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Legal Aspects of the European System of Central Banks: Liber Amicorum

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Legal Aspects of the European System of Central Banks: Liber Amicorum LEGAL ASPECTS OF THE EUROPEAN SYSTEM OF CENTRAL BANKS LEGAL ASPECTS OF THE EUROPEAN SYSTEM OF CENTRAL BANKS SYSTEM THE EUROPEAN ASPECTS OF LEGAL LIBER AMICORUM EUROPEAN CENTRAL BANK EUROPEAN PAOLO ZAMBONI GARAVELLI LEGAL ASPECTS OF THE EUROPEAN SYSTEM OF CENTRAL BANKS LIBER AMICORUM PAOLO ZAMBONI GARAVELLI © European Central Bank, 2005 Address Kaiserstrasse 29 60311 Frankfurt am Main, Germany Postal address Postfach 16 03 19 60066 Frankfurt am Main, Germany Telephone +49 69 1344 0 Website http://www.ecb.int Fax +49 69 1344 6000 Telex 411 144 ecb d All rights reserved. Reproduction for educational and non- commercial purposes is permitted provided that the source is acknowledged. The views expressed in this book do not necessarity reflect those of the European Central Bank. ISBN 92-9181-701-5 (print) ISBN 92-9181-702-3 (online) CONTENTS INTRODUCTION Antonio Fazio 7 BIOGRAPHIES OF AUTHORS 9 PAOLO ZAMBONI GARAVELLI: A PORTRAIT Marino Perassi 19 THE EUROPEAN UNION AND THE EUROPEAN SYSTEM OF CENTRAL BANKS Monetary policy and central banking in the Constitution Jean-Victor Louis 27 The EU Constitution: its impact on Economic and Monetary Union and economic governance Dominique Servais and Rodolphe Ruggeri 43 Adjusting ECB decision-making to an enlarged Union Thomas Wagner and Gerd Grum 73 Legal interpretation within the European System of Central Banks: is there method in ’t? Frank Elderson 93 National emergency powers and exclusive Community competences – a crack in the dam? Chiara Zilioli 115 Inside EU, outside EMU: institutional and legal aspects of the Exchange Rate Mechanism II Kirsten Rohde Jensen 135 Confidentiality of central bank documentation: legal professional privilege in the UK John Heath 147 3 THE EUROSYSTEM The Eurosystem Etienne de Lhoneux 161 The issue of the democratic legitimacy of the Eurosystem: a sketch Phoebus Christodoulou 179 The role of the decentralisation principle in the legal construction of the European System of Central Banks Francisco-Javier Priego and Fernando Conlledo 189 The role of the ESCB in banking supervision René Smits 199 Central bank independence and responsibility for financial supervision within the ESCB: the case of Ireland Joseph Doherty and Niall Lenihan 213 MONETARY LAW The legal status of the euro Patrice de Lapasse 235 How euro banknotes acquire the properties of money Bernd Krauskopf 243 The legal protection of the euro as a means of payment Giuseppe Napoletano 257 CENTRAL BANK INDEPENDENCE AND CENTRAL BANK STATUTES Central bank independence under European Union and other international standards Robert Sparve 271 National experiences in addressing the issue of independence in central bank statutes: 287 Lithuania Gintautas Pošiūnas and Liutauras Žygas 288 Malta Bernadette Muscat 297 Slovakia Milan Gašparík 303 4 National experiences in preparing for the integration of national central banks into the Eurosystem: the Organic Law of Banco de Portugal Jorge Santos and Maria Amélia Saraiva 309 Break with the past: the Organic Act of De Nederlandsche Bank N.V. Jan Barend Jansen 323 FINANCIAL LAW Tax barriers on the way towards an integrated European capital market: the EU Savings Directive as a challenge for clearing and settlement systems Joseph De Wolf 339 The Eurosystem’s credit operations and legal protection of collateral under Community law Federico de Tomasi 355 The Hague Convention on the law applicable to book-entry securities – the relevance for the European System of Central Banks Diego Devos 377 Optional instruments for the integration of the European financial markets Antonio Sáinz de Vicuña 397 EPILOGUE Lorenzo Bini Smaghi 413 Disclaimer This book contains a collection of articles written by friends and colleagues of Paolo Zamboni Garavelli. These are personal contributions to a collective work aimed to honour his memory. Although the authors are or have been members of the Legal Committee of the European System of Central Banks (ESCB), and the contributions depict several legal aspects of the ESCB, the views contained in those chapters are personal to their respective authors and cannot be considered to represent the collective views of the Legal Committee. The content of the book does neither describe the opinion of the respective institution for which the authors work, nor the position of the European Central Bank as editor of the book. 5 Paolo Zamboni Garavelli INTRODUCTION Antonio Fazio It was just over a year ago that Paolo Zamboni died. He had a long and distinguished career in the Bank of Italy that began in 1970 when he joined the Legal Department. His cursus honorum led him first to the position of Head of the Law and Economics Office and then to that of Head of the Legal Department. The area of the Bank that deals with legal research and advice has acquired substantially broader duties and powers in recent decades. In addition to preparing opinions and assisting in pleadings, increasingly it has worked closely with the Bank’s Directorate in the fields of banking supervision and central banking. Paolo made an important contribution to the acknowledged prestige of this role. Paolo spread his professional expertise with great versatility in many directions: from the reorganisation of public banks to the groundwork for the Consolidated Law on Banking; from antitrust measures in the banking sector to the study of law from the viewpoint of economics, to the international aspects of the Bank’s activities. He followed the progress of the Monetary Union from its conception to its creation. His example to us is one of conscientious professionalism, particularly for the profundity of his thought and his ability to tackle every new situation with enthusiasm, inspiring the involvement of his colleagues, especially the younger generations. He has also left us with the memory of his exemplary conduct, the equable, courteous and sympathetic manner that never left him, not even in the difficult period of his illness. He was one of the small circle of legal experts assisting the Committee of Governors to draw up the Statute of the European System of Central Banks. His skill as a jurist and legal practitioner earned him an assignment of great responsibility and complexity when it became necessary to draft the national measures that would adapt Italian law to European legislation on monetary policy and the European System of Central Banks and thus govern the Bank of Italy’s entry into the System. It is therefore a highly commendable idea to honour the memory of Paolo Zamboni with a collection of writings on the subjects that were closest to his heart. These issues have gained enormous importance in recent years with the creation of the European System of Central Banks and its subsequent entry into operation – steps which have called for great effort and commitment, particularly in the legal field. 7 The establishment of uniform rules, allowing the new system to operate efficiently in a framework founded on a plurality of jurisdictions and acknowledged rights, was an arduous challenge. It was won by achieving a balanced solution between a common monetary law and different national rules, whose diversity is an inexhaustible source of wealth for European legal culture. From the outset, the decision-making bodies of the European Monetary Institute and then of the European Central Bank continuously received meticulous and valuable advice and assistance from the groups of legal experts of which Paolo was a member (initially the Working Group of Legal Experts and subsequently the Legal Committee). Fundamental issues for the establishment and working of the System, such as the convergence of national laws and regulations and the concept of central bank independence, were analysed in those groups. The independence criteria were developed considering the tradition of autonomy of central banks, deeply rooted in their history and national legal framework. Analysing and solving the many legal questions brought to light by the operation of the system was a crucial part of ensuring that it would function with increasing efficiency. The groups of legal experts made an invaluable contribution to the drafting of the rules that govern monetary policy operations and the various tasks entrusted to the System by the Treaty and the Statute. Paolo Zamboni maintained an attitude of open and incisive collaboration at all times, including in various international fora, where he stands as an example to all of those who work and participate there. 8 BIOGRAPHIES OF AUTHORS Lorenzo Bini Smaghi Lorenzo Bini Smaghi is a Member of the Executive Board of the European Central Bank. He was previously Director General for International Financial Relations at the Italian Ministry of the Economy and Finance from 1998 to 2005, Deputy Director General for Research at the European Central Bank in 1998 and Head of Policy Division at the European Monetary Institute in Frankfurt from 1994 to 1998. Previously, he was Head of Exchange Rate and International Trade Division at the Research Department of Banca d’Italia from 1988 to 1994 and Economist in the International Section of the Research Department of Banca d’Italia from 1983 to 1988. Phoebus Christodoulou Phoebus Christodoulou is Honorary Professor of Athens University and General Counsel and Director of the Legal Department of the Bank of Greece. He is currently a member of the Legal Committee (LEGCO) of the ESCB. A graduate in Economics and a graduate in Law of the University of Athens, and Doctor in Law of the University of Hamburg, he has been a practising lawyer in Athens since 1968. In 1990 he joined the Bank of Greece, where he was appointed to his current position. He is the author of various publications in the field of civil law, commercial law, maritime law and insurance law, is a member of several academic and professional associations, and is a visiting and part-time Professor of Law in Greece and the US.
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