ECB Banking Supervision and Application of National Law under the Single Supervisory Mechanism : A Problematic Novelty

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http://urn.fi/URN:NBN:fi:hulib-202101141136
Title: ECB Banking Supervision and Application of National Law under the Single Supervisory Mechanism : A Problematic Novelty
Author: Svento, Nicklas
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2020
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-202101141136
http://hdl.handle.net/10138/324558
Thesis level: master's thesis
Discipline: Esineoikeus
Property law
Sakrätt
Abstract: This Master’s Thesis will examine the role of the European Central Bank (ECB) as a banking supervisor under the Single Supervisory Mechanism (SSM) of the Banking Union (BU), focusing on the ECB in its new role as an applier of national legislation of the BU Member States under the SSM Regulation. During the course of the thesis, I will also analyze if, in my opinion, the BU and the conferral of the broader supervisory powers on the ECB has been enough to counter the issues that arose during the last financial crisis. Special focus will be given to the issues arising from these new institutions, especially pertaining to fragmented implementation of the single-rulebook legislation, accountability issues, judicial protection issues and so called fit and proper assessments as a manifestation of most of the issues arising from the ECB as an applier of national legislation. Fragmented implementation of the directives that often stipulate minimum harmonizing provisions, leads to situations where the ECB in its role as a banking supervisor and applier of national legislation is encountered by largely differing legislation in different BU Member States. Accountability issues relate to the opaque decision-making structures of the ECB and the rather unclear reviewability of ECB decisions by EU Courts. These problematic factors might lead to equality, uniformity, democracy and judicial protection issues. Judicial protection issue relates to Court review in the larger scale of things, where e.g. the CJEU might not be able to review all factors pertaining to a certain ECB decision, as the decisions can be multileveled and might include National Competent Authority decisions as well. Fit and proper assessments are corporate governance rules that measure the suitability of candidates to managing positions in banks. In the CRD IV -directive that governs these rules, the provisions are minimum harmonizing and e.g. a suitable candidate in one Member State might be deemed unsuitable in another Member State. The fit and proper assessments manifest a lot of the issues with the ECBs supervisory and “applier of national legislation” -role. Some of these issues could be solved by smaller fixes, whereas issues relating e.g. the fragmented implementation of BU Directives, would require for the whole single-rulebook legislations to be put together to a broad directly applicable regulation. Accountability issues could be fixed by imposing stricter transparency and reporting requirements on the ECB. Broader judicial review of ECB decisions might be paved for by the CJEU in its judgements, by e.g. allowing for a direct effect of directives in certain situations. Fit and proper assessment issues could be solved by broadening the powers of the ECB and further harmonizing the single-rulebook legislations. This thesis aims to analyze de lege lata if the changes made after the last financial crisis have been sufficient and if they work properly. As will be seen, there are a lot of issues arising from the new and significant, but problematic revisions. The methodology or theory in this thesis is going to be that of legal theory, focusing on EU Law. This thesis aim is to examine the single-rulebook regulation de lege lata with a rather critical approach and conclude in a de lege ferenda analysis, backed by legal literature, case law as well as personal analysis based on the aforementioned materials. As for the structure of this thesis, it will commence by an introductory chapter, where the contextual and constitutional base and background of the BU will be explained. The following chapters will focus on the main issues in the ECBs supervisory role, i.e. fragmented implementation of directives, accountability issues, judicial protection issues and fit and proper assessments as a manifestation of many of these issues. The last chapter concludes.
Subject: European central bank
single supervisory mechanism
application of national law
fragmented implementation
accountability
fit and proper assessments
judicial protection


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