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  • 13 - Constitutive Powers and Justification

  • from Part III - Legal Accountability
  • Edited by Mark Dawson, Hertie School, Berlin
  • Book:
    Substantive Accountability in Europe's New Economic Governance
    Published online:
    23 November 2023
    Print publication:
    07 December 2023, pp 288-316
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  • Summary

    The transformation of the ECB powers in the past decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government of money. Underlying those questions is the inadequacy of categories of public law we use to understand the power of administrative and executive institutions when acting in instances of uncertainty, technical complexity, and high political stakes. Against this background, this chapter characterizes the powers of the ECB as constitutive. It argues that this constitutive nature explains the difficulties of judicial review over monetary policy decisions, and, furthermore, that constitutive powers justify a shift in understanding the role of law in relation to the action of executive bodies. Law can and must operate in the absence (or irrespective) of judicial review, and support accountability outside of the courtroom. This last point will be demonstrated through the analysis of the legal and constitutional scope of the duty to give reasons in EU law.