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The Institutional Design of EU Banking Supervision

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Book cover Banking Supervision and Criminal Investigation

Part of the book series: Comparative, European and International Criminal Justice ((CEICJ,volume 1))

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Abstract

In the European Union, the burst of the 2006–2008 financial crisis brought to a dramatic change in the organisation and supervision of the financial market.

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Notes

  1. 1.

    The theme is analysed in Chap. 6.

  2. 2.

    Cf. Sect. 3.5. See also Haentjens and De Gioia-Carabellese (2015), p. 10 et seq.

  3. 3.

    At least since the 1980s, cf. Sect. 2.1.

  4. 4.

    Cf. Sect. 2.2.

  5. 5.

    Cf. European Commission, Reinforcing Sanctioning Regimes in the Financial Service Sector (COM(2010) 716). Highlighting the difficulties in addressing the interconnections of the financial markets not only rom a national perspective, but also from a sectorial one, Bradley (2014), p. 277 et seq.

  6. 6.

    Lamfalussy (2001). A summary of four steps may be found at: http://europa.eu/rapid/press-release_IP-02-195_en.htm?locale=en. Accessed 20 July 2018; Antonucci (2004).

  7. 7.

    De Larosière (2009). On the fundamental role of this reform proposal in the aftermath of the financial crisis, see Ferran (2012), p. 62–63; Moloney (2012b), p. 78 et seq. Reconstructing the steps that brought to the creation of the ESFS and of the ESAs, see Antoniazzi (2013), p. 176 et seq; cf. also Bradley (2016), p. 1264 et seq.

  8. 8.

    Such as being consulted for “any proposed Community act and by national authorities regarding any draft legislation in its fields of competence. In addition, the ECB may submit opinions to the appropriate Community institutions or bodies or to national authorities on matters within its fields of competence. In the field of prudential supervision (Article 25 of the Statute of the ESCB), the ECB may offer advice to and be consulted by the Council […] The action of the ECB is also channelled through its participation in a number of EU committees whose missions encompass a contribution to financial integration […] the ECB also acts in partnership with the private sector to foster collective action”, cf. ECB Monthly Bulletin (2003), p. 58 et seq.

  9. 9.

    European Commission, A Roadmap towards a Banking Union (COM (2012)510), 12.09.2012.

  10. 10.

    Recital (5), EU Council Regulation No 1024/2013 of 15.10.2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (SSM Regulation). On the recalibration of the EU financial system after the crisis, see also Castañeda et al. (2016); Mayes (2014), p. 743; Dinov (2016), p. 159; Epstein and Rhodes (2016), pp. 90–103; Hanten and Heljula (2015); Nieto (2015), pp. 539–546; Eijffinger and Masciandaro (2013), Hill and Moloney (2012), Boccuzzi (2016), and Hinojosa and Beneyto (2015); Bradley (2016), p. 1245 et seq.; Bradley (2014), p. 288 ff.; Tröger (2012–2013), pp. 210–213; Ferran (2012), p. 1 et seq.; Lo Schiavo (2019); Bonelli (2006); Gortsos (2015b).

  11. 11.

    Cf. above, Sect. 2.1.

  12. 12.

    Directive 2014/49/EU of 16.04.2014 on deposit guarantee schemes.

  13. 13.

    Cf. the Bank Recovery and Resolution Directive (BRRD), Directive 2014/59/EU of 15.05.2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, cf. Bradley (2014), p. 281 et seq.

  14. 14.

    On the need to harmonise financial regulations, already before the launching of the Banking Union, see e.g. Andenæs (2012).

  15. 15.

    The SRM and SRF’s implementation relies on several legislative acts: the Bank Recovery and Resolution Directive (BRRD); Regulation (EU) No 806/2014 of 15.07.2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending regulation (EU) No 1093/2010; and Council Implementing Regulation (EU) 2015/81 of 19.12.2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 with regard to ex ante contributions to the Single Resolution Fund. On the creation of the SRM, Lo Schiavo (2014), pp. 689–704; Antoniazzi (2014b), p. 717.

  16. 16.

    Before the entry into force of the BRRD, a similar goal was pursued by the Communication from the Commission on the application of State aid rules to support measures in favour of banks in the context of the financial crisis, better known as “Banking Communication”, revised several times (lastly on August 1st 2013). The application of the Communication also in the new legal framework is currently debated.

  17. 17.

    Recital (2), Council Implementing Regulation (EU) 2015/81. On the limits of the legal basis funding the SRM, see Kern (2015), p. 175 et seq.

  18. 18.

    Cf. EC, Press release 30.11.2015. http://europa.eu/rapid/press-release_STATEMENT-15-6200_en.htm. Accessed 20 July 2018.

  19. 19.

    Decision of the Plenary Session of the Single Resolution Board on adopting the Financial Regulation of the Single Resolution Board (Board), Brussels, March 25th 2015.

  20. 20.

    Recital (31) and Article 43 Regulation No 806/2014.

  21. 21.

    Article 18(7) Regulation No 806/2014.

  22. 22.

    To be identified at national level, in most cases it corresponds to the national authority competent for banking supervision.

  23. 23.

    For this purpose, the SRM is supported by a budget which is separated from the ECB, cf. Article 47 Regulation No 806/2014.

  24. 24.

    Directive 2014/49/EU of the European Parliament and of the Council of 16.04.2014 on Deposit Guarantee Schemes, recently reviewed.

  25. 25.

    The reform should aim at make the ESAs acting more independently from national interests, cf. European Commission, Proposal for a Regulation Amending Regulations (EU) No 1093/2010 (European Banking Authority); No 1094/2010 (European Insurance and Occupational Pensions Authority); No 1095/2010 (European Securities and Markets Authority); No 345/2013 on European venture capital funds; No 346/2013 on European social entrepreneurship funds; No 600/2014 on markets in financial instruments; No 2015/760 on European long-term investment funds; No 2016/1011 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds; and No 2017/1129 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, Brussels, 20.9.2017 COM(2017) 536 final, 2017/0230 (COD) (hereinafter, “European Commission, Proposal”). On the creation and original powers of the EBA see Antoniazzi (2013), pp. 176–186. In September 2018, as a reaction to the Danske Bank scandals related to money laundering violations, and as part of a broader strategy to strengthen the EU framework for prudential and anti-money laundering supervision for financial institutions, the 2017 proposals were amended (among other reasons) to give EBA tools, governance and resources to ensure effective cooperation and convergence of supervisory standards in the area of anti-money laundering (Cf. Brussels, 1.09.2018, 12111/18, Interinstitutional File 2017/0230(COD)). The proposed reform, however, to date does not address the critical issue of creating also an adequate investigating structure within the EBA (which, instead, could be now found in the European Central Bank).

  26. 26.

    Article 40, Regulation (EU) No 1093/2010 of 24.11.2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC.

  27. 27.

    Article 48(2), Reg. 1093/2010.

  28. 28.

    Article 62, Reg. 1093/2010. In the proposal of reform of 2017, the contribution from the national supervisors will be substituted by contributions from the financial sector, cf. European Commission, Proposal-Explanatory Memorandum, p. 279 et seq.

  29. 29.

    BTS are “legal acts which specify particular aspects of an EU legislative text (Directive or Regulation) and aim at ensuring consistent harmonisation in specific areas. BTS are always finally adopted by the European Commission by means of Regulations or Decisions. According to EU law, Regulations are legally binding and directly applicable in all Member States. This means that, on the date of their entry into force, they become part of the national law of the Member States and their implementation into national law is not only unnecessary but also prohibited”, cf. http://www.eba.europa.eu/regulation-and-policy/single-rulebook. Accessed 20 July 2018.

  30. 30.

    Cf. Article 132 TFEU, and Recitals (7)–(32), Council Regulation (EU) No 1024/2013 of 15.10.2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (hereinafter “SSM Regulation”-SSM R).

  31. 31.

    Cf. Article 7 SSM R. This option so far remained unapplied.

  32. 32.

    Cf. supra, note 25.

  33. 33.

    ESMA is particularly touched by the Proposal of reform issued by the Commission, according to which it should get direct supervision over certain sectors of capital markets across the EU, like capital market data; capital market entry; capital market actors; and market abuse cases, see EC, Creating a stronger and more integrated European financial supervision for the Capital Markets Union, Press release, Brussels, 20.09.2017. http://europa.eu/rapid/press-release_IP-17-3308_en.htm. Accessed 20 July 2018.

  34. 34.

    Cf. Article 62 Regulation (EU) No 1094/2010 of 24.11.2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC; Article 62, Regulation (EU) No 1095/2010 of 24.11.2010 establishing a European Supervisory Authority (European Securities and Markets Authority).

  35. 35.

    Cf. Section II, ESAs Regulations; see below, Sect. 4.4.3. For an analysis of the Joint Board of Appeal, see, e.g., Looseveld (2013a), pp. 9–13; Magliari (2017), pp. 101–111; Moloney (2012a), p. 136.

  36. 36.

    Cf. Article 60(1) ESAs Regulations. In addition, also decisions adopted in accordance with the applicable EU banking and financial legislations ex Article 1(2) ESAs Regulations.

  37. 37.

    Cf. Articles 58 and 59 ESAs Regulations.

  38. 38.

    Cf. Article 61, ESAs Regulations. See also Looseveld (2013a), pp. 12–13.

  39. 39.

    Article 66(1) lett. a, b; Article 67(1) lett. a. CRD IV/V.

  40. 40.

    Article 66(1) lett. c, d; Article 67(1) lett. b, c, f, g, h, i, m. CRD IV/V.

  41. 41.

    Article 67(1) lett. d, j, k, l, n, o, p. CRD IV/V.

  42. 42.

    Cf. Article 21a and 66(1)(e), introduced by CRD V (Directive (EU) 2019(878 of 20.05.2019).

  43. 43.

    On the coexistence, in the Eurozone, of NCAs and the SSM, see below, Sect. 4.4.

  44. 44.

    Cf. also Recital (41) CRD IV/V. About the potential problems of this provision for the SSM sanctioning procedures, see below, Sect. 4.4.2.

  45. 45.

    Recitals (35)-(36)-(41) CRD IV/V.

  46. 46.

    Cf. also Recital (35) CRD IV/V.

  47. 47.

    Article 66(2), let. a, b, f; Article 67(2), let. a, b, c, d. CRD IV/V.

  48. 48.

    Article 66(2), let. c, d, e; Article 67(2), let. e, f, g. CRD IV/V.

  49. 49.

    Cf. Sect. 6.2.

  50. 50.

    Cf. Recital (38) CRD IV/V. For the implication upon the presumption of innocence, see Sects. 6.3.5 and 6.3.6.

  51. 51.

    The expression, known since the late nineteenth century, is reported to had begun to be used as a verbal phrase in the 1990s, following an initiative by the UK Government. “On Oct 8, 1996 The Independent (London) reported that: “The Home Secretary [Conservative minister Michael Howard] is also expected to suggest a scheme to ‘name and shame’ young offenders by giving courts the power to remove the automatic anonymity for under-18s””, source: https://www.phrases.org.uk. Accessed 20 July 2018. According to Garner (2014), p. 1542, with “shame sanction” is indicated “A criminal sanction designed to stigmatize or disgrace a convicted offender, and often to alert the public about the offender’s conviction. A shame sanction usually publicly associates the offender with the crime that he or she committed” [italics added].

  52. 52.

    Recital (40) CRD IV/V.

  53. 53.

    Cf. above, Sect. 3.5.

  54. 54.

    Cf. also Article 52 CRD IV/V.

  55. 55.

    Cf. also Recital (26), and Articles 52, and 122 CRD IV/V.

  56. 56.

    Cf. Sect. 4.4.3 below; critical analysis in Sect. 6.3.3.

  57. 57.

    Cf. also Recital (37) CRD IV/V. The explicit duty to state reasons has been introduced in Article 64(3) by CRD V.

  58. 58.

    Recital (39) CRD IV/V.

  59. 59.

    Cf. Recital (13) SSM R. For the economic and political background at the basis of the ECB banking supervisory powers, Antoniazzi (2013), p. 159 et seq.; Antoniazzi (2014a), p. 359.

  60. 60.

    See EU Council Regulation No 1024/2013 of 15.10.2013, cit., and Regulation (EU) No 468/2014 of the European Central Bank of 16.04.2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (hereinafter “SSM Framework Regulation—SSM FR”).

  61. 61.

    “From 3 November 2013, the ECB may start carrying out the tasks conferred on it by this Regulation other than adopting supervisory decisions”, cf. Article 33(3), SSM R. See also ECB-SSM Quarterly Report (2014).

  62. 62.

    On the analysis of the relationships between ECB and NCAs, in terms of supervisors’ liability, see D’Ambrosio (2015), especially p. 124 et seq.; Andenæs (2015), pp. 3–6; Barbagallo (2014).

  63. 63.

    The institution shall not generally be considered less significant if: the total value of its assets exceeds EUR 30 billion; the ratio of its total assets over the GDP of the participating Member State of establishment exceeds 20%, unless the total value of its assets is below EUR 5 billion; the ECB takes a decision confirming such significance following a comprehensive assessment by the ECB, following a notification by its national competent; and for those for which public financial assistance has been requested or received directly from the EFSF or the ESM, cf. Article 6(4) et seq. SSM R, and Article 57 et seq. SSM FR.

  64. 64.

    Article 6(4) SSM R, as specified by Articles 1-2-39-40-43-44-50-51-52-57-58-59 SSM FR.

    On the separation of competences found on this criterion, see also Gortsos (2015a), pp. 401–420. On the interpretation of the notion of “significance” in the context of the SSM, cf. recently CJEU, Landeskreditbank v ECB, Case T-122/15, 16.05.2017, ECLI:EU:T:2017:337 (confirmed in appeal in Case C-450/17 P), § 63 et seq., as confirmed by Credit Mutuel Arkea v ECB, Case T-52/16, 13.12.2017, ECLI:EU:T:2017:902, § 61 (appeal currently pending before the ECJ in Case C-153/18 P), and in cases T-768/16 (BNP Paribas) ECLI:EU:T:2018:471; T-758/16 (Crédit agricole SA), ECLI:EU:T:2018:472; T-757/16 (Société generale), ECLI:EU:T:2018:473; T-751/16 (Confédération nationale du Crédit mutuel), ECLI:EU:T:2018:475; T-745/16 (BPCE), ECLI:EU:T:2018:476; T-733/16 (La Banque postale), ECLI:EU:T:2018:477, all of 13.07.2018.

  65. 65.

    Cf. https://www.bankingsupervision.europa.eu/ecb/pub/pdf/ssm.listofsupervisedentities20190502.en.pdf. Accessed 16 June 2019, periodically updated (last update: May 2019).

  66. 66.

    Article 5 SSM R; and Recital (5) and Article 7 SSM FR.

  67. 67.

    Cf. Article 1 and Recital (28) SSM R according to which: “Supervisory tasks not conferred on the ECB should remain with national authorities. Those tasks should include the power to receive notifications from credit institutions in relation to the right of establishment and the free provision of services, to supervise bodies which are not covered by the definition of credit institutions under Union law but which are supervised as credit institutions under national law, to supervise credit institutions from third countries establishing a branch or providing cross-border services in the Union, to supervise payment services, to carry out day-to-day verifications of credit institutions, to carry out the function of competent authorities over credit institutions in relation to markets in financial instruments, the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and consumer protection”.

  68. 68.

    Article 134(2) SSM FR. These options will be further analysed below in paras 4.1, and 4.2.

  69. 69.

    Recital (28) SSM R.

  70. 70.

    Article 6(3) SSM R.

  71. 71.

    Articles 3 to 5, and 115 SSM FR. Cf. below, Sect. 4.4.3.

  72. 72.

    As defined by Article 2(3) SSM FR. For an analysis of these measures in the context of the Engel case-law, see Sect. 6.2. Qualifying holding are defined by Article 4(1)(36) CRR as “means a direct or indirect holding in an undertaking which represents 10% or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of that undertaking”.

  73. 73.

    Cf. Caisse régionale de crédit agricole mutuel Alpes Provence and Others v European Central Bank, Joined Cases T-133/16 to T-136/16, 24.04.2018, ECLI:EU:T:2018:219; for an analysis of the CJEU jurisdiction in these cases, see Sect. 6.3.3.

  74. 74.

    Cf. Magliari (2015), pp. 1355–1357.

  75. 75.

    On the matter see, e.g., Gil Ibáňez (1999).

  76. 76.

    Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato, Case C-198/01, 9.09.2003, ECLI:EU:C:2003:430, §§ 48–50, cf. also Cassese (2003), p. 1129 et seq.

  77. 77.

    Cf. Marchetti (2014), p. 32, although the case-law on the matter is not especially developed yet.

  78. 78.

    In this sense, Magliari (2015), pp. 1356–1357.

  79. 79.

    Cf. Article 53(2) Council Regulation (EC) No 207/2009 of 26.02.2009 on the Community trade mark. Until 23 March 2016, EUIPO was known as Office for Harmonisation in the Internal Market-OHIM. See also Magliari (2015), pp. 1357–1358.

  80. 80.

    Cf. Article 5(3), EPPO Regulation (2017/1939), cit., see also Sect. 2.3.4. Contrary to the SSM, however, all the measures grounded on national law issued by the EPPO fall under the jurisdiction of national courts. Cf. also Sect. 6.3.3

  81. 81.

    This new feature may be read as a relevant step in the European integration project towards the acknowledgement of a single integrated legal system, composed indifferently of European and national law; in this sense, cf., e.g., Witte (2014), p. 109. Such an interpretation may be confirmed considering that also the EPPO, which has been proposed precisely with the idea of strengthening the European integration under a criminal procedure point of view (like the SSM in its field) will, if the project will be approved, have to apply not only European, but also and above all national relevant law.

  82. 82.

    See Senkovic (2015), p. 100, according to which that would imply that national law cannot (any longer) “be applied in a way that would undermine the effectiveness and the uniformity of EU law or serve as a tool for protectionist purposes”.

  83. 83.

    Different is the case of Article 9(1) SSM R, see below Sect. 4.4.1. Arguing that the reference contained in Article 4(3) refers only to “organizational matters”, Lamandini (2015), pp. 122–123.

  84. 84.

    This issue is further analysed in Sect. 6.3.3.

  85. 85.

    Recital (66) and (75) SSM R.

  86. 86.

    Article 11, Statute of the European System of Central Banks (ESCB) and of the European Central Bank, to date Protocol No 4 to the TFEU.

  87. 87.

    Article 10(2), Statute of the ESCB and of the ECB. The original decision provided for the mechanism to be enforced when there were more than 15 Euro area countries, but the option to postpone that until they reach the number of 18 has been used.

  88. 88.

    On the relationship between the SB and the Governing Council due to the (not-amended) Treaty legal basis, see Ter Kuile et al. (2015), p. 174 et seq.

  89. 89.

    The Board is operational since the approval of the Decision of the European Central Bank of 6.02.2014 on the appointment of representatives of the European Central Bank to the Supervisory Board (ECB/2014/4). From April 2014, the activity of the Board is also regulated by the Rules of procedure of the Supervisory Board of the European Central Bank of 31.03.2014.

  90. 90.

    Cf. Recitals (77)-(78) SSM R.

  91. 91.

    For a critical evaluation of this structure in terms of independence, see Sects. 6.1 and6.1.1.

  92. 92.

    The option of participating to the SSM even without having accessed to the Euro is provided for by Articles 7(8) and 26 SSM R, but has not been implemented by any EU Member State yet, on the issue see, e.g., Dumitrescu (2017), p. 1.

  93. 93.

    Recital (76) SSM R, and Article 25§ 5 SSM FR. From June 2014, the Panel’s composition and powers are provided for by Articles 3–4, Regulation (EU) No 673/2014 of the European Central Bank of 2.06.2014 concerning the establishment of a Mediation Panel and its Rules of Procedure (ECB/2014/26).

  94. 94.

    Cf. also Decision of the European Central Bank of 17.09.2014 on the implementation of separation between the monetary policy and supervision functions of the European Central Bank (ECB/2014/39).

  95. 95.

    Article 4(2) extends the SSM competence for the same cases also to branches of credit institutions belonging to non-participating Member States, located in participating Member States.

  96. 96.

    Cf. above Sect. 4.4.

  97. 97.

    This power is provided by Article 5(2) SSM R.

  98. 98.

    Cf. Sect. 6.2.

  99. 99.

    Cf., if you wish, Lasagni (2019).

  100. 100.

    Cf. below, Sect. 4.4.2.

  101. 101.

    Comparing it to the same binding force of close cooperation, Lackhoff (2017), p. 37.

  102. 102.

    Cf. above, Sect. 4.4.

  103. 103.

    Cf. Sect. 6.3.3.

  104. 104.

    Composite procedures are “multiple-step procedures with input from administrative actors from different jurisdictions, cooperating either vertically between EU institutions and bodies and Member States’ institutions and bodies, or horizontally between various Member State institutions and bodies or in triangular procedures with different Member State and EU institutions and bodies involved. The final acts or decisions will then be issued by a Member State or an EU institution or body but are based on procedures with more or less formalized input from different levels. Procedural integration of administrations in the EU creates a network structure. These networks jointly generate and share information. Such joint generation and exchange of information is the backbone of cooperation within integrated administration”, cf. Hofmann (2009), p. 136.

  105. 105.

    Hofmann (2009), p. 137, and 139: “Composite procedural elements exist for example in the area of technical safety, product safety, and standardization and technical norms, the procedures leading to the admission of medical products and genetically modified organisms, regulation of telecommunication, public procurement, asylum procedures, and the fight against money laundering”.

  106. 106.

    Unless in cases where the preliminary acts were “themselves the culmination of a special procedure distinct” from the main one and “which produce a binding legal effect, such as to affect the interests of an applicant by bringing about a distinct change in his legal position”, cf. Akzo Nobel Chemicals et o. v Commission, Joined cases T-125/03 and T-253/03, 17.09.2007, ECLI:EU:T:2007:287, § 45.

  107. 107.

    International Business Machines Corporation v Commission of the European Communities, Case 60/81, 11.11.1981, ECLI:EU:C:1981:264, § 10; Carl Kühne GmbH & Co. KG and Others v Jütro Konservenfabrik GmbH & Co. KG, Case C-269/99, 6.12.2001, ECLI:EU:C:2001: 659, § 58.

  108. 108.

    Foto-Frost v Hauptzollamt Lübeck-Ost., Case 314/85, 22.10.1987, ECLI:EU:C:1987:452, §§ 17–20.

  109. 109.

    Cf., e.g., Oleificio Borelli SpA v Commission of the European Communities, Case C-97/91, 3.12.1992, ECLI:EU:C:1992:491, §§ 9–13; Jean-Marie Le Pen v European Parliament, Case C-208/03 P, 7.07.2005, ECLI:EU:C:2005:429, § 50; Emerald Meats Ltd v Commission of the European Communities, Joined cases C-106/90, C-317/90 and C-129/91, 20.01.1993, ECLI:EU:C:1993:19, § 40. For an analysis of judicial review (also) in composite procedures, see Türk (2009), pp. 223–224.

  110. 110.

    Even though doubts may arise in light of the Plaumann admissibility test cf. Sect. 6.3.2.

  111. 111.

    Cf. Sect. 6.3.3.

  112. 112.

    Commission of the European Communities v Hellenic Republic, § 24.

  113. 113.

    Following a 2010 Commission’s Communication on the issue, sanctions are effective whether they are “capable of ensuring compliance with EU law, proportionate when they adequately reflect the gravity of the violation and do not go beyond what is necessary for the objectives pursued, and dissuasive when they are sufficiently serious to deter the authors of violations from repeating the same offence, and other potential offenders from committing such violations”, cf. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Reinforcing sanctioning regimes in the financial services sector, Brussels, 8 December 2010 COM(2010) 716 final. Within these general parameters, the concrete assessment over the “gravity of the violation” and the consistency of the penalty with the “objective pursued” is then referred to the discretion of the competent authority.

  114. 114.

    Cf., e.g., ECB, Explanatory Memorandum, Recommendation for a Council Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions, ECB/2014/19, Frankfurt, 16.04.2014. https://www.ecb.europa.eu/ecb/legal/pdf/celex_52014hb0019_en_txt.pdf. Accessed 20 July 2018.

  115. 115.

    Options refer to situations where competent authorities or Member States may choose how to comply with a certain provision selecting from a range of alternatives established in the legislation; Discretions indicates the situation in which competent authorities or Member States may choose whether to apply or not a given EU provision. Examples of O&D may be found in Articles 7, 8 and 89(3) CRR. On the extension of the possibility to apply national law in these circumstances, see Lamandini (2015), p. 122, reporting how, according to a certain line of reasoning, “if the ECB were empowered to exercise NCAs’ options, it is argued that this would be done for significant credit institutions only and “this would jeopardize the level playing field” in each Member State because the ECB and the NCA could exercise the options and discretions differently for significant and less significant credit institutions””.

  116. 116.

    Cf. Allegrezza (2019), p. 32.

  117. 117.

    Recitals (36)-(53) and Article 18(1), SSM R; Recital (24) and Articles 120, 122, 129, 130–132 SSM FR.

  118. 118.

    “The relevant gross income shall be the gross income resulting from the consolidated account of the ultimate parent undertaking in the preceding business year” cf. Article 67(2), let. g, CRD IV, and Article 18(2) SSM R.

  119. 119.

    On these aspects cf. Lackhoff (2013), p. 454. In favour of an extended application of Article 18, see Looseveld (2013b), p. 423; contrary Allegrezza and Voordeckers (2015), p. 156. For the Basel Core Principles, see above, Sect. 3.5.

  120. 120.

    On these interpretations, see D’Ambrosio (2013), pp. 31–32.

  121. 121.

    See above, Sect. 4.4.

  122. 122.

    Cf. Article 18(1) SSM R.

  123. 123.

    Raising the issues, among others, Wolfers and Voland (2014), p. 1486.

  124. 124.

    On this point see, e.g., Randell (2013), pp. 39–67.

  125. 125.

    Supporting a restrictive approach in the interpretation see e.g., Kern (2015), pp. 167–168, according to “The limited competence of the ECB to act as a bank supervisor under art. 127(6) therefore would preclude it from engaging in any supervisory activities directed at the broader financial system, including, for instance, the wholesale debt securities markets or bank resolution and restructuring. This means that the ECB would not have the competence to oversee the shadow banking market, which was a source of systemic risk that caused the global banking crisis of 2007-09. Moreover, it would not have the competence to put a credit institution (which it had the competence to supervise) into resolution, nor could it exercise resolution powers, such as transferring the assets of a distressed bank to a private purchaser, or transfer a distressed bank’s assets to a bridge bank, nor even take legal measures to co-ordinate with resolution authorities. The narrow supervisory competence allocated to the ECB under art.127(6) suggests that the ECB would be acting ultra vires if it took broader macro-prudential supervisory measures that go beyond the micro-prudential supervision of individual credit institutions and financial institutions”. Highlighting the limits of Article 127(5) and (6) TFEU also Antoniazzi (2013), p. 145 et seq., and especially pp. 148–151 and 171. Supporting a broader interpretation of Article 127(6) TFEU see Ter Kuile et al. (2015), p. 162.

  126. 126.

    Cf. Article 129 and 143(2)(b) SSM FR.

  127. 127.

    Council Regulation (EC) No 2532/98 of 23.11.1998 concerning the powers of the European Central Bank to impose sanctions, as amended by Council Regulation (EU) 2015/159 of 27.01.2015.

  128. 128.

    Cf. Article 2(3) Regulation (EC) No 2532/98.

  129. 129.

    Cf. Article 4(a), Council Regulation (EU) 2015/159. Cf. also Looseveld (2013b), pp. 423–425.

  130. 130.

    See Article 134 SSM FR.

  131. 131.

    See above, Sect. 4.4.1.

  132. 132.

    Cf. Allegrezza and Voordeckers (2015), p. 157.

  133. 133.

    Lasagni and Rodopoulos (2019), § 2.2. The same principle of proportionality, in this context, seems to apply in the meaning giving to it at the national level, cf. Allegrezza and Rodopoulos (2017).

  134. 134.

    See above, Sect. 4.3.

  135. 135.

    Cf. Sect. 2.2. Although so far this profile presents more a theoretical than a practical impact, as none of the Member States has made this choice during the transposition of the Directive. Cf. Lasagni and Rodopoulos (2019).

  136. 136.

    Cf. Lamandini et al. (2015), 78, noting how nothing is said in the SSM legal framework concerning the publication of other, still relevant decisions, e.g. investigative measure, leaving—in lack of guidelines on the matter—full discretion to the ECB on whether to publish such decisions or not.

  137. 137.

    See above, Sect. 4.3.

  138. 138.

    For implications in view of the presumption of innocence, see Sect. 6.3.5.

  139. 139.

    For a list of the penalties already imposed by the SSM, cf. Sect. 6.3.3.

  140. 140.

    As Article 130(3) SSM FR refers only to the suspensions due to pending criminal proceedings (para 5) and not to the appeal proceedings before the ABoR or CJEU (para 4); cf. on the contrary Article 4c(3) Reg. 2532/98.

  141. 141.

    Article 123 and 124 SSM FR.

  142. 142.

    Cf. Title 2 and Title 3 of Part X SSM FR.

  143. 143.

    See also above, paras 4 and 4.1.

  144. 144.

    Article 36–38 SSM FR.

  145. 145.

    Articles 10, 11 SSM R; Article 125 SSM FR. Analysing the rights of the parties in light of the ECtHR case-law, Sects. 6.3.4 and 6.3.5. For the Basel Core Principles, Sect. 3.5.

  146. 146.

    Articles 12–13 SSM R; Articles 143 to 146 SSM FR. The analysis of the role of national court in granting such authorisation is carried out in Sect. 6.3.3., Cf. Lasagni and Rodopoulos (2019, forthcoming).

  147. 147.

    Articles 12(1) SSM R and 144(1) SSM FR.

  148. 148.

    Article 145(2) SSM FR.

  149. 149.

    Cf. Recitals (52)-(54)-(58)-(86) and Article 22 SSM R; Articles 22 to 32 SSM FR.

  150. 150.

    Cf. below Chap. 6.

  151. 151.

    Article 136 SSM FR. According to the ECB (2017), p. 40, in 2016 “one request was submitted […] to the relevant NCA and four other sets of facts were under consideration at year-end 2016”; according to the ECB (2018), p. 79, “Five such requests were submitted to the relevant NCAs in 2017”. This reporting mechanism is further analysed in Sect. 6.1.3.

  152. 152.

    The relevance of this provision under the right to an oral hearing and to be heard provided for by Article 6 ECHR is analysed in Sect. 6.3.2.

  153. 153.

    Even if the Regulation does not define which documents shall be contained in the “file of the investigation”.

  154. 154.

    Article 127 SSM FR; see above Sect. 4.4.

  155. 155.

    Cf. Article 24 SSM R. See also Decision of the European Central Bank of 14.04.2014 concerning the establishment of an Administrative Board of Review and its Operating Rules (ECB/2014/16).

  156. 156.

    Depending on the discretion of the ABoR, which shall made a proposal to the Governing Council, which decides after having heard the opinion of the Supervisory Board, cf. Article 9(2) of Decision ECB/2014/16 concerning the establishment of an Administrative Board of Review and its Operating Rules (“ABoR Decision”). Underlining how the conditions permitting the suspension of the contested decision seem to be less strict compared to those set by the ECJ under Articles 278 and 279 TFEU, Magliari (2017), p. 116.

  157. 157.

    Cf. Hans-Martin Tillack v Commission of the European Communities, Case T-193/04, 4.10.2006, ECLI:EU:T:2006:292. The link between discretion and judicial review is further analysed in Sect. 6.3.3; Voordeckers (2019, forthcoming publication).

  158. 158.

    After the Banking Union reform, the system comprises also the SRM Appeal Panel; for an analysis of its powers, which goes beyond the remit of this work, see Magliari (2017), p. 121; cf. also Sciascia (2015), p. 381.

  159. 159.

    Such as the Board of appeal of the Office for Harmonization in the internal market; the Boards of Appeal within the European Patent Office (Disciplinary Board of Appeal; 28 Technical boards of appeal; Enlarged Board of Appeal; Legal Board of Appeal); the Board of Appeal of the European Chemical Agency; the European Aviation Safety Authority (EASA) 14, the European Union Intellectual Property Office (EUIPO), and the Community Plant Variety Office (CPVO)—European Data Protection Supervisor. Contrary to other fields of law, however, it has been underlined how quasi-judicial bodies in the EU financial system cannot “adopt a determination that directly annul or modify the contested decision”, cf. Magliari (2017), p. 129.

  160. 160.

    For a general analysis see Parona (2017), p. 267 et seq.

  161. 161.

    For a broader analysis of administrative remedies in the EU cf. Marchetti (2017), p. 6: “In particular, if one considers the last 20 years of the institutional history of the Union, there are no agencies or authorities authorised to adopt binding individual acts without a board of appeal also being instituted to examine appeals against their decisions”, and AA.VV. (2018).

  162. 162.

    Cf. e.g. Article 61 of ESAs Regulation, with regard to the Joint Board of Appeal.

  163. 163.

    Currently the members of the ABoR reflect also the above mentioned mixed expertise composition, as they include five members with legal and economic expertise, even though at the moment with a clear predominance of the second: Jean-Paul Redouin (Chair), Concetta Brescia Morra (Vice-Chair), Javier Arístegui Yáñez, André Camilleri and Edgar Meister; and two alternates: René Smits and, since 3 February 2016, Ivan Šramko.

  164. 164.

    Cf. Article 85(8) of Regulation (EU) No 806/2014 of 15.07.2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund.

  165. 165.

    See also Looseveld (2013a), p. 13.

  166. 166.

    So far, however, out of the 20 proceedings the ABoR dealt with, only few have been reported to have been brought before the European Court of Justice too, cf. Brescia Morra et al. (2017), p. 574.

  167. 167.

    Order of the General Court of 12.09.2017, ECLI:EU:T:2017:623, in Fursin and Others [former Trasta Komercbanka and Others] v ECB, T-247/16 (Application of 08/07/2016) and T-698/16 (Application of 11/11/2016), §§ 19–23. The case is also analysed in Sect. 6.3.3.

  168. 168.

    According to “continuity in terms of functions” criterion developed by the CJEU case-law, internal non-judicial reviewing bodies in principle shall examine the appeal in light of all relevant information (cf. e.g. Procter & Gamble v European Union Intellectual Property Office, Case T-163/98, 8.07.1999, ECLI:EU:T:1999:145, §§ 36–38; Procter & Gamble v European Union Intellectual Property Office, Case T-63/01, 12.12.2002, ECLI:EU:T:2002:317, §§ 20–23; Henkel KGaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Case T-308/01, 23.09.2003, ECLI:EU:T:2003:241, § 29).

  169. 169.

    According to Article 10 ABoR Decision.

  170. 170.

    Cf. Article 24(5) SSM R.

  171. 171.

    Supporting this opinion, so far followed by the ABoR, also Magliari (2017), p. 113; Witte (2015), p. 228; Brescia Morra (2016), pp. 117–118. The issues arising from the current interpretation of such admissibility standards are illustrated, with regard to the ECJ, in Sect. 6.3.3.

  172. 172.

    Cf. United Kingdom v ECB, Case T-496/11, 4.03.2015, ECLI:EU:T:2015:133, § 51 distinguishing “measures which definitively determine the position of their author upon the conclusion of an administrative procedure, and which are intended to have binding legal effects capable of affecting the interests of the applicant, that are open to challenge” and those “intermediate measures whose purpose is to prepare for the final decision, which do not have those effects, or measures which are mere confirmation of an earlier measure which was not challenged within the prescribed period” which are not challengeable; French Republic v Commission of the European Communities, Case C-57/95, 20.03.1997, ECLI:EU:C:1997:164, § 7; Commission of the European Communities v Council of the European Union, Case C-370/07, 1.01.2009, ECLI:EU:C:2009:590, § 42; Internationaler Hilfsfonds v Commission, Case C-362/08 P, 26.10.2010, ECLI:EU:C:2010:40, § 52; Athinaïki Techniki v Commission, Case C-521/06 P, 17.07.2008, ECLI:EU:C:2008:422, §§ 43–45. From this definition are therefore excluded claims against the ECB’s failure to act, ECB regulatory acts, and non-binding acts, such as guidelines and recommendations, and merely internal and preparatory acts, cf. Magliari (2017), pp. 114–115.For standing requirement in the ECB supervisory proceedings, see Sect. 6.3.2 (Trasta case).

  173. 173.

    Cf. Article 24(1) and Recital (64) SSM R.

  174. 174.

    Cf. Henri de Compte v European Parliament, Case T-26/89, 17.10.1991, ECLI:EU:T:1991:54, § 220; Henri de Compte v European Parliament, C-326/91 P, 2.06.1994, ECLI:EU:C:1994:218, § 115; although the doctrine was partially revised in Chalkor v. Commission, C-386/10 P, 8.12.2011, ECLI:EU:C:2011:815, § 51; Europese Gemeenschap v Otis NV and Others, Case C-199/11, 6.11. 2012, ECLI:EU:C:2012:684, § 47, for further analysis on this point, see Sect. 6.3.3. As underlined by Magliari (2017), p. 120, “Neither the SSM Regulation nor the ABoR Decision solve the issue of the simultaneous filing of a claim before the administrative body and the court. Hence the necessity to further examine whether the judicial remedy would prevail, or whether the judicial review would be considered inadmissible due to the reopening of the administrative procedure, following the ABoR opinion. This latest solution appears more appropriate, as the proposition of the administrative remedy leads to the adoption of a new decision substituting the former one”.

  175. 175.

    As reported by some of its members, the ABoR has therefore mainly dealt with issues such concerning (on the subject matter) the determination of the ‘significance’ of a supervised entity; corporate governance; the outcome of the Supervisory Review & Evaluation Process (SREP); fit and proper assessment of members of the management body; and withdrawals of the authorization, cf. also Brescia Morra et al. (2017), pp. 581–582.

  176. 176.

    See below Sect. 6.3.3.

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    Giulia Lasagni

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Lasagni, G. (2019). The Institutional Design of EU Banking Supervision. In: Banking Supervision and Criminal Investigation. Comparative, European and International Criminal Justice, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-030-12161-7_4

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  • DOI: https://doi.org/10.1007/978-3-030-12161-7_4

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  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-030-12160-0

  • Online ISBN: 978-3-030-12161-7

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

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