Abstract
The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.
Highlights
On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit
Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur
As the CJEU found, applying a light-touch manifest-error-of-assessment standard, Decision 2015/774 was supported by a sufficient “specific statement of reasons”; the Public Sector Asset Purchase Programme (PSPP) programme fell within the sphere of monetary and not economic policy and within the scope of European Central Bank (ECB) competences; the programme was suitable and necessary to achieve its objectives, meeting the test of proportionality, and it did not violate Article 123(1) TEFU which prohibits the monetary financing of the budget
Summary
“... it should be recalled that, in situations ... in which an EU institution enjoys broad discretion, a review of compliance with certain procedural safeguards –– including the obligation for the ESCB to examine carefully and impartially all the relevant elements of the situation in question and to give an adequate statement of the reasons for its decisions –– is of fundamental importance.” (CJEU, Weiss and Others, Case C-493/17, ECLI:EU:C:2018:1000, at 30). In its Weiss ruling, on a reference from the BVG, the CJEU held that Decision 2015/7746 by which the ECB introduced the programme was not ultra vires and did not violate the EU Treaties which only permit the ECB to pursue monetary but not economic policy.. The upshot of the BVG’s ruling was that, in the BVG’s view, the PSPP programme had to be considered an ultra vires act by the ECB “given the ECB’s failure to substantiate that the programme is proportionate” [232]. It was incumbent upon the German Bundestag to ensure that the ECB does conduct a hard-look proportionality assessment in relation to the ECB. The paper concludes that the concept of process review—as envisaged by neo-Fullerian and democratic experimentalist approaches—may provide a shared common ground here, and requires repair of the ethical commitments which the rule of law requires
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