The European central bank: An independent specialized organization of community law

Common Market Law Review

Volumn 37, Issue 3, 2000, Pages 591-644

  Zilioli, Chiara ^a   Selmayr, Martin ^a  

^a EUROPEAN CENTRAL BANK   (Germany)

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EID: 85102815156     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/a:1005686611876     Document Type: Article

References (212)

1. 1. Written question No. 1104 and 1105/78, O.J. 1979, C 113/30 and C 145/14.
2. 2. Cf. Selmayr, “Die Wirtschaftsund Wa¨hrungsunion als Rechtsgemeinschaft”, AO¨ R (1999), 357, 369; “Die EZB als Neue Gemeinschaft – ein Fall fu¨r den EuGH?”, Europabla¨tter (1999), 170; and “Wie unabha¨ngig ist die Europa¨ische Zentralbank? Eine Analyse anhand der ersten geldpolitischen Entscheidungen der EZB”, (1999) Wertpapiermitteilungen, 2429. On the impact of the ECB’s legal nature on external relations, cf. Zilioli and Selmayr, “The External Relations of the Euro area: Legal aspects”, 36 CML Rev. (1999), 273–349.
3. 3. Torrent, “Whom is the European Central Bank the Central Bank of?: Reaction to Zilioli and Selmayr”, 36 CML Rev. (1999), 1229–1241.
4. 4. Cf. Opinion of A.G. Roemer in Joined Cases 27/59 and 39/59, Alberto Campolongo v. High Authority of the ECSC, [1960] ECR 391, at 418.
5. 5. Cf. Case 294/83, Les Verts, [1986] ECR 1339, para 23; Opinion 1/91, EEA I, [1991] ECR 6079, para 21.
6. 6. Cf. the approach chosen by von Bogdandy, “The legal case for unity: The European Union as a single organization with a single legal system”, 36 CML Rev. (1999), 887–910.
7. 7. With all respect, the concept of a legal person is certainly not just “a descriptive notion without normative content”, as surprisingly claimed by Torrent, op. cit. supra note 3, 1234. The ECJ itself mentions the legal personality of the EC as an essential element of its supranational nature, resulting from the limitation of sovereign rights of the Member States and leading to the supremacy of Community law; cf. Case 6/64, Costa v. E.N.E.L., [1964] ECR 593 and Case 22/70, Commission v. Council (ERTA), [1971] ECR 263, paras. 13–14. Cf. von Bogdandy, op. cit. supra note 6, who talks of “the vexed question of legal personality”, but nevertheless concludes (at 88) that in particular at the international plane, legal personality is vital for an organization’s capacity to interact with other subjects of international law and that it determines the organization’s consequential liability.
8. 8. Such a differentiated legal approach – to be contrasted with a mere “social picture” is also favoured by Curtin and Dekker, “The EU as a ‘layered’ international organization: Institutional unity in disguise” in Craig and de Bu´rca (Eds.), The Evolution of EU Law (Oxford, 1999), p. 83.
9. 9. Cf. Curtin, “The constitutional structure of the Union: A Europe of bits and pieces”, 30 CML Rev. (1993), 17–69, who even talks of “constitutional chaos” (at 67). The new structure was also compared to “a kind of a Gaudi structure”, “a house which is half built, a work in progress, suddenly abandoned by its builders”; cf. “Editorial Comment”, 29 CML Rev., 199–203, 202. Dehousse, “European institutional architecture after Amsterdam: Parliamentary system or regulatory structure?”, 35 CML. Rev. (1998), 595–627 considers this wording to be applicable also to the Amsterdam Treaty, the “patchwork nature” of which he underlines at 596.
10. 10. On the controversy surrounding the Union’s potential legal personality, cf. Curtin and Dekker, op. cit. supra note 8, p. 84 et seq. Today, only a progressive view concludes in favour of a legal merger of the three Communities with the new European Union into a single legal person; cf. the “unity thesis” of von Bogdandy and Nettesheim, “Die Verschmelzung der Europa¨ischen Gemeinschaften in der Europa¨ischen Union”, (1995) NJW, 2324. The Commission has now proposed to address again “the matter of the Union as a legal entity” at the Intergovernmental Conference 2000; cf. the Commission’s Opinion Adapting the institutions to make a success of enlargement, Brussels, 26 Jan. 2000, published at http://europa.eu.int/igc2000.
11. 11. Cf. Wellenstein, “Unity, Community, Union – what’s in a name?” (Guest Editorial), 29 CML Rev. (1992), 205–212, 207.
12. 12. Supranationalism and intergovernmentalism represent two fundamentally opposed organizational devices; cf. Virally, “Definition and classification of international organizations: a legal approach”, 29 Int.Soc.Sci.J. (1977), 58, 62.
13. 13. Coherence inside the Union is promoted in particular by the existence of general provisions on membership (Art. 49 TEU) and on the amendment procedure (Art. 48 TEU), by common objectives (Art. 2 TEU) and common principles (Art. 6 TEU) of the Union, and by the so-called “single institutional framework” (Arts. 3–5 TEU); on the latter, cf., however, “Editorial Comment”, 29 CML Rev., 199–203, 202: “This is more an institutional ‘ge´ometrie variable’ than a single framework”; and Wellenstein, op. cit. supra note 11, 209: “a hybrid construction that is more singular than single”.
14. 14. De Witte prefers the metaphor of a “French gothic cathedral” to that of the temple, op. cit. infra note 28, p. 51. Cf. also Weiler, “Neither Unity nor Three Pillars - The Trinity Structure of the Treaty on European Union” in Monar, Ungerer and Wessels (Eds.), The Maastricht Treaty on European Union (Brussels, 1993), 49, who prefers the theological metaphor of “trinity” in which the “oneness” and “separateness” coexist.
15. 15. This has led the ECJ to look carefully at the boundaries between the supranational and the intergovernmental areas of the law of the EU and to give, in case of cross-pillar matters, a clear preference to the supranational first pillar on the basis of Art. 47 EU; cf. Case C-170/96, Commission of the EC v. Council of the EU, [1998] ECR I-2763, paras. 14–17.
16. 16. Cf. already the “Solemn Declaration on European Union”, endorsed by the European Council at the Stuttgart Summit on 19 June 1983 which stressed the commitment “to strengthen and continue the development of the Communities which are the nucleus of European Union.”; Bull. EC 6-1983, 24 (25), points 1.4 and 1.4.1.
17. 17. Matriochka is the famous Russian doll which, when opened, contains a smaller doll which, again, contains several smaller dolls.
18. 18. By the Convention of 25 March 1957 on certain institutions common to the European Communities and by the so-called Merger Treaty of 8 April 1965 establishing a Single Council and a Single Commission of the European Communities.
19. 19. Cf. Tizzano, Contratti “strumentali” e contratti d’impiego delle Comunita’ europee, (1978) Riv.Dir.Eur., 481 et seq.; and in his note on Case 85/86, Commission v. Board of Governors of the EIB in Foro Italiano (1988), IV, 240 et seq.
20. 20. E.g. Ullricht and Donnelly, “The Group of Eight and the European Union”, G7 Governance No. 8 (Nov. 1998), published at http://www.library.utoronto.ca/g7/governance/gov5, endnote 6, where they claim that the three Communities had become “the European Community (EC)” as a result of the Merger Treaty and then were transformed into “the European Union” by the Maastricht Treaty.
21. 21. Cf. Schermers and Blokker, International Institutional Law. Unity within diversity, Third Edition, (The Hague/London/Boston, 1995), para 1698: “Although the three pillars form part of the larger Union, the three Communities continue to exist as independent international organizations, based on separate treaties and with their own legal personality.”
22. 22. Cf. Case 221/88, ECSC v. Acciaierie Busseni SpA in liquidation, [1990] ECR I-495, paras. 10–16.
23. 23. Cf. Case 220/91 P, Commission v. Stahlwerke Peine-Salzgitter AG, [1993] ECR I-2393, paras. 27 et seq. In this case, the CFI had originally held that in spite of the differences between the liability regimes for the ECSC and the EC, the three Community Treaties represented “a single legal order, albeit one established by three different Treaties”; thus Art. 34 ECSC could be interpreted in the light of the criteria laid down by the ECJ in its case law on Art. 215(2) EC; cf. T-120/89, Stahlwerke Peine-Salzgitter AG v. Commission, [1991] ECR II-279, para 78. The ECJ, however, stated on appeal, that this reasoning is not correct when the liability of the ECSC is in issue: “Even though it is possible to point to similarities between the conditions for liability laid down by the ECSC and the EEC Treaties …, it is in the light of the criteria evolved for the application of Arts. 34 and 40 of the ECSC Treaty that the Community judicature must define the facts and characterize the faults of such a nature as to render the Community liable.”
24. 24. The need for delimitating clearly the tasks of the three Communities also results from Art. 305 EC according to which the provisions of the EC Treaty shall not affect the provisions of the ECSC Treaty and shall not derogate from the provisions of the Euratom Treaty.
25. 25. E.g. the Tchernobyl case which concerned the adoption of a regulation on the basis of Art. 31 Euratom instead of Art. 95 (ex 100a) EC; cf. Case C-70/88, European Parliament v. Council of the EC, [1990] ECR I-2041; and [1991] ECR I-4529. See also Case C-327/91, French Republic v. Commission [1994] ECR I-3641, para 31–39: no analogy to Art. 101 Euratom when an international agreement is concluded on the basis of the EC Treaty.
26. 26. Under the ECSC Treaty, the Commission enjoys very extensive powers of direct management of Community law. In addition, the ECSC Treaty will expire on 23 July 2002 (Art. 97 ECSC), in contrast to the EC and the Euratom Treaty, which are “concluded for an unlimited period” (Arts. 312 EC and 208 Euratom). Cf. also Opinion 1/75, Local Cost [1975] ECR 1355, 1365: no bearing of Art. 71 ECSC in a prior reference procedure under the EEC Treaty.
27. 27. O.J. 1994, L 1/3.
28. 28. Cf. Blokker and Heukels, “The European Union: Historical Origins and Institutional Challenges” in Heukels, Blokker and Brus (Eds.), The European Union after Amsterdam. A Legal Analysis, (The Hague/London/Boston, 1998), p. 24: “the Amsterdam Treaty has preserved the ‘three pillar structure’ erected by the Treaty of Maastricht for an indeterminate period.” Cf. also De Witte, “The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?” in Heukels et al., op. cit. p. 54: “ the Member States …, while ‘simplifying’ and ‘consolidating’ with gusto in the Treaty of Amsterdam, have left in existence two separate Treaties, the EC Treaty and the EU Treaty, and have also confirmed the existence of three separate pillars.” We would go even further and point to the existence of altogether five Treaties, including the ECSC Treaty, the EAEC Treaty, and the Treaty of Amsterdam itself.
29. 29. Council Decision 93/591/EU, Euratom, ECSC, EC concerning the name to be given to the Council following the entry into force of the Treaty on European Union, O.J. 1993, L 281/18, with corrigendum in O.J. 1993, L 285/41. More precise was “Editorial Comment”, 29 CML Rev., 199–203, 202: “So it will be the Council of the European Communities that will enact the common foreign and security policy of the Union (which has no legal personality).” Original emphasis.
30. 30. A similar critical attitude in this respect is taken by Timmermans, “The uneasy relationship between the Communities and the Second Union Pillar: Back to the ‘Plan Fouchet”’, LIEI (1996), 61.
31. 31. Cf. the analysis by Gaja, “How flexible is flexibility under the Amsterdam Treaty?”, 35 CML Rev., 855–870; Kortenberg, “Closer cooperation in the Treaty of Amsterdam”, 35 CML Rev., 833–854; Koenig, “Die Europa¨ische Union als bloßer materiellrechtlicher Verbundrahmen”, EuR, supp. 2 (1998), 139; see also the conclusion drawn by Blokker and Heukels, op. cit. supra note 28, p. 26: “In a way, Maastricht has produced a paradox, which is consolidated by the Amsterdam Treaty: a Union has been established which appears not to be a union in a number of respects.” Cf. also Louis, “Differentiation and the EMU” in The Many Faces of Differentiation in EU Law (Antwerp, 2000).
32. 32. Cf. in particular Curtin and Dekker, op. cit. supra note 8, p. 86. The understanding of the Union as a “Layered International Organization” was first developed by Do¨rr, “Zur Rechtsnatur der Europa¨ischen Union”, (1995) EuR, 334, 347; cf. also Schroeder, “Die Rechtsnatur der Europa¨ischen Union und verwandte Probleme” in Hummer and Schweitzer, O¨ sterreich und das Recht der Europa¨ischen Union (Wien, 1996), p. 3; Tizzano, “La personnalite´ internationale de l’Union europe´enne”, (1998) RMUE, 11.
33. 33. In this sense cf. the original interpretation by Schweitzer and Hummer, Europarecht, 5th ed., (Neuwied, Kriftel and Berlin, 1996), para 132; now modified by Schweitzer in Grabitz and Hilf, Das Recht der Europa¨ischen Union: Kommentar (Mu¨nchen, 1999), Art. 289, para 9 et seq.; Art. 290, para 14; Art. 291, para 11 et seq.
34. 34. Of little help in the debate on the ECB’s legal nature is its classification by some German authors as “Gemeinschaftsinstitution” instead of “Gemeinschaftsorgan”; cf. von Borries, “Die Europa¨ische Zentralbank als Gemeinschaftsinstitution”, (1999) ZEuS, 281; Weber, “Das Europa¨ische System der Zentralbanken”, (1998) Wertpapiermitteilungen, 1465, 1465. Because the German term “Organ” is the equivalent to what is called “institution” in the English and French text of the Treaties, “institucio´n”, “istituzione”, and “instituic¸a˜o” in their Spanish, Italian and Portuguese version. On the linguistic difficulties for the terminology used for describing the organizational structure of the Union, cf. Pipkorn in Starck (Ed.), Erledigung von Verwaltungsaufgaben durch Personalko¨rperschaften und Anstalten des o¨ffentlichen Rechts (Baden-Baden, 1992), pp. 227, 266 et seq.
35. 35. Cf. Cloos et al., Le Traite´ de Maastricht: Gene‘se, Analyse, Commentaires, (Brussels, 1994), p. 236.
36. 36. Cf. Pipkorn, “Der rechtliche Rahmen der Wirtschaftsund Wa¨hrungsunion – Vorkehrungen fu¨r die Wa¨hrungspolitik”, (1994) EuR, supp. 1, 85, 86; Weinbo¨rner, Die Stellung der Europa¨ischen Zentralbank (EZB) und der nationalen Zentralbanken in der Wirtschaftsund Wa¨hrungsunion nach dem Vertrag von Maastricht (Frankfurt, 1998), p. 387.
37. 37. Cf. Pernice, “Das Ende der wa¨hrungspolitischen Souvera¨nita¨t Deutschlands und das Maastricht-Urteil des BVerfG” in Due et al. (Eds.), Festschrift fu¨r Ulrich Everling, Band II, (Baden-Baden, 1995), p. 1057, 1059.
38. 38. Cf. Hahn, Der Vertrag von Maastricht als vo¨lkerrechtliche U¨ bereinkunft und Verfassung (Baden-Baden, 1992), p. 42 and 73.
39. 39. Cf. Torrent, op. cit. supra note 3, 1231.
40. 40. This is even stressed by the defenders of the “unity thesis”; cf. von Bogdandy, op. cit. supra note 6.
41. 41. Cf. Case C-359/92, Germany v. Council of the EU, [1994] ECR, I-3681, para 38.
42. 42. Cf. ECHR, Judgment of 18/2/1999 – 24833/94, Denise Matthews v. United Kingdom, para 48.
43. 43. Theoretically, a fourth possibility would be to classify the ECB as being the common bank (the “daughter”) of the national central banks which are the shareholders of the ECB; cf. Seidel, “Die Wirtschaftsund Wa¨hrungsunion im rechtlichen und politischen Gefu¨ge der Europa¨ischen Union”, in Caesar and Scharrer (Eds.), O¨konomische und politische Dimensionen der Europa¨ischen Wirtschaftsund Wa¨hrungsunion (Baden-Baden, 1999), p. 215 238. This is an interpretation of the Treaty which is probably based on earlier drafts of the Treaty and the Statute; we have shown already that under the present Treaty, such a “company law analogy” does not match the relationship between the ECB and the national central banks at all; cf. Zilioli and Selmayr, “The European Central Bank, its System and its Law”, Euredia 1999, 187, 211, and YEL 1999 (in print); cf. also von Borries supra note 34, 294.
44. 44. On the international legal personality of the BIS, which is today undisputed, cf. Giovanoli, “The role of the BIS in international monetary cooperation and its tasks relating to the ECU” in Effros (Ed.), Current Legal Issues Affecting Central Banks, Vol. 1 (Washington, 1992), p. 39, 42 et seq.
45. 45. Cf. Brand and Selmayr, “Die Euro-Bank”, Obero¨sterreichische Nachrichten of 7 Jan. 2000, p. 3.
46. 46. Falsae demonstrationes are a daily experience for the lawyer. While the man on the street does not, for example, bother to distinguish verbally between “property” and “possession”, the lawyer even has to pay attention to such sophisticated differences as “legal ownership” and “beneficial ownership” in the Law of Trust.
47. 47. Cf. von Bogdandy, “Organizational Proliferation and Centralization under the Treaty on European Union” (in print), who thereby puts the ECB in the context of a European Union organized in accordance with his “unity thesis”.
48. 48. Cf. Hahn, op. cit. supra note 38, p. 42 and 73.
49. 49. On this concept, mainly originating from an early French proposal, cf. Louis, “Union mone´taire et Union politique, Le roˆle du juge” in La tutela giurisdizionale dei diritti nel sistema comunitario – Congresso di Venezia dell’U.A.E., (Bruxelles, 1997), p. 585, 591, and Commentaire Me´gret, Le Droit de la CEE, Vol. 6, p. 20; cf. also Di Bucci, “La corte di giustizia, l’unione economica e monetaria ed il passaggio alla moneta unica” in Scritti in onore di Giuseppe Federico Mancini, Vol. II: Diritto dell’Unione Europea (Milano, 1998), p. 307, 311; Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 360; von Borries, “Die Fortentwicklung der Europa¨ischen Wirtschaftsgemeinschaft zur Wirtschaftsund Wa¨hrungsunion” in Rengeling and von Borries, Aktuelle Entwicklungen in der Europa¨ischen Gemeinschaft (Ko¨ln, 1992), p. 105; Bailleix Banerjee, La France et la Banque Centrale europe´enne (Paris, 1999), p. 310, according to whom the “fourth pillar” concept originated in the French treasury.
50. 50. Both intergovernmental conferences were officially opened on 15 Dec. 1990 in Rome; cf. Bull. EC 12-1990, p. 21, No. 1.1.7. (Political Union) and p. 22, No. 1.1.9. (Monetary Union). Cf. Louis, Le lien entre les confe´rences intergouvernementales sur l’Union e´conomique et mone´taire et sur l’Union politique in Monar et al. (Eds.), op. cit. supra note 14, p. 163.
51. 51. Cf. von Borries, op. cit. supra note 49, 105.
52. 52. This idea was re-vitalized by the French proposals for establishing a kind of a “gouvernement e´conomique” in parallel to the introduction of the single currency, which would have allowed the European Council to give instructions to the ECB; on this, cf. Che´main, L’Union e´conomique et mone´taire. Aspects juridiques et institutionnels (Paris, 1995), p. 317 et seq.; and the proposal of the President of the French Assemble´e nationale, Agence Europe No. 6655, 29–30 Jan. 1996, p. 5.
53. 53. Of course, this denationalization is less radical than the one once suggested by Hayek in Denationalization of money – The Argument Refined. An Analysis of the Theory and Practice of Concurrent Currencies, 2nd ed. (Lancing, 1978). Hayek suggested not only the abolition of national monopolies over money, but in addition to replace all public authority over money by private issuance. However, combined with the feature of central bank independence, the creation of the euro as supranational currency comes very close to putting Hayek’s proposal into practice; cf. Issing, “Hayek – Currency Competition and European Monetary Union”, Annual Hayek Memorial Lecture Hosted by the Institute of Economic Affairs, London, 27 May 1999, published at http://www.ecb.int, Key Speeches.
54. 54. On negative experiences with public international law concepts in European monetary cooperation, cf. Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 361 et seq.
55. 55. A few traces of the original “fourth pillar” proposal may still be detected in the EC Treaty; cf. the exclusion, by Art. 104(10) EC, of the possibility to start infringement proceedings under Arts. 226, 227 EC in the context of the excessive deficit procedure; and the fact that in the Chapter on EMU, the European Council is mentioned for the first time in the EC Treaty; cf. Arts. 99(2) and 113(3) EC. This intrusion of the European Council into the domain of Community law is strongly criticized by Louis, “L’e´volution du Conseil europe´en à la lumie‘re de la re´alisation de l’Union e´conomique et mone´taire” in Starace (Ed.), Divenire sociale e adeguamento del diritto. Studi in onore di Francesco Capotorti (Milano, 1999); cf. also Martenczuk, “Der Europa¨ische Rat und die Wirtschaftsund Wa¨hrungsunion”, (1998) EuR, 151; and Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 380 et seq.
56. 56. On the effect of this provision in Community law, cf. infra note 150.
57. 57. On this, cf. Zilioli and Selmayr, op. cit. supra note 43, pp. 190 et seq.
58. 58. These provisions do not confer any rights or impose any obligations on the national central banks of Denmark, Greece, Sweden and the UK, which retained their powers in the field of monetary policy according to national law; cf. Art. 43.1 and 43.2, Statute; more extensively on differentiation inside the ESCB, cf. Zilioli and Selmayr, op. cit. supra note 43, pp. 223 et seq.
59. 59. Art. 19.1, Statute.
60. 60. Art. 5, Statute.
61. 61. Only when the ECB needs police powers to enforce its regulations and decisions, must it rely, like every public authority, on the support of the competent police authorities in the Member States; cf. Art. 3(2) of Council Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions, O.J. 1998, L 318/4.
62. 62. Art. 4(2), 118, 123(4) EC.
63. 63. Protocol No. 10 attached to the EC Treaty.
64. 64. Also Torrent follows our argument in this respect; cf. op. cit. supra note 3, 1230.
65. 65. This question is answered neither by Art. 2 nor by Art. 4(2) EC, as claimed by Torrent, op. cit. supra note 3, 1232. These provisions make the establishment of EMU and the introduction of a single currency an objective of the European Community and a task of both the European Community and the Member States. They thus concern chiefly the process leading to the single currency and aim at submitting already this process to the primary objective of price stability. However they remain silent on the question to whom monetary sovereignty passes as soon as this process is completed. It is telling in this context that Art. 105 EC – which entrusts the responsibility for the single monetary policy to the ESCB, governed by the ECB – shall apply “from the beginning of the third stage”, i.e. from 1 Jan. 1999; cf. Art. 116(3)(2) EC. In view of the wording and the scheme of Arts. 2 and 4(2) EC, it thus appears quite daring to conclude that these provisions attribute the responsibility for the definition and conduct of the single monetary policy and exchange rate policy “to the Member States and to the Community (and to nobody else)”, as suggested by Torrent (original emphasis). Torrent’s view obviously has been inspired by the Spanish version of Art. 4(2), the wording of which – in contrast to in particular the English, the German, the French and the Italian version – does not reflect the process-oriented nature of this provision sufficiently.
66. 66. Cf. judgment in Campolongo cited supra note 4, at 404.
67. 67. Cf. Case 221/88, cited supra note 22.
68. 68. In Community law, the question of the liability of the legal person EC must be clearly distinguished from the question of its representation in the courtroom in an action under Arts. 235 and 288(2) or (3) EC. Before the Community judicature, the EC is represented by the institutions which are alleged to be responsible for the matter giving rise to liability, as this is seen to be in the interests of a good administration of justice; cf. Joined Cases 63– 69/72, Hansamu¨hle and others v. Council, [1973] ECR 1229, para 7; recently Case T-246/93, Gu¨nther Bu¨hring v. Council and Commission, [1998] ECR II-171, para 26. On this case law, cf. Schmahl, “Ungereimtheiten und Rechtsschutzlu¨cken bei der außervertraglichen Haftung der Europa¨ischen Gemeinschaft,”, (1999) ZEuS, 415, 416 et seq. However, when she states (at 420) that there is only one single budget at the Community level by which claims for damages could be satisfied, she ignores the financial resources of the ECB and of the EIB which do not form part of the Community budget, as will be explained below.
69. 69. Cf. Joined Cases 7/56 & 74/57, Algera v. Common Assembly of the ECSC, [1957] ECR 81, 57.
70. 70. Cf. Case C-327/91, French Republic v. Commission, [1994] ECR I-3641, para 24 et seq.
71. 71. This is also stressed by Partsch in Le´ger (Ed.), Union europe´enne. Communaute´ europe´enne. Commentaire article par article des traite´s UE et CE (Basel, 2000), Art. 108, 109 CE: “à la diffe´rence des institutions de la Communaute´, elle [la BCE] dispose d’une personnalite´ juridique propre.”
72. 72. In the French text: “organes de de´cisions”; in German: “Beschlußorgane”; in Italian: “organi decisionali”; in Spanish: “o´rganos rectores”.
73. 73. In this respect, the following statement of A.G. Mancini in para 12 of his Opinion on Case 85/86, Commission v. Board of Governors of the European Investment Bank, [1988] ECR 1281, regarding the EIB, can be applied also to the ECB: “the Bank lacks the fundamental characteristic of an organ, that is to say its acts are not directly imputable to the organization the EEC – of which, according to the proposition under consideration, it should be regarded as being an integral part So the Bank is neither an institution nor an organ.”
74. 74. Cf. Torrent, op. cit. supra note 3, 1233 and footnote 11. Cf. also Timmermans, “Editorial Comment: Executive Agencies within the EC: The European Central Bank – a model?”, 33 CML Rev., 623, 626, where he however admits that the ECB is not really an executive agency, but rather “a fully-fledged regulatory agency”. The difference between the ECB and the agencies is also shown by the way in which the question of the seat is treated: for the ECB (but not for the agencies) this is now laid down, together with that of the institutions of the European Communities and of Europol, in Protocol No 12 attached to the EU, the EC, the ECSC and the Euratom Treaty, O.J. 1997, C 340/112; on this, cf. Schweitzer, op. cit. supra note 33, Art. 289, para 10.
75. 75. Established by Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network (EEA Regulation), O.J. 1990 L 120/1.
76. 76. Established by Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (EMEA Regulation), O.J. 1993 L 214/1.
77. 77. Established by Council Regulation (EC) No 40/94 of 20 Dec. 1993 on the Community trade mark (OHIM Regulation), O.J. 1994, L 11/1.
78. 78. On this and on the organizational diversity of Community law, cf. Hilf, Die Organi-ationsstruktur der Europa¨ischen Gemeinschaften (Berlin, 1982); Lenaerts, “Regulating the regulatory process: ‘delegation of powers’ in the European Community”, (1993) EL Rev., 23; de Bu´rca, op. cit. supra note 8, p. 55, 69 et seq.; Berger, Vertraglich nicht vorgesehene Einrichtungen des Gemeinschaftsrechts mit eigener Rechtsperso¨nlichkeit (Baden Baden, 1999).
79. 79. Legal personality has been conferred to the EEA by Art. 7, first sentence EEA Regulation; to the EMEA by Art. 59, first sentence, EMEA Regulation; and to OHIM by Art. 11(1), second sentence, OHIM Regulation.
80. 80. This is pointed out in the preamble of the EEA Regulation, recital 8: “Whereas the Agency should cooperate with existing structures at Community level to enable the Commission to ensure the full application of Community legislation on the environment”.
81. 81. Case 9/56, Meroni & Co., Industrie Metallurgiche v. High Authority of the European Coal and Steel Community, [1958] ECR 133; Case 10/56, Meroni & Co., Industrie Metallurgiche, societa’ in accomandita semplice v. High Authority of the European Coal and Steel Community, [1958] ECR 157, 168 et seq., where the ECJ annulled the High Authority’s decision to delegate powers to the Brussels agencies on the applicant’s complaint “that the High Authority has delegated to the Brussels Agencies powers conferred upon it by the Treaty, without subjecting their exercise to the conditions which the Treaty would have required if those powers had been exercised directly by it.”
82. 82. Cf. Art. 8(1) EEA Regulation: 2 Commission representatives and 2 qualified scientific personalities designated by the European Parliament in the EEA’s management board; cf. Art. 56(1) EMEA Regulation: 2 Commission representatives, 2 representatives appointed by the European Parliament on the EMEA’s Management Board; cf. Art. 118 OHIM Regulation: Art. 122(1) OHIM Regulation: 1 Commission representative on OHIM’s Administrative Board.
83. 83. Cf. Art. 11(3) EEA Regulation: the revenue of the EEA consists, inter alia, of a subsidy from the Community entered in the general budget of the European Communities; cf. Art. 57(1) EMEA Regulation: the revenue of the EMEA consists, inter alia, of a contribution from the Community; cf. Art. 134(3) OHIM Regulation: OHIM’s revenue comprises, inter alia, a subsidy entered against a specific heading of the general budget of the European Communities, section Commission. These direct financial links to the Community budget justify the general submission of all decentralized bodies to the full control of the Court of Auditors under Art. 248(1), second sentence EC.
84. 84. In some cases, the ECJ has only been given jurisdiction in disputes concerning the non-contractual liability of the decentralized bodies; cf. Arts. 18(2) EEA Regulation; 60(2) EMEA Regulation. Cf. also Case T-148/97, David T. Keeling v. OHIM, [1998] ECR II-2217, where the CFI considered an action for annulment under Art. 173 EC [now Art. 230 EC] brought against a decision of the President of OHIM to be inadmissible because “acts emanating from Community bodies other than those listed in that provision may not be challenged on the basis of it. The Office for Harmonization in the Internal Market is not one of the Community institutions listed in Art. 4 of the Treaty, nor is it mentioned in the first paragraph of Art. 173 of the Treaty.”
85. 85. Art. 63 of the OHIM Regulation allows actions to be brought before the ECJ against decisions of OHIM’s Board of Appeal on appeals in trade-mark cases. Cf. also Council Regulation (EC) No 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia which provides, in Art. 15(3), for the ECJ’s jurisdiction in actions for annulment under Art. 230 EC brought directly against the Centre.
86. 86. On this, cf. Case 294/83, Les Verts, [1986] ECR 1339, para 23.
87. 87. Cf. de Bu´rca, op. cit. supra note 8, 76 et seq. When Torrent, op. cit. supra note 3, 1232 states in this context that it had never been argued that decentralized bodies were bodies “outside the Community”, he misses Case 16/81, Agata Alaimo v. Commission, [1982] ECR 1559. Here, the Commission (!) in fact had argued that servants of the European Centre for the Development of Vocational Training were not employed by the European Communities (para 5). The ECJ therefore had to analyse “whether the Centre is part of the ‘European Communities”’ (para 7). In view of the principles governing the delegation of powers explained above, it is self-evident that the ECJ answered this question in the affirmative, as “the Centre was established by the Council, pursuant to Art. 235 of the EEC Treaty [now Art. 308 EC]” (para 12).
88. 88. Under these provisions, no act of secondary Community law was required for the establishment of the ECB; the ECB therefore could start its work immediately after the Council of the EU, meeting in the composition of the Heads of State or Government, had confirmed the eleven Member States which, in its view, fulfilled the necessary conditions for the adoption of the single currency, in accordance with Art. 121(4) (ex 109j(4)) EC); cf. Council Decision (EC) 98/317 of 3 May 1998, O.J. 1998, L 139/30.
89. 89. The establishment of the ECB through the means of primary Community law has its origins in Art. 102a(2) EEC, as inserted by the Single European Act: “insofar as further development in the field of economic and monetary policy necessitates institutional changes, the provisions of Art. 236 [now Art. 48 EU] shall be applicable”. By this, the drafters of the Treaty wanted to prevent the establishment of a central monetary organization by the Community institutions on the basis of Art. 235 EEC (now Art. 308 EC). Secondary Community law had already been used to establish the European Monetary Cooperation Fund (EMCF); cf. Regulation (EEC) No 907/73 of 3 April 1973 establishing a European Monetary Cooperation Fund, O.J. 1973, L 89/2; on the EMCF and the problem of its legal basis Louis, “Le Fonds europe´en de coope´ration mone´taire”, (1973) CDE, 255.
90. 90. Cf. also Lenaerts, op. cit. supra note 78, 43: “To the extent that it appeared appropriate, in a given policy context, to create an internal body outside the Community institutional structure laid down in Art. 4 EEC, to take the necessary policy decisions in complete independence, it would be for the constitution itself to create such a body. Examples are the European Investment Bank … and the European Central Bank.” This aspect was already stressed, as regards the EIB, by A.G. Mancini in Case 85/86, cited supra note 73, para 8 of the A.G.’s Opinion. This is also the reason why we deliberately – and not for lack of attention, as claimed by Torrent, op. cit. supra note 3, 1233 – did not equate the ECB with decentralized bodies in CML Rev. 1999, 273; on the need to distinguish clearly between the ECB and decentralized bodies, cf. extensively Selmayr, “Die EZB … ”, op. cit. supra note 2, 173 et seq.
91. 91. Today, the budget covering EC, ECSC and EAEC is sometimes also called “general budget of the European Union” (cf. O.J. 1998, L 44/1). The reason seems to be that under Art. 28(2) and (3) EU and under Art. 41(2) and (3) EU, all administrative expenditures of the Community institutions and, with some exceptions, operational expenditure resulting from second and third pillar activities “shall be charged to the budget of the European Communities”. The emphasis added demonstrates that the language of the Treaties is, again, more accurate than the practice of some Community institutions.
92. 92. Not all financial resources used in the context of the Treaties are, by definition, part of the budget of the European Communities; cf. e.g. the expenditure necessary for the EEC’s financial assistance under the Fourth ACP-EEC Lome´ Convention, the implementation of which is shared by the EEC and its Member States. As, here, it is for the Member States to choose the source and methods of financing, the ECJ held that this expenditure was not Community expenditure, did not have to be entered in the Community budget and consequently was not subject to Art. 208 EC (now Art. 279 EC); cf. Case C-316/91, European Parliament v. Council, [1994] ECR I-625, para 39.
93. 93. This is in line with the language chosen already in Convergence Report: Report required by Art. 109j of the Treaty establishing the European Community of the European Monetary Institute (Frankfurt 1998), at p. 2 of the Glossary as regards the definition of EMU: “Stage Three will start on 1 January 1999 in accordance with the decision pursuant to Art. 109j (4), with the transfer of monetary competence to the ESCB and the introduction of the euro.” Such a direct transfer of sovereignty seems also to be the understanding of Louis, “Les relations internationales de l’Union e´conomique et mone´taire”, Working Paper LAW No.99/10 of the European University Institute (San Domenico (Florence) 1999), in the second page, without number: “la politique mone´taire ou’ les compe´tences nationales ont e´te´ transfe´re´es à un Syste‘me europe´en de banques centrales (SEBC), avec à son centre, une Banque centrale europe´enne (BCE)”. Such understanding has been criticized by Torrent, Droit et pratique des relations ´conomiques exte´rieurs dans l’Union europe´enne (Brussels/Barcelona 1998), published at http://www.ub.es.dpecp/ep/livreTorrent.html. Chapitre VI, point 6.3. 1. a). But cf. Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 369. See also Issing, “European integration at the beginning of the new millenium”, http://www.ecb.int/key/00/sp000208.htm, 2: “The transfer of national currency sovereignty to the European Central Bank (sic!) represents a partial surrender of political sovereignty.”
94. 94. In this context, it is interesting to see that the German Basic Law reflects very accurately the subtleties of the transfer of monetary sovereignty which has taken place with the establishment of the ECB and the introduction of the euro. It contains not only a general provision which enables the legislature, by way of a constitutional majority, to transfer sovereign rights to the European Union (Art. 23 of the Basic Law), but in addition has a lex specialis in its Art. 88 which originally only dealt with the establishment of the Bundesbank. The second sentence of this provisions allows, since Maastricht, the transfer of tasks and competences of the Bundesbank directly to the ECB which has to be independent and committed to price stability as its primary objective. Art. 88, second sentence also stresses the link between the ECB and the EU by requiring that this transfer has to take place “within the framework of the European Union”. On this, cf. Janzen, Der neue Artikel 88 Satz 2 des Grundgesetzes (Berlin, 1996), in particular at p. 100.
95. 95. This is done by von Borries, op. cit. supra note 34, 294 et seq.
96. 96. Cf. e.g. the former Director of the EIB’s Legal Directorate Ka¨ser, “The European Investment Bank: its Role and Place within the European Community system”, (1984) YEL, 303; cf. also Dunnett (Head of Division at the EIB), “The European Investment Bank: Autonomous Instrument of Common Policy?”, 31 CML Rev., 721–763.
97. 97. Cf. Case 85/86, cited supra note 73, para 13 of his Opinion.
98. 98. Case 110/75, John Mills v. EIB, [1976] ECR 955, para 14. The expression in the case’s original language “La Banque en tant qu’organisme communautaire” was somewhat unfortunately rendered in the English version as “the Bank as a Community institution”. Cf. the more precise German translation: “Gemeinschaftseinrichtung”. The ECJ altered the English translation into “Community body” in Case 85/86, cited supra note 73, para 24. On this translation problem, cf. A.G. Gulmann, Case C-370/89, Societe´ Ge´ne´rale d’Entreprises Electro-Me´caniques SA (SGEEM) and Roland Etroy v. European Investment Bank, [1992] ECR I-6211, footnote 6 of his Opinion.
99. 99. Case 85/86, cited supra note 73, para 28. Emphasis added.
100. 100. Case 85/86, cited supra note 73, para 29. Emphasis added.
101. 101. C. Arts. 22 and 23 of the EIB Statute.
102. 102. Cf. A.G. Mancini, cited supra note 73, para 8.
103. 103. Cf. Minnaert in Le´ger (Ed.), op. cit. supra note 71, Art. 266 CE, para 9. Today, however, the EC sometimes guarantees part of the liability arising from EIB loans: cf. Council Decision of 14 Dec. 1998, O.J. 1998, 346/54.
104. 104. Cf. Art. 3(1)(ii) of the Agreement establishing the European Bank for Reconstruction and Development, O.J. 1990, L 372/4.
105. 105. On the use of the EIB within the context of ECSC and in particular EAEC projects involving a need for credit, cf. Ka¨ser, op. cit. supra note 96, 306.
106. 106. This was stressed already by A.G. Roemer, supra note 4, at 418. Cf. also Leanza, “Commento all’articolo 129” in Commentario del Trattato CEE, Vol. III (Milan, 1965), p. 999.
107. 107. The Commission traditionally nominates its Director-General for Economic and Fiscal Affairs and its Director-General for Regional Policy for the EIB’s Board of Directors; cf. Ka¨ser, op. cit. supra note 96, 315.
108. 108. Cf. Art. 179(2) EC.
109. 109. Cf. Art. 159 EC and the Protocol No 28 on economic and social cohesion (1992).
110. 110. Cf. Art. 104(11), second indent, EC. Under this provision, the EIB will be “invited” by the Council “to reconsider its lending policy towards the Member State concerned”.
111. 111. Cf. the Resolution of the European Council on Growth and Employment Pact, Amsterdam, 16 June 1997, O.J. 1997, C 236/3, point 9, where the EIB is urged “to step up its activities” to contribute to the balanced and steady development of the common market in the interest of the Community, and where a number of concrete activities are listed for future EIB action.
112. 112. The ECJ has not yet had the opportunity to render a judgment of principle on liability in such a situation. If one takes the view that Art. 288(2) EC does not apply to such situations because of the EIB’s “independence”, this question could only come to the ECJ by way of a preliminary reference under Art. 234 EC because in this situation, liability questions have to be determined by the competent national courts. This would result from Art. 29, first subparagraph of the EIB Statute, as – if Art. 288(2) EC does not apply – neither the EC Treaty nor the EIB Statute transfer jurisdiction in these cases to the ECJ. On this, cf. Minnaert, op. cit. supra note 103.
113. 113. This is the prevailing opinion in academic doctrine. Cf. already Hilf, op. cit. supra note 78, p. 40 et seq.; Hu¨tz in Grabitz and Hilf, op. cit. supra note 33, Art. 9, para 41. Cf. also the note of the EIB’s Board of Governors of 4 Dec. 1958 (quoted by Minnaert, op. cit. supra note 103, para 9), according to which the EIB “assume l’entie‘re responsabilite´ de sa gestion.”
114. 114. In the case in question, the EIB had financed a construction project in Mali by risk capital from the resources of the Sixth European Development Fund. These resources were to be managed by the EIB on behalf of the Community, while instruments giving effect to risk capital operations were to be concluded by the EIB “acting as the Community’s authorized agent” and to be managed by the EIB “acting for and on behalf of the Community” and “at the risk of the Community”. The EEC had thus used the EIB as an agent in the context of its own development cooperation policy.
115. 115. Case C-370/89, op. cit. supra note 98, para 15 and 16. Emphasis added.
116. 116. And therefore, it would already go one step further than what is considered to be admissible by Torrent, op. cit. supra note 3, 1231.
117. 117. Cf. Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 364 et seq. and 378 et seq., where this is qualified as the end of the “Keynesian era”.
118. 118. Cf. De Kock, Central Banking (Pretoria 1954), p. 42 et seq.
119. 119. On the relationship between the prohibition of monetary financing and the fiscal agent-function, cf. extensively Smits, The European Central Bank. Institutional Aspects (The Hague/London/Boston), p. 75 and p. 288 et seq.
120. 120. Only temporarily, the ECB acts as “fiscal agent” as regards the administration of the Community facility providing medium-term financial assistance for Member States’ balance of payments (cf. Council Regulation (EEC) No 1969/88 of 24 June 1988 O.J. 1988, L 178/1). Under this facility, there are still two outstanding Community loans granted to Italy in 1993. These loans were originally administered by the EMCF before they passed to the EMI under Art. 6.1 of its Statute, and then to the ECB under Art. 47(1), first indent of its Statute; they will expire at the end of 2000 and cannot be prolonged, as with the beginning of the third stage of EMU, the Treaty provisions allowing for balance of payment assistance have ceased to apply; cf. Art. 119(4) EC.
121. 121. This is not taken into account by von Borries, op. cit. supra note 34, 294, who considers the Member States as members both of the EIB and of the ECB.
122. 122. On the role and composition of the ECB’s decision-making bodies, cf. Zilioli and Selmayr, op. cit. supra note 43, pp. 309 et seq.
123. 123. The independence of the members of the Executive Board is reinforced by the fact that their term of office is not renewable, cf. Art. 11(2), Statute.
124. 124. Cf. Art. 213(1)(4) EC, under which the Commission must include at least one national of each of the Member States. The truly supranational nature of the ECB’s Executive Board is also underlined by Louis, op. cit. supra note 31, p. 5 of typewritten text.
125. 125. On the application of the principle of conferred powers to the ECB’s regulatory power through the lex specialis of Art. 8 EC, cf. Zilioli and Selmayr, op. cit. supra note 43, pp. 319 et seq.
126. 126. Cf. Case 85/86, cited supra note 73, para 28
127. 127. Case T-460/93, Etienne Teˆte v. European Investment Bank, [1993] ECR II-1257, para 19. The fundamental difference between EIB and the ECB was already felt by A.G. Gulmann in his Opinion to Case C-370/89, cited supra note 98, para 15 (thereby mentioning the ECB for the first time in the ECR). He pointed to the fact that the ECB “has been given duties and powers by the new Treaty” and emphasized their “public-law nature”, while the duties of the EIB would “only to a limited extent, if at all, involve the exercise of public authority in a restricted sense.”
128. 128. Von Bogdandy, op. cit. supra note 6, 904: “because it is independent as regards its personnel, its finances and its legal personality”.
129. 129. De Witte, op. cit. supra note 28, 53.
130. 130. Cf. Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 372; this view is shared by Scheller in Glomb and Lauk (Eds.), Euro-Guide: Handbuch der Europa¨ischen Wirtschaftsund Wa¨hrungsunion, (Ko¨ln 1998), p. 2.
131. 131. In this direction cf. also Blokker and Heukels, op. cit. supra note 28, at p. 28, footnote 90, who consider that the provisions granting legal personality to the EIB and the ECB lead to a “status aparte” for both organizations; cf. also at p. 32, where it is mentioned that the European Union, without having legal personality, would be obliged to act “through the Communities and/or the Member States, or through legal persons such as the EIB and the ECB.” Along the same lines, cf. Demaret, “Le Traite´ de Maastricht ou les voies diverses de l’Union” in Monar et al. (Eds.), op. cit. supra note 14, p. 37, at p. 39 et seq.: “Du point de vue institutionnel, la matie‘re mone´taire occupe une place quelque peu à part dans le Traite´ instituant la Communaute´ europe´enne. Cela s’explique par sa spe´cificite´ ainsi que par le de´sir de rendre l’autorite´ mone´taire pleinement inde´pendente”.
132. 132. The EIB was said to be “associated” to the European Communities by the ECJ already in Campolongo, cited supra note 4, at 404. We would suggest that recent Treaty revisions have considerably intensified this link between the Communities and the EIB, which today represents their main financial instrument.
133. 133. Cf. Partsch, op. cit. supra note 71, Art. 108, 109 EC, para 4: “la BCE n’est pas soumise à la tutelle d’aucune des institutions communautaires.” We would, however, mention the legal supervision by the ECJ as an exception from this far-reaching statement.
134. 134. On this, cf. Bleicher, “UN v IBRD: A Dilemma of Functionalism”, (1970) International Organization, 31; and Holder, “The Relationship Between the International Monetary Fund and the United Nations” in Effros (Ed.), Current Legal Issues Affecting Central Banks, Vol. 4, (Washington 1997), p. 16, 18. See also the Committee on Negotiations with Specialized Agencies, Report on Negotiations with the International Bank for Reconstruction and Development and the International Monetary Fund, U.N. Economic and Social Council Doc. E/564 (16 Aug. 1947), p. 3, where it is stressed that “the statement that the Bank (Fund) is a Specialized Agency … established by agreement among its member governments carries with it no implication that the relationship between the United Nations and the Bank (Fund) is one of principal and agent.” The parallel between the situation of the World Bank and of the ECB is also seen by von Bodgandy, op. cit. supra note 6, 904.
135. 135. Such a status was originally claimed by the EIB in Case 85/86, (reported by A.G. Mancini), para 5 of his Opinion, cited supra note 73.
136. 136. This view is, again, shared by Timmermans, op. cit. supra note 74, 628 et seq.: “The legal order of the ESCB ensures the respect of the rule of law by providing for an adequate system of legal protection through the European Court of Justice.” Cf. also Louis, op. cit. supra note 49, 591, where he emphasizes “l’insertion de la Banque centrale europe´enne dans l’ordre juridique communautaire et, en particulier, sa soumission au juge communautaire.”
137. 137. Cf. also the German IMF-Act, Bundesgesetzblatt 1978, II-13, which reserves important rights to be exercised under the IMF Agreement for the Bundesbank. In the context of the IMF, one should also note the General Arrangements to Borrow (GAB), established in 1962, the original participants of which were eight major industrial countries (USA, UK, France, Japan, Italy, Canada, Netherlands, Belgium), but also two independent central banks: the Deutsche Bundesbank and Sveriges Riksbank; cf. IMF, Selected Decisions and Selected Documents of the International Monetary Fund, 24th ed. (Washington 1999), p. 423. In the view of Gold, “On the Difficulties of Defining International Agreements. Some Illustrations from the Experience of the International Monetary Fund” in Simha (Ed.), Economic and Social Developments. Essays in Honour of Dr. C.D. Deshmukh (Bombay 1972), p. 25, at 30 et seq., the participation of these central banks in the GAB represents a participation “in their own right, and not as the fiscal agencies of Germany and Sweden”. On the international legal personality of central banks cf. extensively Kramer, Die Rechtsnatur der Gescha¨fte des Internationalen Wa¨hrungsfonds (Berlin 1967), p. 35 et seq. Against this background, our proposition in CML Rev. 1999, 273 that also national central banks may exceptionally enjoy a (limited) international legal personality can hardly be qualified as “an extraordinary thesis” which would constitute “a kind of ‘demonstratio ad absurdum”’, as does Torrent, op. cit. supra note 3, 1223.
138. 138. This is the view prevailing in German case law and academic writings; cf., as a representative example, Stern, Das Staatsrecht der Bundesrepublik Deutschland, Vol. II (Mu¨nchen 1988), para 35 V 2. Art. 88, first sentence of the German Basic Law does mention only the existence of a “federal bank for currency and banknotes”, but does not incorporate central bank independence as a legal principle; cf. BVerwGE 41, 334. Differentiated is the position of Seidel, op. cit. supra note 43, 236, who takes the view that central bank independence as regards the legislature results, in Germany, from the doctrine of separation of powers, as the central bank would form part of the executive. But see also the decision of the Federal Administrative Court (the Bundesverwaltungsgericht), BVerwGE 41, 334 where it is questioned whether the independent position of the Bundesbank is compatible with the doctrine of separation of powers and the democratic principle enshrined in Art. 20(1) of the German Basic Law.
139. 139. Cf. Timmermans, op. cit. supra note 74, 630, who emphasizes that the political institutions of the Community “cannot interfere or correct the monetary policy decisions made by the ECB. Art. 8 of the ESCB Statute states as a general principle: ‘The ESCB shall be governed by the decision-making bodies of the ECB.’ The message is clear: and by no one else. The only authority to stop the system is the collectivity of Member States as ‘Herren der Vertra¨ge’ (Art. N TEU).”
140. 140. Under the former Paragraph 13, second paragraph, third sentence of the Bundesbank Act.
141. 141. Cf. Joined cases C-46/93 and C-48/93, Brasserie du Peˆcheur SA v. Bundesrepublik Deutschland and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others, [1996] ECR I-1029, para 32 et seq.
142. 142. Cf. Case 222/84, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651, para 56.
143. 143. Cf. Case C-71/97, Commission v. Kingdom of Spain, [1998] ECR I-5991, para 17.
144. 144. When a national central bank fulfils functions outside the ESCB, Art. 14.4 of the Statute applies.
145. 145. See also Art. 14.2(2) second sentence of the Statute which gives the governor of a national central bank standing at the ECJ to challenge decisions of Member States which relieve him or her from office for reasons other than those mentioned in the first sentence of the second subparagraph. This is the first time that Community law allows a “national” official to challenge a national decision directly at the ECJ.
146. 146. This is also emphasized by the German Federal Constitutional Court in Cases 2 BvR 2134/92 & 2158/92, Brunner e al. v. The European Union Treaty, Judgment of 12 Oct. 1993, 31 CML Rev., 251, 261: “Placing most of the tasks of monetary policy on an autonomous basis in the hands of an independent central bank releases the exercise of sovereign powers of the state from direct national or supranational control in order to withdraw monetary matters from the reach of interest groups and holders of political office concerned about re-election.”
147. 147. By Torrent, op. cit. supra note 3, 1240 et seq.
148. 148. Cf. on the one hand Torrent, op. cit. supra note 3, 1229 et seq.; and, on the other hand, Selmayr, “Wie unabha¨ngig … ” op. cit. supra note 2, 2431 and 2438 et seq.
149. 149. Cf. Solans, “Should the ECB have broader objectives beyond price stability”, Speech from 24 May 1999, published at http://www.ecb.int.
150. 150. This primacy of price stability has not been affected by the recent amendment of Art. 2, first indent TEU by the Amsterdam Treaty, which now lists at a prominent place among the Union’s objectives “a high level of employment”, but does not even mention the objective of price stability. As stated in Art. 47 TEU, the provisions of the TEU, other than those expressly amending the EC, the ECSC and the Euratom Treaties, shall not affect the existing acquis communautaire, on this, cf. Case C-170/96, op. cit. supra note 15. This issue is a clear demonstration why it is important to qualify the ECB not generously as “the Union’s central bank”, but accurately as an organization of Community law, as this means that for the ECB, the hierarchy of objectives as established by the EC Treaty always take precedence over a possibly divergent hierarchy now foreseen by the TEU.
151. 151. In this sense Herdegen, “Price stability and budgetary restraints in the Economic and Monetary Union: The law as guardian of economic wisdom”, 35 CML Rev., 9, 21.
152. 152. Monetary policy therefore follows a different approach in Europe than in the USA where the Federal Reserve System has, under the Federal Reserve Act, a “dual mandate”, i.e. to promote “maximum employment” and “stable prices”. On the obligation of the Fed to strike a delicate balance between the two goals, cf. Blinder, “Central Banking in a Democracy” in Federal Reserve Bank of Richmond, Economic Quarterly, 1996, 1, 5 et seq.
153. 153. Cf. the dictum by the German Federal Constitutional Court in its Maastricht judgment, op. cit. supra note 146, 262 et seq. In its view, the ECB’s independence “takes account of the special characteristic (tested and proven – in scientific terms as well – in the German legal system) that an independent central bank is a better guarantee of the value of the currency, and thus of a generally sound economic basis for the state’s budgetary policies and for private planning and transactions in the exercise of rights of economic freedom, than state bodies, which as regards their opportunities and means for action are essentially dependent on the supply and value of the currency, and rely on the short-term consent of political forces.”
154. 154. The ECB makes the origin of its secondary law transparent by always adding an ECB number (instead of an EC, ECSC or Euratom number) to the title of a legal act adopted by its decision-making bodies. Thus, for instance, the first ECB Regulation ever published by the ECB in the O.J. – the Regulation of the European Central Bank of 1 Dec. 1998 on the application of minimum reserves – bears the number “ECB/1998/15”; cf. O.J. 1998, L 356/1.
155. 155. On the different forms and effects of ECB Law and on the special case of “ECB directives”, cf. Zilioli and Selmayr, op. cit. supra note 43, p. 317 et seq., where the case law of the ECJ is applied to all legal instruments available to the ECB. Cf. also Partsch, op. cit. supra note 71, Art. 110 EC, para 3: “les actes de la BCE sont soumis au meˆme re´gime que ceux que peuvent adopter les institutions communautaires ”
156. 156. However, this provision is subject to Art. 43.1, Statute and to the Danish and UK Protocol as regards Denmark, Greece, Sweden and the UK.
157. 157. By Timmermans, op. cit. supra note 74, 626.
158. 158. On the language regime of the ECB, cf. Schweitzer in Grabitz and Hilf, op. cit. supra note 33, Art. 290, para 14.
159. 159. Rules of Procedure of the European Central Bank, as amended on 22 April 1999, O.J. 1999, L 125/34, and by Decision ECB/1999/6 of 7 Oct. 1999, O.J. 1999, L 314/32.
160. 160. Art. 17.9 of the Rules of Procedure (supra, note 159).
161. 161. Art. 17.2 and 17.6 of the Rules of Procedure (supra, note 159).
162. 162. Decision of the European Central Bank of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank as amended on 31 March 1999 (ECB/1998/4), O.J. 1999, L 125/32.
163. 163. Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 Feb. 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, O.J. 1968 L 56/1, amended in the last instance by Council Regulation (EC, ECSC, Euratom) No 2594/98 of 28 Nov. 1998, O.J. 1998 L 325/1.
164. 164. This situation which can only be changed in accordance with the procedures foreseen for an amendment of the primary Community law on EMU: Art. 48(2) TEU, which requires consultation of the European Parliament, the ECB and the Commission, unanimity between all 15 Member States and the completion of 15 national ratification procedures for “institutional changes in the monetary area”; or the simplified amendment procedure under Arts. 107(5) EC and 41 of the Statute, under which, in addition to the involvement of the European Parliament and the Commission, unanimity is required either in the Council of the European Union or in the Governing Council of the ECB; or the simplified amendment procedure of Art. 105(6) EC under which specific tasks in the field of prudential supervision may be conferred upon the ECB by a unanimous Council decision on a proposal from the Commission, but only after consulting the ECB and after receiving the assent of the European Parliament. In all these cases, a change of the scope of the tasks of the ECB would result not from secondary Community law, but from (amended) primary Community law.
165. 165. Under Art. 34.1, first indent, Statute, the ECB may make regulations to the extent necessary to implement, inter alia, the tasks defined in Art. 3.1, first indent, Statute, i.e. to define and implement monetary policy. Good statistics are an essential pre-condition for an efficient monetary policy. Therefore, Art. 5.1 Statute enables the ECB to collect the necessary statistical information either from the competent national authorities or directly from economic agents “in order to undertake the tasks of the ESCB.”
166. 166. The case of the EIB has to be distinguished in this respect. In view of the fact that the EIB enjoys only a functional autonomy, and of the absence of any regulatory power for the EIB, the EIB is subject to secondary law enacted by the Community institutions whenever the application of such secondary law to the EIB does not “undermine the operational autonomy and reputation of the Bank as an independent institution on the financial markets”; cf. Case 85/86 and A.G. Gulmann, op. cit. supra note 98, para 11.
167. 167. Cf. the title of Art. 42 Statute. Cf. Smits, op. cit. supra note 119, p. 167, for whom it is clear that the independence attributed by the Treaty to the ESCB is “circumscribed only – in few instances – by the necessity of working on the basis of additional legislation to be adopted by the political institutions”.
168. 168. Council Regulation (EC) No 2532/98 of 23 Nov. 1998 concerning the powers of the European Central Bank to impose sanctions, O.J. 1998, L 318/4.
169. 169. European Central Bank Regulation (ECB/1999/4) of 23 Sept. 1999 on the powers of the European Central Bank to impose sanctions, O.J. 1999, L 264/21.
170. 170. Council Decision of 13 Dec. 1996 in accordance with Art. 109 j(3) of the Treaty establishing the European Community, on entry into the third stage of economic and monetary union, O.J. 1996, L 335/48.
171. 171. It was thus not an “error” (as claimed by Torrent, op. cit. supra note 3, 1234), but a logical consequence of our view of the ECB’s legal nature to write about “competences” and “powers” of the legal person ECB which can, both inside the Community legal order and at the international level, come into conflict with the competences conferred on the legal person EC.
172. 172. This results from a comparison with Art. 5.3 of the Statute of the European Monetary Institute (EMI), the ECB’s predecessor, under which the EMI had to be consulted only “by the Council regarding any proposed Community act within its field of competence”, while today, Art. 105(4), first indent EC requires generally consultation of the ECB “on any proposed Community act in its field of competence”.
173. 173. Cf. Case C-70/88, Parliament v. Council (Tchernobyl), [1990] ECR I-2041, para 26 et seq.
174. 174. This is even the case when one applies the very broad interpretation of “financial interests of the European Communities”, as laid down in Art. 1(2) of Council Regulation (EC/Euratom) No 2988/93 of 18 Dec. 1995 on the protection of the European Communities’ financial interests, O.J. 1995, L 312/1 and including “the general budget of the Communities or budgets managed by them”. Unlike the budget of, e.g., the European Regional Development Fund, through which the EC takes action (cf. Art. 159 EC) and which is administered by the Commission’s Directorate-General for Regional Policy, the financial resources of the ECB are managed exclusively by the decision-making bodies of the ECB. The financial independence of the ECB results from a deliberate decision of the intergovernmental conference at Maastricht. Early French proposals, under which the Member States and/or the EC would have owned the capital of the ECB, were rejected; cf. Bailleix-Banerjee, op. cit. supra note 43, p. 102, 103, 130 and 311.
175. 175. The Court of Auditors may only examine the operational efficiency of the management of the ECB; cf. Art. 27.2 Statute. In contrast to this, the EIB is subject to the supervision of the Court of Auditors whenever it manages Community expenditure and revenue, i.e. whenever it acts as a “Community agent”; cf. Art. 248(3), third subparagraph EC.
176. 176. Cf. the ECB’s Recommendation ECB/1998/3 of 19 June 1998 on the external auditor of the European Central Bank, O.J. 1998, C 246/5, and Council Decision 98/481/EC of 20 July 1998 approving the external auditors of the European Central Bank, O.J. 1998, L 216/7.
177. 177. Cf. Commission Decision 1999/352/EC, ECSC, Euratom, O.J. 1999, L 136/20, adopted on the basis of Art. 162 EC (now Art. 218 EC). Cf. also Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), O.J. 1999, L 136/1, and Council Regulation (Euratom) No 1074/1999 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), O.J. 1999, L 136/8, by which the competences of OLAF have been extended to all “institutions, bodies, offices and agencies established by, or on the basis of, the Treaties”.
178. 178. Cf. Decision of the European Central Bank (ECB/1999/5) of 7 Oct. 1999 on fraud prevention, O.J. 1999, L 291/36. The legal basis is Art. 12.3 Statute.
179. 179. On 12 Jan. 2000, the Commission presented two actions to the ECJ on the basis of Art. 230 EC, one against the ECB and one against the EIB, because they both rely on their own anti-fraud regimes; cf. the Commission’s press release IP/00/22 of 12 Jan. 2000 and the summary of its main legal arguments in O.J. 2000, C 122/8–10. The Commission’s anti-fraud regime has meanwhile been challenged by a group representing 70 Members of the European Parliament; cf. Wisdorff, “Europaabgeordnete klagen gegen Kontrollbeho¨rde”, Handelsblatt 22 Jan. 2000. The CFI has now granted an interim measure against OLAF; cf. www.curia.eu.int, Press Release No 32/00 of 2 May 2000.
180. 180. Cf. the analysis by Selmayr, “Die EZB … ”, op. cit. supra note 2; Lohmann, “Olaf hat keine Zusta¨ndigkeit fu¨r die Europa¨ische Zentralbank”, Vereinigte Wirtschaftsdienste 1 Dec. 1999; Selmayr and Kamann, “Streit um die Unabha¨ngigkeit”, Frankfurter Allgemeine Zeitung, No. 86, 11 April 2000 p. 14.
181. 181. Cf. Zilioli and Selmayr, op. cit. supra note 43, p. 356.
182. 182. This seems to follow from the case law of the ECJ if applied to the ECB, cf. supra note 68.
183. 183. On this, cf. already Smits, “Positie en bevoegdheden van een Europese Centrale Bank” in Een Economische en Monataire Unie (EMU) in Europa – Juridische en Institutionele Consequenties, Asser Instituut Colloquium Europees Recht (1990), pp 25–33, p. 26 and p. 32.
184. 184. Supra note 2.
185. 185. Cf. Torrent, op. cit. supra note 3. As regards Torrent’s criticism of our distinction between “exclusive” and “shared” (instead of “non-exclusive”) competences – which he qualifies as an “error” (!), at p. 1236 –, we would like to point to the case law of the ECJ which uses both types of wording without giving preference to one of them; cf., e.g., Case C-316/91, cited supra note 92, where the ECJ qualifies the competence of the Community in the field of development aid as “not exclusive” (para 34) and therefore “shared by the Community and its Member States” (para 35). In Torrent’s words (at p. 1237), “to establish a distinction between exclusive and shared competences is, methodically speaking, senseless”.
186. 186. Cf. Padoa-Schioppa, “The external representation of the euro area”, published at http://www.ecb.int/key/st990317.htm.
187. 187. Cf. BIS, Press Release No. 40/1999E of 8 Nov. 1999. The ECB became a member on 9 Dec. 1999.
188. 188. Cf. Statutes of the Bank for International Settlements of 20th Jan. 1930, as amended on 8th Nov. 1999, published at http://www.bis.org/about/index.htm.
189. 189. Cf., e.g., the Tokyo Statement of G-7 Finance Ministers and Central Bank Governors of 22 Jan. 2000, published at http://www.library.utoronto.ca/g7/finance/fm002201.htm, which was made by the Finance Ministers of the G-7 countries, the Central Bank Governors of Canada, Japan, the US, and the UK, the Euro-11 Presidency, and the President of the ECB.
190. 190. On Art. 6.1 and 6.2 Statute. The participation of the “Euro 11” Presidency is not based on Community law, as the “Euro 11” is not a body foreseen in the EC Treaty; cf. Selmayr, “Die Wirtschafts- … ”, op. cit. supra note 2, 384 et seq. The proposal of an additional participation of the Commission in G 7 meetings was rejected by the non-European G-7 members.
191. 191. Cf. the relevant IMF Executive Board’s Decision No. 11875-(99/1) of 21 Dec. 1998, published in IMF, Selected Decisions, op. cit. supra note 137, p. 551 et seq. In this context, we would like to point to those academics and practitioners, but also to the Group of Ten, which share our view – almost ridiculed by Torrent, op. cit. supra note 3, 1239 – that the IMF is, primarily, an international monetary organization, the participation within which is therefore in the natural interest of every central bank; cf., e.g., Duisenberg and Sasz, “The Monetary Character of the IMF” in Frenkel and Goldstein (Eds.), International Financial Policy: Essays in Honour of Jacques Polack, (Washington, 1991), p. 254 (where a number of communique´s of the Group of Ten are quoted which stress the “monetary role” or the “monetary character” of the IMF); cf. also Louis, op. cit. supra 93, at p. 20 et seq.; and Smits, op. cit. supra note 119, p. 444
192. 192. On the interpretation thereof, cf. Patrikis, “Sovereign Immunity and Central Bank Immunity in the United States” in Current Legal Issues Affecting Central Banks (Washington 1992), p. 159. Cf. also Krauskopf and Steven, “Immunita¨t ausla¨ndischer Zentralbanken im deutschen Recht”, (2000) Wertpapiermitteilungen, 269, who show, in their comparative analysis of different legal systems, that independent central banks with their own legal personality are today widely recognized as independent bearers of foreign sovereign immunity.
193. 193. Cf. 28 U.S.C., section 1603 et seq.
194. 194. The advantage of such a designation is that it renders the ECB eligible to deposit funds with an international banking facility exempt from the prohibition against the payment of interest on demand deposits established unter Fed regulations. In addition, international banking facility time deposits held by the ECB are exempt from the Fed’s 10% marginal reserve requirement applicable to specified deposits with U.S. depositary institutions.
195. 195. Vgl. Federal Register/Vol. 65, No. 48 of 10 March 2000. Under Regulation D, there are three categories of eligible entities: (1) foreign (commercial) banks, (2) foreign national governments, or agencies or instrumentalities thereof; (3) foreign international or supranational entities specifically designated by the Board of Governors of the Federal Reserve System. It is in line with the view of the ECB’s legal nature presented in this paper that the ECB was held to fall not under category (2), but under (3) in the Fed’s interpretation.
196. 196. In accordance with Arts. 17 and 23 of the Protocol on Privileges and Immunities. Interestingly, it was also the US Ambassador who became the first diplomat accredited to the EEC in 1958; cf. 1st General Report on the Activities of the European Economic Community, point 168.
197. 197. Cf. Gormley and De Haan, “The democracy deficit of the European Central Bank”, (1996) EL Rev., 95; cf. also De Witte, op. cit. supra note 28, 67 et seq., who takes the chapter on EMU as the EC Treaty’s most prominent example of “a lack of democratic control”. Torrent’s criticism (cf. op. cit. supra note 3, 1234) seems in particular to be based on the “undemocratic” nature of our argument, as he emphasizes that central banks, including the ECB “lie within and not outside the system of democratically organized power.” On this topic, cf. also Gormley and De Haan, “Independence and accountability of the European Central Bank” in Andenas, Gormley, Hadjiemmanuil and Harden (Eds.), European and Monetary Union: The Institutional Framework, (The Hague, London and Boston 1997); Amtebrink, The Democratic Accountability of Central Banks, (Oxford and Portland 1999).
198. 198. Cf. Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens, Georgia, 1988), p. 38 et seq.
199. 199. On this statement, and on its meaning within the context of the Communities, cf. Majone, “The European Community – an ‘independent fourth branch of government’?” in Bru¨ggemeier (Ed.), Verfassungen fu¨r ein ziviles Europa (Baden-Baden, 1994) p. 23, 24.
200. 200. Cf. Smits, op. cit. supra note 119, who underlines, at p. 176, that “it needs to be recognized that the independence has been written in stone, a feature which may be considered at variance with the imperatives of democracy” but also states that “accountable independence” can be achieved. He finally concludes, at p. 500, that “in a field as sensitive as monetary policy [it] can be considered wise and not at variance with the requirements of democracy” to hive off part of the legislative power and of the executive from the representatives of the people.
201. 201. Cf. Issing, op. cit. supra note 93, 3: “By signing the Maastricht Treaty, in a democratic legitimate act, the 15 EU Member States established a constitution for stable money.”
202. 202. This is suggested by Torrent, op. cit. supra note 3, 1241
203. 203. On this, cf. Hahn, “Berichtspflichten und Informationsmo¨glichkeiten der Europa¨ischen Zentralbank”, (1999) JZ, 957. Cf also the opinion of the former Deputy Chairman of the Federal Reserve Board, Blinder, in Kauppalehti, 8 Dec. 1999, 7 according to whom “the ECB is ahead of the Fed in terms of openness”. Cf. also the table in Deutsche Bundesbank, “Transparenz in der Geldpolitik”, Monatsbericht, March 2000, 15 at 20, which shows that the ECB has, as regards transparency, in most fields a better record than the U.S. Federal Reserve, the Bank of Japan, the Bank of England also the Bundesbank itself.
204. 204. Cf. ECB, “The stability-oriented monetary policy strategy of the Eurosystem”, Monthly Bulletin (Frankfurt, Jan. 1999), 39.
205. 205. Cf. Press Releases No 4/99 and 6/99, http://www.euro-ombudsman.eu.int/DECISION/EN/ecb.htm.
206. 206. Torrent, op. cit. supra note 3, 1234.
207. 207. Cf. Issing, op. cit. supra note 93, 2, who speaks of “a unique, historical asymmetry”.
208. 208. Cf. Snyder, “EMU – Metaphor for European Union? Institutions, Rules and Types of Regulation” in Dehousse (Ed.), Europe after Maastricht. An Ever Closer Union? (Munich 1994), p. 63; and “EMU Revisited: Are we making a constitution? What constitution are we making?” in Craig and de Bu´rca, op. cit. supra note 8, p. 417. Cf. also Dehousse, op. cit. supra note 9, who contrasts two visions of the missions and the institutional architecture of the European Union: a parliamentary model and a regulatory model.
209. 209. On the prospects for a true constitutionalization of the European Union, cf. Piris, “Does the European Union have a Constitution? Does it need one?”, (1999) EL Rev., 557. A comprehensive approach to institutional reform recently has been proposed by von Weizsa¨cker, Dehaene and Simon, “The Institutional Implications of Enlargement” (the so-called “Three Wise Men-Report”), Brussels, 18 Oct. 1999, published at http://europa.eu.int/igc2000/repoct99 en.htm.
210. 210. Not a United States of Europe, but promoting new forms of European governance, with a new balance between action by the Commission, the other institutions, the Member States and civil society, is also the aim envisaged by the Prodi Commission in its Communication of 9 Feb. 2000 to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: Strategic Objectives 2000–2005, “Shaping the New Europe”, COM(2000) 154 final, published at http://www.europa.eu.int/comm/off/work/2000–2005/ind ex en.htm.
211. 211. Cf. the various contributions on the history and theory of European integration in von Bogdandy (Ed.), Die Europa¨ische Option: Eine interdisziplina¨re Analyse u¨ber Herkunft, Stand und Perspektiven der Europa¨ischen Union (Baden-Baden 1993).
212. 212. In the same sense, Gustavsson, “Reconciling Suprastatism and Democratic Accountability” in Hoskyns and Newman (Eds.), Democratizing the European Union. Issues for the 21st Century (Manchester 2000), pre-published as Jean Monnet Working Paper No. 11/99 at http://www.law.harvard.edu/programs/JeanMonnet. He argues that “a piecemeal constitutional engineering is preferable to a utopian strategy. Provisional suprastatism is the least worst alternative when trying to establish monetary union without fiscal union.”