Droit et Économie - L'avenir de l'Union économique et monétaire : une perspective franco-allemande - 177

THE ROLE OF CENTRAL BANKING IN EMU 177

which is governed by one government and can be defined by uniform national laws. In the euro zone, the economic area overseen by the ECB is as
diverse as the national economic policies and the national laws that still
co-exist with EU law. Accordingly, while under Article 119 (2) TFEU the
ECB is required to apply a single monetary strategy, its object is not coherent but builds on the economic situation of the 19 countries meanwhile
participating in the euro area. The complexity of the task was increased by
both, the financial crisis of 2008/2009 and the debt crisis that followed.
First, the financial crisis led to a new understanding of monetary policy:
"The lessons from the crisis are that the financial sector can have a very
large impact on economic activity and can make the economy highly
nonlinear."57 Not for the first time in history, central banks had to learn
that instability of the financial markets could threaten the proper functioning of monetary policy. Second, the task to implement a single monetary
policy was aggravated once the sovereign debt crisis has been amplifying the
economic divergences between the Member States.58

C. Legal control of discretion exercised by the ECB
What are the consequences for the interpretation and application of Treaty
provisions on monetary policy?59 The answer is, it is suggested, that the judicial approach to monetary policy in general (not only in EMU) should
reflect the specific conditions of this area of law to a larger extent. Also in
a national context, courts do not deal with the various areas of administrative law in the same way, depending on the leeway granted by the legislator
to the administrative authorities, the structure of the decision making process of an authority and the content of the respective decisions. Rather, it is
acknowledged that the legal control of a measure taken, e.g. by the police
differs considerably from the control of an administrative plan for the development of a housing area. Compared to the various areas of administrative
law, also monetary policy builds on certain elements of administrative planning. These elements are a) finality and not conditionality of the legal
programme, b) relative openness of legal determinants and complexity of
factors that have to be taken into account by the competent authority, and
c) orientation of measures toward the future. The main differences to traditional forms of administrative planning can be found in the continuous
character of monetary policy, the instruments used to implement policy

57. MISHKIN, "Monetary Policy Strategy: Lessons from the Crisis", NBER Working Paper 16755
(2011), p. 32.
58. On the growing economic divergences see PISANI-FERRY (note 22), p. 129-131.
59. On the contrafactual function of law in this context see RUFFERT (note 18), p. 32.

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