An article devoted to the European Court of Justice's (“ECJ” or the “Court”) judicial review of the European Central Bank's (“ECB”) level of constitutional autonomy and independence may seem a bit arcane in a book dedicated to honor Advocate General Francis Jacobs upon his retirement from the Court. The topic is, however, eminently suitable, because it highlights his influence in a case remote from the many fields of law in which his impact has been so marked-- e.g., free movement of goods, competition law, trademarks and other intellectual property rights, free movement of services and establishment rights, human rights protection, and taxation. This Article will first discuss the high importance of the principle of independence for the ECB in its control of monetary policy and the European currency, noting some aspects of the academic debate concerning the appropriate level of such independence. The first section also observes that a debate about the constitutional nature and autonomy of the ECB has become intertwined with the appraisal of its level of independence. The Article then reviews the EC Treaty's attribution to the Court of jurisdiction within Monetary Union, including a power of judicial review of the ECB's status, measures and decisions. The following section sets out the conflict between the Commission and the ECB in the OLAF case. The Article concentrates upon the text in Advocate General Jacob's opinion and the Court's judgment concerning the constitutional status of the ECB as an organ or body structured within the Community framework and concerning the scope of the ECB's independence. The final section provides several reflections upon the ultimate impact of the judgment and opinion. The reflections stress the importance of the Court's rejection of the ECB's claim to virtual autonomy in constitutional terms and the related subjection of the ECB to the rule of law within the EC. The final commentary also considers the Court's and especially Advocate General Jacobs' demarcation of the functional nature of the ECB's independence. Advocate General Jacobs' discussion of the value and extent of democratic accountability of the ECB is also highlighted.
Roger J. Goebel,
Court of Justice Oversight Over the European Central Bank: Delimiting the ECB's Constitutional Autonomy and Independence in the OLAF Judgment,
29 Fordham Int'l L.J. 610
Available at: https://ir.lawnet.fordham.edu/ilj/vol29/iss4/4