Abstract
The Single Supervisory Mechanism (SSM) is a striking example of the tendency within the EU to transfer decisive, regulatory and enforcement powers to the EU level. The SSM involves a complex system of mixed administration in order to ensure effective banking supervision within the Eurozone. Whereas such mixed administration might be necessary in order to achieve effective cross-border supervision, it also creates legal uncertainties due to the different legal orders involved. In this paper, the effect of the mixed administration on formal and substantive judicial protection is discussed. The paper analyses the right of access to the courts in the case of common procedures and certain ECB decisions. Furthermore, it is examined whether the ECB and national competent authorities have adequate powers to carry out supervision within the SSM. Lastly, the paper pursues the issues with regard to substantive judicial protection in greater depth, in particular the right of respect for the home and the rights of defence.
Highlights
In the process of EU integration, one can see a tendency to transfer decisive and regulatory powers as well as powers concerning enforcement – investigations, measures and penalties – to the EU level
The European Central Bank (ECB) is exclusively competent to carry out the prudential supervision of credit institutions.[2]
Pursuant to the Supervisory Mechanism (SSM), constituted by the Council’s SSM Regulation and the ECB’s SSM Framework Regulation,[13] the ECB is exclusively competent to carry out, for prudential supervisory purposes, inter alia the tasks mentioned in Article 4(1) SSM Regulation in relation to all credit institutions established in the participating Member States
Summary
In the process of EU integration, one can see a tendency to transfer decisive and regulatory powers as well as powers concerning enforcement – investigations, measures and penalties – to the EU level. Regarding the first (formal) requirement, it is important that the CJEU has developed the leading principle of effective judicial protection in its case law.[5] This principle has been derived from the constitutional traditions of the Member States as well as from Articles 6 and 13 ECHR and is codified in Article 47 of the Charter of Fundamental Rights (CFR) According to this principle, individuals must be able to enforce rights conferred upon them by Union law before an independent court. Shifts in Competences between Member States and the EU in the New Supervisory System for Credit Institutions and their Consequences for Judicial Protection and principles (i.e. the substantive requirement) In this contribution we cannot elaborate on every rule and principle which may be of importance to banking supervision.
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