The European Central Bank in National Criminal Proceedings
(2017) 42 E.L. Rev. August
Posted: 31 Jul 2017
Date Written: July 27, 2017
By relying on Protocol No. 7 on the Privileges and Immunities of the European Union, the European Central Bank has emerged as an unlikely hurdle in the national criminal investigations into the financial malpractices of the banking sector in Ireland, Cyprus and, most recently, in Slovenia. This article examines, for the first time, the scope of privileges and immunities on which the ECB can rely before national criminal authorities. It does so in three steps. First, it offers a best-fit interpretation of the meaning of inviolability of archives, which remains contested in international law and unexamined in EU law scholarship. Second, it defines the scope of privileges and immunities Governors of national central banks in their hybrid national/supranational status can enjoy under EU law. This question too has still not been sufficiently addressed, let alone resolved, in either EU legal theory or its practice. Based on this analysis, in a final normative turn the article addresses the ongoing compatibility of Protocol No. 7 with the contemporary legal and political nature of the European Union. In so doing, it makes an original contribution to the field of privileges and immunities of the European Union, which remains underdeveloped in conceptual and practical terms and, as a result, in the context of the EU economic crisis has started to threaten the objectives of national economic and criminal justice.
Keywords: European Union, European Central Bank, Privileges and Immunities, ECB Archive, Criminal Proceedings, Slovenia
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