Law and Discretion in Monetary Policy and in the Banking Union: Complexity Between High Politics and Administration

MENDES, Joana

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Law and Discretion in Monetary Policy and in the Banking Union: Complexity Between High Politics and Administration

MENDES, Joana

2023 • In Common Market Law Review, 60 (6), p. 1579-1622

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Keywords :

judicial review of administrative discretion; complex technical and economic assessments; monetary policy; proportionality; banking union; principle of careful and impartial examination

Abstract :

[en] The controversy over the degree of judicial review of monetary policy decisions triggered by the contrasting Weiss judgments of the German Constitutional Court and of the Court of Justice of the European Union invites an inquiry into the role of law in areas characterised by a high degree of political and technical complexity. This article singles out the structural conditions that qualify complexity in specific instances of decision-making: prognostic assessments, goal-oriented decisions, marked by uncertainty, legal indeterminacy and discretion. These traits characterise both monetary policy decisions and some regulatory decisions taken within the banking union, such as the setting of minimum requirements for own funds and eligible liabilities (MREL) and the calculation of the leverage ratios of credit institutions (Livret A judgments). Irrespective of the very distinct formal-institutional legal frameworks of these two policy fields, in those conditions legality may be determined by the discretionary choices of the decision-maker. For this reason, they impact the court’s deployment of legal principles, namely proportionality and careful and impartial examination. This cross-sector comparison sheds light on the relative specificity of monetary policy, and leads to rejecting the transposition of a distinction between ‘high politics’ and ‘ordinary administration’ to EU law, as a means of both explaining and guiding different degrees of judicial review in conditions of complexity. The different constitutional relevance of monetary policy decisions and of ‘ordinary’ banking supervision requires not a distinction that can rationalise judicial review, but a full consideration of the role that the law must have in supporting non-judicial accountability

Disciplines :

European & international law

Author, co-author :

MENDES, Joana ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Department of Law (DL)

External co-authors :

Language :

English

Title :

Law and Discretion in Monetary Policy and in the Banking Union: Complexity Between High Politics and Administration

Publication date :

2023

Journal title :

Common Market Law Review

ISSN :

0165-0750

eISSN :

1875-8320

Publisher :

Kluwer Law International, Alphen aan den Rijn, Netherlands

Volume :

Issue :

Pages :

1579-1622

Peer reviewed :

Peer reviewed

Focus Area :

Law / European Law

Funders :

European Central Bank - Legal Research Programme 2022

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since 18 September 2023

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1. By the deadline set by the German Federal Constitutional Court, the German institutions involved (the Bundesbank and the federal parliament and government) had declared that the ECB had satisfied the requirements of the judgment (see e.g. “ECB stimulus plan meets court requirements: German finance minister”, Reuters (29 June 2020), without that changing anything to the PSPP programme.
2. Case C-62/14, Gauweiler, EU:C:2015:400, and Case C-493/17, Weiss, EU:C:2018:10 00. See, among many, Goldmann, “Adjudicating economics? Central Bank independence and the appropriate standard of judicial review”, 15 GLJ (2014), 265-280; Borger, “Outright Monetary Transactions and the stability mandate of the ECB: Gauweiler”, 53 CML Rev. (2016), 139-196; Dawson, and Bobic, “Court of Justice quantitative easing at the Court of Justice -Doing whatever it takes to save the euro: Weiss and Others”, 56 CML Rev. (2019), 1005-1040; Wendel “Paradoxes of ultra-vires review: A critical review of the PSPP Decision and its initial reception”, 21 GLJ (2020), 979-994; Feichtner, “The German Constitutional Court’s PSPP judgment: Impediment and impetus for the democratization of Europe”, 21 GLJ (2020), 1090-1103; Egidy, “Proportionality and procedure of monetary policy-making”, 19 International Journal of Constitutional Law (2021), 285-308.
3. For an overview, see (all websites last visited 15 Sept. 2023).
4. Case C-493/17, Weiss, paras. 53-57; Case C-62/14, Gauweiler, paras. 46-50 and 51-52, combined with paras. 58-59, respectively (see further, para 64 on the importance of the objectives to delimit monetary from economic policy).
5. Case C-493/17, Weiss, paras. 61-67.
6. Ibid., paras. 71 and 72; Case C-62/14, Gauweiler, paras. 66 and 67.
7. Case C-493/17, Weiss, paras. 65 and 74-78; Case C-62/14, Gauweiler, paras. 50 and 72-73, 76-78.
8. These are not exceptional circumstances; see, among many, Bernoth, Fratzscher and König, “Weak inflation and threat of deflation in the euro area: Limits of conventional monetary policy”, 4 DIW Economic Bulletin (2014), 5, 15-28, available at . See also Tooze, “The death of the Central Bank myth”, Foreign Policy (13 May 2020).
9. On why this is only a presumption, see Dani et al., “It’s the political economy…! A moment of truth for the eurozone and the EU”, 19 International Journal of Constitutional Law (2021), 309-327.
10. Case C-493/17, Weiss, paras. 55, 73 and 91; Case C-62/14, Gauweiler, para 91.
11. Case C-62/14, Gauweiler, paras. 68 and 69 (awkwardly stated when reviewing compliance with the principle of proportionality); Case C-493/17, Weiss, para 30 (when reviewing compliance with the duty to give reasons).
12. Lenaerts “Proportionality as a matrix principle promoting the effectiveness of EU law and the legitimacy of EU action - Keynote speech”, at ECB Legal Conference 2021, “Continuity and change - How the challenges of today prepare the ground for tomorrow” (2022), 2742, at 33.
13. The distinction between norms of control and norms of conduct is made in Rodriguez de Santiago, Metodología del Derecho Administrativo. Reglas de racionalidad para la adopción y el control de la decisión administrativa (Marcial Pons, 2016), pp. 24-25 and applied to EU law in Mendes, “The foundations of the duty to give reasons and a normative reconstruction” in Fisher, King and Young (Eds.), The Foundations and Future of Public Law (OUP, 2020), pp. 299-321.
14. See section 5 infra.
15. See Mendes “Constitutive powers and justification: The duty to give reasons in EU monetary policy” in Dawson et al. (Eds.), Towards Substantive Accountability in EU Economic Governance (Cambridge University Press, forthcoming), section 2.2, on which this analysis draws.
16. On the varying degrees of uncertainty, Grzegorczyk and Papadia, “Measuring macroeconomic uncertainty during the euro’s lifetime”, Working Paper 10/2022, Bruegel, noting the intense uncertainty of 2022. See also, on the more recent challenges that uncertainty poses to the central banks, “Central banks seek interest rate sweet spot in inflation fight”, Financial Times (18 May 2022).
17. See Chadwick, “Rethinking the EU’s ‘monetary constitution’: Legal theories of money, the euro, and transnational law”, 3 European Law Open (2022), 468-509, section 1. The disputes over the legality of unconventional monetary policies have also been a contention between monetarists, holding that inflation is a monetary phenomenon, and neo-Keynesians, viewing inflation as matter of social conflict. Accounting for a recent exchange among economists on this dispute, see Galbraith, “Convergence on conflict? Blanchard, Krugman, Summers and inflation”, Monetary Policy Institute Blog (9 Jan. 2023), available at . On how ideational changes have occurred recently, see Deyris, “Too green to be true? Forging a climate consensus at the European Central Bank”, New Political Economy (2023).
18. They may be those of the sectors of production that set “systemically signif icant prices” for price stability, Weber et al., “Inflation in times of overlapping emergencies: Systemically significant prices from an input-output perspective”, Economics Department Working Paper Series 340 (2022).
19. The transmission of monetary policy is essential to define the scope of monetary policy: Case C-62/14, Gauweiler, para50.
20. Case C-62/14, Gauweiler, para 75; Case C-493/17, Weiss, para73.
21. Case C-62/14, Gauweiler, para 75; Case C-493/17, Weiss, para91.
22. Case C-62/14, Gauweiler, para 68; Case C-493/17, Weiss, para73.
23. Case T-733/16, La Banque Postale v. ECB, EU:T:2018:477, para 69, and Case T-510/17, Antonio Del Valle Ruiz v. Commission and Single Resolution Board, EU:T:2022:312, para 107, respectively on banking supervision and on banking resolution.
24. On constitutive powers and why they are distinct from discretion, see Mendes, “Constitutive powers of executive bodies: A functional analysis of the Single Resolution Board”, 84 The Modern Law Review (2021), 1330-1359, at 1335-1342.
25. Craig, EU Administrative Law, 3rd ed. (OUP, 2018), pp. 447-452.
26. See further, Mendes, op. cit. supra note 24.
27. Nehl, “Judicial review of complex socio-economic, technical, and scientific assessments in the European Union” in Mendes (Ed.), EU Executive Discretion and the Limits of Law (OUP, 2019), pp. 157-197, at pp. 176-177.
28. See further, section 3 infra.
29. On potentia, see, among others, Loughlin, Foundations of Public Law (OUP, 2010), pp. 164-168.
30. “Law recedes” in the face of potentia, Loughlin, ibid., citing Foucault, p. 167.
31. See, among others, Wendel, op. cit. supra note 2. On the controversy, see Bobic in Dawson et al. (Eds.), Towards Substantive Accountability in EU Economic Governance (Cambridge University Press, forthcoming). See also Lenaerts, op. cit. supra note 12, at 28-30 and 38-39.
32. Borger, op. cit. supra note 2.
33. Also argued in Mendes, op. cit. supra note 15.
34. The ECB determines not only what price stability requires at each time, but also what price stability is - see the Strategic Review (ECB, “An overview of the ECB’s monetary policy strategy” ECB Economic Bulletin, Issue 5/2021 (8 July 2021)). This point further strengthens the argument made supra text accompanying footnote 24.
35. Both are dependent on a prevailing political-economic understanding on inflation and central banks (note 17 supra references on economic ideational positions and changes).
36. Case C-493/17, Weiss, para 67 (the citation is from para 62, where the Court refers to the view of the German Federal Constitutional Court).
37. See Opinion A.G. Cruz Villalón in Case C-62/14, Gauweiler, EU:C:2015:7, para 111 (“the intensity of judicial review of the ECB’s activity, its mandatory nature aside, must be characterized by a considerable degree of caution”) and Opinion A.G. Wathelet in Case C-493/17, Weiss, EU:C:2018:815, (“the Court must be wary of carrying out a review of expediency”), both reflected in the respective judgments.
38. I owe this point to a discussion with Michał Krajewski.
39. I am grateful to Marco Dani for pointing this out.
40. Case C-493/17, Weiss, para 78 (no “manifest error of assessment” as a conclusion of the application of the suitability test - the Court does not use here “manifestly inappropriate”) and para 79 (setting out the standard for the assessment of necessity).
41. Nehl, op. cit. supra note 27, p. 189 (“closely connects”); Chiti, Macchia and Magliari, “The principle of proportionality and the European Central Bank”, 26 EPL (2020), 843-866, 848 (in general) and 855 (in Gauweiler and Weiss). Kosta, “Proportionality and discretion in EU law: In search for clarity” in ECB Legal Conference 2021, “Continuity and change - how the challenges of today prepare the ground for tomorrow”, April 2022, 98-102 (noting, in particular, that the Courts’ conflation of manifest error and care can also be done under the heading of proportionality - at 104).
42. Case C-493/17, Weiss, paras. 74-77, 80.
43. Kosta, op. cit. supra note 41, 104-105. Chiti, Macchia and Magliari, op. cit. supra note 41, stating that “rather than the proportionality of the measure” the Court reviewed the “stricto sensu suitability of the measure” and focused on manifest error, at 855.
44. Case C-62/14, Gauweiler, para 75; Case C-493/17, Weiss, para 91.
45. Dani et al., op. cit. supra note 9, 319.
46. Case C-493/17, Weiss, para 30. Stressing the importance of that reference, see Lena-erts, op. cit. supra note 12, 38-39.
47. In a similar sense, see Egidy, “Judicial review of central bank actions: Can Europe learn from the United States?” in ECB Legal Conference 2019, “Building bridges: Central banking law in an interconnected world”, 53-76, at 69 (“the CJEU has so far refrained from checking any details of the ECB’s decision-making process. It has rather relied on the ECB’s own description of how it made the necessary assessments”).
48. Kosta, “The principle of proportionality in EU law: An interest-based taxonomy” in Mendes, op. cit. supra note 27, pp. 198-219, insisting that proportionality is, ultimately, always about conflicts of interests. See also Kosta, op. cit. supra note 41, 105, noting that balancing is present at the necessity stage of the proportionality assessment.
49. Nehl, op. cit. supra note 27, p. 196, emphasis in the original.
50. The citation is from the case law cited by Lenaerts to illustrate what he calls “procedural proportionality”, op. cit. supra note 12, 38.
51. On the continuity between applying care and substituting judgment, see section 3.3 infra.
52. See further, Dani et al., op. cit. supra note 9, 318-320. See also, Chiti, Macchia and Magliari, op. cit. supra note 41, 860, noting that “adopting the proportionality test [risks] judicial appreciation of administrative functions”, because of the need to consider the interests at stake.
53. See Nehl, op. cit. supra note 27.
54. Case C-9/56, Meroni v. High Authority, EU:C:1958:7, p. 152; Case C-270/12, United Kingdom v. Parliament and Council, EU:C:2014:18 (Short-selling).
55. See among many, Serrand, “Administrer et gouverner. Histoire d’une distinction”, 4Jus Politicum (2010), available at , and Cerulli Irelli, “Politica e amministrazione tra atti ‘politici’ e atti ‘di alta amministrazione’”, 1 Diritto Pubblico (2009), 101-134, in particular 109-114, 121-123.
56. Lamandini and Ramos Muñoz, “Minimum requirements for own capital and eligible liabilities” in Chiti and Santoro (Eds.), The Palgrave Handbook of European Banking Union Law (Palgrave, 2019), pp. 321-348, at 323, to whom I owe the heading of this subsection (321).
57. Troger, “Why MREL won’t help much: Minimum requirements for bail-in capital as an insufficient remedy for defunct private sector involvement under the European Bank resolution framework” 21, Journal of Banking Law (2020), 64-81, at 68
58. Lamandini and Ramos Muñoz, op. cit. supra note 56, p. 328.
59. On the difficulties in determining whether the General Court or national courts have jurisdiction, see Grünewald, “Judicial control of resolution planning measures” in Zilioli and Wojcik (Eds.), Judicial Review in the European Banking Union (Edward Elgar, 2021), pp. 395-415.
60. Art. 12d(1)(d) and (a) SRM Regulation. See also SRB, “Minimum requirement for own funds and eligible liabilities (MREL) - SRB policy under the Banking Package” (May 2021), 5 (their purpose is “to ensure that a bank maintains at all times sufficient eligible instruments to facilitate the implementation of the preferred resolution strategy”).
61. Art. 12(4) SRM Regulation. AP Decision no. 2/2021, para 97 (“the iMREL decision and the resolution plan go hand in hand”). Grünewald, op. cit. supra note 59, p. 398 (“the preferred resolution strategy identified in the resolution plan will impact how resolvability is assessed and MREL determined…. it can form part of the bank’s reasons for complaint, but it cannot be the subject of complaint on its own” (emphasis added).
62. Regulation 2019/877 of the European Parliament and of the Council of 20 May 2019, amending Regulation 806/2014 as regards the loss-absorbing and recapitalization capacity of credit institutions and investment firms (O.J. 2019, L 150/226), modified the previous Art. 12. The current norms, among other aspects, define the procedure (Art. 12), the modes of MREL calculation (Art. 12a), the instruments that are excluded from MREL, those that must be classified as eligible liabilities and the respective conditions for exclusion and inclusion (Arts. 12b and 12c), the general and specific criteria for the determination of MREL (Arts. 12d and 12e), the terms of MREL application to resolution and to non-resolution entities, i.e. those as such identified by the Board on the basis of its assessments (Arts. 12f and 12g, as well as Arts. 3(24a) and 8), the sanctions for breaches of those norms (Art. 12j).
63. Art. 12d(1)(a) SRM Regulation.
64. Art. 12d(1)(b) and (c) SRM Regulation. See further, Troger, op. cit. supra note 57, 66-67 (pointing to the need to predict adjustments in MREL calibration and to the risks of mispricing due to adjustments of MREL prescriptions, and arguing that administrative discretion in this matter impairs market discipline).
65. Art. 12d(1)(e) SRM Regulation (emphasis added).
66. Lamandini and Ramos Muñoz, op. cit. supra note 56, p. 341.
67. Troger, op. cit. supra note 57, 66.
68. See text accompanying note 65 supra.
69. Cf. Art. 12d(e) SRM Regulation (in text accompanying note 65 supra) and Art. 12h(1)(c) SRM Regulation (that “there is no current or foreseen material practical or legal impediment to the prompt transfer of own funds or repayment of liabilities by the parent undertaking to the subsidiary” is a condition to grant a waiver in the determination of MRE (emphasis added)).
70. Case C-152/18, Crédit Mutuel Arkea v. ECB, EU:C:2019:810, para 53. See also, stressing the importance of teleological interpretation in matters of prudential supervision and resolution by reference to this judgment, Decision of the SRB Appeal Panel in Case 2/2021 of 27 Jan. 2022 (Decision 2/2021), para 74.
71. Because of the links with the loss absorbing capacity of the bank, the determination of MREL requires a close collaboration between the banking supervisor and the resolution authority; Troger, op. cit. supra note 57, 72).
72. Decision 2/2021 cited supra note 70, para 79 (emphasis added); the focus here is only on this part of the case, which concerned also a “classic” instance of discretion. Other conflicts on the determination of MREL that have reached the Appeal Panel pertain to jurisdictional discretion; see in addition, Decisions of the SRB Appeal Panel in Case 8/2018 of 16 Oct. 2018, in Case 3/2022 of 8 June 2022, and in Case 1/2022 of 29 June 2022, all available at .
73. See further text accompanying notes 97 to 99 infra.
74. Art. 12h(1)(c) SRM Regulation and Decision 2/2021 cited supra note 70, para 15.
75. Decision 2/2021 cited supra note 70, para 94.
76. Idem (“the Board did not err in law in the application of Article 12h”).
77. That segment of discretion that the interpretation of the norm allows for, that the Appeal Panel called not a more constrained “margin of appreciation” or “a margin of technical appreciation”, rather than “discretion in the proper sense”; Decision 2/2021 cited supra note 70, paras. 79 and 95.
78. See further, Rodriguez de Santiago, op. cit. supra note 13.
79. Decision 2/2021 cited supra note 70, paras. 94 and 95. On the importance of the contextual and teleological interpretation, see paras. 70-74.
80. Ibid., para 102.
81. Ibid., para 99.
82. See Nehl, op. cit. supra note 27, p. 176 (“there is no clear divide between issues of fact andoflaw…factual and legal appraisals tend to merge”).
83. See, in particular, Lamandini and Ramos Muñoz, “Law and practice of financial appeal bodies (ESAs’ Board of Appeal, SRB Appeal Panel): A view from the inside”, 57 CML Rev. (2020), 119-160, and Krajewski, Relative Authority of Judicial and Extra-Judicial Review: EU Courts, Boards of Appeal, Ombudsman (Hart, 2021).
84. See Ioannidis, “The judicial review of discretion in the banking union: From ‘soft’ to ‘hard(er)’ look?” in Zilioli and Wojcik (Eds.), Judicial Review in the European Banking Union (Edward Elgar, 2021), pp. 130-145, noting that the Livret A cases are widely regarded as a turning point, at p. 138. On resolution, see Case T-510/17, Antonio Del Valle Ruíz v. Commission and Single Resolution Board, EU:T:2022:312, para 110. The presence of complexity of technical assessments is not a criterion of the suitable degree of judicial review per se (see note 110 infra).
85. The Livret A cases are the following: Case T-733/16, Banque Postale v. ECB; Case T-758/16, Crédit Agricole v. ECB, EU:T:2018:472; Case T-745/16, BPCE v. ECB, EU:T: 2018:476; Case T-757/16, Société Générale v. ECB, EU:T:2018:473; Case T-751/16, Confédération Nationale du Crédit Mutuel v. ECB, EU:T:2018:475; Case T-768/16, BNP Paribas v. ECB, EU:T:2018:471.
86. The line of argumentation of the appellant in Decision 2/2021 cited supra note 70 (see para 52 and the reasoning at para 75) confirm the parallelism that can exist between banking supervision cases on capital requirements and banking resolution determinations of MREL
87. See the conditions established in Art. 429(14) of Regulation 575/2013, in the version in force at the time of the facts of the Livret A judgments, currently Art. 429a(1)(j) of Regulation 575/2013 (as amended by Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019).
88. Case T-733/16, La Banque Postale v. ECB, paras. 40 and 41 (on which the Appeal Panel relied for its Decision 2/2021, since the structure of the two norms at stake is similar). One of those conditions entails also a discretionary choice: the exposures must be treated in accordance with Art. 116(4) (429(14)(c)), according to which “In exceptional circumstances, exposures to public-sector entities may be treated as exposures to the central government, regional government or local authority in whose jurisdiction they are established where in the opinion of the competent authorities of this jurisdiction there is no difference in risk between such exposures because of the existence of an appropriate guarantee by the central government, regional government or local authority” (emphasis added).
89. Case T-733/16, La Banque Postale v. ECB, paras. 56-58, and 95 (the same formulation can be found in the other Livret A cases - e.g. Case T-758/16, Crédit Agricole v. ECB, paras. 50-52, and 66.
90. Case T-758/16, Crédit Agricole v. ECB, paras. 40-46 (also Case T-733/16, La Banque Postale v. ECB, paras. 46-51).
91. Case T-758/16, Crédit Agricole v. ECB, paras. 53-58 and 64 (also Case T-733/16, La Banque Postale v. ECB, paras. 80-86 and 93).
92. Case T-758/16, Crédit Agricole v. ECB, paras. 61-66 and 80 (also Case T-733/16, La Banque Postale v. ECB, paras. 89-95 and 111).
93. Case T-758/16, Crédit Agricole v. ECB, paras. 80 and 81 (also Case T-733/16, La Banque Postale v. ECB, paras. 111 and 112) (emphasis added).
94. Case T-758/16, Crédit Agricole v. ECB, para 82 (“that obligation to examine the particular characteristics of regulated savings also arose in application of the case-law [on the duty of the competent authority to examine carefully and impartially all relevant aspects of the individual case]”) and para 84 (also Case T-733/16, La Banque Postale v. ECB, paras. 113 and 115).
95. Case T-758/16, Crédit Agricole v. ECB, paras. 60-66. On the same points, see Case T-504/19, Crédit Lyonnais v. ECB, EU:T:2021:185, paras. 43 and 66, respectively.
96. Case T-504/19, Crédit Lyonnais v. ECB, para 95, confirming that defining a methodology of decision-making is within the remit of the ECB under a legal provision which envisages a discretionary power (a point not touched on by the appeal in Case C-389/21 P, ECB v. Crédit Lyonnais, EU:C:2023:368, para 79).
97. This fact is admitted also by those who insist on a categorial distinction; see Opinion of A.G. Emiliou in Case C-389/21 P, ECB v. Crédit Lyonnais, EU:C:2022:844, para 63.
98. As evidenced in Case T-504/19, Crédit Lyonnais v. ECB, paras. 46 and 69 (where the Court distinguishes the correct application of its previous judgment from the merits of the decision), paras. 102 and 104 (referring to the argumentation of Crédit Lyonnais and of the ECB that evidence the systematic links between the correct application of the law and the correctness of the discretionary assessment).
99. Case T-504/19, Crédit Lyonnais v. ECB, paras. 98 and 99 (emphasis added).
100. Case T-504/19, Crédit Lyonnais v. ECB, para 98.
101. Nehl op. cit. supra note 27, p. 192 (“although clothed in procedural language, the observance of the principle of care has a strong connotation of substantive review and legality of the exercise of discretion, because it necessarily implies that the judges make a value judgment on the relevance of the (primary) facts needed for the purposes of the discretionary appraisal”, emphasis in the original).
102. Opinion in Case C-389/21 P, ECB v. Crédit Lyonnais, para 66.
103. CaseT-504/19, Crédit Lyonnais v. ECB, paras. 41-45,48-50 and 57-68, show the tensions mentioned in the text (this part of the judgment was not impacted by the appeal: Case C-389/21 P, ECB v. Crédit Lyonnais, para 79).
104. See Case T-504/19, Crédit Lyonnais v. ECB, paras. 107-110, 110-113 and 113-116, respectively.
105. Case C-389/21 P, ECB v. Crédit Lyonnais, paras. 65-75.
106. Ibid., paras. 92 and 93.
107. Ibid., paras. 94-115 and 121-124.
108. In his Opinion, A.G. Emiliou, despite his principled denial that technical discretion may entail policy discretion, indirectly acknowledged that underlying the judgment was the need for a “cautious approach and increased relevance on the part of the ECB”, assessed in light of “the overarching aim of the EU legislation in question”; Opinion in Case C-389/21 P, ECB v. Crédit Lyonnais, para 120.
109. Ibid., para 85.
110. The same has been pointed out by Kalintiri, “What’s ina name? The marginal standard of review of ‘complex economic assessments’ in EU competition enforcement”, 53 CML Rev. (2016), 1283-1316, at 1299; and by Nehl, op. cit. supra note 27. This observation holds irrespective of the source of complexity, i.e. whether it stems from “factual complexity” or from divergent, but equally reasonable factual assessments or legal qualification of facts (see for this distinction, Opinion in Case C-389/21 P, ECB v. Crédit Lyonnais, paras. 48-50).
111. Case C-493/17, Weiss, para 30; Case T-758/16, Crédit Agricole, paras. 30 and 31, all going back to Case C-269/90, Technische Universität München, EU:C:1991:438, para 14.
112. Nehl, op. cit. supra note 27, p. 196.
113. Mendes, op. cit. supra 24, 1341-1342.
114. See sections 2.2 and 3.2 supra.
115. See the useful definition of complex assessment in Opinion in Case C-389/21 P, ECB v. Crédit Lyonnais, para 50.
116. The proposal of A.G. Emiliou in Crédit Lyonnais is, hence, inoperative; Opinion in Case C-389/21 P, ECB v. Crédit Lyonnais, para 58.
117. These were reiterated in Opinion in Case C-389/21 P, ECB v. Crédit Lyonnais,.
118. See Decision 2/2021 cited supra note 70, para 79, and text accompanying notes 72 to 80 in section 3.2 supra.
119. Case C-62/14, Gauweiler, para 52; and Case C-493/17, Weiss, para 61.
120. Decision 2/2021 cited supra note 70, paras. 70-74, on both methods, and Opinion in Case C-62/14, Crédit Lyonnais, para 67, mentioning only the importance of “the wording and the objective of the relevant provisions” in delimiting discretion (emphasis in the original).
121. Prek and Lefèvre, “‘Administrative discretion’, ‘power of appraisal’ and ‘margin of appraisal’ in judicial review proceedings before the General Court”, 56 CML Rev. (2019), 339-380. These categories, however, can only be taken as a very imperfect “rule of thumb” (using this expression, but upholding the distinction, see Opinion in Case C-62/14, Crédit Lyonnais, para 52).
122. As confirmed by the General Court in the Livret A cases; see note 89 supra.
123. The Livret A judgments are an illustration thereof; see section 3.3 supra, in text accompanying notes 89 to 94 supra.
124. See section 1 and section 2.2 supra.
125. See sections 3.2 and 3.3 supra.
126. Nehl, op. cit. supra note 27, p. 192, and section 3.3 supra.
127. See sections 3.2 and 3.3 supra.
128. The judgment issued by the ECJ in Crédit Lyonnais is an illustration; Case C-389/21 P, ECB v. Crédit Lyonnais, paras. 89-115 and 118-123.
129. See sections 2.2 and 2.3 supra.
130. On those conditions, see sections 3.2 and 3.3 supra.
131. The aspects that support the social legitimacy of the judgment should not be underestimated, as arguably the backlash against the Weiss judgment of the FCC shows.
132. See section 2.3 supra.
133. See section 3.3 supra.
134. On the difficulties in delimiting them, see Serrand “Administrer et gouverner” and Cerulli Irelli, “Politica e amministrazione”, op. cit. supra note 55. Singling out Weiss is justified by the fact that it was judicial review for “normal” circumstances, outside the emergency situations that has led to the OMT announcement that was challenged in Gauweiler.
135. See note 121 supra.
136. Ostrowski, “Judging the Fed”, 131 Yale Law Journal (2021), 726-781, at 765.
137. 2 BvR 859/15, Judgment of 5 May 2020, para 142 (in relation to the objectives only) and para 156 (in relation to the application of proportionality).
138. On this argument, see further, Dani et al. op. cit. supra note 9.
139. Ibid.
140. Chadwick, op. cit. supra note 17.
141. On legitimacy assets, see Mendes and Venzke, “Introducing the idea of relative authority” in Mendes and Venzke (Eds.), Allocating Authority: Who Should Do What in European and International Law? (Hart, 2018), pp. 1-26.
142. This is stressed by American scholars who point to the need to reconsider the role of law and of judicial review in both areas, e.g. Ostrowski, op. cit. supra note 136.
143. The citation is taken from the self-characterization of the ECB at (emphasis added).
144. See note 120 supra.
145. See note 121 supra.
146. Because the applicable legal norms, in conditions of constitutive powers, are ways of mediating the processes through which different actors define how public interests are composed and pursued and legal positions defined accordingly; Mendes, op. cit. supra note 24, 1342.
147. See Lenaerts, op. cit. supra note 12.
148. Case C-493/17, Weiss, paras. 62 and 67. See on this point, Peychev, “The primacy of the European Central Bank: Distributional conflicts between theory and practice in the pursuit of price stability”, 22 European View (2023), 48, at 54.
149. Case C-493/17, Weiss, para 91. The duty to give reasons, as deployed by the Court, does not place any meaningful constrains on the ECB; see Mendes, op. cit. supra 15.
150. van ‘t Klooster and Fontan, “The myth of market neutrality: A comparative study of the European Central Bank’s and the Swiss National Bank’s corporate security purchases”, (2019) New Political Economy, 1-15.
151. This comes close to what, at the end, the FCC required in its Weiss judgment, and meets the analysis of Isabel Feichtner on the role that proportionality can have as a “step towards the democratization of money”; Feichtner, op. cit. supra note 2, 1100.
152. I owe this point to Marco Dani.
153. Feichtner, op. cit. supra note 2.
154. Ibid.
155. BVerfG, Judgment of the Second Senate of 30 July 2019-2 BvR 1685/14, para 129.
156. Dani et al., op. cit. supra note 9. More generally, see Grimm, “The democratic costs of constitutionalisation. The European case”, (21) ELJ (2015), 460.
157. Akbik, The European Parliament as an Accountability Forum: Overseeing the Economic and Monetary Union (Cambridge University Press, 2022). Arguably, the use by parliaments of judicial tools of control of complex decision-making decisions (such a proportionality and care) could be usefully used by parliaments to improve important flaws in their processes of accountability.
158. The German Federal Constitutional Court is paraphrased here in its banking union judgment cited supra note 155, para 129.
159. See e.g. Tooze, “Now is a time of tough choices — including on the 2% inflation target”, Financial Times (29 June 2023).
160. While this may seem obvious, this is what Weiss precluded.