The Evolution of the European Central Bank
1264 FORDHAM INTER\ATION\AL LAIWJOURNAL [Vol. 35:1260
Fordham International Law Journal
M. Lastra 0
0 Queen Mary University of London
Copyright c 2017 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Rosa 1l. Lastra
I. OBJECTIVES AND FUNCTIONS OF THE ECB
A. ECB Objectives and Their Evolution
B. ECB Functions and Their Evolution
II. A NOTE ON SUPERVISION AND FINANCIAL
11. ORGANIZATIONAL COMPLEXITY
IV. STATUS, INDEPENDENCE, AND ACCOUNTABILITY
The European Central Bank ("ECB") is a central bank
whose array of functions and jurisdictional domain are
determined by a treaty instrument, the Maastricht Treaty.'
Following the adoption of the Treaty of Lisbon,2 the Treaty on
the Functioning of the European Union ("TFEU") governs the
ECB.3 This distinctive feature makes the ECB a unique
institution amongst central banks.
* Professor of International Financial and Monetary Law, Centre for Cominercial
Law Studies, Queen Mary University of London. The Author thanks Antonio Sainz de
Vicuna, General Counsel of the European Central Bank ("ECB"), for helpful
comments. Errors are the Author's alone. Email: r.lastra~qmul.ac. ulk.
1. Treaty on European Union (Maastricht text),July 29, 1992, 1992 O.J. C 191/ 1.
2. Treaty of Lisbon Amending the Treaty on European Union and the Treaty
Establishing the European Community, 2007 O.J C 306/ 1.
3. Consolidated Version of the Treaty on the Functioning of the European Union
art. 127. 2010 0. ( 83 47, at 102-03 [hereinafter TFEU]. The complex and intricate
structure of the European Union sometimes makes it difficult for legislators and
commentators to make the correct distinctions. The Treaty of Lisbon was signed on
December 13, 2007. Itcame into force on December 1, 2009, with some provisions
taking elfect at a later date. It amends, but does not replace, both the Treaty on
European Union (formerly known as the Maastricht Treaty) and the Treaty
Establishing the European Community (formerly known as the EC Treaty or Treay of
20121 EVOLUTION OFTHE EUROPEAN CENTRACL BANX\K
The ECB is the monetary authority in those Member States
of the European Union that have adopted the euro as their
single currency. 4 The euro area or Eurozone comprises the EU
Member States whose currency is the euro and in which a single
monetarv policy is conducted by the ECB. 5 The current
members are: Austria, Belgium, Cyprus, Estonia, Finland,
France, Germany, Greece, Ireland, Italy, Luxembourg, Malta,
the Netherlands, Portugal, Slovakia, Slovenia, and Spain.b
The ECB is the centerpiece of the European System of
Central Banks ("ESCB"). The ESCB has a dual structure, with
the ECB at the center, headquartered in Frankfurt, Germany,
and the National Central Banks ("NCBs") at the periphery. 7
Since not all Member States have adopted the euro as their
single currency, a distinction is made between the "ins" and the
"outs" (the Member States that have adopted the euro are the
"ins," and the Member States with a derogation, according to
Article 139 of the TFEU are the "outs").
According to Article 3 (4) of the Treaty on European Union
("TEU"), "[tihe Union shall establish an economic and
monetary union whose currency is the euro."8 The European
Union's monetar y policy is the monetar y policy of the Member
States whose currency is the euro. Article 282(1) of the TFEU is
clear in this regard: "The European Central Bank, together with
the national central banks of the Member States whose currency
is the euro, which constitute the Eurosystem, shall conduct the
monetary policy of the Union,"
While the ECB website defines the ESCB as "the central
banking system of the European Union," ' the Eurosystem is
defined as "the central banking system of the euro area.,'" This
differential jurisdictional domain is the source of tensions and
Rome, and now known as the Treaty on the Functioning of the Furopean Union
4. Id. arts. 136-38, at 106-07.
5. See All Glossary Entries: E, EUR. CENT. BANK, http:/iwwv.ecb.int/home/
glossary/html/glosse.en.hutnl#8 (last visited May 25, 2012).
6. See id.
7. See id.
8. Consolidated Version of the Treaty on European Union art. 3 (4), 2010 O.J. C.
83/13, at 17 [hereinafter TEU post-lisbon].
9. TFEU, supranote 3, art. 282(1), 2010 O.. C 83, at 167.
10. All Glossary Etries:E. supra note 5.
conflicts that this Essay explores. Only the ECB and the NCBs
have legal personality; that is, the power to sue and be sued.
This Essay first surveys the functions and objectives of the
ECB and pays special attention to the increasing emphasis given
to the goal of financial stability, a goal that was somewhat
neglected when the ECB was created. The Essay also considers
the complex structure of the ESCB, the status of independence
and accountability, and the challenges the institution currently
faces in the light of the sovereign debt problems in Greece and
other Eurozone Member States. Like all EU institutions, the
ECB has evolved since its inception and continues to evolve.
I. OBJECTIVES AND FUNCTIOJNS OF THE ECB
In order to understand the functions and objectives of the
ECB, which are enshrined in Article 127 of the TFEU, it is useful
to review the evolving nature of central banking generally.12
Central banking has evolved throughout its relatively short
history, from the time in which the Swedish Riksbank (the first
central bank in the world, created in 1668) and the Bank of
England (established in 1694) started operations, to central
banks in contemporary times, with the Federal Reserve System
("Fed") established in 1913 and the ECB in 1999.' 3 While the
original raison d'etre for the establishment of the first central
banks was note issue and government finance, this rationale has
changed over time.14 Following the banking crisis of 1907, the
Fed was founded, inter alia, "[t] o provide for the establishment
of Federal reserve banks, to furnish an elastic currency, to afford
means of rediscounting commercial paper, to establish a more
effective supervision of banking in the United States." 15 The
main rationale for the creation of the Bundesbank in 1957, a
20121 ElOLUTION OF THE EUROPEAN CENTRAL BANK
country that had suffered from hyperinflation during the
interwar period, was price stability; this rationale was "inherited"
by the ESCB.lb
Vera Smith (a student of Friedrich August Hayek)
explained in her excellent 1936 book The Rationale of Central
Banking that the twin mandate of central banks was stable money
and sound banking. 17 The emphasis on stable money as the
primary objective of monetary policy in the late 1980s and in the
1990s often accompanied a move away from the supervisor
tasks that are integral instruments to achieve sound banking and
finance. A crucial aspect of current reform proposals in
response to the 2007-2009 financial crisis has been the closer
involvement of monetary authorities in financial supervision and
a return to the financial stability mandate. The twin mandate of
central banking to which Vera Smith referred is, in modern
terminology, monetary stability and financial stability.
The list of central bank functions is open-ended and
dynamic, including, inter alia, note issue, government finance,
monetary policy, banking supervision and regulation, banker's
bank and lender of last resort, smooth operations of the
payment systems, management of gold and foreign reserves,
conduct of foreign exchange operations, debt management,
exchange controls, and development and promotional tasks.
The scope of powers and the relative importance of the
functions of central banks have changed over time and across
countries. Indeed, the ECB's key function is monetary policy,
although it has other functions as further discussed below.
One notable feature in central banking history is that there
has always been a strong connection between the central bank
and the government. They have built a special relationship: the
central bank has been consciously awarded privileges by the
government, and in exchange it has been expected to provide
certain services and functions for the government.'I However,
this special relationship has not always been easy; indeed, at
times it has been rather confrontational. The nickname given to
16. RosA MARLA LASTRA. LEGAL FOUNDATIONS 01F INTELRNATIONAL MONETARY
STABnnirY 56-57, 212, 215 (2006).
17. VERA, G SMITH, THE RATIONALE OF CENTRAL BANMNG AND THE FREE BANIAKNG
ALTERNATIVE (Liberty Press, photo. reprint 1990) (1936).
18. LASTRA, CENTRAL BANKING, supra note 12, at 272.
the Bank of England, the Old Lady of Threadneedle Street, is a
reminder of this special relationship. 19 It is this strong
relationship that today colors the debate about the role of the
ECB during the financial and sovereign debt crisis and the
instruments it has established to combat both crises.
A. ECB Objectives and Their Evolution
The objectives of the ESCB are spelled out in Article 127(1)
of the TFEU.The primary objective of the ECB is price stability,
i.e., the control of inflation.2° The ECB is heir to the stability
culture of the Bundesbank and a creature of its time: economic
theory and evidence supported the case for a
price-stabilityoriented, independent central bank since 1989, when the
Reserve Bank of New Zealand Act was introduced.21 This
historical rationale-institutions of creatures of their time-is
important to understand the limits of what the ECB can do in
response to the crisis. If the Maastricht Treaty had been signed
in 2010, the enumeration and prioritization of objectives would
have been different. But treaties are difficult to amend, and an
expanded European Union has made treaty reform ever more
difficult (not to mention the opening of Pandora's Box that the
negotiation of certain provisions would entail). Treaties
enumerate the obligations of the Member States. In this respect,
it is worth pointing out that a degree of flexibility is embedded
in the relevant treaty provision through the ensuing language:
the primary objective-the pursuit of the internal aspect of
monetary stability-is to be pursued without prejudice to the
secondary objective-the support of general EU economic
policies with a view to contributing to the achievement of the
19. The nickname comes rom a Thomas Gillray cartoon published in May 1797,
foIllowing a speech that a Member of Parliament, Richard Brinsley, had made in the
House of Commons alluding to the Bank as an "elderly lady in the City of grCat credit
and long standing, who had unfortunately, fallen into bad company." See, e.g.B,ANK OF
ENGLAND, http://ww .banikofengland.co.uk (follow "Education" hyperlink; then
follow "Museum" hyperlink; then tolow "Walk Through Time" hyperlink; then folow
"Did You Know?" hyperlink). This " bad company" was that of Prime Minister Pitt. who
had required the Bank to make large loans to the government to finance a war against
20. TFEU, supra note 3,art. 127(l), 2010 O4. C 83,at 102-03.
21. IASTRA,CENTRAL BANKING, supra note 12, at 65-68.
EU objectives as laid down in Article 3 of the TEU 2 2 The
wording of this provision is heavily influenced by Article 12 of
the 1957 Bundesbank Law.23
In addition to price stability and support of the general
economic policies of the European Union, financial stability
(mentioned in Article 127(5) of the TFEU) must be added to
the enumeration of objectives. Financial stability has become an
overriding policy objective in the aftermath of the financial
crisis. The other condition mentioned in Article 127(1) of the
TFEU is to act in accordance with the principle of an open
market economy with free competition, favouring an efficient
allocation of resources, and in compliance with the principles
set out in Aiticle 119.24
B. ECB Functionsand Their Evolution
The functions of the ESCB are divided into "basic tasks"
(defined in Article 127(2) of the TFEU and reproduced in
Article 3(1) of the ESCB Statute) 25 and other functions
"nonbasic tasks" that are scattered throughout other provisions.
Although this distinction is not always clear (e.g., why is the issue
of banknotes not included in the enumeration of basic tasks?), it
is enshrined in the TFEU.
While the language applicable in Article 127(2) refers to
the "basic tasks to be carried out through the ESCB" (the ESCB
being construed as the compound of its constituent parts, i.e.,
22. TEU post-LIsbon, supra note 8, art. 3,2010 O:J. . 83,at 17.
23. TFEU, supra note 3,art. 127(5), 201(0 OJ.C 83,at 103 ("The [European
System of Cenu al Banks ("ESCB")] shall conuibute to the smooth conduct of policies
pursued by the competent authorities relating to the prudential supervision of credit
institutions and the stability of the financial system."): see Gesetz fiber die Deutsche
Bundesbank [BBankG] [Bundesbank Act] ,July 26,1957, BUNDLSGLSLTZBLATT I [BGBL
I] at 1782, last amended by Gestez [G], Dec.22, 2011, BGBi. I at 2959, art. 9 (Ger.).
24. TFEU, supra note 3, art. 127(1), 2010 O:4. C 83, at 102; see id.art. 119, at 96-97
(requiring Member States to adopt, "[f1or the purposes set out in Article 3 of the
Treaty on European Union... an economic policy which is based on the close
coordination of Member States' economic policies, on the internal market and on the
definition of common objectives, and conducted in accordance with the principle of an
open market economy with free competition")
25. Id.art. 127(2), at 102; TFEU Protocol No.4 on the Statutc of the European
System of Cenral Banks and of tireEuropean Cenrual Bank art. 3.1, 2010 OJ.
C 83/230, at 231 [hereinalter ESCB Statute].
both the ECB and the NCBs),26 the language applicable to
nonbasic tasks typically mentions the ECB and the NCBs
separately (with the one significant exception of Article 127(5)
of the TFEU, which refers to the ESCB).
The ESCB's four basic tasks are: "[(1)] to define and
implement the monetary policy of the Union, [ (2)] to conduct
foreign-exchange operation consistent with the provisions of
Article 219, [(3)] to hold and manage the official foreign
resenes of the Member States, [and (4) ] to promote the smooth
operation of payment systems." 27 There are four other
"nonbasic" tasks (i.e., not included under the umbrella of "basic
tasks"): (1) issue of banknotes, (2) contribution to financial
stability, (3) advisory functions and collection of statistical
information, and (4) international cooperation and "external
The key function of the ECB is monetary policy. The
formulation and implementation of monetary policy is the first
and most important basic function to be "carried out through '
2the ESCB. Responsibility for monetary policy has been clearly
transferred from the national arena to the supranational arena.
In this sense, it isboth accurate and entirely appropriate to talk
about a "single monetary policy" 30 for the Member States whose
currency is the euro.
Article 14.3 of the ESCB Statute states that "[tihe NCBs are
an integral part of the ESCB and shall act in accordance with the
guidelines and instructions of the ECB.'" - I Accordingly, in
implementing ESCB tasks, i.e., monetary policy and other
responsibilities resulting from the TFEU and the ESCB Statute,
the NCBs act in their capacity as constituent parts of the ESCB,
and not as national agencies.
Monetary policy is a public function. A central bank
conducts monetary-policy operations and other central banking
26. TFEU,supra note 3,art. 127(2), 2010 O.J. C 83,at 102.
27. Id.E;SCB Statute, supra note 25, art. 3.1, 2010 OJ.C 83,at 231.
28. SeeLASTRA, supranote 16.
29. TFEU, supra note 3,art. 127(2), 2010 O.J. C 83, at 102; ESCB Statute, supra
note 25. art. 3.1, 2010 OJ. C 83, at 231.
30. TFEU. supa note 3,art. 119(2), 2010 OJ.C 83,at 97.
31. ESCB Statute, wapranote 25, art. 14.3, 2010 O. C 83,at 237.
functions in the pursuit of the public interest. , 2 The transfer of
monetary policy powers from the national to the supranational
arena signifies the surrender of one of the classic attributes of
sovereignty of the nation-state. 33 The Greek debt crisis has
magnified the inconsistency between a centralized monetary
policy and a decentralized fiscal policy, which characterizes the
Economic and Monetary Union ("EMU") project.
Monetary policy also is a key attribute of monetary
sovereignty. The adoption of a single currency-the euro-and
the creation of the ESCB signify the voluntary surrender of
monetary sovereignty by those Member States that have agreed
to transfer sovereign rights to the European Union.A This is a
32. Central banks act in a dual capacity: on the one hand they can perform
central banking functions (a- re imperii), and on the other they can perform
corporate functions (actajure gestios). Actajure imperii are activities of a governmental
or public nature carried out by a forecign state or one of its subdivisions, which quali)
for state immunity under the modern doctrine of restrictive foreign sovereign
immunity. 'When they perform central banking functions, central banks enjoy sovereign
immunity. Acta jure gestionis are activities of a commercial nature carried out by a
foreign state or one of its subdivisions or agencies. These acts are not immune from the
jurisdiction and process of local courts under the modern doctrine of resuictive
foreign sovereign immunity. The United States Court of Appeals for thre Second Circuit
recently provided a ringing endorsement of central bank immunity. See NMI, Capital
Ltd. v. Banco (ent. de la Republica Argentina, 652 F.3d 172, 188 (2d Cir. 2011)
(treating central banks as more than "generic 'agencies and instrumentalities' by
entitling them to "'special protections' befitting the particular sovereign interest[s]" at
stake (quoting EM Ltd. v. Republic of Aigentina, 473 F.3d 463, 485 (2d (ir. 2007))).
According to tire Second Circuit. thie central bank enjoys sovereign immunity when it
exercises central banking functions. See id. at 190, 194. The United States as amicus
curiae offered its understanding of central bank functions as follows:
Central banking activities include, among other things, issuance of a
country's currency; holding of the country's currency reserves or precious
metal reserves; maintenance of domestic reserves of depositol institutions;
regulation of depositol) institutions; engaging in open market operations;
setting monetary policy; settlement of clearing balances in the payments
system; administration of credit controls; serving as a banker's bank to private
sector banks and as lender of last resort; and providing general banking
services to the parent government.
Brief fbr the United States of America as Amicus Curiae in Support of Reversal at I
112, NI Capital. 652 F.3d 172 (No. 10-1487). The court had invited the United States
to address two questions: "(1) whether the Banco Central de ]a Republica Argentina
(BCRA) [was] thre 'alter ego' of the Republic of Argentina ... and (2) if so, whether
the BCRA's assets at the Federal Reserve Bank of New York (FRBNY) [were] immune
from post-judgment attachment." Id. at 1-2.
33. See LASTRA, supa note 16, at 26.
34. See Costa v. Ente Nazionale per I'Energia Electtrica (ENEL), Case
6/64,  E.C.R. 585, at 593 ("By creating a Community of unlimited duration,
limited surrender, a nonexclusive transfer of sovereign powers.
The members of the Eurozone retain their national sovereignty
in those domains where no other consensual limitation has been
agreed upon. 35 The holder of monetary sovereignty for those
Member States whose currency is the euro is not the ECB but
the European Union, in the composition of the seventeen
member states that have pooled monetary sovereignty and
formed the Eurosystem. , 6 The ESCB and ECB exercise the
Union's "exclusive competence" in monetary policy, and since
only the ECB has legal personality (the ESCB and the
Eurosystem do not), the ECB holds the rights and obligations.
The ECB has used standard and nonstandard measures of
monetary policy in response to the crisis to ensure the proper
working of monetary transmission and the provision of liquidity
to the euro area banking system. Standard measures include
open market and credit operations (Article 18 of the ECSB
Statute) and minimum reserves (Article 19 of the ECSB
Statute). , 7 Following standard measures, the ECB lowered
interest rates by twenty-five basis points in November 2011 and
by another twenty-five basis points in December 2011. Since
then, the rate on the main refinancing operations has been at
the historically low one percent. - 8 Article 20 of the ECSB Statute
allows for other instruments of monetary control. , '
An example of nonstandard measures-aimed at preserving
the proper transmission of monetary policy-is the Securities
having its own institutions, its own personality, its own legal capacity and capacity of
representation on the international plane and, more particularly, real powers
stemming from a limitation ol sovereignty or a transfer olfpowers from the States to the
Conmunity, the Member States have limited their sovereign rights and have thus
created a body of law which binds their nationals and thcinselves.").
35. TEUI post-ILisbon, supra note 8, art. 5(2), 2010 O.J. . 83, at 18 ("Competences
not conirred upon the Union in the Treaties remain with the Member States."); See
Costa,  E.C.R. 585, at 593 (describing the "transfer of powers" as occurring
within limited fields").
36. See LASTRA, supra note 16, at 28. "This isin line with the established doctrine
of monetary sovereignty, where the state, as representative of the will of the people, is
the holder of such sovereignty, even ifthe exercise of some of its prerogatives-such as
the monopoly of note issue-is the responsibility of the central bank." Id.at 28 n.87.
37. See ESCB Statute, sup a note 25, arts. 18-19.2010 OJ. C 83, at 238.
38. See Peter Praet, ECB Exec. Bd. Member, Lecture at the International (enter
for Monetary and Banking Studies: Monetar) Policy at Crisis Times (Feb. 20, 2012),
availableat IIp://www.ecb.curopa.cu/press/key/dae/2012/html/sp I20220.en html.
39. ESCB Statute, spra note 25, art. 20, 2010 O.J. C 83, at 239.
Markets Programme, which was established in May 2010 as an
instrument of monetary policy in response to the emerging debt
crisis in the Eurozone. 40 According to the preamble of the
Decision of the European Central Bank of May 14, 2010,
establishing a Securities Markets Programme:
(1) Pursuant to Article 18.1 of the Statute of the ESCB,
national central banks of Member States whose currency is
the euro (hereinafter the "euro area NCBs") and the
European Central Bank (ECB) (hereinafter collectively
referred to as the "Eurosystem central banks") may operate
in the financial markets by, among other things, buying and
selling outright marketable instruments.
(2) On 9 May 2010 the Governing Council decided and
publicly announced that, in view of the current exceptional
circumstances in financial markets, characterised by severe
tensions in certain market segments which are hampering
the monetary policy transmission mechanism and thereby
the effective conduct of monetary policy oriented towards
price stability in the medium term, a temporary securities
markets programme (hereinafter the "programme") should
be initiated. Under the programme, the euro area NCBs,
according to their percentage shares in the key for
subscription of the ECB's capital, and the ECB, in direct
contact with counterparties, may conduct outright
interventions in the euro area public and private debt
(3) The programme forms part of the Eurosystem's single
monetary policy and will apply temporarily. The
programme's objective is to address the malfunctioning of
securities markets and restore an appropriate monetary
policy transmission mechanism.
(4) The Governing Council will decide on the scope of the
interventions. The Governing Council has taken note of the
statement of the euro area Member State governments that
they "will take all measures needed to meet their fiscal
targets this year and the years ahead in line with excessive
deficit procedures" and the precise additional commitments
taken by some euro area Member State governments to
accelerate fiscal consolidation and ensure the sustainability
of their public finances.
(5) As part of the Eurosystem's single monetax policy, the
outright purchase of eligible marketable debt instruments
by Eurosystem central banks under the programme should
be implemented in accordance with the terms of this
Another nonstandard measure is that which gives Eurosystem
counterparties (European banks) US dollars that the ECB has
obtained via the dollar swap lines offered to it by the Federal
Reserxe Bank of New York.42
Article 127(2) of the TFEU and Article 18 of the ECSB
Statute grants the ECB with competence to provide market
liquidity.4 The ECB has indeed provided hugely expanded
liquidity operations during the twin crises (financial and
sovereign debt crises) and has made ample use of the
considerable set of operational tools at its disposal to handle a
liquidity crisis. However, what constitutes "ordinary" liquidity
assistance as opposed to "emergency"/lender of last resort
("LOLR") liquidity assistance blurs during a crisis, since the
dring of the interbank market gives the central bank a primary
role in the provision of liquidity.44 Although the ECB is
41. Id.at 8.
42. See European Central Bank Guideline No. ECB/2000/17 on Monetry Policy
Instruments and Procedures of the Eurosystemn, 2000 O.J. L 310/1, Annex 1. at 2: see
also Tender Procedure fir the Provision ojf S Dollarsto Erosystent Counterparties,FUR. CENT.
BANK (Dec. 6, 2011), http:/iwwN.ecb.int/mopo/implementiomoipdf/EUIR-USI)_
tenderprocedure.pdt. Since December 2007, the US Federal Open Market Committee
has authorized dollar liquidity swap lines with the ECB and other central banks to
provide liquidity in US dollars to overseas markets, in accordance with Section 14 of the
Federal Reserve Act and in compliance with athorizaions, policies, and procedures
established bi the Federal Open Market Committee. The Eorosystem's most recent
neasures, taken in December 2011, have helped to nainrain the credit flow to the real
econony. See Federal Reserve Act of 1913, § 14, Pub. L. No. 63-43, 38 Stat. 251. 264-65:
Credit ard Liquidity Prograns and the Balance Sheet, BOARD GOVERNORS FED. REs. Sys.,
http: //www.tde ralreserve.gov/m oinetarypolicy/bsL liq(uidiryswaps.ln (last updated
Nov.30, 2011) (describing recent authorization of foreign currency liquidity swap lines
with various central banks, including the E-C).
43. TFEU, supra note 3,art. 127(2), 2010 OJ. C 83. at 102; ESCB Statute, supra
note 25. art. 18, 2010 J.C 83, at 238.
44. See ILastra, Central Barking, supra note 12, at 262-68; see also Rosa I.astra &
Andrew Campbell, Revisiting the Lender of Last Resort, 24 BANKiNG & FIN. L. REV. 453
(2009); Rosa Maria Lastra, Leader of Last Resort: An InternationalPerspective, 48 INT'L &
competent to provide liquidity assistance to "financially sound"
banks, 45 the classic LOLR assistance (collateralized loans to
troubled illiquid but solvent banks) remains a national
competence unless the problems originate in the payment
system. 46 In 2000, the ESCB adopted a restrictive reading of the
ECB competences, concluding that the provision of LOLR
assistance to specific illiquid individual institutions was a
national task of the NCBs in line with Aiticle 14.4 of the ESCB
Statute, a provision that allows NCBs to perform non-ESCB tasks
on their own responsibility and liability.47
In December 2011, the Governing Council of the ECB
announced additional enhanced credit support measures to
45. EUROPEAN CENT. BANK [ECB]. THE IMPLEMENTATION OF MONLTARY POLICY IN
THE EURO AREA: GENERAI )OCUMENTATION ON EUROSYSTEM MONETARY POLIcy
INSTRUMENTS AND PROCEDURES 11 (2008), available at http://ww.ecb.europa.eui
46. SeeTFEU, sup anote 3, art. 127(2), 2010 0.J. C 83, at 102.
47. ECB, ANNUAL REPORT 1999, at 98 (2000); see ESCB Statute, supranote 25, art.
14.4. 2010 O:J. C 83, at 237 ("National central banks may perform functions other than
those specified in this Statute unless the Governing Council finds, by a majority of two
thirds of the votes cast, that these intcrfere with tihe objecives and tasks of the ES(B.
Such functions shall be peltornmed on tihe responsibility and liability of national central
banks and shall not be regarded as being part of the functions of the ESCB."). The
ECB can assess whether a given lender of last resort operation by a National Central
Bank ("NCB") intrcires with monetary policy and, if so, either prohibit it or subject it
to certain conditions. To this elfect, the ECB has some internal rules requiring ex ante
notification to the Governing Council of such lender of last resort operations. ESCB
Statute, supra note 25, art. 14.4, 2010 04. C 83, at 237. The ECB described this system
in its 1999 Annual Report:
The institutional finamework foi financial stability in the EU and in tie euro
area is based on national competence and international cooperation....
Coordination mechanisms are primarily called for within the Eurosystem. This is
the case foi entergenc liquidih, assistance (ELA), which embraces the support
given by central banks in exceptional circumstances and on a case-by-case
basis to temporarily illiquid institutions and markets.... [I]f and when
appropriate, the necessary mechanisms to tackle a financial crisis are in place.
The main guiding principle is that thre competent NCB takes the decision
concerning the provision of EIA to an institution operating in itsjurisdiction.
This would take place under the responsibility and at the Cost of the NCB in
question.... The agreement on ELA is internal to the Eurosysteil and
therefore does not alfect the existing arrangements between central banks
and supervisors at the national level or bilateral and multilateral co-operation
among supervisors and between the laier and tlie EurosystL.
ECB, supra, at 98.
support bank lending and liquidity in the euro area money
market.48 In particular, the Governing Council decided:
To conduct two longer-term refinancing operations
(LTROs) with a maturity of [thirty-six] months and the
option of early repayment after one year.... [and] [t]o
increase collateral availability by (i) reducing the rating
threshold for certain asset-backed securities (ABS) and (ii)
allowing [NCBs], as a temporary solution, to accept as
collateral additional performing credit claims (i.e. bank
loans) that satisfy specific eligibility criteria.49
Long-term refinancing operations ("LTRO") are
nonstandard measures designed to alleviate severe credit
conditions among the countries of the Eurozone. 5°1Two LTRO
tranches have been announced so far, one that took place in
December 2011, and a second to occur in February 2012.51
The EMU rests upon a relatively strong "M" and a weak
"E."52 The weak economic pillar of EMU provides the
background to understanding the December 2011 adoption of
the Treaty on Stability, Coordination and Governance in the
Economic and Monetary Union ("Fiscal Compact") by the
Heads of State or Government of Member States in the
Eurozone. 53 This is intended to move the Eurozone towards a
stronger economic union, including a new fiscal compact and
strengthened economic policy coordination to be implemented
through an international agreement. 4
The architecture to deal with sovereign debt crises in the
Eurozone will become more permanent once the seventeen
Eurozone Member States ratify the Treaty Establishing the
European Stability Mechanism ("ESM"),55 signed on February 2,
2012 and expected to become operational in July 2012.5 The
ESM will be an international financial institution based in
Luxembourg and designed to provide financial assistance to
Eurozone Member States who are experiencing or being
threatened by severe financing problems, when ESM action is
indispensable for safeguarding financial stability in the
Eurozone area as a whole. 57 As a permanent mechanism, the
ESM will take over the tasks currently fulfilled by the European
Financial Stability Facility and the European Financial
Stabilisation Mechanism. 58
must only be approved by twelve of the seventeen Eurozone Member Sttes. See Ireland
Votes in Favour of EU Fiscal Pact. BBC NEWS (June 1. 2012, 12:18 AM),
http:/iwwv.bbc.co.uk/newsiworld-europe-18290987. The Fiscal Compact was signed
on March 2, 2012, but it has yet to be ratified by twelve Eurozone stats. See Agreerment
Details. COUNCIL EUR. UNION, http://www.european-council.europa.eu/media/639235/
st00tscg26en12.pdf (last visited May 25, 2012).
54. See Ireland Votes in Favourof EUFiscalPact,supranote 53.
55. Treat, Establishing the European Stability Mechanism, Feb. 1, 2012 (not yet
ratified), aile at http://www.european-council.europa.eu/media/639235/stOOtscg26
56. See (OUNCIL OF THE EUROPEAN UNION, FACTSHTLL: TREATY ESTABLISHING THE
Et ROPEAN STABJI ITY MECHANISM 1 (2012), available at
57. Id."The original version of the treaty was signed on 1 july 2011, but it has
been modified to incorporate decisions taken by the heads of state and government of
the curo area on 21 july and 9 December 2011, ainied at improving the effectiveness of
the mechanism." Id.()ne ratified by the seventeen Eurozone Member Sttes, the
trca "will enter into force and the [European Stability Mechanisn will] becomre
operational as soon as possible: tihe target date is July 2012, a year earlier than originally
58. Id. "With the accelerated entry into force, the [European Stability
Mcchanism] will now operate alongside the [European Financial Stability Facility] for
[twelve] months. Their joint lending capacity is currenty set at C500 billion, subject to
reassessment in March 2012. With tihe subscribed capital of C700 billion (C8(0 billion as
paid in capital, tilerest as callable), the initial iLaxiLitun lending capacit of the
[European Stability"Mechanism] isset at C500 billion." Id.
These measures notwithstanding, the Eurozone still falls
short of a fiscal union with a centralized system of fiscal
transfers. That will in principle require a treaty revision. The
tension inherent in the differences in jurisdictional domain was
further evidenced by the UK veto of the ESM in December
II. A NOTE ON SUPERVISIOA\ AND FINANCIAL STABILITY
The consistency between one instrument (monetary policy)
and one goal (price stability) that is present in the pursuit of
monetary stability contrasts with the multiplicity of instruments
and goals that exist with regard to the pursuit of financial
stability. This makes the pursuit of financial stability a difficult
endeavor, and this difficulty is further compounded by the
problems of jurisdictional domain, since financial stability is a
goal that transcends national boundaries. Like a tsunami that
does not respect national boundaries, episodes of financial
instability have a transnational dimension, thus requiring a
transnational solution. Financial stability also is a goal that
transcends institutional mandates.
The Draft Statute of the ESCB-released by the Committee
of Governors of the European Community ("EC") Central Banks
in November 1990-included prudential supervision amongst the
basic tasks of the ESCB.1 0 However, the opposition of some
countries (notably Germany) to such an inclusion means that
the final version of the ESCB Statute and of the EC Treaty (as
revised by the Maastricht Treaty) only referred to supervision in
a limited way, as a nonbasic task.6'
59. See Gavin Hewitt, David Cameron Blocks EL- Wide Deal to Tackle Earn Crisis, BIC
NFWs (Dec. 9, 2011, 10:14 AM), http:/iww.bbc.co.ukinevs/ii-I 6104275.
60. Rosa M. Lastra, The Independence of the European S)sten of Central Banks. 33
HARV. INT' L. 475, 507-09 (1992).
61. TFEU, supranote 3, art. 127(4)-(6), 2010 O4. C 83. at 102-03; ESCB Statute,
supra note 25. art. 25. 2010 O.J. C 83, at 240. However. Article 127(6) of the TFEU left
the door open for a possible expansion of supervisor responsibilities foIllowing a
simplified procedure (simplified in the sense that it does not require the formnal
arnendnent of the TFEU, but not likely to be exercised lightly due to thc requirement
of unanimity in the Council plus the assent by the European Parliament). Although the
TFEU refeirs to to prudential supeivision of credit institutions and othier financial
institutions wi Lthe exception of insurance undertakings," it is an anachronism to do
so. TFEU, supra note 3, art. 127(6), 2010 O.J. C. 83, at 103. Financial developments in
It is now widely accepted that the neglect of financial
stability prior to the crisis was an important contributing factor62
Financial stability should be the ultimate goal of supervision,
regulation, and crisis management. It is a national, European,
and international goal, but a commonly accepted definition is
still lacking, complicating its pursuit.
A distinction is now made between macro-prudential
supervision and micro-prudential supervision. According to the
House of Lords Report on the Future of EU Supervision and
Macro-prudential supervision is the analysis of trends and
imbalances in the financial system and the detection of
systemic risks that these trends may pose to financial
institutions and the economy. The focus of
macroprudential supervision is the safety of the financial and
economic system as a whole, the prevention of systemic risk.
 Micro-prudential supervision is the day-to-day supervision
of individual financial institutions. The focus of
microprudential supervision is the safety and soundness of
individual institutions as well as consumer protection. The
same or a separate supervisor can carry out these two
functions. If different supervisors carry out these functions
they must work together to provide mechanisms to
counteract macro-prudential risks at a micro-prudential
While micro-prudential supervision remains a national
competence, it is subject to increasing centralization since the
establishment of the European Supervisory Authorities-the
European Banking Authority, the European Insurance and
Occupational Pensions Authority, and the European Securities
and Markets Authority. Macro-prudential supervision, on the
other hand, is a task entrusted to the European Systemic Risk
the last decades have rendered this exception meaningless, since nowadays financial
conglomerates encompass banking, securities, and insurance undertakings.
62. See gernerall, e.g., HOWA RD )AVITS, THE FINANCIAL CRISIS: WHO IS TO BILAMF?
(2010); Rosa M. Lastra & Geoftrey Wood, The Crisis of 2007-2009: Nature, Causes and
Reactions, 13.J. INT'L EcON. L. 531 (2010).
63. See EUROPEAN UNION COMMITTEE, HOUSE OF IORDS, THE FUTURE OF EU
F1NANCIAL REGULATION AND SUPLRVISION VOLUML I, RLPORT, 2008-9. H.L. 106-1, 1[
2728 (U.K.), available at littp:// N"w.publications.parliainiuuk/pa/ld2OO809/ldselect/
Ideucomi 106/ 106i.pdf.
Board' 4 although the ECB and NCBs also are competent to
contribute to prudential supervision and issues of financial
stability. This can pose problems or tensions, particularly with
regard to non-Eurozone NCBs.
A common trend in response to the crisis is to give the
central bank responsibility for macro-prudential supervision.65
The reinforcement of the role of the central bank now coexists
with greater political intelerence and reduced independence
for central banks and supervisory agencies because of the fiscal
costs of the bailout or rescue packages. This latter trend is in
stark contrast with the movement towards independence that
characterized the framework of central banks prior to the crisis.
Of course, the ECB is better shielded from political pressure
than other central banks with jurisdictional domain in the
national arena. But it is not exempt from such pressure.
64. TFEU, supra note 3, art. 114, 2010 O.J. C. 83, at 94 (providing the legal basis
for the regulations); id. art. 127(5), at 103 (providing the legal basis of the decision
granting certain tasks to the ECB). In October 2009, the European Commission
proposed a directive amending a number of directives regarding the European
Banking Authority, the European Insurance and Occupational Pensions Authority, and
the European Securities and Markets Authority. See Commission of the European
Communities, Directive of the European Parliament and of the Council Amending
Directives 1998/26/EC, 2002/87,/E(, 2003/6/E(, 2003/41/E( , 2003/71/E(,
2004/39/EC, 2004/109iEC, 20)5/60/E(, 2006/48/E(, 2006/49/EC and
2009/65/EC in Respect of the Powers of the European Banking Authority, the
European Insurance and Occupational Pensions Authority and the European
Securities and Markets Authority: Proposal f-omn the Commission, COM (2009) 576
Final (Oct. 2009). The Economic and Financial Aflairs Council reached a broad
consensus regarding the main features of the European Systemic Risk Board at its
meeting on October 20, 2009. See Council Press Release, 14601/09 (Oct. 20 2009).
available at http: //ww.consilium.europa.euiuedocsicms-dat/ docs/ pressdataien/
ecolin/ 10622.pdf. The Economic and Financial Afairs Council, on December 2,
2009, approved the creation of the three new European Supervisory Authorities, which
together with the European System Risk Board ("ESR V) (for which broad political
agreement wvas reached on October 20, 2009) formn the new EU supervisory structure.
See Council Press Release, 16838/09 (Dec. 2, 2009), available at
http:/ /Nww.consiliutiy.etropa.cu /ucdocs/ cmsI)ataidocsi pressdat / en iecofin,/
1111706.pdl. The new authorities and the ESRB took up their duties at the beginning of
65. For a review of this argument, see Luis Garicano & Rosa M. Lastra, Towards a
New Archie'trefor Financial Stabiliy: Seven Principles. 13 j. INTL ECON. L. 597, 609-13
(2010). The Financial Services Bill published in the United Kingdom on January 27,
2012, substantially expands the mandate of the Bank of England in terms of
macroprudential supervision and the pursuit of financial stability. See Press Release, HM
Treasury, Government Publishes Financial Services Bill (Jan. 27, 2012), available at
http://ww.hnil-treasui-y.gov.uk/press 08 12.htm.
I1. ORGANIZATIONAL COMPLEXITY,'
As I have discussed in earlier writings, the European System
of Central Banks is a complex central banking system. This
complexity is multi-layered. While the structural
complexityECB and NCBs-is a permanent feature of the system, the other
layers of complexity can have a dynamic or transitory nature
(the division between "ins" and "outs" and the dual nature of
NCBs as operational arms of the ESCB and as national
In terms of the ECB's internal organizational structure, the
Eurosystem is governed by the Governing Council and the
Executive Board, the two main decisionmaking bodies of the
ECB. The NCBs of the countries that do not participate in the
EMU ("Member States with a derogation"), either because they
have opted out ([Denmark and the United Kingdom]), rejected
membership through a referendum (Sweden), or have not
qualified yet still participate in the third governing body of the
ESCB, the General Council6 7 The tasks of the General Council
can be classified into coordinating functions (between the
monetary policies of the "outs" and that of the Eurozone) and
preparatory functions (helping the "outs" prepare for eventual
IV. STATUS, INDEPENDENCE,AND ACCOUNVTABILITY
The structural and functional duality of the ESCB, its
organizational complexity, and the noveltv of a truly
"independent institution" within the Community's institutional
structure triggered a heated legal debate with regard to the
constitutional position of the ECB. 8
The ECJ clarified the legal position of the ECB in saying
that "the ECB, pursuant to the EC Treaty, falls squarely within
the Community framework. "6 The Treaty of Lisbon confirmed
1278 FORDHAM INTEI'vA TIOXAL LA
J14OURNAL [Vol. 35:1260
the position of the ECB as a core institution of the European
Union. 7 The Court ofJustice for the European Union ("Court")
has clarified the extent of the independence of the ECB in the
European Anti-Fraud Office (OLA-F) case. 71 The Court held that
the ECB "should be in a position to carry out independently the
tasks conferred upon it by the Treaty." 72 The Court further
Article 108 [EC] seeks, in essence, to shield the ECB from
all political pressure in order to enable it effectively to
pursue the objectives attributed to its tasks, through the
independent exercise of the specific powers conferred on it
for that purpose by the EC Treaty and the ESCB statute.73
The Court is clearly- in favor of a limited notion of
independence, confined by the functions, tasks, and powers
specifically conferred upon the ECB. The Court upheld a
concept of "independence within the Community structure"
(not independence from the Community) that is reminiscent of
the notion of "independence within government." 74 The
"recognition that the ECB has such independence does not have
the consequence of separating it entirely from the European
Community and exempting it from everv rule of Community
The ECB is independent "organically," "functionally," and
"financially. ' 76TThe "organic independence" is evidenced by a
number of safeguards or guarantees such as the appointment
and removal procedures of the members of its governing bodies
(e.g., Articles 11(2) and 11 (4) of the ESCB Statute with regard
to the Executive Board and Article 10 of the ESCB Statute with
regard to the Governing Council). The "functional"
independence is enshrined in EC Treatv Article 108 (as
recognized by the ECJ in the OLAF case) and also is
safeguarded by other provisions, such as those dealing with the
prohibition to finance public sector deficits via central bank
70. TEU post-Lisbon, supranote 8, art. 13, 2010 O.J. C 83, at 22.
71. ECB,  E.C.R. 1-7147, 1[[ 130-35.
72. Id. [ 130.
73. Id. [ 134.
74. See IM. OF (OVERNORS OF THE FED. RESERVE Sys.. THE FLDLRAL RESERVE
SYSTEM PURPOSES AND FUNCTIONS 2 (1984).
75. ECB,  E.C.R. 1-7147, 135.
80. LA1STRA, supra note 16, at 47-49. 224-26.
20121 EVOLUTION OFTHE EUROPEAN CENTRA L BANK
credit (e.g., Article 21 (1) of the ESCB Statute) or those dealing
wvith the regulatory powers of the ECB. The ECB is independent
within the limits of the powers expressly conferred upon it by
the Treaty and the ESCB Statute. The "controls" to which the
ECB is subject constitute another limit. The European Court of
Justice in OLAF specifically mentioned the review by the Court
of Justice and the control by the Court of Auditors. 7 These are,
in fact, important mechanisms of accountability. 8
Since 1992, I have advocated the need for "accountable
independence." 79 This notion of independence is the one that
Geoffrey Miller and I have developed8. s1An independent central
bank is "a particular kind of institution that is independent in
some respects, but highly constrained in others," constrained by
the goal, by the statutory objective, and by the demands of
democratic legitimacy and accountability.,'
Although a consensus has been reached on the definition
and adequate quantum of independence, a debate is still going
on regarding the definition and the adequate quantum of
accountability. The ECB has often been criticized for its alleged
lack of accountability and transparency. But what do we mean by
accountability and transparency? There are several paradigms
and forms of accountability. 82 Depending on which paradigm
one judges the institution (the ECB), one reaches different
results. Fabian Amtenbrink argued that the existing democratic
deficit of the European Central Bank is an expression of the
democratic deficit of the European Community at large, rather
than a "particular deficiency" of the institution8 3 Chiara Zilioli
argued that the ECB is accountable if we use a new "economic
notion of accountability" rather than the traditional
"formalistic" notion of accountability based on the theory of the
division of powers and the existing system of checks and
balances.84 The economic notion of accountability (i.e.,
performance accountability) "is based on the assessment of the
results achieved" in relation to the specified statutory objective,
namely price stability*85 In my opinion, the new paradigm also is
based on participation (i.e., consultation) and transparency
Accountability can only be judged through the life of the
institution. Accountability cannot be guaranteed by the fact that
at the initial stage of its creation, it is legitimate democratically.
It is in its continuing operations and policies that the institution
must be subject to appropriate mechanisms of accountability.
And if the ECB gives proper account, explains and justifies tle
actions or decisions taken (or omitted) in the exercise of its
responsibilities, is subject to judicial review and audit control,
and responds to Parliament through reports and testimonies, it
can bejudged to be sufficiently accountable.
The ECB has played a key role during the twin financial
and sovereign debt crises in Europe. It has been an institution
that has proved to be adept at evolving, stretching the mandate
granted to it by the TFEU to the limits of the law while
remaining within the law's bounds. Ordinary times are not the
same as extraordinary times. The success of institutions is to
tread carefully on what is extraordinary and try to channel the
instruments at their disposal towards a return to ordinary times.
Central banks often act as a last resort: purchasers of last resort,
lenders of last resort, liquidity of last resort, and investors of last
resort. These last resort considerations are suited for
extraordinary times. It is the immediacy of the availability of
central bank liquidity that makes such liquidity essential when
other sources either dry out or become prohibitively expensive.
84. See Chiara Zilioli. Accoantability and ldepedence: 1rrecocilable Values or
Complermentay Instrumetsfr Democra~ y?:The 5peutTc Case ,f he E #oe',. Certra Bank, in
11 MILANGES EN HOMNLN(E .JANAVIC-TOR LOuIS 395, 402-05 (Gcorgcs Vandcisandcn
et al. eds., 2003).
85. Id. at 402-04.
Financial stability is a goal that transcends institutional
mandates and geographic boundaries. The relative simplicity of
one goal (price stability)-one instrument (monetary policy)
that characterizes the monetary responsibilities of central banks
contrasts with the multiplicity of instruments (supervision,
regulation, crisis management, LOLR, and others) that
characterize the pursuit of financial stability. Since supervision
and regulation also are aimed at other goals (e.g., consumer
protection), the mandate of central banks in the pursuit of
financial stability and the design of central bank independence
in such pursuit are more complex than the mandate of
monetary stability and the design of monetary independence.
In the light of the Eurozone crisis, the time is ripe to give
the ECB an adequate mandate in the pursuit of financial
stability and to entrust it with appropriate supervisory
responsibilities, activating the enabling clause, i.e., Article
127(6) of the TFEU.s If the ECB is going to continue to provide
assistance "in a rainy day" it needs to know what is going on "in
a sunny day." Financial supervision in the single market can be
organized according to the Champions League model, with
some institutions competing in the European context and
others only in the national arena. The former could be
supervised by the ECB.
12. For an analysis of the evolution of central banking tuncions, see, for example, ROSA MARiA IASTRA, CENTRAL BANKING AND BANKING RFi(UI ATION 249- 86 ( 1996 ) [hereinafter LASTRA,CENTRAL BANKING] and Rosa M. Iastra , CertralBark lnrdeperdence and FinancialStabilit,. 18 BANCO DE ESPA:A ESTABILIDAD FINANciILR . A 49 , 51 - 52 ( 2010 ) [hereinafter Lastra, Central Bark Irdependence] . See also Patricia S.Pollard, A Look Jn1,id Two CentralBaoks: The uiropean CentralBank and the FederalReserve, 85 FED.RES. BANK ST . LoLis REV . 11 , 16 , 18 - 19 ( 2003 ).
13. See Iastra , Centra Bahnk Jrdeende e, supra note 12 , at 51.
14. See general3 (HARLES GOOD-JART, THE EVOLUTION OF CENTRAL BANKS ( 1988 ).
15. Federal Reserve Act of 1913 , Pub. L. No. 63 - 43 , 38 Star. 251 , 251 (codified as amended in scattered sections of 12 U .S.C.).
40. See European Central Bank Decision No. ECB/2010/5 Establishing a Securities Markets Programme, 2010 () . J. 1 124 /8.
48. See Press Release, ECB, ECI Announces Measures to Support Bank Lending and Money Market Activity (Dec. 8 , 2011 ), available at http://,"w.ecb.int/press/pr/ date/2011 /html/prl 11208_ 1 .en.hiil [hereinafter ECB Press Release].
49. Id . "After one year counterparties wvill have the option to repay any part of the arnounts they are allotted in the operations, on any day that coincides with the settlemCnt (lay of a main refinancing operation. Countlerparties must inforim their respective NCB, iving one wveek's notice, of the amount they wvish to repay." Id.
50. Id .
51. See id.; see also Summary of Ad Hoc Comunication Related to Voneta) , Policy Impleme ntation Issvued b the ECB Since 1 Ja 2200a7y FE0UiR . CENT . BANK, http://ww. ecb.int /mopo/implement L/oo/html/cominunication.enh. tnl (last visited May 25 , 2012 ).
52. See Mark Milner, Europe's FinancialArhitect,GUARDIAN (U.K.) , Aug. 15 , 2003 , http://ww.guardian.co.uk/'business/2003/aug/16/3. According to Alexandre Lamfalussy, "The greatest weakness in ... [ecconomic and monetary union]is the E. The M Part is institutionally wvell organised. We have a solid... framework. We don't have that tor economic policy." Id.
53. Treaty on Stability, Coordination and Governance in the Economic and Monetary Union art . 111 ( 1 ) (e), Mar. 2 , 2012 (not yet ratified). The Treaty on Stability, Coordination and Governance in the Economic and Monetar) Union, also known as the Fiscal Compact, is an intergovernmental agreement,which isseparate froi an EUwide treaty that must be ratified by twenty-seven member states . Instead, this agreement
66. This Section draws on Rosa Maria Iastra, The Division ofResponibiitiesBe ween the European CentralBank and the National Central Banks Within the European Sstern of CentralBanks, 6 (OLUN . J. EUR . L., 167 . 167 - 80 ( 2000 ), and on LASTRA, supra note 16 , at 210-14.
67. Id .arts. 44 - 46 , at 248-49.
72. See generall LASTRA , sup a note 16 .
69. Commission v.ECB, Case C -I 1 /00,  E.C. R.1- 7147 , 1 92 .
77. ECB,  E.C. R. 1- 7147 , [ 135
78. See I TRA , supranote 16 , at 224-26.
79. Id . at 481-82.
80. See Rosa M. Lastra & Geoftrey P. Miller , CentralBank Independence in Ordintacl and Extraordinary Times, in CENTRAI BANK INDEPENDENCE: THE ECONOMIIC FO NDATIONS, THE CONSTITUTIONAL IMPI ICATIONS AND DEMOCRATIC ACCOUNTABIIITY 31 , 31 - 50 (Jan lKkincinan ed., 2001 ).
81. Id . at 32.
82. See Rosa M. Lastra , How Much Accountabilift for CentralBanks and Scpeqwisor? 12 CENT . BANKING 69 ( 2001 ) ; see alsoRosa M. Lasura & Heba Shams, PublicAccoantabdity in t'e Fi- , n , .L' Sector, in REGU I ATING FINANCIAI SERVICES AND MARKETS IN THE 2ST CENTURY 165, 188 (Eilfs Ferran & Charles A . E. Goodhart eds., 2001 ).
83. See FA ~ nAN AMTENBRINK . THE DLMOCATic ACCOUNTA ILITY OF CENTRAL BANKS: A COMPARATIVT STUDY OF THE EUROPEAN CENTRAL BANK 9 ( 1999 ).