an efficient and effective anti-fraud policy it is necessary that the same rules apply to all institutions, bodies and agencies established by the EC Treaty and that OLAF remains the sole responsible office for the fight against fraud on the European level. If each institution, agency or body were to issue and apply its own anti-fraud rules, this would inevitably create a fragmented and thus inefficient anti-fraud policy, which surely would not be in the interest of the European tax-payer.

Conclusion

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The limited functional independence of the ECB, E.L. Rev. 2004, 29(1), 115-123

In general, it can be concluded that the judgment of the Court of Justice is in line with the institutional balance as envisaged by the “Masters of the Treaties”. Indeed, the current intentions of the “Masters of the Treaties” as illustrated by the Draft Constitutional Treaty and the ongoing negotiations within the IGC indicate that the ECB will have to settle with the concept of a limited, functional independence. That means while the ECB will continue to be able to exercise its monetary tasks without political pressure, it will remain part of the institutional framework of the Union and thus fully bound by all relevant Union law. Consequently, the ECB will have to co-operate fully with OLAF and join the efforts to fight fraud against the financial interests of the EC/Union. At the same time, OLAF will have to operate with the necessary prudence in order to ensure that the proper execution of the monetary tasks of the ECB is not hindered more than is required for the effective fight against fraud. Hence, the ECB has to open up a little bit its closed doors for OLAF, the Commission and eventually the European Parliament which exercises its parliamentary control over the activities of the Commission and OLAF. This could in the long run lead to more transparency of the activities of the ECB--something which can only be welcomed as transparency within the European institutions is as rare and precious as a diamond. LL.M. (Maastricht), Lecturer EU Law and Senior Researcher International Law, Amsterdam Centre of International Law (ACIL), Faculty of Law, University of Amsterdam, the Netherlands.

Footnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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Case C-11/00, Commission v ECB, judgment of July 10, 2003, available at http://curia.eu.int/jurisp/cgibin/ form.pl?lang=en. See the reports of the European Court of Auditors, available at http://www.eca.eu.int/EN/menu.htm. Commission Decision of April 28, 1999 establishing the European Anti-fraud Office (OLAF) [1999] O.J. L136/20. See for details: U. Mager, “Das Amt für Betrugsbekämpfung (OLAF)--Rechtsgrundlagen seiner Einrichtung und Grenzen seiner Befugnis” (2000) 3 Zeitschrift für Europarechtliche Studien, 177. [1999] O.J. L136/1. Decision of the European Central Bank of October 7, 1999 on fraud prevention (ECB/1999/5) [1999] O.J. L291/36. ibid. Case C-15/00, Commission v EIB, judgment of July 10, 2003, available at http://curia.eu.int/jurisp/cgibin/ form.pl?lang=en. Opinion of AG Jacobs, C-11/00, Commission v ECB, para.60, emphasis in original, available at http:// curia.eu.int/jurisp/cgi-bin/form.pl?lang=en. supra, n.1, paras 63-67. supra, n.9, para.155. supra, n.1, para.133. ibid. para.134. ibid. para.135. ibid. ibid. para.136. C. Zilioli and M. Selmayer, “The external relations of the euro area: legal aspects” (1999) 36 C.M.L.Rev. 273; ibid. “The European Central Bank: an independent specialised organisation of Community law” (2000) 37 C.M.L.Rev. 591; M. Selmayer, “Die Wirtschafts- und Währungsunion als Rechtsgemeinschaft” (1999) 124 Archiv für Öffentliches Rrecht 357. R. Torrent, “Whom is the European Central Bank the central bank of? Reaction to Zilioli and Selmayr” (1999) 36 C.M.L.Rev. 1229; F. Amtenbrink and J. de Haan, “The European Central Bank: an independent specialised organisation of Community law--a comment” (2002) 39 C.M.L.Rev. 65. See also earlier R. Smits, The European Central Bank (Kluwer Law International, The Hague, 1997), 93; ibid. Inaugural Address, June 4, 2003, available at http://europa.eu.int/futurum/documents/speech/sp040603_2_en.pdf. P. Brentford, “Constitutional aspects of the independence of the European Central Bank” (1998) 47 I.C.L.Q. 75. C. Zilioli and M. Selmayer, “The external relations of the euro area: legal aspects” (1999) 36 C.M.L.Rev. 273. ibid., 284 et seq. C. Zilioli and M. Selmayer, “The European Central Bank: an independent specialised organisation of Community law” (2000) 37 C.M.L.Rev. 591.

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23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

R. Torrent, op cit., n.13, 1229. ibid., 1233. supra, n.8. supra, n.17. Case 85/86, Commission v EIB [1988] E.C.R. 1281. See press release of the ECB of July 31, 2003, available at www.ecb.int. CONV 850/03 of July 18, 2003, available at http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf. Opinion of the ECB of September 19, 2003 on the Draft Constitutional Treaty, 12655/03 of September 22, 2003, available at http://ue.eu.int/igc/docs/st12655.en03.pd. ibid. para.4. ibid. para.5. ibid. para.10. ibid. para.11. ibid. ibid. para.13. ibid. © 2016 Sweet & Maxwell and its Contributors

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