The ECB is, in the same manner as the other EC organs, bound to respect the rights of individuals in its actions. Nevertheless, even if the ECB has the competence to adopt directly applicable legal acts those acts have only a very limited direct effect on individuals. When considering their indirect effect, however, the influence of the Bank is far more significant.42 The role of the ECB is also greater in respect for undertakings, which can become addressees for its legal acts.
Regulations adopted by the Bank can set statistical requirements and requirements regarding minimum reserves on undertakings, credit institutions and other relevant instances.43 The ECB is also entitled to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions.44 The right to review the acts of the Bank held by the ECJ has so far not been actualised. The Court has, however, previously stated that the rights of individuals within the monetary policy are extremely limited in relation to the State.45 Consequently, it is not surprising that in general, attempts to deduce enforceable rights from the Text of the Treaty in the field of capital have failed.46 Furthermore, it is difficult to imagine circumstances in which an individual interest would proportionally outweigh a Community measure claimed to infringe on fundamental rights.47
According to the Treaty, the ECB has an objective that has to be given absolute priority. This means that in case of confrontations between price stability on the one hand and fundamental rights and the principle of democracy on the other, the latter take second place, even if the Union in other fields highlights the importance of the full implementation of human rights.48 According to the liberal theory as explained by Arndt, price stability can be regarded as a value that stands above democracy. Thus, central bank independence creates means to protect the fundamental right of citizens to price stability. Inflation means a weakening of this right and an infringement on citizens’ financial position, which the state is under an obligation to protect.49 Placing the “right to price stability” among other fundamental rights sounds, however, slightly exaggerated even if the objective has a connection with the realisation of a number of rights, mainly social.
The ECB has powers that do not automatically belong to the area of competence of every central bank. Thus, these powers should be motivated especially carefully. These include the Bank’s law-making competence and the competence to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions50 the legality of which has not received much attention. ECB decisions may also require an undertaking to submit to an infringement procedure.51 In this case the Council of the ECB underlines the need for an effective conduct of a thorough investigation of any alleged infringement, while at the same time providing for a high level of protection for the rights of defence of the undertaking concerned and the confidentiality of the infringement procedure.52 The ECB regulation also establishes a simplified procedure for minor infringements.53
Within the infringement procedure it is possible to draw parallels to powers of the Commission to impose sanctions under regulation 17/62 in the field of EC Competition law.54 In determining the sanction the ECB shall be guided by the principle of proportionality55 and the nulla poene sine lege rule so that all its powers are set down by law.56 These factors may allow the Bank to make careful assessments in imposing sanctions, or, alternatively, allow it to adopt a heavy-handed approach intent on reinforcing its credibility.57 The powers of the Commission with respect to undertakings in the field of competition law have been criticised by saying that they set aside the doctrine of separation of powers and in practice allow the Commission to act as law-maker, supervisor and judge. The same worrying quality can now be re-found with respect to the ECB as its competence indicates great unity of powers. Furthermore, the possibilities of the undertakings to defend themselves against such a sovereign power within the monetary policy are very limited.
The investigatory and pecuniary powers of the Bank are a part of an overall trend towards a Community system based on sanctions, which may be classified an instrument of droit repressif. Sanctions are seen as a way to ensure uniformity and effectiveness.58 Still, the competence of the ECB within the area gives reason to be worried for at least two reasons. Firstly, its competence is extensive and can endanger individual undertakings’ status. Secondly, it is possible to note small but observable differences between the case law of the European Court on Human Rights and the ECJ concerning the rights of undertakings when determining whether a breach has occurred.59 This can also be seen as a sign of the ECJ not showing as much respect for the rights of undertakings so far.