Confidentiality behind transparent doors: The European Central Bank and the EU law principle of openness
| Author | Pieter Van Cleynenbreugel |
| Published date | 01 February 2018 |
| DOI | 10.1177/1023263X18760546 |
| Date | 01 February 2018 |
| Subject Matter | Articles |
Article
Confidentiality behind transparent
doors: The European Central
Bank and the EU law principle
of openness
Pieter Van Cleynenbreugel*
Abstract
This paper questions to what extent the confidential decision-making structure maintained at the
European Central Bank is still compatible with the EU principle of openness recognized in Article
15 TFEU. To that extent, it analyses the different confidentiality regimes in place as well as the
openness features adopted in both monetary policy and prudential supervision. It subsequently
questions how those features comply with the letter and spirit of Article 15 TFEU. Aiming better
to integrate existing confidentiality features with EU constitutional transparency obligations, this
paper finally proposes some minor modifications to the European Central Bank decision-making
framework to align it more directly to the spirit of openness reflected in Article 15.
Keywords
European Central Bank, transparency, access to documents, openness, confidentiality
1. Introduction
The era of central banking behind closed doors and detached from democratic oversight clearly lies
behind us.
1
National central banks are more than ever in the public eye and increasingly held to
* Faculty of Law, Political Science and Criminology, Universite
´de Lie
`ge, Lie
`ge, Belgium
Corresponding author:
Pieter Van Cleynenbreugel, Institut d’Etudes Juridiques Europe
´ennes, Universite
´de Lie
`ge, Place des Orateurs 1-B33/9,
Lie
`ge 4000, Belgium.
Email: pieter.vancleynenbreugel@uliege.be
1. On central bank transparency, see also P.M. Geraats, ‘Trends in Monetary Policy Transparency’, 12 International
Finance (2009), p. 235–268. For an analysis and critique of closed door central banking in its historical context, see L.
Ahamed, Lords of Finance. The Bankers Who Broke the World (Penguin, 2009).
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(1) 52–76
ªThe Author(s) 2018
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1023263X18760546
maastrichtjournal.sagepub.com
MJ
MJ
account for their actions.
2
Within the Eurozone, the European Central Bank (ECB or ‘the Bank’) is
no exception in this regard. An independent supranational institution
3
accountable to the European
Parliament,
4
the ECB additionally also has to function in accordance with the principle of openness
outlined in Article 15 TFEU.
5
According to that provision, the Union institutions, bodies, offices
and agencies shall conduct their work as openly as possible.
6
Although the ECB has put in place legal frameworks to facilitate such openness, its decision-
making procedures still operate on the basis of confidentiality of information. It therefore deserves
to be analysed how the confidential decision-making starting point and openness features co-exist
throughout the ECB institutional framework and whether their current setup would still be com-
patible with the letter and spirit of Article 15 TFEU. An analysis of this kind would subsequently
allow one to touch upon the question of to what extent would EU law require fine-tuning in order to
make the ECB more Article 15 TFEU-compatible.
7
Tackling these questions, this paper proceeds to uncover the co-existence of confidentiality and
openness features in ECB decision making and to question the legality of their co-existence in light
of Article 15 TFEU. In that respect, section two will offer an overview of confidentiality and
openness features currently in place within the ECB decision-making framework, as well as of the
ways in which both features refrain from interacting in a coherent way with each other. Building on
that overview, section three assesses the compatibility of these features with the letter and spirit of
Article 15 TFEU. Identifying specific compatibility concerns, it subsequently proposes two tai-
lored adaptations to the ECB’s decision-making framework. These propositions, it will be argued,
would allow for a better and more explicit embedding of ECB decision making within the require-
ments of the EU law principle of openness, whereas, at present, openness can be construed as an
exception to confidentiality. Whilst not advocating full-fledged openness at the ECB or for a
regression into more closed-door decision making, this paper submits that a more focused attention
2. On the (need for) democratic accountability of the ECB as a monetary policy watchdog, see F. Amtenbrink, The
Democratic Accountability of Central Banks – A Comparative Study of the European Central Bank (Hart Publishing,
1999). See also G. Ter Kuile, L. Wissink and W. Bovenschen, ‘Tailor-Made Accountability Within the Single
Supervisory Mechanism’, 52 Common Market Law Review (2015), p. 155–189.
3. Articles 130 and 282(3) TFEU. In the realm of the ECB’s prudential supervision powers see Article 19 of Council
Regulation No. 1024/2013/EU of 15 October 2013 conferring specific tasks on the European Central Bank concerning
policies relating to the prudential supervision of credit institutions, [2013] OJ L 287/63 (Regulation No. 1024/2013/EU).
The ECB’s independence is only limited to the exercise of the tasks for which it has been given a mandate, see Case
C-11/00 Commission v. European Central Bank, EU:C:2003:395, para. 134.
4. Article 283(1) TFEU and Article 9 of Protocol (No. 4) on the Statute of the European System of Central Banks andof the
European Central Bank, [2012] OJ C 326/230.
5. That provision actually contextualizes this open decision making in a broader democracy and rule of law context. As
such, it is clear that openness is just one feature of more general decision-making principles. In full, Article 1 TEU,
second indent, states that this treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
6. On the principle in general, often also considered as a principle of transparency, see A. Alemanno, ‘Unpacking the
Principle of Openness in EU Law: Transparency, Participation and Democracy’, 32 European Law Review (2014),
p. 72–90; and A. Buijze, The Principle of Transparency in EU Law (Utrecht University, 2013). For more on this
perspective, see also J. Mendes, Participation in EU Rule-making: A Rights-based Approach (Oxford University Press,
2011), p. 292–293.
7. For a similar analysis on the need for fine-tuning in the light of openness at the Court of Justice, see A. Alemanno and O.
Stefan, ‘Openness at the Court of Justice of the European Union: Toppling a Taboo’, 51 Common Market Law Review
(2014), p. 97–139.
Van Cleynenbreugel 53
To continue reading
Request your trial