Democracy, Translucidity and Accountability: The Eurozone vs. The Democratic Right to Know

Abstract

One thing is certain about Brexit: The allegedly ‘unpredictable’ outcome of the referendum has fed a new scholarly fad. ‘Instant’ working papers, instant special issues, even instant books have already been written, dealing with the backstage of the Brexit campaign, the ‘causes’ of the popular ‘revolt’ and the plots and counterplots in the corridors of power and the antechambers of spin doctors. The supply of futurologist analyses of the consequences of Brexit to the (dis)United Kingdom are also in strong supply. The paradox of Brexit as a ‘pop-out’ academic industry is that most of the enthusiastic academic entrepreneurs that have built the field implicitly endorse the perspective of most radical Brexiteers by focusing almost exclusively on the British side of the affair. As if Brexit was an entirely British issue, as if the state of the European Union did not influence the outcome, as if the United Kingdom leaving the European Union was not bound to affect the European Union too. Listening to some of the debates, one might be forgiven for entertaining the thought that Brexit is even more paradoxical than the unwritten but very written British Constitution, given that it boils down to the divorce of a polity that remained rather unengaged all these years. Thus, it is not far-fetched to conclude that Brexit requires scholarly analysis that tackles the structural causes and the structural implications of a momentous decision for both the United Kingdom and the European Union. Majone's sober and balanced piece provides a much needed counterpoint to the mass of on-the-hoof analysis. Instead of focusing on the short-term vagaries of electoral politics, or divining the outcomes of the ongoing bargaining games, Majone sets Brexit in its long-term context, showing the extent to which it is a further (and still very important) symptom of the structural crises the European Union is going through. Perhaps even more importantly, Majone renews his plea for thinking European integration along very different lines from the ones favoured by mainstream EU studies, namely as a concentric set of functional ‘unions’, capable of complementing the capacities of Member States without eroding the basis of their democratic legitimacy. Both Majone's diagnosis and prognosis are bound to be highly polemical, in the best ELJ tradition. The European Central Bank (ECB) has gained major new formal competences and substantive powers as a result of the many transformations triggered by the manifold European crises. This more than justifies reconsidering the foundations of the legitimacy of the ECB, and more specifically, how the said legitimacy depends on the institutional setup and procedures that ensure the ECB acts in a transparent fashion and remains accountable to supranational and national representative institutions. This is precisely what Curtin invites us to do in her contribution. The accrual of new powers to the ECB, both through explicit changes in the law, and perhaps even more so, due to emerging conventions among European and national institutions, requires that we reconsider the legitimacy equation of the ECB, that we not only test both the accountability and the transparency of the ECB, but also, and perhaps above all, the relationship(s) between the two. Curtin cautiously leans towards (on-the-alert) scepticism. There is no doubt that the ECB has become more active in presenting itself as a transparent institution, and has indeed devised and deployed a ‘communication’ strategy. Still, ‘managed’ transparency is hardly conducive to the kind of accountability that can be demanded from any public institution, no matter how capable of mobilising expert knowledge. To put it differently, unilateral ‘communication’ initiatives cannot by themselves guarantee legitimacy, because there is always the risk that, without further checks and balances, they become clever legitimising ploys. But checks and balances are few and far between. The powers not only of national parliaments but also of the European Parliament are limited to engaging with the ECB in a ‘monetary dialogue’ largely steered by the ECB itself. By the same token, members of the public (individuals, organisations and media) can only have access to ECB documents if and when the ECB finds it appropriate to release them. The different polemics around Trichet's penchant for writing letters prove the point rather abundantly. That the ECB has stonewalled when required by national parliaments to release letters that were of essence in reconstructing the causal chain leading to the request for financial assistance by the Irish state, the ‘express’ amendment of the Spanish Constitution in 2011 or a rather particular change of government in Italy at the end of that same year is not exactly reassuring. I come back briefly at the end of this editorial to the issue. Byberg adds a very important new block to the edifice of the emerging history of European law as a scholarly discipline. Her article breaks the promising ground of research into the history of law journals by offering us the key elements of the history of the Common Market Law Review, the leading (black-letter) journal on European law. Relying on the archives of the journal itself and on interviews with the ‘founding fathers’ of the journal (no founding mothers, quite revealingly), Byberg paints a vivid fresco, which is at the same time a reminder of the fragility and resilience of scholarly journals, of the twists and turns through which scholarly fields are established and defined, and of the complex relationship between EU scholars and the EU as a polity and power centre. Byberg's historian's knack for combining the big and the small picture results in a contribution that throws light on the coming of age of EU law by means of focusing on the details. While the disciplinary lenses are rather different ones, McRea's piece is also one that makes use of history to throw light on the present European Union. It seems to me that McRea touches one of the raw nerves of European integration: its militant ‘telos’ so punchily summarised by the motto ever closer Union. McRea notes that the phrase is not only a clever rhetorical trick, but has become over time part and parcel of the constitutional (un)conscious of the European Union, to the point that the coherence of the present setup of the European Union is dependent on the expectation, almost certainty, that further powers will be centralised, further policies will be developed, and further resources will be managed by supranational institutions. But what if the promissory note cannot redeemed? Then, as we may be learning the hard way in the last two decades, a half-full glass may not only be a half-empty glass, but also a rapidly depleting half-empty glass. What yesteryear were regarded as the embryo of further institutional structures or policies are revealing themselves to be inconsistent institutional setups (viz. the Eurogroup) or policies (EMU), too rigid to make the complex (‘half-made’) Union work. McRea's key message may be that good bicycles are those capable of standing even if the cyclist is not pedalling furiously. Nicolosi provides a carefully crafted analysis of the right to asylum in European constitutional law, and in particular, of Article 18 of the Charter of Fundamental Rights. This article, even if crystallising the constitutional traditions common to the Member States and the practice around the European Convention of Human Rights, can be fairly said to have given a further impulse to the formal commitment of European states to the right to asylum. But the proof of the cake is always in the eating, something that can perhaps be translated into legalese by reminding ourselves that where there is no remedy, there is no right. Nicolosi stresses the extent to which the substantive content of the right to asylum relies on the close connection between the right to asylum and the right not to be expelled when in danger (a right which fittingly given its origins is referred as non refoulement), and should have a decisive normative horizontal effect on the interpretation of the whole set of European migration norms, including the (in)famous Dublin rules (subject to detailed analysis in recent issues of this journal) and the (even more in)famous EU–Turkey ‘statement’ (or in plain English, agreement between the EU and Turkey on the refugee crisis, which has also been critically reviewed in these pages). Joerges and Kreuder-Sonnen offer a panoramic analysis of the evolution of EU studies in the last decade, a period marked by the many, overlapping and mutually reinforcing crises that have pushed off balance the European Union. The core thesis of the article is that both political scientists and lawyers have turned a blind eye to the structural challenges that underlie the crises. It is not only that EU studies were slow in coming to terms with the crises, but also that the crises have been downplayed by EU scholars by means of divorcing the analysis of the transformation of the European Union and of European law from the normative implications of the mutating and mutated Europe. Political scientists have approached massive changes in the institutional setup of the Union, the governance architecture of European Monetary Union or public attitudes towards integration as if they did not have far-reaching constitutional and normative implications. This worrying blindness to normative implications is the price that has been paid to keep on using the conceptual and analytical grid of neo-functionalism, liberal intergovernmentalism and historical institutionalism (of pretending, in short, that it was possible to do business as usual). By the same token, legal scholarship has closed its eyes to the rather obvious birthmarks of the whole set of legal norms produced in the name of containing and overcoming the crises (‘crisis law’) by means of radicalising the normative asepsis of the constitutional theories that mainstream EU legal scholarship has cultivated in the last three decades: treaty constitutionalism, economic constitutionalism, functional constitutionalism. Joerges and Kreuder-Sonnen note, however, that the critical fringes are gaining traction: not only we can see new politico-scientific paradigms and constitutional theories coming to the fore, but also the emergence of critical voices within established paradigms denouncing the divorce of facts and norms. It is perhaps this mixture between the old and the new that authors find congenial to their approach, which perhaps can be summarised by Hume's dictum: ‘If false, let [these] arguments [be] rejected: But no one ought to entertain a prejudice against them, merely because they are out of the common road’. The issue has an ‘extra track’ in the form of an analysis of the possible causes and likely implications of the decision of the Danish Supreme Court in the Anjo case. Non-discrimination on the basis of age has proven again to be a minefield when it comes to the relationship between European legal orders. On its surface, Anjo can be said to be a replay of Mangold. Perhaps reassured by the déjà vu traits of the case, the European Court of Justice failed to notice that when the Danish Supreme Court sent it a preliminary question before deciding the case, this was far from a routine preliminary question. Luxembourg judges failed to realise the hand they were being asked to play, and limited themselves to instruct Danish Courts to solve the conflict between what EU law seemed to require (rendering effective, even among private parties, the principle of non-discrimination on the basis of age) and the legal solution the Danish Court reputed stemmed from Danish law (not rendering the principle effective, in particular on the basis of the clear and well-established interpretation of the relevant pieces of law by the Supreme Court itself militating against) by interpreting Danish law in line with what EU law required. Indeed, Advocate General Bot seemed to suggest that it sufficed the Supreme Court to change its own construction of Danish law. But that was precisely what the Danish Court was resolved not to do. As Madsen, Olsen and Šadl point out, that was not only a bridge too far, but also a move coming too late in the jurisprudential (and perhaps social and political) game. While the Danish Supreme Court had a long track record of being ready to be as pragmatic as needed to avoid conflicts between EU law and Danish law, things had changed by the end of 2016. Not only had the very composition of the Supreme Danish Court changed, but the socio-economic environment had rapidly evolved (as perhaps attentive readers of newspapers could have noticed). There were indeed clear signals of the new spirit of the age in the last big ruling of the Danish Court on European matters of 2013. Anjo may perhaps come to be regarded as an isolated instance of unease. Still, Madsen, Olsen and Šadl remind us that the stance of the Danish Supreme Court could also set the tone for further developments in other European countries. For the times they are achanging. And perhaps the CJEU judges should occasionally read the biographies of, say, Alf Ross. A final coda. Curtin's article engages with fundamental theoretical questions which have immediate and very visible practical implications. Consider, for example, access to ECB documents, and more precisely, access to the legal opinions on the basis of which the growing powers of the ECB are exerted. Whether these legal opinions are produced by the legal service of the ECB (‘in-house’), or commissioned to ‘external’ jurists, the fact of the matter is that it is consolidated institutional practice to be extremely selective in their publication. The rule of thumb is indeed that the opinions, very especially if dealing with ‘sensitive’ issues (and which issues decided by the ECB are not sensitive?), are covered by a veil of secrecy. This is the case for the ECB, but is also the institutional practice of the other European institutions. In the early days of European integration, it was not fully implausible (even if at the end of the day hardly persuasive) to claim that the very ‘international’ character of the Communities rendered advisable sheltering the legal services from too close a public scrutiny, which could perhaps undermine the forging of a genuinely supranational vision, hardly to be expected to emerge if there was constant blaming and shaming of legal opinions and institutional lawyers along national lines. However, such line of reasoning cannot be even tried if the said legal services promote a ‘constitutional’ reading of European law (as Byberg's article reminds us, the ‘constitutional turn’ in the interpretation of EU law is part and parcel of the very identity of European law as a discipline). If indeed European law is worthy of being constructed in a constitutional key, then the publicity of legal opinions should also be approached from a constitutional perspective, which would require publicity, not confidentiality. The alternative argument according to which the legal opinions of the legal services of the institutions are protected by the ‘attorney-client’ privilege is just a poor substitute of the original rationale of secrecy. Leaving aside the fact that no public institution can be regarded as an ‘ordinary client’, it is to be expected, and indeed desired, that legal advice offered to public institutions be provided with the expectation that it will be made public at the end of the day. Citizens have a collective interest in advice being so provided as to stand the test of being rendered public. Not only political decision-making in a democratic state should be based on public, not private reasons; but those providing legal advice to public institutions should not be given the impression that they are advising those holding public office in personam. It is one thing to be the lawyer of the ECB; another to be the lawyer of the President of the ECB. The only effective way of keeping the proper distinctions in place is for the general rule to be that legal opinions are always rendered public. Certainly, there can be good reasons to delay publication: the public good is occasionally served by not revealing what state institutions are going to do long before they do it. In other words, it would be unwise to reveal the legal and policy hand of institutions if doing so would by definition undermine the very effectiveness of the decisions envisaged. But that only provides a justification for delaying publication (and only within reasonable time limits), not for keeping legal advice to public institutions eternally secret (or secret for 50 years, which is almost the same). It is indeed standard practice in democratic states to render public all the legal opinions provided to public institutions. Why should the European Union not do the same? 1 In the coming months this question may well be widely discussed as a result of the legal proceedings launched by the former Greek Chancellor of the Exchequer, 2 Yannis Varoufakis, with the aim of rendering public the legal opinions it seems the ECB commissioned 3 before taking some of its more fateful decisions ever. On 4 February 2015, the ECB reverted the policy it had followed since the beginning of the Greek fiscal crisis, and established that Greek debt did not constitute good enough collateral with a view to getting access to standard ECB liquidity. This implied that Greek banks were forced to rely on ‘last resort’ liquidity through the so-called Emergency Liquidity Assistance (as discussed by Tuori in his article in the previous issue of this journal). Such assistance is not only more expensive, but is not provided by the ECB, but by the relevant national central bank, but still under the tight supervision and control of the ECB. Formally speaking, the decision was justified on the basis that it was no longer certain that a new programme of financial assistance between Greece and the Eurozone would be concluded in the immediate future, and that rendered Greek public debt ineligible as collateral. In substantive terms, however, the decision came literally days after a new Greek government had come into office, and with weeks to run of the extended programme of financial assistance to Greece. This rendered the decision problematic on two accounts. Firstly, was the decision in line with the very practice of the ECB since 2010? Was it reasonable to regard now Greek public debt as too risky when it had not been deemed so before, even at times at which uncertainty over the developments in Greece were equally or even more intense? Secondly, did the ECB need to take the decision at that point in time or should it have waited? If the decision had not been taken once elections have been called for, why take it when a new government had just come into office? The second ECB decision was taken on 28 June 2015, perhaps at the apex of the third episode of the Greek fiscal crisis, during the fateful referendum campaign of late June and early July 2015. By then, Greek banks had been relying on the emergency liquidity assistance provided by the Greek Central Bank for months. As noted, the ECB did not provide liquidity, but exerted tight control over the terms according to which it was provided. There were no clear formal rules on how the ECB should decide. It would perhaps not be far-fetched to add that the ECB seemed to prefer avoiding pre-committing itself to any set of ex ante rules or guidelines, preferring ‘point to point’ refinancing, if one is allowed a nautical metaphor. 4 Quite predictably, this resulted in the liquidity needs of Greek banks being ever bigger, as they haemorrhaged deposits (the better-off making use of free movement of capital to place their money elsewhere, the middle classes and the worse-off withdrawing their pennies and placing them under their mattresses). While the ECB had been increasing the liquidity ceiling on 28 June it decided to it. This the Greek state with no other than a and not only free movement of but also that the ECB could not but the consequences of its and that the had not changed on 28 was the ECB justified in taking such a Indeed, again in view of the was the ECB in constitutional terms, to take such a The former Greek Chancellor of the is of the view that the legal opinions commissioned by the ECB before taking these two decisions should be because they can throw light not only on the issues at but also on the decision-making of the ECB. The ECB has to release the opinions, the arguments and it seems special to the need to the ‘attorney-client’ It seems to me it is of essence to keep and the one may entertain on the substantive of the decisions taken by the ECB and the question the legal opinions should be a picture of what during the months of late and early 2015, as the third episode of the Greek fiscal cannot but be in the public Greek to very especially those have most as a But that is not merely a Greek European have an interest in the of not only what was but also why it was of the legal is what the publication of the opinions will reveal to and of the economic and political of the decisions taken by all European institutions, but by the ECB. it is hard to avoid the that a constitutional would be allowed to the power of and of the ECB over the financial institutions of the That is the of the of the ECB something to which the Advocate General in the Monetary ruling came close as Joerges and Kreuder-Sonnen remind us in their contribution to this issue. In other two after the and with the issues at long the public interest cannot be on keeping the opinions but on them. This case could indeed into a decisive to the veil of that legal opinions in EU law once and for Citizens have a right to the including the legal on the basis of which they are This is not the case if access to decisive legal opinions is in the name of arguments out of place in a democratic and the very constitutional which is said to the practice of European institutions. to the legal opinions of the ECB on liquidity assistance to Greek but indeed all opinions of the legal services of and would be a at the national Why is not at the European