Separation of Powers in the Banking Union

This paper explores the horizontal and vertical separation of powers in the Banking Union in the light of fundamental principles of Union law. Regarding the vertical separation of powers, the allocation of supervisory powers to the ECB might lead to conflicting policy objectives between supervision and monetary policy, and supervision and restructuring. Yet, a different institutional structure for the SSM would not mitigate these concerns. Legal review of the SSM provides some safeguards against such conflicts, but needs to respect the discretionary powers of the SSM. Parliamentary control, however, could be improved; and executive control of the SSM by the Commission might be advisable, though difficult to realize. As concerns the horizontal separation of powers, the rulemaking powers of EBA should be strengthened against the dominance of the ECB. On the whole, however, levelling up the role of the national competent authorities would endanger the objectives of the Banking Union.

The ECB's accountability to national and European parliaments today

The European Central Bank is a strictly independent institution. Nevertheless, this does not mean that it may not be held accountable for its actions; rather, it implies that it is submitted to an accountability of a special kind that does not entail (strong) consequences. With the creation of the Banking Union, accountability mechanisms vis-à-vis national parliaments and the European Parliament were added to those already existing towards the European Parliament in the Monetary domain (Monetary dialogue). This contribution aims at critically analysing those provisions, as well as how they have been put in practice so far. It will also examine the mechanisms that used to exist at national level before the Banking Union was established in a sample of Member States to determine if and how national parliaments' oversight capacities have been modified and with what consequences.

Administrative means of review of European Supervisory Authorities and ECB decisions: a comparative analysis

The paper analyses the administrative means of review, which can be sought against decisions made by the European Supervisory Authorities (before the Joint Board of Appeal) and by the European Central Bank (before the Administrative Board of Review), in the light of the challenges posed by the completion of the Monetary Union and the forthcoming introduction of the Capital Markets Union. After examining the legal framework, as well as the ongoing practice and the case-law, the paper contends that the two instruments are aimed at striking a balance between the protection of rights and the preservation of the decision-making autonomy of the ESAs and the ECB, while at the same time serving the purpose of shielding these bodies from judicial control. The analysis will also show how and why common goals are differently pursued in the two cases and will address some issues of fragmentation and incoherence.

Judicial responses to crises measures: A post-crisis assessment

This paper analyses the judiciary’s responses to the measures imposed in addressing the adverse effects of the financial and sovereign debt crisis. It examines the jurisprudence of national courts, the Court of Justice of the EU, the European Court of Human Rights as well as awards of international arbitration tribunals that were set up under Bilateral Investment Treaties. It focuses on the impact of the recent case law on fundamental rights and judicial protection and assesses whether and to what extent courts treat the right to property differently from socioeconomic rights. It also discusses the emerging obscurity pertaining to the attribution of crisis measures. The difficulty in identifying the true (supra)national author(s) of such measures generates further uncertainty on the applicable legal restrains and the competent forum to enforce them. By reducing the judicial liability concerns, this trend empowers the executive over the legislator in the exercise of public authority.