European Papers (Feb 2022)
ECB Decision-making Within the Banking and Monetary Union: The Principle of Confidentiality on Its Way Out?
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1437-1461 | Article | (Table of Contents) I. Introduction. - II. The ECB's transparency exceptionalism within the EU constitutional framework. - II.1. Confidentiality as a necessary governance tool for ECB monetary policy. - II.2. Extending the same confidentiality approach to ECB prudential supervision. - II.3. The compatibility of ECB monetary policymaking confidentiality with EU constitutional law. - III. The exceptional nature of ECB exceptionalism. - III.1. Professional secrecy and confidentiality in banking supervision. - III.2. Transparency and access to documents in the context of the Single Resolution Mechanism. - III.3. Towards increased transparency in Eurogroup activities? - IV. The principle of ECB confidential decision-making on its way out? - IV.1 Prudential supervision activities as "administrative tasks"? - IV.2. Weiss: the Bundesverfassungsgericht's implicit critique on the ECB's confidential monetary policymaking. - IV.3. Confidentiality: an eroding governance modus? - V. Conclusion. | (Abstract) Art. 15 TFEU requires EU institutions to work as transparently as possible. Within the framework of that provision, the European Central Bank (ECB) has been able to benefit from a more lenient transparency regime, in which confidential decision-making takes centre stage in relation to monetary policy and prudential supervision. Somewhat contradictorily, other key actors within the banking and monetary Union (national banking supervisory authorities, the Single Resolution Board and the Eurogroup) do not share the ECB's preference for confidential decision-making. This Article compares those different transparency approaches and questions whether the lack of coherence between them can still be maintained within the current EU constitutional law framework. In that regard, it submits that maintaining confidentiality at least in the field of prudential supervision is difficult to square with the spirit of art. 15 TFEU. In addition, the German Federal Constitutional Court judgment in Weiss has a profound impact on the maintenance of confidential decision-making in the context of monetary policymaking as well. It follows from those observations that the era of confidential decision-making, although not over yet, is at least likely to erode gradually towards more transparency at the ECB.
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