The Proposals for the European Supervisory Authorities: The Right (Legal) Way Forward?

Abstract

This article deals with the proposals that have been presented by the European Commission in September 2009. These proposals aim to improve the supervision of (multi-jurisdictional) financial undertakings in the EU. We first shortly addresses some elements of the current state of affairs regarding financial services and supervision. What are the main EU-legal characteristics of the supervisory framework? What are its shortcomings (chapter 2)? Subsequently, we discuss the proposals that the European Commission and European Council have presented to further harmonise the financial supervision between the Member States (chapter 3). The EU proposes to establish three new European Supervisory Authorities (ESAs) and a so-called European Systemic Risk Board (ESRB). The ESAs will replace the so-called level 3 committees (see below).The fourth chapter will be the main chapter of this article. The originality of this contribution will be to examine to what extent the proposed European system of supervision actually fits into the current EU Treaty legal framework and into its successor, the Treaty of Lisbon. We will focus on two legal issues: 1) can the proposed legal basis for the ESAs (art. 95 EC) be justified and 2) can the future European Supervisory Authorities be entrusted with the envisaged powers? The fifth chapter concludes and contains some recommendations.