This article investigates the role of the European Central Bank (ECB) in transferring financial and moral responsibility for the Eurozone crisis from the private to the public sector. Focusing on Greece, I argue that the ECB constructed the morality of the public debtor in such a way as to make this transfer of responsibility easier and the imposition of austerity measures justifiable. This in part relied on a shift in the ECB's discourse, which came to define the crisis exclusively in terms of public sector responsibility. However, the ECB also employed a range of non-linguistic policy measures aimed at intervening in the crisis. To interpret these measures I draw on Deleuze and Guattari's concept of ‘machinic enslavement’, arguing that the ECB contributed to the Greek crisis not only by defining it discursively but also by reshaping the country's financial infrastructure in crucial ways.

The ECB has two mandates its primary and secondary mandate. Its primary mandate has been the focus of many discussions but its secondary mandate is less frequently discussed. Nevertheless this mandate has important objectives and should not be considered obsolete. This article examines the legal status of the secondary mandate of the ECB with regard to climate change. In particular this article will consider the role of the secondary mandate with regard to the Digital Euro and energy targets. The Digital Euro can be used as a monetary tool and improve payment systems. However, depending on its design the Digital Euro can use a considerable amount of energy. This article concludes that if the design of the Digital Euro does not impact the monetary objectives, the secondary mandate of the ECB determines the design of the Digital Euro.

This article focuses on the correlation between the secondary objectives of the European Central Bank (ECB) and the right to a healthy environment. Whereas the primary mandate of the ECB is maintaining price stability, the applicable law also envisages secondary objectives, such as supporting economic growth and sustainable development. Crucially, however, there is an emerging scientific literature suggesting a trade-off between economic growth and environmental sustainability. This results in a balancing problem: To what extent environmental protection and sustainability can be balanced with economic growth within the ECB’s monetary policy? This article aims to analyse this issue with a specific focus on legal implications in terms of the right to a healthy environment. This study reveals the failure of the member states to comply with the international obligations under the right to a healthy environment in shaping the law of the ECB.

Today’s central banks wield extraordinary powers, both monetary and regulatory, and with a capacity to substitute for elected governments tempted to pass the buck. Debates about central banking’s powers and legitimacy barely touch, however, on whether and how monetary independence fits with the values that drive constitutionalism. It turns out that, for modern economies using fiat money, independence is a corollary of the higher level separation of (fiscal) powers between the legislative and executive branches. Even though independence is necessary, it needs to be carefully constrained by a “money-credit constitution.” Those general arguments, applicable in liberal democracies, do not carry across cleanly to the euro area. A principled case can be made for the ECB’s mandate being specially tight, but that is in tension with its de facto role as the emergency economic actor for the euro area. Facing up to that will be necessary sooner or later.

Recent discussions of accountability in contexts of expert knowledge raise questions about the limits of transparency. Against this background, we discuss the nexus between expert knowledge and meaningful accountability – that is, context-sensitive accountability based on a genuine understanding of a situation. We argue that the concentration of expertise in certain institutions makes it difficult to hold those institutions accountable. In particular, three components challenge meaningful accountability: specialization, inaccessibility and potential biases or conflict of interest. We emphasize the role of ‘epistemic communities’ and their impact on the tension between expert knowledge and independence. Drawing on the deliberative systems literature, we discuss how expert knowledge might be communicated to outsiders to enable meaningful accountability. To illustrate our argument, we draw on the European Central Bank, a case study in which states have chosen a delegation design characterized by a high degree of independence and trust in expert knowledge, to the detriment of accountability. We sketch possible avenues for creating the conditions for meaningful accountability even in the case of institutions with highly concentrated expertise.

The article explores the understandings of democracy underlying the judgment and its implications for the democratization of Europe. I read the judgement, critically, as impediment and, constructively, as impetus for the democratization of money and society. Firstly, I recount how the Federal Constitutional Court (FCC) through the construction of a “right to democracy” and the concepts of “ultra vires act” and “integration responsibility” asserted its jurisdiction over the limits of European integration. The court’s reasoning prompts me to understand the judgment not as a defense of democracy, but rather as an instance of upholding a “rule of law” that impedes the democratization of society. Secondly, I turn to the pronouncements on the demarcation of monetary from economic competences by the Court of Justice of the European Union (CJEU) and the FCC. I explain what I hold to be the weaknesses in the FCC’s critique of the CJEU from a doctrinal perspective. I then propose to read the PSPP judgment constructively as introducing a procedural requirement that may democratize monetary policy. Thirdly, I situate my reading of the judgment in the larger debate on the democratization of society and, more specifically, money.

The German Federal Constitutional Court’s ruling of May 5, 2020 on the ECB’s Public Sector Purchase Programme (PSPP) stated, for the first time ever, that some decisions by European institutions are not covered by the competence allocations of the European Treaties and cannot therefore take effect in Germany. This article argues that the judgment came as no surprise, as it is consistent with the principle of conferral of powers. According to this principle the EU and its institutions can only act within the limits of their competences. The German Basic Law prohibits any transfer of sovereign rights whose exercise would confer sua sponte additional competences to the supranational level. Against this background, the Federal Constitutional Court judgment does not seek to limit the ECB’s scope for appraisal and evaluation in the exercise of its monetary policy mandate. It focuses rather on the conditions which legitimize the ECB’s leeway. The issue in this case is not the applicability of the proportionality principle as a criterion governing the delimitation of powers, but the different reference points for the assessment of proportionality. In this regard the CJEU had failed to discuss whether monetary policy and the effects on economic policy are proportionate by themselves. Hence, in constitutional terms, the CJEU’s interpretation was found to be “arbitrary”, since the German Constitutional Court defined arbitrariness as jurisprudence that “in a reasonable reading … [appears] unintelligible and clearly untenable.” In other words, it is “simply not comprehensible.” Despite the harsh words of the German Constitutional Court, the authors argue that the judgement in the end can help to create a European legal culture that will strengthen the European Union in the long term if, in future, the CJEU engages more constructively with criticisms from Member State courts.

The commentary, especially from abroad, on the Federal Constitutional Court’s judgment concerning the bond-buying programme undertaken by the European Central Bank (ECB) conveys the impression that something unimaginable has occurred. The German court has refused to follow the ruling of the Court of Justice of the European Union (CJEU), thereby setting “a bomb under the EU legal order.”1 Yet there is nothing new about the risk of conflict between the two courts. It came about when the Court of Justice of the European Union implicitly presumed, in 1963,2 and explicitly declared, in 1964,3 that European law takes precedence over domestic law, even over domestic constitutional law. This view was by no means without alternative, given that the Treaties of Rome do not address the precedence of Community law. The Member States involved in the dispute denied having agreed to any such precedence in the Treaties. Even the CJEU’s Advocate General was unable to find any basis in the Treaties for the precedence of European law.4 The CJEU derived the precedence of European law from the purpose of the European Economic Community.5 It argued that there could be no common market if each Member State applied and interpreted European law however it saw fit.

The paper examines the possible opening of an infringement procedure against Germany as a result of the breaches that emerge from the declaration by the German Constitutional Court that the Court of Justice has acted ultra vires in the Weiss judgment (C-493/17). The proportionality assessment of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), carried by the Court of Justice, is contested by the domestic court. We recall that the Commission enjoys great discretion regarding the launch of an infringement action based upon Article 258 of the TFEU and may be reluctant to use its powers, considering the special position of the constitutional courts in the context of Article 267 TFEU as well as the present situation of emergency following the pandemic. Yet, the possibility to start an infringement procedure for breaches of Treaty obligations resulting from an incorrect interpretation of domestic courts was admitted in case C-129/00 Commission v. Italy and applied in two subsequent cases (C-154/08 Commission v. Spain and C-416/17 Commission v. France). As a result of the ruling of May 5, 2020, the Court of Justice may find that Germany failed to fulfil obligations stemming from Article 267 TFEU and the related case-law, Article 19 TEU, as well as Article 5(2) TEU. Other breaches concern the independence of the ECB and of the Bundesbank (being it a Member of the European System of Central Banks (ESCB) and of the Eurosystem) as defined in Articles 130, 282(3) TFEU and Article 7 of the Protocol (No. 4) on the Statute of the ESCB and of the ECB. We argue in favour of the violation of all these provisions read in conjunction with the duty of loyal cooperation, laid down in Article 4(3) TEU. Yet, we conclude that it is uncertain whether the Commission will open (or continue) an infringement procedure against Germany since the Bundesbank may act to satisfy the requests of the German Constitutional Court in relation to the proportionality of the PSPP. It is to be hoped that the German State organs will make sure that the PSPP may be continued, thus ensuring the functioning of the Eurozone, despite the attack of the BVerfG to the EU Judicature and to Weiss ruling in particular.