Following recent scandals (inter alia Danske Bank, Latvia's ABLV) the EU framework for the fight against money laundering and counter terrorist financing was reinforced. A new regulation was adopted, and the European Banking Authority (EBA) was conferred increased powers in this domain. Yet, additional reforms still appear to be necessary and several Member States have called for the creation of a new dedicated EU authority. At the same time, these changes affect the ECB in its capacity as bank supervisor, and some have even envisaged that the ECB could play an active role in the fight against money laundering. Against this background, this paper will firstly analyse the reforms that have recently been conducted and those that are under discussion, and it will secondly also assess their (likely) impact for the ECB and the EU institutional framework generally.
In this paper, I evaluate the legal effects and judicial control of instruments adopted by the European Central Bank (ECB) containing “guidance” to other parties in the field of banking supervision. In the first part, I present a typology of these instruments on the basis of their apparent form, addresses and objectives. In the second part, I analyse the normative significance of each identified category of these instruments and explain what avenues for judicial review may be available to concerned parties. I will argue that the ECB’s guidance within this policy area can produce legally significant effects in two circumstances: the ECB may either provide for certain requirements to be followed by NCAs or financial institutions, or express certain self-imposed commitments that limit the ECB’s discretion. In the final part, I discuss certain risks that arise from the diversity in the ECB’s normative ecosystem with respect to ‘guidance’ instruments and propose ways to mitigate thereof.
The paper explores the modalities through which a new EU agency – the Single Resolution Board (SRB) – enters into close cooperation with non-eurozone Member States. The SRB is a specific EU agency created for the purposes of improving the resilience of the banking sector by improving credit institutions’ crisis preparedness. The agency, which is at the core of the Single Resolution Mechanism (SRM), is tasked with managing any failures of banks in the Banking Union. With non-Eurozone Member States such as Bulgaria and Croatia likely to join the Banking Union in the near future, the paper studies the procedures related to the expansion of the SRM to non-participating EU Member States. It draws insight from the comparison with entering into close cooperation under the Single Supervisory Mechanism in the light of the distinct EU-wide legal basis on which the SRM was set up (Art. 114 TFEU), and contributes to the understanding of the new framework of Eurozone enlargement.