Legislative consultations with the ECB

Organised by

• Department of Law

ECB opinions are rather extraordinary instruments of legislative consultation under Articles 127(4) and 282(5) TFEU, which straddle the Treaty boundary between economic and monetary policy by design in securing the Bank’s expert input on legislation beyond its strict competencies. Opinions are formally impervious to annulment actions under Art 263 TFEU because of their ‘non-binding’ nature and more or less impervious to non-contractual liability with Art 340 TFEU because of their ‘technical’ nature. While incapable of compelling legal effects, they can produce effects in the instances where consulting institutions follow the Bank’s expert advice due to factors beyond the standard coercion procedures associated with binding legal norms. That is the case with the majority of ECB opinions, whereby the Bank wields significant power by channelling its institutional policy preferences through the political processes and decision-making prerogative of the EU executive. Perhaps owing to the seemingly unassuming nature of opinions, they suffer from serious academic apathy that has shrouded them in obscurity. While the general outlines of consultation procedures have been sketched out, the influence of ECB advice in the legislative process – let alone its implications for the institutional balance of powers in the EU or the justiciability of these legal instruments – remains unexamined. To this end, this research exposes the ECB’s approach to legislative consultations with a case study on the overhaul of EU economic governance during the eurozone crisis (2010-2013), it provides a comprehensive overview of the legal framing of opinions by the CJEU with a particular focus on the false dichotomy between policy and technical expertise, and challenges the superficial casting of opinions as instruments of soft law suggesting consequences for the justiciability of these peculiar non-binding legal acts.

This article has been developed as part of the European Central Bank Legal Research Programme 2023.