Moreover, any such subordination would imply that the objective of the Internal Market is superior to the objective of Economic and Monetary Union. This is not the case; these are equal and complementary objectives of the European Union. Moreover, as the ECJ made clear in the Pringle case, “[…] each institution of the Union is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.”5 And third, there is a limitation: Article 22 cannot confer general regulatory competences on the ECB – it can only adjust the ECB’s monetary policy toolkit by clarifying that the competence for clearing and payments covers derivatives. The Treaty drafters made the ECB’s objectives and tasks very clear. As the European Court of Justice said, a measure falls under the responsibility of the ECB when it is intended to pursue an objective such as the consistency of monetary policy or the proper transmission of monetary policy. This objective, in turn, contributes to the primary monetary policy objective of maintaining price stability6. The reason why monetary policy needs to cover CCPs’ liquidity is that derivatives clearing has become a cornerstone of the financial system. We must not forget that ECB measures must also comply with the principle of proportionality. This means that any ECB actions in the field of clearing will have to be appropriate for attaining monetary policy objectives and cannot go beyond what is necessary to achieve those objectives.
The Statute is found in a Protocol to the EU Treaties. Such protocols form an integral part of the Treaties. This means that, in principle, the Statute can only be amended as part of a revision of the Treaties. However, some provisions of the Statute – like Article 22 – can be amended by means of a “simplified amendment procedure”. The ECB can recommend a change; the Commission can give its opinion; and the Council and European Parliament can then adopt a decision to amend the Statute by simple majority. Given that the simplified amendment procedure is an exception, we have to be very careful what we change in Article 22 and how we go about changing it. Any change must comply with the other provisions and principles of the Treaties, which enjoy a higher constitutional rank. For example, any change to Article 22 must respect the principle of central bank independence and the exclusive competence of the ECB to conduct monetary policy. Amending Article 22 of the Statute – substance But what does this mean for the substance of Article 22, which is part of Chapter IV of the Statute, entitled “Monetary functions and operations of the ESCB”? The Statute grants the ECB flexibility and autonomy over the instruments available for conducting monetary policy. The Treaty drafters provided for various instruments4, including the possibility to conduct open market and credit operations, and to make regulations to ensure efficient and sound payment and clearing systems. This means that the ECB can react effectively to unforeseen circumstances.