What kind of judicial review for the European Central Bank?
| Author | Stefania Baroncelli,Annelieke A.M. Mooij |
| DOI | http://doi.org/10.1177/1023263X221105650 |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| Subject Matter | Articles |
What kind of judicial review for
the European Central Bank?
All institutions are equal but some are more
technical than others
Stefania Baroncelli * and Annelieke A.M. Mooij**
Abstract
This article examines the judicial review used by the CJEU in assessing the ECB’s non-standard
monetary policy measures and the dispute between the German Constitutional Court and the
CJEU over the standard of review to be used. In addition, it discusses the possibility of a future
clash between the two courts in the post Covid-19 era. It first analyses the type of judicial con-
trol carried out by the CJEU during the Euro crisis in the Gauweiler and Weiss cases. It then
explores the reasons for criticism of the CJEU reasoning by the doctrine. During the pandemic
period the ECB has taken unprecedented steps and increased its monetary policy instruments,
such as the Pandemic Emergency Purchase Programme (PEPP). The potential confrontation
between the GCC and the ECB over PEPP is, however, deemed limited. It concludes analysing
the possibility to add a court-appointed expert to the CJEU’s decision-making process. Indeed,
the presence of an expert could improve judicial review and increase the depth of the judgments
also against national courts that have asked for preliminary ruling. However, the independence
of the ECB should not be affected.
Keywords
Judicial review, Court of Justice of the EU, European Central Bank, expert witness, pandemic
emergency purchase programme, Gauweiler, Weiss
*
Free University of Bozen-Bolzano, Bolzano, Italy
**
Tilburg University Tilburg Law School, Tilburg, Netherlands
Corresponding author:
Free University of Bozen-Bolzano, piazza Università 1, Bolzano 39100, Italy.
Email: stefania.baroncelli@unibz.it
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(4) 413–433
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221105650
maastrichtjournal.sagepub.com
1. Introduction
In the Weiss II case (5 May 2020), the German Constitutional Court (GCC) declared that the deci-
sion taken by the Court of Justice of the EU (CJEU) on the European Central Bank (ECB)’s Public
Sector Purchase Programme (PSPP) was an ultra vires act.
1
The judgment of the Karlsruhe court
came after the CJEU, at the request of the GCC for a preliminary ruling, had issued the Weiss
case.
2
In the GCC’s words, the CJEU in its Weiss judgment ‘largely abandoned the distinction
between economic policy and monetary policy given that, for the purposes of reviewing the
PSPP’s proportionality, it simply accepted the proclaimed objectives of the ECB and its assertion
that less intrusive means were not available’.
3
The German tribunal is not the first to question the
level of judicial review used by the CJEU vis-à-vis the ECB.
This article will examine whether the ECB’s level of judicial review exercised by the CJEU can
be considered appropriate. It will do so by first briefly assessing the level of judicial review used
against the ECB compared to other EU bodies (section 2). It will then continue by analysing
why the level of judicial review has come under such scrutiny. It will argue that the origins of
the Weiss ultra vires declaration can be found within two underlying themes of criticism towards
judicial review. The first one is lack of transparency while the second one is related to the changing
nature of the ECB (section 3). It will then continue with an assessment of the impact of the pan-
demic crisis and the level of judicial review appropriate in the post Covid-19 era (section 4). It
will then conclude by proposing the introduction of court experts to increase the level of judicial
review (section 5).
2. Degree of judicial review
The ECB was created as an independent institution after the ideas of economists such as
Cukierman, Neyapti and Webb and having as a point of reference the German Bundesbank.
Even today, many economists think that central bank independence is the key to a successful
monetary policy.
4
This independence is entrenched in Article 130 TFEU, which states that the
ECB shall not ‘seek or take instructions from Union institutions, bodies, offices or agencies,
from any government of a Member State or from any other body.’The idea of independence is
simple. The ECB has a narrow and technical mandate, thus requiring little overview.
Furthermore, influence from politicians was seen by economists as distorting the monetary
1 BVerfG, Judgment of the Second Senate of 5 May 2020 –2 BvR 859/15 (Weiss II). The decision of the GCC to ask for a
preliminary ruling to the CJEU is: BVerfG, Order of the Second Senate of 18 July 2017 –2 BvR 859/15 (Weiss I).
2 CaseC-493/17 Heinrich Weiss and Others. Request for a preliminaryruling from the Bundesverfassungsgericht (Federal
Constitutional Court, Germany), EU:C:2018:1000 (Weiss).
3Weiss II, para. 162. See for an overview of the dispute, F.C. Mayer, ‘Der Ultra vires-Akt, Zum PSPP-Urteil des BVerfG
v. 5. 5. 2020 –2 BvR 859/15 u. a.’,14JuristenZeitung (2020), p. 725 and F. Schorkopf, ‘Wer wandelt die Verfassung?
Das PSPP-Urteil des Bundesverfassungsgerichts und die Ultra vires-Kontrolle als Ausdruck europäischer
Verfassungskämpfe –zugleich Besprechung von BVerfG, Urteil v. 5. 5. 2020 –2 BvR 859/15 u. a.’,14
JuristenZeitung (2020), p. 734.
4 A. Cukierman, S.B. Webb and B. Neyapti, ‘Measuring the Independence of Central Banks and its Effect on Policy
Outcomes’,6The World Bank Economic Review (1992). For a review, see B. Hayo and C. Hefeker, ‘The Complex
Relationship Between Central Bank Independence and Inflation’, in P.L. Siklos, M.T. Bohl, and M.E. Wohar (eds.),
Challenges in Central Banking (Cambridge University Press, 2010), p. 179.
414 Maastricht Journal of European and Comparative Law 29(4)
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