In Gauweiler, in response to the first ever preliminary reference made by the German Federal Constitutional Court (Bundesverfassungsgericht; FCC), the Court of Justice gave the green light to the ECB's power to selectively purchase Eurozone government bonds in secondary markets (OMT programme). Whilst the Court of Justice sets some limits to European Central Bank's (ECB) authority relying on the golden standard of proportionality, it is a judgment of institutional empowerment. The tensions and instability arising from the separation of competences in monetary and economic policy gravitate to the advantage of the Union. By placing emphasis on the objectives rather than the effects of the programme and linking OMT power to conditionality, Gauweiler builds on Pringle providing normative legitimization to the austerity model whilst granting the ECB a distinct role not only in monetary policy but also in shaping the general economic policy of the Union. The Court of Justice's ruling also indicates a measured but firm response to the dialogue of conflict initiated by the FCC.
This article analyses the legal effects and avenues for judicial control over the factual conduct of EU administrative authorities. It posits that the uncertainty that characterises the justiciability of Union's factual conduct conceals a conceptual obscurity surrounding acts and their
effects in EU law. Legal and physical acts are both means for exercising public power. To the extent that all manifestations of public power must adhere to the applicable legal requirements, the EU administration remains judicially accountable where its conduct, irrespective of how it manifests
itself, has an impact on the rights and obligations of persons. The article presents an analytical framework that aims to translate the language of legal effects to a language of EU rights and obligations and vice versa. Moreover, it contextualises this inquiry within a broader threefold uncertainty
that characterises EU law and illustrates the increasing significance of physical acts in the Union's multi-layered administrative practice.
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