Suchergebnisse

Abstract

950In light of the experience we surmise that, in the EU law of finance, both for European courts and the BoA and AP the question is not about changing the standards of review as they stand; it is about ensuring that the standard of legality review is meaningfully applied, because the reviewing court or quasi court is capable of engaging in a dialogue with the supervisory institution in its own terms and challenge its reasoning, having due regard to all factual elements of the case. What kind of error of assessment counts as 'manifest' cannot be determined independently of the Court's understanding of what falls within the acceptable range, which, in turn, cannot be established without reference to the court's willingness to take an hard, or better said, closer look at all factual and legal elements of the reasoning. Thus, albeit with nuances often determined by the specific features of each case, in the supervisory and resolution context it seems to us that the marginal v full review debate is, in the Banking Union, more academic than practical and that a full assessment of facts, to the extent that procedural rules allow a proactive evidentiary role, Q&A and expert witness, and a stringent review of the interpretation and application of law (and thus of the substantive legality) is possible, and thus full legal accountability and full effective judicial protection is warranted.951

This paper offers some lessons drawn from the first years of experience of both the joint Board of Appeal (BoA) of the European Supervisory Authorities and the Appeal Panel (AP) of the Single Resolution Board.The paper outlines their institutional design and the main substantive and procedural issues that have arisen in the cases so far decided by both bodies. It offers a view "from the inside", which shows not only the certainties of appeal bodies, but also their many challenges. The paper also discusses design strengths and weaknesses of the current EU adjudicatory system of public law disputes in the Banking Union and the Capital Markets Union, bearing in mind the importance of independent review, and the Vaassen criteria for "courts". The paper concludes by offering preliminary stocktaking and reflections on a possible way forward to enhance the complementary (and supporting) role of financial appeal bodies to the EU courts.

The Single Supervisory Mechanism (SSM) is a relatively recent and remarkable piece of institutional architecture at the core of the Banking Union. The vast powers conferred on the ECB under the SSM, the complexity of coordination and the sensitive nature of some decisions allocated to the EU level make accountability a key requisite for the system's success. Some of the provisions applicable provide a solid foundation for a system of strong accountability. Recently, the need to offer a credible response to climate change risks have added additional challenges to ECB accountability under the SSM. Accordingly, there is room to improve the system to effectively counterbalance the powers given to the SSM to increase their accountability at the European level without undermining their independence and within the boundaries of the current legal framework.

'Finance' has become the most salient part of the European project. For better or worse, it has been the EU's major field of experimentation for institutional innovations, and also the protagonist of its major tensions. Such tensions pervade the Monetary Union, the Banking Union, and the framework for fiscal stability and budgetary coordination, and, in important occasions or respects, have ignited inter-court conflicts, exposed some accountability gaps, and made more difficult than desirable cooperation towards a common policy and mutual understanding, albeit in the diversity, at the inter-governmental level. It need not be like this. All those shortcomings can be overcome without major statutory reform, with a more imaginative use of the tools already in place, and (crucially) a change in the practice of dialogue between institutions and bodies, both from a vertical perspective (notably, courts, but also parliaments and governments) and a horizontal one (between political, administrative and judicial levels of accountability).
European Monetary Union, EMU, banking union, fiscal coordination, judicial review, accountability, dialogue