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This paper analyzes the relationship between monetary policy and financial stability in the Banking Union. There is no uniform global model regarding the relationship between monetary policy-making on the one hand, and prudential supervision on the other. Before the crisis, EU Member States followed different approaches, some of them uniting monetary and supervisory functions in one institution, others assigning them to different, neatly separated institutions. The financial crisis has underlined that monetary policy and prudential supervision deeply affect each other, especially in case of systemic events. Even in normal times, monetary and supervisory decisions might conflict with each other. After the crisis, some jurisdictions have moved towards a more holistic approach under which monetary policy takes supervisory considerations into account, while supervisory decisions pay due regard to monetary policy.
The Banking Union puts prudential supervision in the hands of the European Central Bank (ECB), the institution responsible for monetary policy. Nevertheless, at its establishment there was the political understanding that the ECB should follow a policy of meticulous separation in the discharge of its different functions. This raises the question whether the ECB may pursue a holistic approach to monetary policy and supervisory decision-making, respectively. On the basis of a purposive reading of the monetary policy mandate and the SSM Regulation, the paper answers this question in the affirmative. Effective monetary policy (or supervision) requires financial stability (or smooth monetary policy transmission). Moreover, without a holistic approach, the SSM Regulation is more likely to provoke the adoption of mutually defeating decisions by the Governing Board. The reputation of the ECB would suffer considerably under such a situation – in a field where reputation is of paramount importance for effective policy.
As any meticulous separation between monetary and supervisory functions turns out to be infeasible, the paper explores the reasons. Parting from Katharina Pistor’s legal theory of finance, which puts the emphasis on exogenous factors to explain the (non)enforcement of legal rules, the paper suggests a legal instability theorem which focuses on endogenous reasons, such as law’s indeterminacy, contextuality, and responsiveness to democratic deliberation. This raises the question whether the holistic approach would be democratically legitimate under the current framework of the ESCB. The idea of technocratic legitimacy that exempts the ECB from representative structures is effectively called into question by the legal instability theorem. This does not imply that the independence of the ECB should be given up, as there are no viable alternatives to protect monetary policy against the time inconsistency problem. Rather, any solution might benefit from recognizing the ECB in its mixed technocratic and political shape as a centerpiece of European integration and improving.
Governments, economists and intellectuals have called for common European bonds or increased own EU funds to address the recession induced by Covid19. Unfortunately, the German government, joined by the other members of the “Frugal Four” (Austria, Finland, the Netherlands), has categorically rejected to look into any such measures and favours using the ESM. This reaction created a déjà vu experience for citizens and governments of the heavily affected southern Member States of the EU. The proposal to use the ESM raises fears of another wave of austerity amounting to yet another lost decade for economic, social, and ecological development in Europe.
The case for corona bonds
(2020)
Corona bonds are feasible and important to preserve the European project. We set out a number of principles that might serve as a blueprint for the European institutions. Importantly, Corona bonds could be issued through a new public law entity and include all the safeguards required for the protection of the fundamental values of the EU. This proposal is pragmatic in the sense that it facilitates the choice European leaders have to make now; necessary to secure the resilience of the European Union. The political risks are significantly higher now than in 2010. The gargantuan challenge of tackling the combined impact of climate change, migration, digitalization, geopolitical shifts, and the spread of autocracy, requires leadership and joint action by the Council and the Eurogroup.
It seems that the BVerfG has learned a lesson. Yesterday’s referral about the the European Central Bank’s policy of Quantitative Easing (QE) sets a completely different tone. It reads like a modest and balanced plea for judicial dialogue, rather than an indictment. Fifty years after the original event, a new Summer of Love seems to thrive between the highest judicial bodies. It shows no traces of the aplomb with which Karlsruhe presented its stance to Luxembourg three years ago.
In a political and economic perspective, the recent ECJ judgment on the OMT program is not more than a footnote, a short sideshow in a seemingly never-ending sequel of another dimension. Legally, however, I find the case quite remarkable. Unlike its Advocate General, the ECJ did not yield to the temptation to respond in kind to the FCC’s provocations. In particular, it avoids the issue of domestic vs. European constitutional identity that juxtaposed the FCC and the Advocate General. Instead, the ECJ has shown political responsibility and legal foresight in framing what could become a masterpiece of truly cooperative, other-regarding constitutional pluralism.
Monetary policy and prudential supervision – from functional separation to a holistic approach?
(2018)
When prudential supervision was put in the hands of the European Central Bank (ECB), it was the political understanding that the ECB should follow a policy of meticulous separation between monetary policy and financial supervision. However, the financial crisis showed that monetary policy and prudential supervision deeply affect each other and that an overly strict separation might generate systemic risk. As a consequence, the prevalent model of “functional separation” – central banking and financial supervision in separate entities – has been questioned and calls for a more holistic approach increased.
This policy letter states that from a legal perspective, such a holistic approach would be in conformity with the current legal framework of the Economic and Monetary Union. Although the realization of a holistic approach might intensify the doubts of democratic legitimation under the framework of the ESCB, the independence of the ECB should not be given up. As viable alternatives to protect monetary policy against the time inconsistency problem that would render central bank independence moot do not seem to be available and given the great importance of the independence of the European institutions for the European integration, the democratic control over the ECB should be strengthened instead of stripping the ECB of its independence.
Le gouvernement de soi et des autres: Zu Auftrittsverboten für türkische Regierungsmitglieder
(2017)
Die hochproblematische Verfassungsreform in der Türkei führt innerhalb der EU zu ungewöhnlichen Allianzen: In seltener Einmütigkeit wird länderübergreifend von ganz rechts bis weit ins linke politische Spektrum hinein ein Auftrittsverbot für türkische Politiker gefordert. Das gefühlt häufigste Argument bemüht dabei die Souveränität: Man möchte die Kampagne der türkischen Regierung für ihre die Gewaltenteilung gefährdende Verfassungsreform nicht auch noch im eigenen Land haben. In einer pluralistischen Gesellschaft weckt solche Einmütigkeit Zweifel, die sich bei näherem Hinschauen verfestigen – und zwar in juristischer wie politischer Hinsicht.
On 15 August 2017, the Bundesverfassungsgericht (BVerfG) referred the case against the European Central Bank’s policy of Quantitative Easing (QE) to the European Court of Justice (ECJ). The author argues that this event differs in several aspects from the OMT case in 2015 – in content as well as in form. The BVerfG recognizes that it is a legitimate goal of the ECB’s monetary policy to bring inflation up close to 2%, and that the instrument employed for QE is one of monetary policy. However, it doubts whether the sheer volume of QE would not distort the character of the program as one of monetary policy. The ECJ will now have to clarify the extent to which the ECJ’s findings in its OMT judgment are relevant for QE as well as the standard of review applicable to monetary policy. The author raises the questions of whether the principle of democracy under German constitutional law can actually provide the standard by which the ECB is to be measured, and how tight judicial review could be exercised over the ECB without encroaching upon its autonomy in monetary policy matters – and thus upon the very essence of central bank independence.