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In the past 7 years, the EU has adopted various measures to react to a banking crisis. In a context where the incompleteness of political union has been one of the major drawbacks to the European reaction to the crisis, the European Central Bank (ECB) has had to play a role as substitute for political institutions. The ECB’s interventions have been both conventional and unconventional; the latter often criticised and challenged in European and national Courts. The first part of this study aims to define the ECB’s “unconventional” measures, which derive from the economic practice. Then the applicable rules to ECB actions are discussed, together with their interpretation, provided by the Court of Justice of the European Union and the German Federal Constitutional Court, the latter being particularly active on the point. Finally, the study attempts to apply these principles and practices to the unconventional measures adopted by the ECB to verify their effective implementation.
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President Draghi said that “the ECB is ready to do whatever it takes to preserve the euro”, and added unequivocally, “and believe me, it will be enough”. Consequently, prices of sovereign debt of peripheral Eurozone States, like Spain and Italy, suddenly jumped. All in all, such a strong announcement was enough to calm financial market operators’ uneasiness.
ECJ 27 November 2012, Case C-370/12, Thomas Pringle v . The Government of Ireland, Ireland and the Attorney General.
BVerfG (German Constitutional Court), Order of 14 January 2014, BvR 2728/13 ( OMT Decision); ECJ 16 June 2015, Case C-62/14, Gauweiler and Others v. Deutscher Bundestag; BVerfG, Judgment of 21 June 2016.
See ECJ 10 July 2003, Case C-11/00, Commission of the European Communities v. The European Central Bank ( Olaf ), Opinion of Advocate General Jacobs (3 October 2002) para. 150: “That provision establishes, according to its wording, a principle of central bank independence. It is, as the ECB itself points out, clear that the independence thus established is not an end in itself; it serves a specific purpose. By shielding the decision-making process of the ECB from short-term political pressures the principle of independence aims to enable the ECB effectively to pursue the aim of price stability and, without prejudice to that aim, support the economic policies of the Community as required by Article 105(1) EC”. He also pointed out that “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 […] 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” (para. 155).
- Criteria for Determining the Legality of the ECB’s Unconventional Measures
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