Shifts in Competences between Member States and EU in the New Supervisory System for Credit Institutions and their Consequences for Judicial Protection
well as powers concerning enforcement – investigations, measures and penalties – to the EU level. One striking example of such a transfer is the new supervisory system for credit institutions that has recently been put into effect, the so-called Single Supervisory Mechanism (SSM).1 Under the new system, the European Central Bank (ECB) is exclusively competent to carry out the prudential supervision of credit institutions.2 But the system also foresees the involvement of national competent authorities (NCAs) of Member States in the supervisory process. The process may thus be characterized as a shared and, at times, mixed administration.3 This article addresses the consequences of these developments with respect to individual judicial protection. Will its shift result in ambiguity, deficits and gaps in judicial protection? Given the impact of such ambiguity and possible uncertainty on the behaviour of key players in the field, would the process diminish the effectiveness of the supervision of credit institutions? This study will further explore these questions against the background of two judicial protection requirements developed in the case law of the Court of Justice of the European Union (CJEU). There is, firstly, a formal requirement to have access to the courts. This requirement relates to the question as to whether acts and decisions in the supervisory process of credit institutions can be challenged before a court and, if so, which courts – the Union or national courts – are competent. As both the Union and national courts can be involved in various stages of the supervisory process, questions of interference and cooperation must also be addressed. Secondly, judicial protection implies a substantive element, namely the verification by the courts so as to whether competent supervision authorities have complied with the applicable rules and principles. Both (formal and substantive) requirements are connected to the rule of law (or the principle of the Rechtsstaat), the fundamental principle which governs ...