Abstract
Abstract This article is about institutional change in the Banking Union. It has two related aims. The first is to engage with the law of the Single Supervisory Mechanism (SSM)—the first pillar of the Banking Union—and in this context to discuss tensions that have lately emerged between the case law of the Court of Justice of the European Union (CJEU) and that of the German Federal Constitutional Court. The second, but main, aim of this article is to put the law of the SSM as it was enacted in the SSM Regulation, and as it was interpreted by the CJEU and by the German court, in a broader perspective of institutional change. For this purpose, this article adopts an interdisciplinary approach that seeks insights on institutional change in the political science literature. In particular, the article seeks to shed light on the role played by courts. In short, it argues that whilst the SSM is a story of change following an exogenous shock (ie the sovereign debt crisis), it is also an account of change and contestation between courts made possible by the ambiguities and incompleteness of the SSM rules. It will show that the evolution of the SSM is by no means frictionless and that it is only by tracing change from the point of the enactment of the law to its interpretation by the courts that one gains a real appreciation of the dynamics and salience of change within the SSM.
Highlights
This article is about institutional change in the Banking Union
The first is to engage with the law of the Single Supervisory Mechanism (SSM)—the first pillar of the Banking Union—and in this context to discuss tensions that have lately emerged between the case law of the Court of Justice of the European Union (CJEU) and that of the German Federal Constitutional Court
The second, but main, aim of this article is to put the law of the SSM as it was enacted in the SSM Regulation, and as it was interpreted by the CJEU and by the German court, in a broader perspective of institutional change
Summary
This article is about institutional change in the Banking Union. It pursues two aims. Contributions have looked at the crisis from various theoretical angles: for example liberal intergovernmentalism, neo-functionalism, or new institutionalism, such as historical institutionalism.[4] Much has been written in the legal literature, with authors seeking to draw lessons from a judicial and/or constitutional/administrative law perspective.[5] A theme of interest in both disciplines has been how best to account for institutional changes that have taken place in response to the Eurozone crisis.
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