Public International Law as a Means to Empower EU Bodies: The Case of the Single Resolution Board (SRB)

Abstract

The Single Resolution Board (SRB) is a European agency entrusted with a varied pouvoir by the EU-Regulation establishing the Single Resolution Mechanism (SRM). The SRM-Regulation also establishes a Single Resolution Fund from which bank resolutions in the Eurozone can (exceptionally) be financially supported. The Fund is fed by contributions from banks which are collected by the Euro-MS. In order to regulate the transfer of these contributions to the Fund and the gradual mutualisation of the initially ear-marked ‘national compartments’ of each Euro-MS to a homogenous, a Single Resolution Fund, 26 MS have concluded an Intergovernmental Agreement (IGA) – an international treaty – among themselves, which is applicable only to the Euro-MS, claiming that the EU lacked an according competence. Against this background, this paper addresses the character and the main content of the IGA and the way it empowers the SRB. Subsequently, the legality under EU law of this empowerment by means of public international law is examined. This involves an analysis of Treaty provisions which could potentially have served as a legal basis for this empowerment under EU law. Eventually, the relationship between the SRB’s tasks/powers under the SRM-Regulation and those under the IGA is fleshed out, in particular with a view to the question how conflicts between these two sets of tasks/powers are to be solved. The MS’ decision in favour of public international law will, for lack of a compelling legal basis to regulate the underlying issues in the form of EU law, turn out to be in accordance with EU law, and so will the exceptional empowerment of a European agency, the SRB, by the MS. This is mainly because the EU’s institutional balance is not thereby negatively affected and because the IGA as such ranks below EU law and is declared authoritative for the application of the SRM-Regulation only by this piece of EU law itself.