The ECB as Agent or Trustee in Light of the ESM?

Abstract

Traditionally delegation theories justify the powers of non-majoritarian institutions, such as the European Central Bank (ECB). In this vein, this paper presents first a gliding scale of delegation with agents on the one end of the spectrum and trustees on the other. Secondly, this scale is applied to the ECB’s tasks delegated by the European Stability Mechanism (ESM). This paper argues that a divergence exists between the ECB’s role according to the ESM Treaty (an agent), and the politics of post-delegation (a trustee). This is problematic as the control mechanisms are not aligned with the ECB’s de facto discretion. Also, the legal boundaries of delegation, i.e. the Meroni doctrine, disclose a problem of judicial protection against the ECB’s actions in light of the ESM. The importance of this research has increased as the European Commission proposed to incorporate the ESM in the EU legal order, particularly because the tasks of the ECB have not been altered.