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NUMERO 7 - 28/03/2018

 The justiciability of ECB 'soft' measures against the financial crisis

Despite the Treaties confer on the ECB mere technical tasks, since the outbreak of the financial crisis the ECB has been taking several policy actions, partly filling the lack of a strong political authority in the Economic and Monetary Union. In doing so, the ECB has also been relying on soft law or simply on communication strategies, in order to manage the expectations of market operators without – formally – breaching its constitutional limits. For the time being, the soft law acts adopted for this purpose have been brought before European (i.e. national and purely EU) Courts mainly in three cases. Two cases deal, from different perspectives, with the (in)famous question of illegality of the Outright Monetary Transactions (OMTs), which involved both national and EU judges. The third case is related to the ECB’s policy location of central counterparts, challenged before the General Court of the EU. The approach showed by some of the involved Courts appears rather intrusive and, therefore, raises interesting question on the role of the national and supranational judiciaries in relation to soft law and, more generally, on the development of the EU system of judicial protection. In particular, this paper highlights how EU limits to individuals’ locus standi might well become dangerous, exacerbating further legal debates between top national and supranational judiciaries, and draws the attention on the peculiar, and potentially unlawful, procedure of preventive legal control that both national and EU Courts have ensured in the specific context of OMTs... (segue)

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