3. A Legal Approach to Monetary Policy

On the issue, see Taylor (1999a).

Archer (2009), p. 19. The first private institutions to issue notes included Enskilda Bank of Stockholm, the Bank of England, and the Berliner Kassenverein. However, in these periods and in most regions, the state and the municipalities could exert major influence on note-issuing, since private institutions willing to create banknotes needed a permit or a license to do so. It took some time before concentrating the right to issue banknotes in one single institution. The first country to establish a monopoly for banknotes issuance was Austria, where the monopoly was awarded by the State to the Privilegierte Österreichische Nationalbank in 1841. In Germany, instead, the banknotes monopoly was conferred on the Reichsbank only in 1939. In the United States, two different attempts to establish a central bank entrusted with such a monopoly failed in the 18th and 19th, and only in 1913 was eventually possible to establish the Federal Reserve with the right to issue banknotes as legal tender. For details on the history of note-issuing monopoly, see Siekmann (2016), pp. 502–508. The origins and developments of European Central Banks, the Federal Reserve, and the Bank of Japan are further explored in Goodhart (1988), pp. 106–160.

Eichengreen (2008), p. 21.

See Flandreau (2006).

For details, see Santomero, Viotti, and Vredin (2001), pp. 20–21.

Fischer (1995), p. 2.

For an overview of the concepts, causes, and effects of inflation, see Hall (1982) and Hahn (1985). For a survey of the different theories on inflation, see also Frisch (1990).

It must be noted that sometimes the mandate of central banks may refer to other objectives, such as full employment or economic growth. This is the case, for example, of the Federal Reserve in the United States, where Section 2A of the Federal Reserve Act states its objective in terms of maintaining long-run growth of the monetary and credit aggregates commensurate with the economy’s long-run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates. However, it is conventional wisdom—particularly in Europe—that the objective of central banks primarily falls within the maintenance of price stability based on the idea that inflation is a pure monetary phenomenon and thus falls are natural responsibility of central banks. See Hidalgo (2003), p. 288. For more insights on this topic, see also Blinder, Goodhart, Hildebrand, Lipton, and Wyplosz (2002), pp. 8–9.

Cecchetti (2000), p. 44.

Hazlitt (1984), p. 159. For a historical account of the Bretton Woods and the Great Inflation, see Bordo and Eichengreen (2013), pp. 449–489. For an explanation on how monetary policymakers led at that time to the Great Inflation, see Mayer (1999); for a description on the effects and consequences of Great Inflation on economic growth, stock prices, and living conditions, see Samuelson (2010).

For more details, see Walsh (1998). This economic view upon a trade-off between inflation and unemployment was supported by new Keynesian economics. For a critical review of the economic literature on this topic, see Santomero and Seater (1978), pp. 499–544. This theory, however, has not been completely abandoned as new studies sought to provide new emphasis on this Keynesian theory. For a sample of this strand of literature, see Ball, Mankiw, and Romer (1988), pp. 1–82.

In the early 1980s, EU governments became increasingly aware that inflation is a ‘monetary phenomenon’. On the issue, of particular importance were the two general propositions on monetary policy derived by Taylor (1996), pp. 181–195, stating that ‘there is no long-run tradeoff between the rate of inflation and the rate of unemployment. […] over long periods higher rates of inflation are not associated with lower levels of unemployment, and lower levels of inflation are not associated with higher levels of unemployment. Historical experience with inflation and unemployment provides considerable evidence for this view’.

See Walsh (1998).

For some examples of information inconsistencies that misled policymakers, see Orphanides (2003).

See Mishkin (2009), p. 490.

For example, see Kormendi and Meguire (1985), pp. 141–163. See also Fischer (1993) and Judson and Orphanides (1999), pp. 117–138.

See Jahan (2012).

Cecchetti (2000), p. 47.

It must be noted, however, that inflation can also be used to erode public debt, thereby incentivizing the indebtedness of countries. For example, in the 1970s, the Great Inflation helped to reduce public debt burden in various countries such as the United States, the United Kingdom, and France.

Idem, p. 47.

See Taylor (1979), pp. 1267–1286. The concept of monetary policy rule must be distinguished here from any legal understanding. We use this concept, in this section, to identify the ‘prescribed guide for monetary policy’, as indicated in Svensson (1999), p. 3.

See Taylor (1979), pp. 1267–1286. For an overview of the output/inflation variability trade-off, cf. also Dittmar, Gavin, and Kydland (1999), pp. 23–29.

The GDP gap (or output gap) is defined as the difference between the real GDP and potential GDP.

For a better explanation of Taylor’s findings, see Taylor (1994), pp. 21–38.

Cecchetti (1998), pp. 1–2.

Cecchetti (1997). For a non-exhaustive literature review on the proposals to estimate optimal policy rules, see Salter (2014). For examples of these estimate attempts, in general see Taylor (1999b).

For an overview of policy rules operationalized since the 1970s, see Mishkin (2000a).

This definition is taken from Guender and Oh (2006), p. 373.

Taylor (2013a), p. 335.

See Friedman (1982), pp. 98–118. The lecture was presented on 5 July 1981, at the meetings of the Western Economic Association in San Francisco, California.

See Cecchetti (1998), p. 1; Taylor (1986), p. 159.

Friedman (1982), p. 100.

Mishkin (2000a), pp. 22–23.

As explained by Clarida, Gali, and Gertler (1998), for example, this is the case of the United States.

On the issue, see in particular Martínez (2008), pp. 86–87. In addition, for a historical inquiry, see Vargas-Silva (2010), pp. 432–434. An interesting analysis about currency pegs as price stabilizers is given in Frankel (2011), pp. 1–70.

See Jahan (2012). For a survey on money growth targets, inter alia, see Friedman and Kuttner (1996), pp. 77–146.

See Jahan (2012). For a general survey of the past monetary strategies, see Mishkin (2009).

See IMF (2009).

Idem.

See Bernanke (2003a).

This monetary policy strategy is elaborated by Mishkin (2007), pp. 599–600. The same approach can be found also in Heenan, Peter, and Roger (2006), pp. 3–4.

In particular, see Friedman (1982), p. 101.

Mishkin (2007), p. 609.

On the issue, see the voice Inflation Targeting in Snowdon and Vane (2002), pp. 361–365.

Volcker (1983), p. 5.

Greenspan (1994), p. 5.

Svensson (1999), p. 1.

Beyeler (2007), p. 94. See also Fischer (1994), p. 284.

The monetary policy strategy shall not be confused with the monetary policy legal frameworks where this specification, that is, price stability as low levels of inflation increase, is not provided.

Svensson (1999), p. 1.

On the issue, see Jahan (2012).

See Wallis (1960), pp. 146–147, and Anderson (2001).

For this reason, some suggest that an optimal policy should index only the subset of prices that display some stickiness. For details, see Lama and Medina (2007), p. 29.

This is the case, for example, of the economic unions, such as the EMU, where the differential distribution effects of monetary policy cannot be ignored by a central bank. For insights on this criticality, see Barnett (2011), p. 225.

On the issue, see ILO, IMF, OECD, SOEC, UN, WB (2004), pp. 207–214.

Svensson (1999), p. 1. On the issue, see also Svensson (2002), pp. 261–312; Vifials and Valles (1999).

Bernanke and Mishkin (1997), p. 2.

Bindseil (2004), p. 9.

For an overview of the different operations targets available to central banks, see Berk (2001), pp. 4–7; Walsh (2010), pp. 521–530; Bindseil (2014), pp. 36–38. For a survey on the literature on operational targets of monetary policy, see Friedman (1988), pp. 23–39.

Bindseil (2011), p. 8. See also Lyndgren (1990), p. 308; for a discussion on how the choice of the operating targets may influence the use of monetary policy instruments and affect central bank’s balance sheet, see Schaechter (2001), pp. 1–28.

Among others, see Bindseil (2004), p. 9; Schaechter (2001), p. 3; Hardy (1997), p. 4, arguing that central banks of almost all industrialized countries implement policy by setting as operational target the short-term interbank interest rate.

The short-term interbank interest rate is adopted as an operational target in—inter alia—the United Kingdom, Indonesia, Iran, Russia, Sri Lanka, Australia, and Mexico. Similarly, since 1981, the FED has adopted as operational target the federal fund rate, which is the overnight interest rate on unsecured interbank loans. The operational target of the Eurosystem is the overnight interbank interest rate known as European Overnight Index Average (EONIA). For a brief overview on this topic, see Kaiser, Heilenkötter, Herrmann, and Krämer (2012), pp. 42–45. See also Allanazarova (2010), pp. 15–18.

This is the case of the interest rate ceilings and margin requirements used by central banks as stabilization tools. For an overview of these tools, see Jain and Tomic (1995), pp. 280–295.

This definition is provided by Bindseil (2014), p. 9. For insights on open market operations, see also Axilrod (1997); Edwards (1997), pp. 859–872.

Bindseil (2014), p. 9.

Labonte (2015), p. 3.

Belke and Polleit (2009), p. 43.

de Haan, Oosterloo, and Schoenmaker (2012), p. 113.

Bindseil (2014), p. 9. For better insights on the standing facilities of central banks, see also Hesse and Braasch (1996), pp. 275–291.

Ulrike (2007), p. 17. In general on this topic, see also Bindseil (2014), pp. 130–142; Bertaut (2002), p. 27; Bindseil and Jabłecki (2011).

For a historical perspective, cf. Galvenius and Mercier (2011), pp. 162–173.

Bindseil (2014), p. 38.

Labonte (2015), p. 4.

While in the past these variables were considered proper intermediate targets, over the last decade, many small- and medium-sized economies have considered these variables just as useful informative instruments to central banks. For this reason, we refer to them as intermediate variables. For more details, see Bindseil (2004), p. 9; Debelle, Masson, Savastano, and Sharma (1998).

Bindseil (2004), p. 9. For a critical appraisal on the relevance of the intermediate variables for monetary policy, see also Friedman (1984).

Walsh (2010), p. 529.

For more details on this topic, see Mourmouras and Arghyrou (2000), p. 82.

For a critical survey of the different variables scrutinized by the economic literature, see in particular the Federal Reserve Bank of New York (1990), pp. 20–420. On the same topic, cf. Pindyck and Roberts (1976), pp. 627–650; Belongia and Batten (1992); Gaspar and Abreu (1998). For an overview of the relevant literature, see also Berk (2001), pp. 5–7.

While in the past these variables were considered proper intermediate targets, over the last decade, many small- and medium-sized economies have considered these variables just as useful informative instruments to central banks. For this reason, we refer to them as intermediate variables. For more details, see Bindseil (2004), p. 9; Debelle, Masson, Savastano, and Sharma (1998).

Mourmouras and Arghyrou (2000), pp. 82–83.

See Bindseil (2004), p. 9. For an overview of the intermediate variables used by some countries, inter alia, see Berg, Hagan, Jarvis, Steinki, Stone, and Zanello (2003), pp. 45–50; Mehran, Quintyn, Nordman, and Laurens (1996), pp. 72–73. For a discussion on the predictability and controllability of inflation as intermediate variable, see Mishkin (2009), pp. 220–221.

Bindseil (2014), pp. 37–38.

Purvis (1992), pp. 763–765. Cf. also: Berk (1998), pp. 148–149.

See Mishkin (1996).

ECB (2000), p. 43.

Lopes (1998), p. 65. See also Mishkin (1995), pp. 3–10.

For examples, in general, see BIS (1995); Cevik and Teksoz (2012), pp. 5–7; Mohanty and Turner (2008).

Kamin (2010), p. 3. See also Issing (2000) and Schmukler (2004).

Cevik and Teksoz (2012), p. 3.

Among others, see Adrian and Liang (2014); Bluhm, Faia, and Krahnen (2014); Peydró (2014), pp. 37–47; Dokko, Doyle, Kiley, Kim, Sherlund, Sim, and Van den Heuvel (2009). In general, for a survey of the relevant literature, see Allen and Rogoff (2010).

For a general survey on the monetary policy transmission channels, see Boivin, Kiley, and Mishkin (2010).

Inter alia, cf. Leith, Moldovan, and Rossi (2009); Schmidt and Wieland (2012); Ramón Pedrero and Pérez (2005). It should be noted, as a prominent example, that the ECB uses a new Keynesian dynamic stochastic general equilibrium (DSGE) model—widely known as Smets-Wouters model—for its monetary policy analysis. For the technical details of this model, see Smets and Wouters (2003), pp. 1123–1175.

For an overview of the relevant literature, see Gali and Gertler (2007), pp. 25–45.

This model was developed by Sir John R. Hicks and Alvin H. Hansen as an instrument to formalize the relationship between classical theory and the general theory of employment, interest, and money of John Maynard Keynes. It was published the first time in 1937 in Hicks, John R. (1937), pp. 147–159. For a historical survey of the Hicks-Hansen model in the macroeconomic literature, see in particular De Vroey and Hoover (2005).

Mishkin (1996), pp. 2–4. See also Belke and Polleit (2009), pp. 584–586.

Ireland (2005), p. 3. See also Mukherjee and Bhattacharya (2011), p. 5.

Inter alia, see Fleming (1962), pp. 369–379; Mundell (1963), pp. 227–257; Smets and Wouters (1999); Benigno and Benigno (2001); Bowman and Doyle (2003).

Mishkin (1996), pp. 5–6.

See Ireland (2005), pp. 3–4.

See Tobin (1969), pp. 15–29.

Tobin and Brainard (1968), pp. 8–9; Tobin (1969), p. 21.

As argued by Tobin and Brainard (1968), p. 9, ‘investment is stimulated when capital is valued more highly in the market than it costs to produce it, and discouraged when its valuation is less than its replacement cost’.

See Tobin (1969), p. 29. For some recent literature on how monetary policy affects Tobin’s q, see Fariaa, Mollickb, Sachsidac, and Wang (2012), pp. 1–10; Ehrmann and Fratzscher (2004); Ida (2013), pp. 733–740; Basua, Gillmanb, and Pearlmanc (2012), pp. 1057–1074.

See Mishkin (1996), pp. 6–7.

See Ando and Modigliani (1963), pp. 55–84. See also Modigliani (1966), pp. 160–217. For an exhaustive explanation of this transmission channel, instead, see Modigliani (1971), pp. 9–97; Modigliani (1986), pp. 297–313.

Modigliani (1986), pp. 299–300.

This model is elaborated in Modigliani (1971), pp. 9–84. For a simplified explanation of this mechanism, see also Mishkin (1996), p. 7; Ireland (2005), p. 4.

The economic literature on this additional transmission channel is extensive. For some examples, inter alia, see Deaton (2005), pp. 91–107; Ludvigson, Steindel, and Lettau (2002), pp. 117–133; Di Maggio, Kermani, and Ramcharan (2014); Koivu (2010).

See Mishkin (1996), p. 9. On the credit channel of monetary policy, see, in addition, the following authors: Bernanke and Gertler (1995), pp. 27–48; Ramey (1993), pp. 1–45; Ciccarelli, Maddaloni, and Peydró (2010); Hubbard (1995), pp. 63–77; Hendricks (2011), pp. 403–416.

The asymmetric information featuring these transmission channels are generally described as moral hazard and adverse selection. For more details on this topic, inter alia, see Neyer (2001).

This is the case when there are no other financial institutions that may substitute banks as credit providers.

Kashyap and Stein (1994), p. 5.

See Mishkin (1996), p. 9.

Kashyap and Stein (1994), p. 6. Empirical evidences of this are provided by Bernanke and Blinder (1992), pp. 901–921.

Mishkin (1996), p. 10. For an overview of the literature on the balance sheet channel of monetary policy, see Igan, Kabundi, De Simone, and Tamirisa (2013), p. 5.

Bernanke and Gertler (1995), p. 35. See also Holmstrom and Tirole (1997), pp. 663–691. The authors provide evidences that banks with lower net worth, due to a contractionary monetary policy, supply fewer loans. On the issue, see also Favero, Giavazzi, and Flabbi (1999).

See Mishkin (1996), pp. 10–11.

Mishkin (1996), p. 11.

Bernanke and Gertler (1995), p. 36. The opposite also holds true. See Mishkin (1995), p. 8, arguing that a contractionary monetary policy ‘causes a deterioration of borrowers’ balance sheets because it reduces cash flow’.

Mishkin (1996), p. 11.

ECB (2010), p. 90.

Bonfim and Soares (2014), p. 2.

For a detailed analysis of the risk-taking channel of monetary policy, inter alia, see Altunbas, Gambacorta, and Marques-Ibanez (2009); Dell’Ariccia, Laeven, and Suarez (2013); Bianchi (2014), pp. 161–168; Angeloni, Faia, and Lo Duca (2015), pp. 285–307.

See Bruno and Shin (2013), pp. 1–2.

Bonfim and Soares (2014), p. 5.

Borio and Zhu (2008), p. 9.

Dell’Ariccia, Laeven, and Marquez (2010), p. 18. Additional evidences are provided in De Nicolò, Dell’Ariccia, Laeven, and Valencia (2010); Buch, Eickmeier, and Prieto (2011).

Dell’Ariccia, Laeven, and Marquez (2010), p. 4.

ECB (2010), p. 90. For a survey on this topic, see Maddaloni and Peydró (2010); Maddaloni and Peydró (2011); Ongena and Peydró (2011), pp. 21–28; Paligorova and Sierra Jimenez (2012), pp. 23–30.

Borio and Zhu (2008), p. 9. See also Gambacorta (2009), pp. 44–45.

Adrian and Shin (2008), p. 9. Adrian and Shin (2010), pp. 418–437. For a thorough analysis of this effect, see also Borio, Gambacorta, and Hofmann (2015), pp. 4–23.

Bonfim and Soares (2014), p. 4.

See Acharya and Naqvi (2010), pp. 349–366.

Borio and Zhu (2008), p. 9.

Idem, p. 9.

Deutsche Bundesbank (2015), p. 41.

The Art of Central Banking is the title of the milestone book in monetary policy written by Ralph G. Hawtrey in 1932. For an interesting discussion on the nature of monetary policy—that is, if art or science—see Fischer, Fraga, Heikensten, Tietmeyer, and Volcker (2006).

See Joyce, Miles, Scott, and Vayanos (2012), p. F275.

See Bini Smaghi (2009). See also Constâncio (2015).

For a discussion on the feasibility of introducing negative policy rates in the Eurozone and on the functioning of such monetary policy stance, see Bech and Malkhozov (2016), pp. 31–43. See also McAndrews (2015).

Joyce, Miles, Scott, and Vayanos (2012), p. F272.

See Bini Smaghi (2009).

Joyce, Miles, Scott, and Vayanos (2012), p. F272.

Idem, p. F272.

For a brief overview on how the Fed and the ECB changed their conventional monetary policy during the financial crisis, see Cukierman (2013), pp. 374–379.

Bernanke and Reinhart (2004), p. 85. As argued by Noyer (2015), these strategies are due to a shift of monetary policy regime where central banks take a proactive approach to their balance sheets. In fact, an expansion of the liability side of the balance sheet occurs when the central bank actively increases liquidity provision to the banking sector. The purpose of such expansion is to ease pressures on bank funding, reducing its costs, and as a result of this, influence lending behavior. An expansion of the asset side is achieved by massive purchases of securities and other assets. These purchases are intended to lower risk premia, decrease asset yields, trigger portfolio rebalancing, and increase risk-taking behaviors of private actors by influencing their short-term and long-term expectations.

Borio and Disyatat (2009), p. 5.

Fratzscher, Lo Duca and Straub (2014), p. 5. A description of the quantitative easing programs issued by the Federal Reserve, the Bank of England, the European Central Bank, and Bank of Japan during the recent financial crisis is provided by Fawley and Neely (2013), pp. 51–88.

For example, see Krishnamurthy and Vissing-Jorgensen (2011), pp. 215–287.

Borio and Disyatat (2009), p. 13.

Among others, see Borio and Zhu (2008), p. 9.

Borio and Disyatat (2009), p. 13.

Idem, p. 13. For an empirical assessment, see also Bernanke, Reinhart, and Sack (2004), pp. 10–77; Eggertson and Woodford (2003), pp. 139–233.

Glick and Leduc (2012), p. 2080.

Idem.

Borio and Disyatat (2009), p. 13.

Joyce, Miles, Scott, and Vayanos (2012), p. F276.

Idem, p. F276.

Borio and Disyatat (2009), p. 13. See also Bernanke (2010a).

See Bernanke (2010b).

See Powell (2014). Additional problem in the measurement of such risks is due to the complexity of determining whether the risk-taking activities are excessive or not. On this issue, see Claeys and Darvas (2015), p. 5.

Claeys and Darvas (2015), p. 7.

Idem, p. 7.

Lambert and Ueda (2014), p. 19.

Idem, p. 19.

Chodorow-Reich (2014), p. 165.

See Bean (2013), pp. 2–3.

Kelman (1993), p. 1215. In addition, as argued by Herdegen (1998), p. 9, freezing institutional rules and fundamental principles on a macroeconomic basis implies a substantial risk related to the subsequent falsification by new empirical analyses or scenarios which were not predicted when the rules were established.

Kelman (1993), p. 1216.

For an analysis of how German constitutional tradition was instrumental in setting up the premises of the EMU, see Feld, Köhler, and Nientiedt (2015), pp. 2–18; Nedergaard (2013), pp. 2–27; Gerber (1994), pp. 25–84.

For a historical account of the German Ordo-liberalism and its ideas, see Vanberg (1998), pp. 172–179; Streit (1994), pp. 508–515; Streit (1992), pp. 675–704; Rieter and Schmolz (1993), pp. 87–114.

Dullien and Guérot (2012), p. 2.

The aim of the Constitution is therefore to provide the necessary legal basis for a well-functioning democracy. The Constitution serves the purpose to preserve the legal order against excesses and pathologies of administrative bodies through the imposition of procedural and legal constraints. See Rosenfeld (2001), p. 1340.

Salama (2012), p. 150.

On the juridification of macroeconomic policymaking, see Salama (2012), pp. 148–150.

This reasoning has been acknowledged in the Order of 14 January 2014—2 BvR 2728/13—where the German Federal Constitutional Court (GFCC) argues that monetary policy shall be distinguished by other policies according to the wording, structure, and purpose of the TFEU, and this delimitation must be determined by looking at the immediate objective of a monetary policy act determined by the primary law, the instruments envisioned to achieve this objective, and its link to other provisions. This interpretation was firstly envisioned by the ECJ in the Pringle case (Case C-370/12), where the judges observe a measure fall within the scope of monetary policy if it attains the price stability objective legally established.

This would be at least the theoretical function of the law and macroeconomics, as described by Salama (2012), pp. 147–148. See also Ramirez (2003), pp. 517–518.

Arner (2007), p. 91. See also Mersch (2014).

Parkin (2013), p. 1.

The Manifesto of the German Ordo-liberal School can be found in Böhm, Eucken, and Grossmann-Doerth (1989), pp. 15–26.

Mestmäcker (2012), p. 588. According to Böhm (1989), pp. 46–67, an economic constitution is a comprehensive decision concerning the nature and form of the process of socio-economic cooperation. Similar opinions are expressed by Eucken (1952), p. 83; and Gerber (1994), pp. 44–49.

Mestmäcker (2012), p. 588.

Tuori and Tuori (2014), pp. 35–36.

For details, see Tuori and Tuori (2014), p. 28.

See Dyson (2000), p. 216; Lastra (2014), p. 92; Lastra (2015a), p. 313.

This is the case, for example, of the ECB and the ESCB.

An inflation targeting regime has been adopted, inter alia, in Brazil, India, Canada, Israel, Japan, Mexico, Russia, and the United Kingdom. For better insights, see Roger (2010). With respect to the inflation targeting experiences in emerging economies, see also Mishkin (2000b).

See Article 3(3) TEU and Article 140(1) TFEU.

See Article 3(3) of TEU.

ECB (2011), p. 14. Against this backdrop, Siekmann (2015a), p. 50, argues that the priority of price stability for the EU’s monetary policy is unconditional and remains a strict obligation embedded in the primary law of the Union.

As argued by Siekmann (2015a), pp. 48–49, the concept of monetary policy may be interpreted in both a narrow and a wide sense. The wide sense includes both the narrow meaning of monetary policy and the exchange rate policy. In this Article the term monetary policy shall be understood as referring to its wide sense.

Amtenbrink (2011), p. 23. Among others, see also Smits (1997), p. 184; Herdegen (1998), pp. 15–17; Trybus and Rubini (2012), p. 76. In addition, see also Lenihan (2008), p. 20, where the author recognizes that the maintenance of price stability can be recognized as the Grundnorm or raison d’être of the ESCB. This opinion is developed in Zilioli and Selmayr (2001a), p. 629. For a thorough comment on this Article with respect to the normative content of its price stability objective, see Siekmann (2013), pp. 72–75.

The common monetary policy conducted by the ESCB shall prioritize the achievement of price stability and where a conflict occurs against other objectives supported by the ESCB, that is, general economic policy, price stability must prevail. On this topic, see Siekmann (2015a), p. 50. For a comment on this Article with particular respect to price stability as the overriding objective of monetary policy and for further literature, see also Waldhoff (2013), pp. 271–285.

Lenihan (2008), pp. 20–23.

Idem, p. 4.

See Smits (1997), p. 184. See also Gaitanides (2005), pp. 18–20; Stadler (1996), p. 100.

See Article 140(1) TFEU.

Lenihan (2008), p. 21. See also Selmayr (1999), pp. 2431–2432.

ECB (1999a), p. 9. The reasons of a quantitative determination of price stability are manifold. The ECB intended to make monetary policy more transparent, providing a quantitative instrument against which the central bank is accountable towards the public. In addition, this quantitative determination provides guidance to the public for forming expectations of future developments of consumer price trends. For details, see ECB, Price Stability—Objective of the Eurosystem, MP.001 08/06.

Press release: The ECB’s monetary policy strategy, 8 May 2003. Available online at https://​www.​ecb.​europa.​eu/​press/​pr/​date/​2003/​html/​pr030508_​2.​en.​html.

In particular, see Siekmann (2015a), p. 50, questioning the conformity of this quantitative value in view of the language of the EU primary law. Similarly, Smits (1997), p. 185, defining price stability as ‘absence of inflation, i.e. a situation in which prices remain, relatively, stable’. As a result, the quantitative target set by the ESCB would not be legally binding. Instead, it would provide only some guidance on the fluctuations in purchasing power which would be compatible with the concept of price stability as envisioned by the EU Treaty.

Case C-62/14. Opinion of the Advocate General Cruz Villalón, 14 January 2015. The same reasoning is applied by the GFCC in the Order of 14 January 2014—2 BvR 2728/13, para 34, where the Court recognizes the admissibility of the constitutional complaints regarding the OMT decision of the ECB. Although the decision was just an announcement of a monetary policy act—and not a proper measure—the Court acknowledges the need to grant preventive legal protection against this measure in order to avoid future consequences that cannot be corrected. The Court therefore admits the need to ensure legal protection against these acts of public communication.

Case C-62/14. Opinion of the Advocate General Cruz Villalón, 14 January 2015, para 87.

Case C-62/14. Opinion of the Advocate General Cruz Villalón, 14 January 2015, para 90. It must be noted that Article 267 TFEU states that the ECJ shall have jurisdiction to give preliminary ruling to the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union, interpreting the word ‘act’ in a very general sense. According to the ECJ’s jurisprudence, the acts referred to by Article 267(1) neither have to be binding nor directly applicable (see ECJ, Case C-322/88 Grimaldi, judgment of 13 December 1989, para 8; Case 9/73 Schlüter, judgment of 8 October 1973, para 38). On this issue, see also Wendel (2014), pp. 288–289. Acts which are only preparatory or creating mere expectations in the market can be validly considered by the ECJ for judicial review. For more details, see also Sauer (2015), p. 987.

The homogeneous application of monetary policy shall be distinguished from the heterogeneity of its effects. It is clear, indeed, that the adoption of specific monetary policy instruments may provide different macroeconomic outcome across Member States of a monetary union. On this issue, see Beraja, Fuster, Hurst, and Vavra (2015).

On this topic, see Astin (1999), pp. 123–135; Diewert (2002), pp. 6–68. For a critical survey on the use of the HICP and its measurements bias, see Wynne and Rodriguez-Palenzuela (2004), pp. 79–112; Forsells and Kenny (2002), pp. 3–25.

EUROSTAT (1998).

Siekmann (2015a), p. 50.

For a survey on how consumers and investors can change their preferences based on price expectations, see Armantier, Bruine de Bruin, Topa, van der Klaauw, and Zafar (2011), pp. 1–25.

According to Smits (1997), p. 186, the ECB is free to translate the price stability objective into monetary targets based on its auto-interpretation. However, this auto-interpretation is limited by the legal constraints of its activities. Against this backdrop the ECJ could be theoretically called upon to assess whether the level of price stability achieved is consistently within the limits of the law. For a critical analysis, see also Thiele (2013), pp. 29–33.

Inter alia, see ECB (1999a), p. 46; de Haan, Oosterloo, and Schoenmaker (2012), p. 102; Kieler (2003), p. 6; Scheller (2006), p. 81.

This argument is provided in the ECB’s press release ‘The ECB’s monetary policy strategy’, 8 May 2003.

Article 1 of the Protocol No. 13 of TFEU. See Siekmann (2011a), pp. 1824–1857; Siekmann and Wieland (2013a), p. 6. For a discussion, with further references, on whether asset prices should be introduced in the definition of price stability, see Camba-Mendez (2003), pp. 38–39; de Haan, Eijffinger, and Waller (2005), pp. 74–77.

Siekmann (2011b), p. 20. See also Issing (2008), p. 2.

See Gianviti (2010), p. 469.

Article 19(1) of ESCB Statute.

See Article 20 of ESCB Statute.

See Louis (2005a), p. 312.

ECB (1999b), p. 54.

Guideline (EU) 2015/510 of the ECB of 19 December 2014 on the implementation of the Eurosystem monetary policy framework (ECB/2014/60), (OJ L 91, 2.4.2015, p. 3).

ECB (1999b), pp. 56–57.

Smits (1997), p. 104.

See Louis (2005a), p. 312. It is interesting to note that the binding nature of such guidelines is not contradicted by the fact that the ECB’s Governing Council may change their prescriptive content at any time. It is a general principle of administrative law that an authority can choose its own procedural rules within boundaries established by the Constitution and is deemed to be bound by its own rules until it decides to modify them (patere legem quam ipse fecisti or in German Selbstbindung). For a discussion of this principle with respect to the Union law, see Schermers and Waelbroeck (2000), p. 84.

Guideline (EU) 2015/510, Part Five.

Louis (2005a), p. 312.

For example, as of January 2015 the ECB unleashed a package of unconventional measures to stimulate the Eurozone economy with asset purchase programs and an expanded quantitative easing, having the purpose of incentivizing banks to increase lending. See Decision (EU) 2015/5 of the ECB of 19 November 2014 on the implementation of the asset-backed securities purchase program (ECB/2014/45), OJ L 1, 6.1.2015; Decision (EU) 2015/299 of the ECB of 10 February 2015 amending Decision ECB/2014/34 on measures relating to targeted longer-term refinancing operations; Decision (EU) 2015/774 of the ECB of 4 March 2015 on a secondary markets public sector asset purchase program (ECB/2015/10), OJ L 121, 14.5.2015, p. 20; Decision (EU) 2016/810 of the ECB of 28 April 2016 on a second series of targeted longer-term refinancing operations (ECB/2016/10), OJ L 132, 3.5.2016, p. 107.

See BVerfG, 2 BvR 2728/13 vom 14.1.2014, Absatz-Nr. (1–105). For critical discussions on the judgment of the Court, see Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), pp. 15–32; Petersen (2014), pp. 321–328; Schiek (2014), pp. 329–342; Everson (2015); pp. 474–499; Siekmann (2015b), pp. 101–123; Dahan, Fuchs, and Layus (2015), pp. 137–151.

See ECB Press Release. Technical features of Outright Monetary Transactions. 6 September 2012. Available online at http://​www.​ecb.​europa.​eu/​press/​pr/​date/​2012/​html/​pr120906_​1.​en.​html. For an analysis of the effects of ECB’s OMT announcement, see Altavilla, Giannone, and Lenza (2014).

For a general discussion of these aspects, see Petersen (2014), pp. 321–327. Siekmann and Wieland (2015), pp. 6–12.

Article 123(1) of TFEU.

See BVerfG, 2 BvR 2728/13 vom 14.1.2014, Absatz-Nr. (1–105), para 55.

We refer to the legal opinion of the Advocate General Cruz Villalón, Case C-62/14, 14 January 2015.

For a very critical appraisal on the use of proportionality test for assessing the legality of monetary policy instruments, see Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), pp. 17–18.

See Judgment of the Court (Grand Chamber) of 16 June 2015 (request for a preliminary ruling from the Bundesverfassungsgericht—Germany), Peter Gauweiler and Others v Deutscher Bundestag (Case C-62/14).

Idem, para 66.

See BVerfG, 2 BvR 2728/13, para 64.

See BVerfG, 2 BvR 2728/13, para 72.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 132.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 130.

Peter Gauweiler and Others v Deutscher Bundestag (Case C-62/14), paras 56 and 64.

See BVerfG, 2 BvR 2728/13, para 73.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 153–154.

Peter Gauweiler and Others v Deutscher Bundestag (Case C-62/14), para 89.

See BVerfG, 2 BvR 2728/13, para 77–78.

See BVerfG, 2 BvR 2728/13 para 76.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 150.

Idem, para 145. Therefore, although the ECB may participate in financial assistance programs, for the Advocate General Cruz Villalón, it must be clearly borne in mind that no circumstances could make possible for the ECB to take part in the monitoring of the financial assistance program to which the Member State is subject when, at the same time, that state is the recipient of a monetary policy measure.

Judgment of the Court (Full Court) of 27 November 2012. Thomas Pringle v Government of Ireland, Ireland and The Attorney General (Case C-370/12), para 56.

Peter Gauweiler and Others v Deutscher Bundestag (Case C-62/14), paras 51 and 52.

Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), pp. 18–19.

See BVerfG, 2 BvR 2728/13, para 88.

See BVerfG, 2 BvR 2728/13, para 89.

Also referred to as ‘interference with the market logic’. For details, see BVerfG, 2 BvR 2728/13, para 90 and 92.

See BVerfG, 2 BvR 2728/13, para 90.

See BVerfG, 2 BvR 2728/13, para 93–94.

In agreement with the Judgment of the Court, see Dagenhart (2015), pp. 30–36. For a divergent opinion, see Riso (2015), pp. 19–29.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 171.

Idem, para 177.

Idem, para 185–186.

Idem, para 233–241.

Idem, para 243.

Idem, para 254.

Idem, para 251–252.

Peter Gauweiler and Others v Deutscher Bundestag (Case C-62/14), para 67. In particular, the Court recognizes that in accordance with Union settled case law, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives (see Association Kokopelli (Case C-59/11), EU:C:2012:44, para 38).

Peter Gauweiler and Others v Deutscher Bundestag (Case C-62/14), para 68. To five such a discretion the Court relies on two cases: Afton Chemical v Secretary of State for Transport (C-343/09) EU:C:2010:419 and Billerud Karlsborg and Billerud Skärblacka, (C-203/12), EU:C:2013:664. Both judgments, however, recognize broad discretion to the EU legislature when intervening in areas involving political, economic, and social choices. The legality of extending such a legislative discretion in the area of monetary policy is therefore disputable. The assignment of broad discretion to the ECB entails a considerable amount of trust in the Bank by the ECJ. On this topic, cf. Beukers (2014), p. 343; Simon (2015), pp. 1030–1032.

Against this backdrop, Wilkinson (2015), p. 1058, points out that adopts a ‘featherweight review’ of proportionality, where the ECJ in fact carries out a nominal judicial scrutiny on the basis of conferring a wide margin of discretion to the ECB. For the author, the level of deference of the ECJ implies that no ‘manifest error of judgment’ of the ECB is found. The ECB therefore would have the only duty to act with care and accuracy. For another critical analysis of such ruling, see Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), pp. 17–18.

Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), p. 29, recognize that the ECJ does not deal with the concerns regarding the formation of prices, even criticizing the very narrow functional approach used for the interpretation of Article 123 TFEU. For Craig and Markakis (2016), p. 37, instead, the ECJ’s ruling on the interpretation of Article 123 TFEU should be sufficient to placate the GFCC concerns over the volume of OMT purchases and their impact on price formation.

See Opinion of Advocate General Cruz Villalón (Case C-62/14), para 255–261.

For a discussion on the safeguards envisioned by the ECJ, see Craig and Markakis (2016), pp. 17–19.

Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), p. 28. A different opinion on the nature of the OMT is advocated by Simon (2015), pp. 1034–1038, where the author reconciles the nature of the OMT within the normal open market operations of the ESCB.

The argument is thoroughly elaborated in Wilkinson (2015), pp. 1053–1060; Feld, Fuest, Haucap, Schweitzer, and Wieland (2016), pp. 28–31. Conversely, Simon (2015), p. 1038, argues that this view is difficult to uphold as it would be difficult to determine whether the economic effect of direct and indirect purchases are equivalent.

We refer in particular to the analysis of the monetary policy transmission mechanism and to the extensive discretion that this proportionality test ensured to the ECB in its policymaking. As the proportionality test is not able to clearly define the legal boundaries of the ECB’s competences, lots of uncertainty remains. In line with this view, see Goldmann (2016).

See BVerfG, 2 BvR 2728/13, para 7.

See BVerfG, 2 BvR 2728/13, para 95–98.

The same opinion is shared in Siekmann and Wieland (2013b), p. 50.

See BVerfG, 2 BvR 2728/13, para 97.

See Opinion of Advocate General Cruz Villalón (Case C-62/14), para 166–167.

Idem, note 60. The Advocate General, in particular, adopts the definition of monetary policy transmission mechanism laid down in ECB (2011), p. 62.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 112.

Idem, para 121. In the words of the Advocate General, there are different disruptive factors that may compromise the monetary policy transmission channels. In the OMT case, for example, the Advocate General acknowledges this disruptive factor in a relatively sudden and virtually unbearable increase of the risk premia of sovereign bonds. This increase would not reflect the macroeconomic reality of those States and, as a result, it would prevent the ECB from transmitting its signals effectively, thereby fulfilling its price stability mandate.

Opinion of Advocate General Cruz Villalón (Case C-62/14), see note 61. See also ECB (2011), pp. 62–63.

Opinion of Advocate General Cruz Villalón (Case C-62/14), para 87 and 110.

On the issue, see Eggertsson and Woodford (2003). According to the authors, central banks’ large-scale asset purchase serves as a credible tool to signal their commitment to keep interest rates low.

King (2004), p. 1.

Idem, p. 1.

Idem, p. 3.

Idem, p. 4.

Idem, p. 4.

Idem, p. 4.

For insights into the notion of ‘constrained discretion’, see Bernanke and Mishkin (1997); Bernanke (2003b). In general, see also Harris (2012), pp. 95–113.

Gianviti (2010), p. 449.

Idem, p. 450.

We derive this idea of legal construction of monetary policy institutions from Pistor (2013), pp. 315–330.

King (2004), p. 4.

Bernanke, Laubach, Mishkin, and Posen (2001), p. 22.

For a discussion of this topic, see Rymes (1995–1996), pp. 177–188. See also Levy (1995), pp. 189–210.

On the need of flexibility in the establishment of formal monetary policy institutions, see Rogoff (1986).

See Debelle, Masson, Savastano, and Sharma (1998).

As laid down in Article 127(1) TFEU, ‘Without prejudice to the objective of price stability, the ESCB shall support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union as laid down in Article 3 of the Treaty on European Union. The ESCB shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 119.’

See Article 127(2) of TFEU and Article 3(1) of ESCB Statute.

De Lhoneux (2005), p. 163.

Louis (2005a), p. 312.

See Draft Statute of the European System of Central Banks and of the European Central Bank (Commentary), 27 November 1990. See also Louis (2005a), p. 312; Malaguti (2010), p. 151.

Louis (2005a), p. 312. According to Article 56 of the Statute of the BIS ‘central bank means the bank or banking system in any country to which has been entrusted the duty of regulating the volume of currency and credit in that country; or, in a cross-border central banking system, the national central banks and the common central banking institution which are entrusted with such duty’.

Repasi (2013), p. 8. See also, with further references, Lastra (2014), p. 94. It must be noted that there is no consensus on the legal status of the ESCB. In fact, although it is undeniable that the ESCB does not have legal personality and that is governed by the decision-making bodies of the ESCB, it is also true that tasks and powers are assigned under the Treaty to the ESCB itself, and not to the ECB or the national central banks. For details, see Malaguti (2010), pp. 156–157. This consideration leads a number of authors to explore the organic nature of the ESCB and its role in the context of the institutional relationship between the ECB and the national central banks. For example, Weber (1998), p. 1465, advocates the federal structure of the relationship between the ECB and the national central banks, where the latter would be entirely autonomous bodies regulated by domestic laws and only charged by the Treaty with a limited set of tasks related to common monetary policy. Differently, Scheller (2006), p. 42, defines the ESCB as an ‘organic link’ between the ECB and the national central banks. In his view this link should ensure that the tasks assigned to the ESCB are performed jointly by the national central banks, although the ECB and the national central banks can potentially act in full autonomy. Smits (1997), pp. 24–25, takes a constitutional legal view, arguing that the ESCB constitutes a proper constitutional body, and as a community organ, it is truly the central bank of the EU. Finally, Zilioli and Selmayr (2001a), p. 79, refer to a loyalty obligation of national central banks within the ESCB as to ensure the integrity of the whole system.

See Article 282(1) of TFEU and Article 1 of ESCB Statute. For details, see De Lhoneux (2005), p. 163; Lastra (2014), p. 94; Scheller (2006), p. 44. As argued by Lastra (2014), p. 94, since neither the ESCB nor the Eurosystem has legal personality, they are not holders of rights and obligations. It is instead the ECB that holds all the rights and obligations.

De Lhoneux (2005), p. 165.

Gauron (1999), p. 148; Mullins and Saunders (1994), p. 222. See also Wynne (1999), p. 3. For a survey on the key similarities between these central banks, see Apel (2007).

12 U.S. Code § 241.

The Federal Open Market Committee was formed by the Banking Act of 1933 codified at 12 U.S.C. § 263. It is in charge of overseeing the open market operations, setting the policy interest rates, and overseeing the growth of money supply in the United States.

12 U.S. Code § 282, 323.

12 U.S. Code § 282, 323. On this argument, inter alia, see Lastra (2012), pp. 1274–1275.

For a thorough comparison between the Fed and the ESCB, see Gerdesmeier, Mongelli, and Roffia (2007).

For an institutional perspective, inter alia, see de Haan (Eds.) (2000); Howart (2012), p. 132.

For a deeper examination of the early Bundesbank governance, see Deutsche Bundesbank (1957), pp. 4–7.

Gauron (1999), p. 148. See Articles 6(1) and 6(2) of BBankG (1957).

Maier and de Haan (2000), p. 8. The idea behind establishing this structure was that a range of opinions represented in the decision-making bodies of the central bank would have substantially contributed to the quality of its monetary policy. See Deutsche Bundesbank, Monthly Report, May 2002, p. 5.

Article 7(2) of BBankG (1957).

Article 6(2) of BBankG (1957).

Article 7(1) of BBankG (1957). With the start of the third stage of the EMU in January 1999, a reform debate on how the Bundesbank has to be restructured in view of its new role in the EMU was launched. The idea was to simplify its structure, reducing in particular the number of decision-making bodies and the number of Land Central Banks. This debate concluded in March 2002 when the Bundestag approved the Seventh Act amending the Bundesbank Act and this was published in the Federal Law Gazette on 28 March 2002. For details, see Bundesbank, Monthly Report, May 2002, p. 8.

Maier and de Haan (2000), p. 8; Lastra (2014), p. 80; Busch (2005), p. 111. Although the governing structure of the ECB resembles the institutional governance of the Bundesbank before the EMU in many aspects, it must be noted that some differences between the two banks remain. Kaltenthaler (2006), p. 169, argues that the ECB has a much more protected mandate than the Bundesbank, due to the fact that the ESCB Statute is clearer in defining objectives and instruments. In addition, the ECB is much more protected by the law with respect to its independence, as this is provided by the TFEU, while the Bundesbank could have its independence altered by a simple act of the German parliament.

Article 8 of ESCB Statute.

See also Article 10(1) of ESCB Statute.

Article 12(1) of ESCB Statute.

Article 11(2) of ESCB Statute. More precisely, the president, the vice-president, and the other members of the Executive Board shall be appointed by the European Council, acting by a qualified majority, on a recommendation from the Council after it has consulted the European Parliament and the Governing Council.

Article 12(1) of ESCB Statute.

Wynne (2001), p. 741.

Yet, as from the date on which the number of members of the Governing Council has exceeded 21, each member of the Executive Board shall have one vote and the number of governors with a voting right shall be 15. The latter voting rights are assigned following a rotation procedure stated in Article 10(2) of ESCB Statute.

Article 10(2)-(5) of ESCB Statute.

Article 10(2) of ESCB Statute.

Article 11(5) of ESCB Statute.

This rationale of central bank independence is provided in Monteagudo (2010), p. 485.

Inter alia, see Monteagudo (2010) pp. 495–505; Lastra (2014), pp. 92–96; Lybek (2005), pp. 133–152; Debelle and Fischer (1994), pp. 195–219; Eijffinger and de Haan (1996); Crowe and Meade (2008); Taylor (2013b), pp. 155–162. For a review of the literature on this topic, see Berger, de Haan, and Eijffinger (2001), pp. 3–40.

For analytical surveys on this topic and related evidences on the performance of independent central banks, with further literature, see Cukierman (1992), pp. 369–432; Alesina and Summers (1993), pp. 151–162; Cukierman (1994), pp. 1437–1448; Loungani and Sheets (1997), pp. 381–399; Daunfeldt and De Luna (2003), pp. 2–13.

Lastra (2014), p. 95; Monteagudo (2010), p. 498.

Lamfalussy (1997).

The same provision is laid down in Article 7 of ESCB Statute.

Lastra (2015b), p. 269.

For an in-depth analysis of the independence of the ECB, see Zilioli (2016), pp. 125–143; Siekmann (ed.)(2013), pp. 402–453; Zilioli and Selmayr (2001b), pp. 621–627. See also Siekmann (2015a), pp. 70–71; Dutzler (2003), pp. 88–109. On this topic it is important to recall the judgment of the ECJ in the Commission of the European Communities v. the European Central Bank (C-11/00), so-called Olaf case, where the Commission challenged the validity of the ECB Decision 1999/726/EC of 7 October 1999 on fraud prevention. For a discussion of this case, see Louis (2005a), pp. 324–326. For the judges, the principle of independence aims to shield the ECB from all political pressure in order to enable it effectively to pursue the objectives attributed to its tasks, through the independent exercise of the specific powers conferred on it for that purpose by the EC Treaty and the ESCB Statute (see para 134). It must be noted, however, that this shield against any political influence can in practice fail. In 2011 Lorenzo Bini Smaghi, then ECB Executive Board member, was under political pressure to resign as to make space for a French representative on the Executive Board after the mandate of Jean-Claude Trichet, President of the ECB, expired. Mr. Bini Smaghi was harshly lobbied by European and national politicians, and his resignation was seen as a proof of the large influence that politicians can have on the ECB governance. On this topic, see Ralph Atkins, Bini Smaghi quits ECB after French pressure, Financial Times, 10 November 2011, article available online at https://​next.​ft.​com/​content/​1ba7a48c-0bc3-11e1-9310-00144feabdc0.

See Council Regulation (EC) No. 3603/93 of 13 December 1993 specifying definitions for the application of the prohibitions referred to in Articles 104 and 104b (1) of the Treaty (OJ L 332, 31.12.1993, p. 1).

Bini Smaghi and Gross (2000), p. 123. For an in-depth analysis of Article 123 TFEU, see Kämmerer (2013), pp. 150–166.

See Article 282(3) of TFEU and Article 9 of ESCB Statute. This legal personality assigns a special status to the ECB. Of this opinion, see, among others, Lastra (2015b) pp. 268–260. This special status of the ECB was used to question the classification of the ECB as an institution of the European Community. In this sense, see Streinz (2008), para 402; Tohidipur (2006), pp. 179–180. In fact, before the entry into force of the Lisbon Treaty, the ECB was not a formal institution of Union as its legal basis was provided not in the Article establishing the institutions, but in a separate one, that is, Article 8 of the EC Treaty. With the introduction of Article 13 TEU, this debate ended as the ECB was finally recognized as an institution of the EU and this provision does not prohibit a legal body that has institutions itself to be an institution of another legal body. In this sense, see Häde (2011), p. 432; Smits (2003), pp. 23–25.

For in-depth surveys on this topic, among others, see Lastra (2015b), pp. 249–253; Zilioli and Selmayr (2001a), pp. 7–31; Lastra (2000), pp. 167–180; Smits (1997); pp. 92–98.

For a discussion on the principle of decentralization in the Eurosystem, with further references, see Louis (2005a), pp. 324–317. For a critical standpoint on the decentralized structure of the system, see de Haan, Berger, and Inklaar (2004), pp. 71–95.

In addition, the principle of decentralization is further reinforced in the primary law by Article 14(3) of the ESCB Statute which provides that national central banks ‘are an integral part of the ESCB and shall act in accordance with the guidelines and instructions of the ECB.’

Moutot, Jung, and Mongelli (2008), p. 39.

On the dual pillars strategy undertaken by the ECB in the preparation stage of its policymaking, see Issing (2006), recalling that the author was the one who introduced and developed this monetary policy strategy for the EMU. For more details, see infra Chapter 5.III.2.

Moutot, Jung, and Mongelli (2008), p. 42. Inter alia, the relevant economic indicators are the following: (1) output and its components, (2) demand and labor market conditions, (3) broad range of price and cost indicators, (4) fiscal policies, (5) balance of payments for the Euro area, (6) asset prices and financial yields, and (7) sentiment indicators. The monetary indicators adopted instead are (1) monetary aggregates, (2) credit aggregates, (3) counterparts of M3, (4) loans to the private sector, (5) money-based inflation-risk-indicators, (6) measures of excess liquidity, and (7) indicators of the monetary policy stance and interest rate.

Louis (2014), p. 105. Against this backdrop, Zilioli and Selmayr (2001a), p. 67, refer to the ESCB’s decision-making structure as one of decisional centralism.

In accordance with Article 130 TFEU, therefore, the governors of the national central banks, when acting within the Governing Council with respect to the conduct of monetary policy, are personally responsible, and, as such, they must not take any instructions not only from the Union institutions and bodies but also from the national central banks they chair. Against this backdrop, Louis (2005a), p. 105, argues that governors of national central banks are independent experts adopting monetary policy in the sole interest of the Union.

Moutot, Jung, and Mongelli (2008), p. 42. On the role of the ECB staff in preparing the decision-making phase of the ECB monetary policy conduct, see also Papademos and Stark (2010), pp. 90–93.

See Article 9(3) of the Rules of Procedure of the European Central Bank (Decision of the ECB of 22 January 2014 amending Decision ECB/2004/2 of 19 February 2004).

Moutot, Jung, and Mongelli (2008), p. 38. In line with Article 9(1), the Committees ‘shall assist in the work of the decision-making bodies of the ECB and shall report to the Governing Council via the Executive Board’.

Moutot, Jung, and Mongelli (2008), p. 38.

Louis (2005b), p. 35.

For example, some arguments in favor of the decentralized nature of the judgmental phase are laid down in de Haan, Berger, and Inklaar (2004), pp. 71–100.

Articles 13 and 46 of ESCB Statute.

As a matter of fact, with the introduction of the rotation of voting rights, the weight of the votes expressed by the Executive Board members in the decisions of the Governing Council is increased considerably. For details on the allocation of voting rights, see Article 10(2) of the ESCB Statute.

Moutot, Jung, and Mongelli (2008), p. 42.

Idem, p. 40.

In this sense, see Louis (2005a), p. 110; Lastra (2000), p. 168. Some have argued that the implementation of monetary policy decisions via national central banks reflects not only the decentralized structure of the implementation phase of ESCB monetary policy but also the fragmentation of the Euro area. In this sense, see Padoa-Schioppa (2004), p. 85. Although prior to the crisis a convergence wave in financial conditions and markets was characterizing the EU countries’ developments, after the crisis, the fragmentation reappeared. This fragmentation may therefore explain the need to rely on national central banks for the implementation of monetary policy decisions. However, this decentralization shall not encroach upon Article 119 TFEU which requires in any case the ESCB to ensure the singleness of monetary policy across the EU. For details, see Lastra (2015b), pp. 110–111.

Article 14(3) of ESCB Statute.

Article 14(4) of ESCB Statute.

Louis (2005a), p. 314.

Idem, p. 314. Similarly, Zilioli and Selmayr (2001a), pp. 66–67, interpret this relationship in terms of the hierarchical organization of the ESCB incompatible with a federal system, where national central banks are legally subordinated to the ECB and its decision-making bodies.

Idem, p. 311; Chalmers, Davies, and Monti (2010), p. 551. See also Zilioli and Selmayr (2001a), p. 57, with further references, where the authors explain that it is misleading to call the ESCB a federal system, although it is structured as a two-level organization, with the ECB level and the level of the national central banks.

Chalmers, Davies, and Monti (2010), p. 551; Louis (2005a), p. 311.

De Vicuña (1999), p. 299. It must be noted, however, that this opinion is not unanimously accepted. For example, a different view is provided by Seidel (2012), p. 17. The institutional preeminence of the ECB can be clearly inferred from Article 4 of the ESCB Statute which establishes that the ECB must be consulted in advance (1) on any proposed community act in its fields of competence and (2) by national authorities regarding any draft legislative provision in its fields of competence within certain limits and conditions set out by the Council. In addition, Articles 12(3) and 18(3) of TFEU aim at assigning to the decision-making bodies of the ECB the power to adopt the Rule of Procedure regarding the internal organization of the ECB and the general principles for open market operations carried out by the ECB itself or by the national central banks. On the issue, it shall be noted that any legal act adopted on the basis of the primary law, pursuant to Article 34 of the ESCB Statute, is an act of the ECB and not of the ESCB. Finally, it shall be noted that a further argument in favor of national central banks’ subordination is inferred from Article 14(4), according to which: ‘National central banks may perform functions other than those specified in this Statute unless the Governing Council finds, by a majority of two thirds of the votes cast, that these interfere with the objectives and tasks of the ESCB. Such functions shall be performed on the responsibility and liability of national central banks and shall not be regarded as being part of the functions of the ESCB.’ A hierarchical super-ordination of the ECB can also be found therefore in relation to the functions performed by national central banks out of the scope of the ESCB.

Louis (2005a), p. 311.

Kern (2014), p. 520.