The disintegration of EU Monetary Law: ECB law

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The process of disintegration of the monetary law of the European Union and the independence of the law of the European Central Bank from its corpus, viewed from today's point of view, in a certain sense seems surprising because the monetary law of the European Union is a relatively young branch of law which, technically speaking when it comes to the process of disintegration of the legal matter. The European Central Bank received confirmation of its institutional status relatively late only with the adoption of the Lisbon Agreement (2009), which speaks in favor of the fact that it is a short period for the specialization of the legal knowledge it creates. Nevertheless, the evolution of its jurisdiction had a grandiose and unpredictable qualitative and quantitative path, whereby there was an increasing downstream specialization of the content of monetary legal norms, which are from the general ones that define the basic axiological tools of modern monetary law as a legal discipline, to the specific regulation of specific monetary relations which arise and develop with all their primary and secondary legal consequences outside the field of application and operation of general monetary norms.

In addition to the International Monetary Fund, the European Central Bank is one of the primus actors of the international monetary order, which is, among other things, one of the decisive factors in the process of substantive disintegration and separation of its legal corpus into the establishment of an independent legal discipline, because the relations it regulates have an external effect. (and very intensively on the monetary legislation of countries that are on the path of European integration). We can note that the sui generis dual status and role of the European Central Bank, which is simultaneously an actor of international monetary and European monetary relations, has influenced its rich and complex range of acts it passes, features of disputes in which it participates and programs of financial and economic development (lately all more and programs of a social nature) in which he directly or indirectly participates.

In the period of the past twenty years, the European Central Bank (which until the adoption of the Lisbon Treaty had a marginal influence in EU law) has become an ingenious creator of a systematic and rich branch of law which, in today's social and economic circumstances, is of precious importance not only for the field of jurisprudence, but also for the daily life of individuals, reconciling the (until then almost incompatible static value patterns and categories of the monetary economy, on the one hand, and the comprehensive protection of human rights, on the other hand. In circumstances where, in the European legal tradition, all branches of rights in smaller or rely to a greater extent on the inherited achievements and solutions of Roman law (which, among other things, shows its universality in the field of monetary law), the formation of new disciplines provides a valuable quality to the legal academy of the European Union and, of course, from a broader perspective to the entire European-continental legal system.

The substance of the subject matter, its topicality, and the approach that is reflected in the smart solution to current legal challenges (which always leaves enough maneuvering space for adaptation), only confirms the thesis about the need to study the law of the European Central Bank as an independent discipline in the syllabi of law schools. The specific institutional position of the central bank in the EU system, its procedural legitimacy and competencies (followed by the continuous upgrading of powers), and the form of dialogue with other EU institutions and international agencies speak of a sui generis independent branch of the legal order that has a hybrid character with elements of private law and public law relations ( but due to the dominance of public law elements, it is closer to the branch of public law) such as monetary law itself, from which ECB law developed through the process of disintegration). If we recall at this point the views of monetarists that monetary law is the response of legal science to changes in the law of value. changes tangible, the right of the European Central Bank, in our opinion, is the response of the highest monetary authority to the changes in the flows of monetary and business finances that the ECB simultaneously shapes and operates in them. When it acts as a regulator of that institutional framework, the ECB fills existing legal gaps with its acts (from the domain of secondary legislation), amends existing solutions, abrogates outdated ones, and, like a creative creator, creates a new legal order within the existing legal system that exists in parallel with it, but is more sophisticated. and shaped according to the needs of monetary traffic, where every regulation of the European Central Bank acts as lex specialis against the general acts of the wider system (lex generali). This relationship, in our opinion, best illustrates the path of implementation of the lex monetary and we believe that this new monetary legal order is independent of the acquis communnauatire. This independence does not have an undertone of controversy and radical attitudes that tend to overturn centuries-old established legal idioms, but on the contrary, they are a reflection of the specific spirit of legal science that always moves forward and brings new understandings that are a consequence of the development of people's awareness of how it is most appropriate to regulate socio-economic relations in by which we live. This does not imply wrong conclusions that the law of the European Central Bank is "irresponsible" vis-a-vis the law of the EU and that it should not be held accountable to the fact that it is, symbolically speaking, its legal parent and in whose cradle it was born.

The European Central Bank loses its meaning outside the context of the European Union to a significant extent because we must always remember that it is a European institution that began its life as the monetary nasciturus of European legislation, but at a moment when its legislative activity matured enough and got the required credibility independent from it to create a kind of legal branch. The independence of the right of the ECB, which we recognize and justify, is not absolute, because such does not exist in modern law, nor is it desirable, because the general principles and settings are still applicable, but due to the specificity of the transmission mechanisms of the monetary economy, they have been relativized to a solid extent and replaced by new principles which are conceptually defined and content-wise conceived in such a way as to follow the path of implementation of monetary sovereignty (solidarity which is guarded by the ECB in the European Monetary and Economic Union), which is a very complex task, because it is no longer implemented only in the world of traditional monnaie scriptururelle, but also in the digital cyber environment in which the boundaries between electronic money (which is a legal tender) and digital money (which, at the moment, is only a monetary innovation that is not universally regulated by monetary law) are becoming more and more blurred.

The European Central Bank, during its activity so far, has shown an enviable institutional ability and strength to use appropriate legal instruments to regulate the challenges of modern social and economic upheavals, which was particularly noticeable during the global economic and financial crisis and, especially, during the pandemic crisis. This is seen through the redefinition of traditional competencies in the field of monetary policy, the establishment of new competencies in the field of fiscal policy (which was previously unthinkable and even strictly prohibited by the norms of firm monetary legislation), and the adoption of some new competencies in the sphere of (non) economic flows such as is the area of social policy and care for the personal well-being of individuals in society. Despite the unquestionable conduct of de lege artis, which in practice is the only thing that can be rightfully expected from an institution like this and is the only acceptable one, the European Central Bank, with its legislative commitment and "wisdom" in the circumstances of Covid-19, has also shown its "humanity", which is a direct reflection of the tendency to set and operate monetary norms in a more humane way inherited from the body of international monetary law (primarily, IMF law). If at this point we remember the frequent emphasis on monetary law as a law of necessity (police law) in literature, then using that analogy we can say that the law of the European Central Bank is an example of the law of "necessity", where the linguistic use of this pleonasm is not accidental, because it reflects a far higher and more serious degree of urgency in regulating the problem of monetary finance. In the previous period, the European Central Bank, as an institution specialized in such actions, undoubtedly demonstrated and confirmed its position as an innovator and creator, not only of the optimal legal regulation of monetary, but also of financial innovations (starting with the legalization of the function of the bank of the last refuge, through the relativization of the clause prohibiting collective guarantees for the public debt established by Article 136 of the Treaty on the EU, up to consideration and announcements on the regulation of digital money and the fight against financial crime, the prevention of the financing of international terrorism), which undoubtedly confirmed its indisputable and unavoidable role as the highest monetary institution in EU law, showing at the same time and concern and understanding for the citizens and the circumstances in which they found themselves when proposing and implementing new monetary measures and instruments. This, conditionally speaking, "new" dimension of humanity in monetary management is far more significant for people in the context of complicated and unpredictable numerous challenges that they encountered during crisis periods because the care and attention of such an institution instill personal security in them, which summarily spills over to general social and economic stability as a public good. The qualitative and quantitative evolutionary shift of the mandate of the European Central Bank is a benchmark according to which other institutions (not only European but also national) should shape and direct possible inter-institutional reforms (from which one should always start) to external reforms that bring about essential changes. the positioning of such an institution in the state management system, that is, the position of its negotiating power in the macroeconomic dialogue. The legal mechanisms of monetary policy coordination, in which the ECB participates and often creates them itself, are of crucial importance from the first day and appear as a conditio sine qua non of preserving the Eurozone in a politically sustainable and desirable way that enjoys credibility and the support of the general public opinion.

 

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