The transformation of the ECB powers in the past decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government of money. Underlying those questions is the inadequacy of categories of public law we use to understand the power of administrative and executive institutions when acting in instances of uncertainty, technical complexity, and high political stakes. Against this background, this chapter characterizes the powers of the ECB as constitutive. It argues that this constitutive nature explains the difficulties of judicial review over monetary policy decisions, and, furthermore, that constitutive powers justify a shift in understanding the role of law in relation to the action of executive bodies. Law can and must operate in the absence (or irrespective) of judicial review, and support accountability outside of the courtroom. This last point will be demonstrated through the analysis of the legal and constitutional scope of the duty to give reasons in EU law.

The change in the Founding Contract that political leaders initiated on 11 February 2010 put great pressure on the legal set-up of the euro that remained largely unaffected. When the European Court of Justice had to rule on the actions to which the change had given rise it consequently found itself between a rock and a hard place. It was not in a position to strike down actions that had been crucial to the single currency’s survival. Yet, in order to approve of them it had to engage in a Herculean struggle with the law that still largely reflected a stability conception from the past. This chapter examines this approval. Two cases are central: Pringle and Gauweiler. Both cases ultimately turned around the question whether and to what extent the law can accommodate the currency union’s new stability conception, characterized by the need to protect financial stability. Most of the Court’s reasoning in these cases is sound or, where it is strained, could have been justified through the use of different arguments. At one crucial point, however, the Court encounters the limits of what can be justified through legal reasoning alone.

The conclusion synthesizes the findings and, on that basis, discusses how the European Court of Justice should have positioned itself in relation to the change in the Founding Contract. It first reflects on the constitution of the Union and shows that this fits the tradition of the ‘constitutional contract’. It then discusses what consequences this has for constitutional actors, including the Court, when faced with a crisis like the one in the currency union. The initiation of the change in the Founding Contract by the heads of state or government on 11 February 2010 was a political act, an exercise of constitutional power outside the law. However, this exercise of political power does receive recognition in the law, in particular, through the principle of loyal cooperation. When the Court has to rule on a measure that has proven essential to preserve the Founding Contract in an emergency, it is under a duty of loyalty to abstain from disapproving it. Yet, instead of assessing and approving such measures on the merits, as the Court did in Pringle and Gauweiler, it should have acted on its duty by silence.