El Banco Central Europeo y su posición constitucional en el Estado y la Unión Europea

Abstract

The European Central Bank (ECB) is the key manifestation of technical independence in the political-constitutional laboratory of Economic and Monetary Union (EMU). This dissertation traces the transformations that this organisational principle has undergone as a manifestation of the new status of the ECB. The thesis contends that the constitutional question raised by the object of study is not so much the theoretical reconciliation of technical independence with the democratic principle (as an organisational principle of power within a legal and material context that is assumed to belong to the state), but rather how the dilemmas of the constitutional states of the euro area are to be dealt with in the present day. Ultimately, the question alludes to the very contradictions of liberal-democratic political theory, which since modernity has found its political reference society in the nation-state and has ordered constitutional thought precisely around this territorial unit. The dissertation approaches the object of study from a technical-legal approach that includes legal-material components. On the other hand, the theoretical assumptions that have explained and justified the ECB's legal existence are made explicit, in line with the repeated extensions of its organisational principle (technical independence). This purpose leads to an analysis of the economic theories in which a generally accepted definition of the technical independence of central banks has begun to emerge; the economic explanations of what an optimal currency area (should) involve; or the identification of the classical macroeconomic instruments (e.g. the exchange rate or public debt) that allowed the State to expand its budget and thus adapt to the different social demands that would condition its internal legitimacy..... The theoretical discourse is essentially based on a socio-legal definition of the state and its political constitution, despite warnings about the formal or procedural importance of legal institutions (and the ECB in particular). As regards the ECB, this thesis identifies the material needs of European Monetary Union and the consequences of these needs for the telos originally set for the supranational monetary body. The central thesis is that the principle of technical independence is not the antithesis of the democratic principle. On the contrary, it is a criterion for the organisation of power which is inseparable from the democratic principle and which, in the sphere of the European Union, illuminates the efforts of the constitutional state to continue to reproduce itself as the basic unit for the organisation of political power and, at the same time, to guarantee its legitimacy in a context of greater complexity. From this perspective, the socio-political pressure exerted on the ECB at least since the Great Financial Crisis - to compensate, through its technical function, for what can only be provided by political means, i.e. the creation of fiscal instruments to ensure the stability of the single currency area - highlights the classic existential dilemma of the nation-state: how to efficiently fulfil its (ever-expanding) legal objectives in order to guarantee the conditions of its legitimacy, without completely diluting its original political power. The ECB's constitutional problem stems precisely from the socio-political constraints that its environment (EMU) imposes on the essentially technical functions of the monetary authority. In contrast to other turning points in the contemporary history of the constitutional state, the member states of the euro area have reached a limit. The next "concession" required today to respond to their existential dilemma (i.e. to advance fiscal integration in order to ensure the stability of the euro and thus that of its member states) would entail their own dilution in a federal political organisation. The present doctoral thesis is divided into five chapters. The first chapter identifies the intellectual fabric of the principle of technical independence and the correlative methodological concession of the Nation-State that would allow it, for the first time, to accommodate its founding dilemmas (accepting a new organisational principle juxtaposed to the democratic principle). It is shown that the origin of technical independence as a legitimising criterion of power is to be found in the phenomenon of growing social complexity generated by the technological revolution, in the face of which Parliament would demonstrate its intrinsic shortcomings in adapting its normative action. The ordoliberal worldview of the relationship between the economy (and its functional rationality) and the state (together with its intrinsic pluralism and dynamism) and the intellectual foundations of neoliberal thought, in turn the political-constitutional basis of the regulatory state, are presented. The second chapter describes the classical foundations of the technical independence of central banks, or, in other words, the second concession that the contemporary constitutional state would allow in order to meet its existential dilemmas: the management of the economy by means of specialised technical institutions in order to guarantee the credibility of the state's economic policy. Independent central banking, as defined according to neoclassical economic postulates, will be presented. The third chapter focuses on the ECB as the quintessential manifestation of the principle of technical independence and the culmination of methodologically plausible concessions to the contemporary constitutional state. With the entry into force of EMU, the member states conceded the transfer of their monetary power to the supranational level. However, the institutionalisation of the European System of Central Banks and the ECB would provide Member States with a safe haven within which they hoped to rebuild a minimal capacity to stabilise national currencies (and potentially economies) around the international market's recurring confidence in the Deutsche Mark. In this sense, the fact that political negotiations on the creation of EMU would only begin after the collapse of the Bretton Woods monetary system shows how the ECB would be yet another attempt by the state to accommodate its fundamental dilemmas. On the other hand, it identifies the reasons that led to a new objective being assigned to the ECB (safeguarding the financial stability of the Union and its Member States). Using a diachronic approach, it outlines policy measures taken since 2008 to stabilise the euro area. It explains why this is a story of political failure and how the absence of fiscal mechanisms for the redistribution of credit within EMU puts pressure on the telos of the ECB, requiring it to compensate - by technical means - for the refusal of EU member states to federalise their economic destinies around the euro. In view of the fact that the attribution of a new objective to the ECB extends the limits of the powers originally laid down in the founding treaties, the question on which the fourth chapter of this dissertation focuses is whether such an extension would automatically weaken the organisational principle based on technical independence. The answer to this question is provided by a comparison with the US Federal Reserve - a model of independent central banking with a dual objective (price stability and low unemployment). The attribution of a dual objective to the Federal Reserve has generally been described as an element that would greatly expand its discretion, as it would have to choose not only between the appropriate means to achieve monetary stability, but also between the objectives to be prioritised at each point in the country's business cycle (monetary stability or low unemployment). It will be argued that, provided this democratic exception is compensated for by a stronger link to the democratic principle, a dual objective of the central bank does not in itself violate the principle of technical independence. The Federal Reserve fulfils this requirement, since its telos derives not only from its founding law but also from an institutional evolution in which it has internalised the will expressed by the people in the great constitutional moments of the United States. In the fifth chapter, the research is summarised on the basis of seven central theses. First thesis. Doctrinal studies have sought to clarify whether there has been a monopolisation of the demos by the technos in the face of the phenomenon of the teleological extension of the ECB's principle of technical independence. Formulated in this way, it is clear that the problem of the ECB's legitimacy is approached from the classical disjunction between technical independence and democratic principle. From a methodological point of view, this approach leads to an impasse. It points to the irreversible weakening of the ECB's legitimacy (based on its technical independence) due to the excessive politicisation of the institution, without offering alternatives that would enable it to fulfil its primary objective (to guarantee price stability within the EMU). This approach renders impossible the identification of the ultimate cause of the constitutional problem. To this end, the technical-legal research must take into account the institutional environment in which the principle of the technical independence of the European Central Bank operates (the Economic and Monetary Union). Second thesis. The recognisability of the ECB according to its organisational principle (technical independence) continues to presuppose that it meets three conceptual requirements common to all contemporary central banks: (i) a precise teleological delimitation; (ii) functional rationality; and (iii) detachment from politics (in this case, national and supranational). Third thesis. The constitutional problem of the ECB has to be reconstructed on the basis of the conceptual nature of its principle of organisation. The principle of technical independence has a relational and elastic nature. It is a method used by the nation-state to compensate for its inability to meet the higher socio-economic requirements of internal legitimacy. It is thus possible to place the constitutional problem of the ECB in the broader theoretical context of the contradictions inherent in the nation-state. Since the beginning of the twentieth century, technical independence has emerged as a recurrent method of the nation-state to accommodate its existential dilemma: how to ensure the efficient fulfilment of its objectives (read the preconditions of legitimacy of the constitutional state) and at the same time reproduce itself as a political unit of reference in the global arena. Fourth thesis. There is a constitutional projection in the economic foundations of the principle of the technical independence of the central bank. The understanding of the economic phenomenon from the perspective of constitutional law requires the reconstruction and critical integration of the economic phenomenon on the basis of the classical conceptual tools of constitutional law. The mutual reproduction of the two subsystems is reinforced by the interrelation between the economy and politics. The tools of constitutional law to contain the latent anti-democratic capacity of the principle of technical independence are the principle of popular representation, political and social pluralism and the democratic method of alternation (between the actual and potential majority). Fifth thesis. The constitutional problem of the ECB can be explained in the light of the failure of the nation states of the euro area to react (politically) to the imbalances inherent in a common currency area in order to save national sovereignty. The socio-economic pressure constantly exerted on the supranational monetary body is the main consequence of this political failure. Sixth thesis. The potentially redistributive interventions of the ECB cannot (and should not) compensate for the political-constitutional requirements inherent in a single currency area (i.e. the existence of a federal fiscal power) if the plausibility of the principle of technical independence is to be guaranteed from a constitutional-democratic point of view. Seventh thesis. While the ECB reproduces its technical legitimacy despite its context - that is to say, despite belonging institutionally to an unstable monetary area lacking a principle of territorial solidarity capable of stabilising it politically - the Federal Reserve guarantees its legitimacy over time precisely because it manages to update its (essentially technical) institutional existence according to the constitutional transformations of the federal political organisation in which it is legally embedded. The relevant bibliography (both Spanish and international) on the subject has been taken into account in the preparation of this thesis.