The supervision and resolution of banks in Austria and how it was transformed by EU law

Since the early 2000s banking supervision in Austria is mainly exercised by the Finanzmarktaufsichtsbehörde (FMA); since 2014 it is also in charge of bank resolution. EU reforms – in particular the ESFS and eventually the Banking Union – have created tensions with national (constitutional) law. This can be illustrated by three examples: the FMA – an independent authority under Austrian constitutional law – is now subject to instructions by EU bodies; EU banking law requires national authorities to be able to impose significant fines on banks, but the Austrian constitutional court for a long time has reserved this power to criminal courts; the public liability regime applicable to the FMA has been restricted drastically, in particular where the FMA cooperates with EU bodies, whereby the Austrian legislator may have impinged upon higher-ranking law. In this presentation these dynamics shall be described and analysed both from the perspective of EU law and Austrian constitutional law.