Consulting the European Central Bank. Legal Aspects of the Community and National Authorities' Obligation to Consult the ECB Pursuant to Article 105(4) EC

The EC Treaty obliges Community and (both functionally and geographically decentralized) national authorities to consult the ECB before adopting any legislation in its fields of competence. Failure to consult the ECB can render any disputed rules void. This paper explores the relevant primary and secondary law, while taking into consideration the proposal for a European Constitution as well as the extension of the Lamfalussy legislative process from the securities to i.a. the banking and insurance sectors. The resulting assessment leads to recommendations improving compliance with this duty, especially by Member States. In addition, innovative ideas are put forward, such as a suggestion to apply the acte eclaire and acte claire doctrines developed by the Court of Justice concerning preliminary rulings, to the duty to consult the ECB