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In general, EC law is adopted through different procedures where the Council, the European Parliament and the Commission have varying competence and functions. The ECB, however, adopts norms with the same legal status but independently of both the other EC organs and Member States. The fact that the ECB cannot function effectively with more restricted powers has not been questioned. Therefore it becomes necessary to consider the relationship between its independence and accountability. A central bank requires a high level of unpredictability in order to succeed in its objective and therefore it becomes difficult to consult other instances when taking decisions. Against this background the ECB is hardly too independent. So far the Bank has not taken measures that could be criticised as unfounded or over-reaching. On the contrary, the ECB has every now and then been described as too careful and moderate in its actions. On second thought, also this can be seen as failure.
Even if the ECB has given the public access to its administrative documents confidentiality surrounds a major part of its working. Still, the Bank is of the opinion that its actions are already now more transparent than required by the Treaty. Still, when compared to legislatures in general, the System is characterised by a lack of transparency and democratic accountability. One should, however, welcome discussion on this topic between the public and the Bank.
Even if monetary policy in a sense seems an abstract area, whether the Bank succeeds or fails in its primary objective, the maintenance of price stability, influences the position of the individual in numerous ways. The realisation of many fundamental rights, such as the right to education, health care and social security, has a strong connection with price stability. Still, the actions of the Bank have only an indirect impact on the individual with the exception of undertakings. The ECB's great investigatory competence and its power to sanction cause uneasiness in the same manner as the similar competence of the Commission has been criticised within competition law. Even the requirement of a sufficiently serious economic impact brings about problems of evidence - it will not be easy to show that the acts of a Central Bank have caused such an injury on an individual. These sanctions are, however, undoubtedly not going to be used very often. Furthermore, it is hard to imagine a situation where a central bank would deliberately adopt measures that infringe on the rights of individuals. Still, the question is also one of principle. The Bank has the competence to infringe on fundamental rights and therefore effective safeguards should be guaranteed against this. It is questionable whether the protection offered by the ECJ can in this situation be regarded as sufficient. It is also important to consider the acts of the Bank in light of the norms of the Treaty and the Statute to guarantee that the Bank does not widen its competence through its power to adopt norms.
The ECB has several times been accused of using power without the accountability that should automatically follow. It is crucial to guarantee that the ECB functions within a system of democratic political power and not outside of one. In the case of the ECB its objective has only been connected to the inflation concept which makes it difficult to find support for responsibility and, consequently, the Bank hard to supervise. The legitimacy of monetary policy cannot in EMU conditions be realised through traditional democratic mechanisms. Instead, combining different supervisory arrangements that restrict and control the delegated powers, for example through judicial review and claims for accountability is necessary.
It is clear that the Treaty-makers have been fully aware of the potential lack of legitimacy of the Bank. Its democratic deficit has not been created by accident. It is, however, uncertain what was the reasoning behind the decision to choose this structure as most of the documents preceding the decision remain confidential. One possible explanation could be the need of a central bank to react quickly without parliamentary intervention, a need that in that case would be regarded as justifying the negative effects in the field of democracy. This would entail that undemocratic decision-making of a central bank would be more acceptable than that of another organ. This is also in many ways the only explanation available due to the Bank's failure to meet both the procedural and substantive requirements for legitimate decision-making. Still, central bank uses great power in a society, which makes it one of the most central organs. The decisions of the ECB affect the lives of hundreds of millions of people. Can it be so that the only thing that matters is efficiency and that the organ only needs to be legitimated through its results? In the author's view, even if the policies of the ECB proved to be profitable for all, the need to consider the relationship between the use of power on the one hand and democracy and the rights of individuals on the other does not disappear.
In many ways, the ECB makes more of an exception to than a modification of the principle of democracy. In order to function, the ECB claims in one sense lower legitimacy standards than otherwise would be required in relation to other legislative organs. This is motivated e.g. with the need to lead the market. In case the ECB is considered an exception to the principle, it is crucial that its actions can still be regarded as legitimate. Democracy, after all, is only one way to create legitimacy. To summarise, there are several scholars who find that the existing arrangements create sufficient legitimacy for the Central Bank System. But there are also those who think that the existing mechanisms, even if they take steps in the right direction, cannot save the situation. The implementation of the powers of the ECB does not enjoy comprehensive legitimacy.
The problem surrounding the independence of the ECB and the undemocratic character of the EMU has perhaps been overrated. The ECB is not the only undemocratic institution, neither at the European nor at the national level. Furthermore, the case of the ECB is not hopeless and there are possibilities to develop the legitimacy of the ECB further. The possibility of giving the European Parliament the competence to initiate an amendment of the Treaty or the Statute should be at least considered. The creation of a specific supervisory organ to control the acts of the ECB is one possible solution. It might also be motivated to re-consider the competence of the Bank when first observed how it uses the competence it now has. Still, it is unlikely that the status of the ECB will experience greater changes in the near future. When the competence of the EU is extended to new areas new arrangements are needed and even the Central Bank System must remain flexible in order to enable new Member States' participation in the EMU at least to some extent.
One of the most central problems with respect to the ECB is the placement of the law regulating the status of the Bank in the Treaty and the Statute, which makes their amendment complicated. It is questionable whether the first active year of the Bank can be considered successful. This can partly be dependent on the fact that its status is not optimal in all aspects. The extensive powers of the Bank would in any case be easier to accept if there was a possibility to amend them in an easier manner. This would even create greater legitimacy.