The European Central Bank under the Single Supervisory Mechanism

Cooperation, Delegation, and Reverse Majority Voting

Author: Paul Weismann*

I. Introduction

The past few years have seen a strong legislative activity in the field of EU financial market law, which mainly is to be perceived as a reaction to the so-called banking crisis in the EU which has revealed a number of (systemic) shortcomings of financial market regulation and supervision in the EU and in its Member States (MS). This activity has not only changed substantive EU financial market law, but also the related institutional framework. The committees of supervisors in the fields of banking, securities and insurance and occupational pensions, established in the context of the Lamfalussy procedure, have been upgraded to European agencies (the EBA, the ESMA, the EIOPA [1] ) and embedded into a wider network of regulators/supervisors called the European System of Financial Supervision (ESFS). To this network also the European Systemic Risk Board (ESRB) belongs, which is vested with macroprudential tasks and within which the ECB plays a crucial role. [2]

In 2012 the ‘Banking Union’ as a new project in the field of banking regulation, supervision and resolution was proclaimed by Commission Communication COM(2012) 510 final and since then has step by step been implemented. A resolution regime for banks in the EU (which has its roots in the Commission’s crisis-related state aid policy for ailing banks [3] ), the Single Resolution Mechanism (SRM), and a harmonised system of bank deposit insurance (negotiations on which turn out to be very difficult [4]), the European Deposit Insurance Scheme (EDIS), are two of the three columns of the Banking Union. The third column is the SSM which makes the ECB the central EU banking supervisory authority. As a ‘competent authority’ it is also part of the ESFS. [5] Unlike the ESFS, the SSM by now encompasses only the euro-MS, but provides for the possibility of non-euro MS to join and hence to become participating MS, as well, by entering into a ‘close cooperation.’ [6] In view of the strong (so far only) Eurozone banking supervisor, concerns were raised that the representatives of the supervisory authorities of the euro-MS would – due to common interests – form a voting bloc in the EBA’s decision-making bodies. The legislator has taken precaution by adapting in particular the majority requirements in the EBA’s Board of Supervisors (double majority of participating and non-participating MS) and the composition of its Management Board (at least two representatives of non-participating MS). [7]

In consideration of the ECB’s independence in the exercise of its monetary policy functions, an ‘internal body’ [8] within the ECB, not provided for in the Treaties, was created which deals exclusively with its supervisory tasks: the Supervisory Board which is composed of the Chair, the Vice-Chair, four ECB-representatives and one representative per national supervisor. It prepares, in particular supported by a secretariat and four ECB Directorates-General in charge of supervisory affairs, [9] the supervisory decisions which are then formally adopted by the ECB’s main decision-making organ according to the Treaties, the Governing Council. [10]

Under the SSM, the ECB is vested with a number of important supervisory tasks in the banking sector of the Eurozone. Here it directly supervises the largest (most significant) banking groups which currently amount to 118. [11] The about 3,000 remaining banks are supervised by the national authorities, with the ECB keeping the oversight. [12] The licensing (grant/withdrawal) and the change of ownership is decided upon by the ECB with regard to all Eurozone banks, however. [13] But also here the ECB avails itself of the support of national supervisors.

The potential of a strong cooperation between EU bodies and national authorities has long been tried out in the field of competition law. [14] Also in other fields of EU administrative law and policy (such as environment and energy) it has become more and more intense, [15] and has gone hand in hand with a further agencification of the EU. Within the SSM, many supervisory tasks are regularly performed by the national supervisors, but may be assumed by the ECB. Additionally, the ECB may issue regulations, guidelines, general or individual instructions to the national supervisors as regards the exercise of their supervisory responsibilities. These manifold possibilities of an EU actor to influence the action of national administrations are unprecedented in the history of EU-MS cooperation.

Is this in accordance with primary law? The question of the (legal) limits to a delegation of powers to Union bodies is well-known from the agency discussion. It is a matter of dispute whether or not the famous Meroni criteria are applicable also in the given context, because the SSM-Regulation is based on Article 127 para 6 TFEU which explicitly allows for a transferal of ‘specific [banking supervisory] tasks’ on the ECB. Moreover, the Supervisory Board belongs to the ECB – an institution of the EU –, not an agency. But even if these criteria are not applicable here – which shall be argued below –, there are limits inherent to the mentioned competence clause which allows only for the delegation of ‘specific tasks.’

Under the SSM, the Supervisory Board provides draft decisions which are then presented to the ECB’s main decision-making organ, the Governing Council. The draft is adopted already where the Governing Council does not object. This procedure resembles the reverse majority voting (RMV) in the Council known, inter alia, from the ‘Six-Pack,’ and strongly relativises the Governing Council’s decision-making role in the ECB as laid down in primary law. In exchange, it manifests the strong de facto power, even the decisional superiority of the Board.

In the following, these three legal aspects regarding the functioning and the limits of the SSM – cooperation, delegation, and RMV in the Governing Council – shall be addressed. An exhaustive account of the functioning and the limits of the SSM is not intended with this paper.

II. Cooperation

Cooperation between the EU administration [16] and the respective national counterparts in the MS has had a long history in the EU and its predecessors, [17] in particular in the field of competition law – one of the few fields of administrative law in which the Commission has played a core role right from the beginning of the EEC. [18] The Court has even described the cooperation in competition law between the EU and the MS as an expression of the principle of sincere cooperation, now laid down in Article 4 para 3 TEU. [19] Against the background of the supremacy of EU law, and regardless of whether the EU is competent to perform direct or indirect administration, the forms of cooperation have become more multi-faceted, more sophisticated and more intense. [20] This finding applies, in particular, to the EU’s agencification which – with agencies acting ‘as, or in, networks relying heavily on their national counterparts’ [21] – has become, as it were, the epitome of administrative cooperation between the EU and the MS. [22] This is reflected in the more recent ‘network’ rhetoric which may, however, also encompass private and international actors. [23] In the field of financial market supervision/regulation the legislator has created the ESFS, composed of the ESRB, the three ESAs and their Joint Committee, and the competent authorities (ie the MS authorities and, since recently, also the ECB as a banking supervisor), the main objective of which is ‘to ensure that the rules applicable to the financial sector are adequately implemented to preserve financial stability and to ensure confidence in the financial system as a whole and sufficient protection for the customers of financial services.’ [24] Thus the ECB with its Supervisory Board itself works within and belongs to a network of supervisory/regulatory bodies both on the EU and on the national level, in which it strongly cooperates in particular with the national supervisory authorities, the ESRB, the ESAs, and the Single Resolution Board (SRB). [25] One specificity of this network, the participants of which shall ‘cooperate with trust and full mutual respect’ in accordance with Article 4 para 3 TEU, [26] are so-called joint supervisory teams – composed of representatives of the ECB and the national competent authorities (which may also be the national central banks) – which are established by the ECB for each supervised entity or group in the participating MS. [27] These teams – in the ECB’s words the ‘cornerstone in the implementation of the SSM model of supervision’ [28] – are of different size, depending on the size, business model and risk profile of the bank at issue, and may reach 70-80 members. [29] In general, the ECB and the national competent authorities ‘shall be subject to a duty to cooperate in good faith, and an obligation to exchange information.’ [30]

There is not only an organisational side to these networks; also the means of cooperation and of interaction ought to be addressed. While certain duties of administrative cooperation on the part of the national actors – such as a duty to inform, a duty to consult, or a duty to support [31] – have been established elements of the ‘ensemble acting’ of EU and national players making up the European administrative network (in German literature also referred to as European Verwaltungsverbund [32] ), the legality of other, more intense forms of cooperation, in particular a general competence of the Commission to give instructions to national authorities, have long been contested. [33] Specific instruction rights of the Commission are, however, provided for in secondary law. [34] Similar cooperative relationships have also been existent between national authorities and European agencies, [35] but were shaped in a way so as to avoid ‘a clear hierarchical authority [of agencies] over their national counterparts’. [36] The power of European agencies to adopt general instructions in specified cases, as rule-making powers of European agencies more generally, has always been considered problematic. So far rule-making powers of agencies can be found only exceptionally. [37] Binding instructions, for example, may be given by the ESAs on the basis of Articles 18 and 19 of their respective founding regulations. These provisions, in the case of an emergency situation as defined in Article 18 para 2 leg cit, or in the case of disagreements between competent authorities in cross-border situations, allow the ESAs to address instructions to the competent authorities. [38] While Article 19-decisions are instructions addressed to a small number of competent authorities, Article 18-decisions of the ESAs – adopted to address a specific case (‘individual decisions’ pursuant to Article 18 para 3) – in fact may constitute instructions with a general personal scope, as they may be addressed to all competent authorities. [39] The addressees of these instructions may be the competent authorities in the MS and/or the ECB. The latter constellation – an institution of the EU, the ECB, receiving instructions from the EBA, a mere European agency – raises institutional balance concerns. [40]

The ECB (de facto its Supervisory Board) may not only receive but also give instructions, namely to the competent authorities in the MS. According to Article 6 para 5 lit a of the SSM-Regulation, the ECB ‘shall issue regulations, guidelines or general instructions to national competent authorities.’ [41] This competence is limited to those tasks of the ECB according to Article 4 the execution of which is normally up to the national competent authorities. [42] In addition to that, it may, ‘when necessary to ensure consistent application of high supervisory standards,’ assume a national authority’s executive competence with regard to one or more credit institutions. [43] What is more, the ECB may, ‘[t]o the extent necessary to carry out [its] taks’ and where it does not have these powers under the SSM-Regulation, instruct the competent national authorities ‘to make use of their powers’ according to the respective national law. [44] As these competences are restricted in one or the other way, they do not convey a general power to give instructions (with a general personal scope). Nevertheless, these powers are far-reaching and certainly go beyond the possibilities also of the more powerful European agencies to intervene with their respective national counterparts. [45] In practice the SSM is said to work as an ‘organic system’, allowing for the involvement of the national authorities on all levels of supervision, even with regard to significant banks. [46] From a legal point of view, however, the powers of the ECB allow it to establish a strictly hierarchical relationship with the national supervisors. [47]

In order to exemplify in another instance the intensity and complexity of EU-MS cooperation laid down in the SSM, [48] the authorisation procedure for (presumptive) credit institutions and the procedure for its withdrawal as laid down in Article 14 of the SSM-Regulation, and the way in which the ECB and the national competent authorities cooperate in them, shall now be presented. An application for an authorisation to take up the business of a credit institution to be established in a participating MS shall be submitted to the respective national competent authority pursuant to the respective national law. The national authority shall then check whether – on the basis of the relevant national law – an authorisation is to be granted. Where this is the case, the authority shall send a draft decision to the ECB to propose to grant the authorisation, possibly proposing recommendations, conditions and/or restrictions to the draft decision in accordance with national or EU law. [49] Otherwise the national authority shall reject the application. Upon receipt of a draft decision, the ECB checks the application with respect to its compliance with the relevant EU law. Unless the ECB objects to the draft decision within an (extendable) period of ten working days, it shall be deemed to be adopted by the ECB. [50]

Where the relevant EU law so requires, the ECB shall withdraw the authorisation – either sua sponte, and following consultations with the relevant national supervisory authority, or upon the latter’s proposal. Where the national authority which has proposed the authorisation considers that it shall be withdrawn pursuant to national law, it shall submit an according proposal to the ECB. [51] The ECB shall then take a decision on the proposed withdrawal, taking ‘full account’ of the reasons brought forward by the authority. [52]

In practice, the ECB is regularly notified by the national supervisory authorities of upcoming decisions to be made which are then ‘jointly discussed and assessed [with a view to] the most appropriate course of action.’ [53]

In conclusion, we can say that the co-existence of the ECB and other EU bodies competent in the field of banking supervision, such as the EBA, caters for a high level of horizontal cooperation. Intra-SSM cooperation between the ECB and the national authorities – that is to say vertical cooperation – in both its intensity and its complexity exemplifies well how far the European Verwaltungsverbund has developed in certain policy fields. This cooperation between the main EU actor in charge, the ECB, and the competent national authorities allows for different degrees of involvement of the latter. This involvement is necessary, not least because the ECB as an institution prior to the establishment of the SSM has had no experience in the micro-prudential supervision of banks. [54] At the same time, the ECB under the SSM is, beyond doubt, designed to take the lead which in the law is expressed in a rather hierarchical relationship between the ECB and the national supervisors – a relationship which would, for lack of an according Treaty base, not be possible between eg a European agency and its national counterparts.

III. Delegation

Having discussed the issue of cooperation, we shall now address constitutional limits to the delegation of powers to the ECB on the basis of Article 127 para 6 TFEU. The Meroni criteria [55] on delegation of powers, which in the past decades have gained momentum in particular in the agency debate, [56] are a first point of reference when it comes to defining more closely these constitutional limits. These criteria, in essence, prohibit a delegation of ‘discretionary power, implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy.’ [57] That Meroni constitutes a limit to delegations more generally – beyond the case at issue back then, a transferal of powers from the High Authority of the ECSC to private bodies that is – had soon become clear. [58] That it is applicable also to European agencies had, for a long time, been assumed, but was confirmed, implicitly, by the Court of Justice only in 2014 in the so-called ESMA case. [59] The question now is whether Meroni is relevant also in the given case, for the delegation of supervisory powers to the ECB that is. [60] From an organisational point of view, it is to be noted that it is the ECB which is vested with supervisory competences by the SSM-Regulation, not the Supervisory Board. [61] Hence it is an institution of the EU according to Article 13 para 1 TEU which is granted powers, and not a mere EU body or a non-EU body. [62] Even if the Governing Council delegated the competence to adopt certain (internal) decisions to the Supervisory Board – the legality of which needs to be assessed case by case [63] –, its decisions would be decisions of the ECB. An institution in principle and in accordance with the Treaties disposes of wide discretionary powers. It may therefore – again: in principle – also be vested with new powers entailing a wide discretion, which is why the part of the Meroni doctrine prohibiting the delegation of such powers ratione personae, as it were, does not apply here.

Another issue is the Union’s institutional balance which in the Meroni case was still referred to as the ‘balance of powers which is characteristic of the institutional structure of the Community.’ [64] In its judgement the Court invoked this threshold, for the first time, [65] as an argument against the delegation of powers entailing a wide discretion. [66] This institutional balance may not only be distorted by an empowerment of newly established bodies by means of secondary law, but also by the empowerment of an institution. However, the fact that it is an institution of the EU (according to the Treaties disposing of wide discretionary powers) which is vested with new powers significantly reduces the risk of and therefore increases the threshold for a distortion of the institutional balance. [67] Nevertheless, it is possible for an act of secondary law transferring powers on an institution to distort the institutional balance – namely where it goes beyond the wide discretion provided in the Treaties for this institution or where the kind of powers at issue is reserved for another institution (eg the ECJ as highest authority in matters of EU law). Since the institutional balance was implied to the Treaty, any Treaty provision may shape this balance. The Court did not defend an ideal institutional balance, but the institutional balance laid down in primary law. [68] In our case it is the Treaty itself which provides for the possibility of a transferal of supervisory powers on the ECB. [69] The actual delegation of powers is subject to an act of secondary law – the SSM-Regulation –, but it is expressis verbis provided for in primary law, namely in Article 127 para 6 TFEU. [70] Therefore a conferral of powers to the ECB in accordance with Article 127 para 6 TFEU cannot distort the EU’s institutional balance.

Summing up, we can say that the prohibition to delegate powers entailing a wide discretion, as laid down in the Meroni case, does not apply to the ECB as an institution of the EU. As regards the EU’s institutional balance – the maintenance of which is another, more broadly applicable requirement enshrined in the Meroni case law – the conclusion is ambivalent. Since the Treaty explicitly allows for the Council to empower the ECB by means of legislation, this authorisation (or: enabling clause) itself shapes the EU’s institutional balance. It is, in a way, part of the EU’s institutional balance. If the powers granted to the ECB on the ‘obvious basis’ [71] of Article 127 para 6 TFEU are in accordance with that provision, there also cannot be any distortion of the EU’s institutional balance. If the powers granted were too far-reaching to be covered by this provision, however, it would be possible to argue that the institutional balance was distorted. In view of the fact that the ECB is an EU institution and in view of the fact that there is an explicit legal basis for the empowerment, [72] however, the threshold for such a distortion is much higher than in the case of a European agency empowered on the basis of a malleable Treaty provision such as, for example, Article 114 TFEU. [73]

In order to answer this question we shall now pay closer attention to the legal basis of the SSM-Regulation, Article 127 para 6 TFEU. It allows for the delegation of ‘specific tasks upon the European Central Bank concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings.’ [74] The reasons for this sketchy and ‘restrictive’ [75] drafting lies in the fact that back in the early 90s, during the negotiations on what had become the Treaty of Maastricht, the MS were disagreeing on which role the ECB ought to play in the field of financial market supervision. [76] In particular Germany and Belgium – and, later, Austria – have favoured a distinction between financial market supervision and monetary policy aimed at price stability. Other MS, among others France and Italy, have traditionally entrusted their respective national central bank with both tasks [77] and would have been open to do so also in case of the (future) ECB. As a result of these opposing views, the MS postponed the decision whether or not the ECB should be entrusted with tasks of financial market supervision and delegated it to the Council. [78] Against the background of the dissent between the MS, it does not come as a surprise that the compromise eventually found, today’s Article 127 para 6 TFEU, was not drawn up in precise terms. It is in particular the term ‘specific’ which requires some consideration. The meaning of ‘specific’ in everyday language – which, in case of doubt, is the understanding to be applied to legal provisions [79] – is ‘not general’, ‘precise’, ‘single/selected.’ [80] While the understanding as ‘precise’ – precise tasks – does not seem helpful here, [81] a translation as ‘single/selected’ – as opposed to ‘all tasks’ – suggests itself in the given context. This goes hand in hand with the first synonym of ‘specific’: It is not the general (supervisory) tasks which may be transferred, but single/selected tasks only. Where exactly to draw this line may be subject to different (reasonable) opinions. To argue that supervisory tasks are single/selected as long as at least one task is exercised by the national authorities, however, would disqualify itself as a merely quantitative approach. Taking, on the contrary, a qualitative stance, the following can be said: While the far-reaching powers of the ECB under the SSM cannot be listed here in full, mention should be made of its power to authorise all credit institutions in the participating MS, and to withdraw authorisations respectively, and of its power to assess the acquisition and disposal of qualifying holdings in credit institutions. [82] With regard to the other supervisory tasks listed in Article 4 of the SSM-Regulation, in principle the ECB is in charge of the significant credit institutions, whereas the national supervisory authorities are in charge of all other credit institutions. The ‘significance’ of a credit institution [83] is determined in a complex calculation taking into account, in particular, its size, its importance for the economy of the EU or any participating MS and the significance of its cross-border activities. [84] The ECB has a comprehensive competence to give instructions to the national supervisory authorities, even where a task falls principally within the responsibility of the latter. [85] The tasks not mentioned in Article 4 of the SSM-Regulation, in particular the fight against money laundering, combatting terrorist financing and consumer protection, remain entirely with the national supervisory authorities – even where they respect significant credit institutions. [86] Whether or not these powers to directly supervise credit institutions and to monitor the national authorities’ supervision respectively – altogether certainly ‘big teeth’ [87] – amount to only ‘specific tasks upon the European Central Bank concerning policies relating to the prudential supervision of credit institutions and other financial institutions’ (emphases added) is contested. Some scholars argue that the amount of tasks/powers the ECB is vested with under the SSM – in addition to those macroprudential supervisory tasks it exercises within the ESRB [88] – goes beyond the limits set in Article 127 para 6 TFEU. [89] Authoritatively this may only be decided upon by the Court of Justice.

On the assumption that Article 127 para 6 TFEU is infringed, the question alluded to above arises: whether the institutional balance is tilted. In this context it is first to be noted that the ECB is empowered at the cost of the national authorities’ competences (not: of other institutions), hence an institutional imbalance may be caused only by the increase of the ECB’s competences (not: by the decrease of other institutions’ competences). The SSM does not question the broad institutional setting envisaged by primary law, that is to say: the various lead roles assigned to the institutions. In particular, the Commission is not skipped. The ECB is not empowered instead of the Commission. Rather it is, due to Article 127 para 6 TFEU, the only institution which may possibly be vested with the competences at issue. [90] Article 127 para 6 TFEU may be violated by the SSM, but the EU’s institutional balance remains intact.

IV. Reverse majority voting (RMV)

Under the SSM, the Governing Council of the ECB applies a RMV in accordance with Article 26 para 8 of the SSM-Regulation in conjunction with Articles 13g (general decision-making) and 13i (authorisation procedure) of the Rules of Procedure of the ECB. [91] While the deadlines may differ depending on the decision to be taken (see Articles 13g and 13i of the ECB’s Rules of Procedure), the principal decision-making process remains the same. The Supervisory Board provides a draft decision, to which the Governing Council may object. [92] The majority requirements for decisions of the Governing Council are laid down in Article 10 para 2 of the Statute of the ESCB/ECB. For lack of a special rule, it can be assumed that for an objection the Governing Council has to reach the same quorum, resulting in the fact that it is more difficult to reach the quorum for an objection – here a majority has to object – than to reach the quorum for a ‘negative’ decision, that is to say for a decision not to adopt the objection – here it suffices that there is no majority in favour of the objection. Regularly, there is no formal decision, but just a lapse of the objection deadline. [93] Such a reversion of majority quora – that is to say: a changing of majority quora – is known, for example, from the ‘Six-Pack,’ the ‘Two-Pack’ or the Treaty on Stability, Coordination and Governance (TSCG). [94]

The criticism uttered in these contexts in principle may be invoked also here. [95] Article 10 para 2 of the Statute of the ESCB/ECB lays down the voting procedure to be applied in the Governing Council. Its subpara 4 says: ‘Save as otherwise provided for in this Statute, the Governing Council shall act by a simple majority of the members having a voting right.’ The Statute does not provide otherwise for supervisory decisions – dating from October 2012, apart from a brief reference to Article 127 para 6 TFEU, it does not even mention the ECB’s supervisory powers. [96] Therefore it is clear that the decisions to be taken by the Governing Council under the SSM-Regulation require a simple majority according to the Statute, primary law that is. [97] Although the wording leaves open this question (argumentum ‘shall act’), it is reasonable to assume that this provision only refers to positive decisions, not to negative decisions (objections), the latter still being a rare exception in EU institutions’ decision-making. The deviation laid down in the SSM-Regulation, an act of secondary law, constitutes an infringement of the lex citata in the Statute. The explicit statement of the Statute also rules out a ‘tacit’ modification of its understanding, occurring as a result of the other examples of RMV in EU law, as such a reading clearly is contra legem. In this context, we may recall the fundamental finding of the Court: ‘[T]he rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal … of the institutions.’ [98] The Court’s case law on lessened requirements for the adoption of mere implementing acts of the EU’s executive cannot be invoked here [99] per analogiam . In this case a Council implementing act was at issue, and the Treaties have made explicit provision of implementing powers of the Council ever since the Single European Act. [100] What is more, in this case the delegation of implementing powers from the Council to the Council was at issue, not the vesting by the Council of the ECB with new EU powers (ie up to then powers of the national supervisors) was at issue. Article 10 para 2 of the Statute lays down a very detailed and complex voting system. It is clear that the Masters of the Treaties did not foresee this system to be amended by secondary law [101] and it is also not to be assumed that they forgot about the case of – then: future – supervisory decisions of the ECB when drafting the Statute. As a comment of principle, we may add that dropping a positive majority requirement in favour of a mere qualified minority requirement (that is: no objecting majority) by no means is a minor procedural adaptation, but constitutes a veritable paradigm shift.

On the positive side, it is to be stressed that the weakened majority requirements for the adoption of a draft decision of the Supervisory Board – a ‘de facto conferral of the decision-making power to the Supervisory board, subject to an objection from the Governing Council’ [102] – strengthen the position of the Board and may underpin the separation of the monetary policy and the supervisory branch of the ECB [103] and may facilitate swifter decision-making. The latter claim – which is a mere efficiency argument – cannot remedy the breach of primary law, though. [104] The former is also a positive side-effect, but – having said that –the Governing Council as the ECB’s main decision-making body should not be perceived as an annoying bureaucratic hurdle that needs to be evaded as far as possible. Rather, it should be accepted as a requirement of primary law. The promotion of another Treaty requirement, the independence of the ECB’s monetary policy, cannot justify the infringement of primary law. All the more so, because this independence can be and actually is ensured by other means. [105]

In terms of practice, this modus operandi can be expressed in the following figures: While in 2016/2017 the ECB as a banking supervisor has adopted 1,835/2,308 decisions, the large majority of which concerned authorisation procedures, [106] decision-making in the Supervisory Board has required no fewer than 28/32 meetings, many of which lasted for more than one full day. [107] The required approval (non-objection) of the ECB’s Governing Council – despite RMV – further prolonged decision-making. [108] In exclusively quantitative terms, the efficiency of the supervisory branch of the ECB appears to gradually improve, though. [109] In addition to the simplification of procedures and the stronger involvement of national authorities undertaken in 2015, [110] the ECB has created ‘a framework for adopting certain types of supervisory decisions by means of delegation’ which shall accelerate decision-making. [111]

V. Conclusion

Having studied the SSM with a view to addressing the three issues initially raised, we may conclude the following: The cooperation with other banking supervisors is intense, both with the national authorities and with the EBA and, due to the institutional nexus, the ESRB, respectively. It is in particular its comprehensive competence to give instructions to and to assume competences of national authorities which equip this cooperation with a strong hierarchical thrust. [112] The SSM may be understood as a role model in particular with regard to the administrative relationship between EU and national authorities – a role model to which the establishment of new agencies and other EU bodies, or the reinforcement of existing ones respectively, may, due to Treaty constraints, not live up to, but which may nevertheless serve as a sort of inspiration for the legislator. This is exemplified by the way tasks are shared within the SRM: systemically important (‘significant’) banks are dealt with by the SRB, a European agency, others in principle by the national resolution authorities. [113]

The dominance of Meroni in the discussion about European agencies cannot be transferred to the case of banking supervision by the ECB. [114] As an institution of the EU it may, unlike European agencies, be vested with competences entailing a wide discretion, and hence the weights to be put on the ECB may be much heavier than in the case of agencies, without thereby tilting the institutional balance of the EU. The restrictive wording of Article 127 para 6 TFEU, however, does set limits to the empowerment of the ECB.

The RMV applied under the SSM is a clear breach of the Statute of the ESCB/ECB, primary law that is. That this breach may lead to efficiency gains cannot do away with its unlawfulness. Neither can the separation of monetary policy from banking supervision within the ECB, which is improved by this decision-making procedure, justify the deviation from the Statute. While this separation is a requirement imposed by primary law, there are other – and lawful – means to meet it.

*Post-doctoral researcher and lecturer at the Department of Public, Public International and European Law and at the Salzburg Centre of European Union Studies (SCEUS), University of Salzburg. An earlier version of this paper, entitled 'The European Central Bank (ECB) under the Single Supervisory Mechanism (SSM). Its functioning and its limits' was published in the TARN Working Paper Series in 2017



[1] The European Banking Supervisory Authority, the European Securities and Markets Authority, the European Insurance and Occupational Pensions Authority.

[2] Reg 1092/2010 and Council Reg 1096/2010.

[3] cf Paul Weismann, ‘Banking crisis and banks in crisis: from state aid to bank resolution’ (2016) 37 European Competition Law Review 384, in particular 387.

[4] cf Dirk Schoenmaker and Nicolas Véron, ‘Introduction and executive summary’, in D. Schoenmaker and N. Véron (eds), European banking supervision: the first eighteen months (Bruegel Blueprint Series, 2016) 43.

[5] Art 2 para 2 lit f and Art 4 para 2 (i) of Reg 1093/2010 (hereinafter: ‘EBA-Reg’); cf Christos V. Gortsos, ‘The Role of the European Banking Authority (EBA) After the Establishment of the Single Supervisory Mechanism (SSM)’, in M. Andenas and G. Deipenbrock (eds), Regulating and Supervising European Financial Markets. More Risks than Achievements (Springer, 2016) 286 f.

[6] Art 7 of Reg 1024/2013 (hereinafter: ‘SSM-Reg’). This Regulation was unanimously adopted by all MS, as required by Art 127 para 6 TFEU (in combination with Art 139 para 2 TFEU e contrario); cf Schoenmaker and Véron, n 4 above, 1.

[7] Art 44 para 1 and Art 45 para 1 subpara 3 of the EBA-Reg as amended by Reg 1022/2013.

[8] Art 26 para 1 of the SSM-Reg.

[9] These DGs are called Microprudential Supervision I-IV https://www.bankingsupervision.europa.eu/organisation/whoiswho/organigram/html/index.en.html accessed 4 April 2018; for the allocation of tasks to these DGs see Schoenmaker and Véron, n 4 above, 10.

[10] For alternative governance concepts brought forward in the discussion cf Gianni Lo Schiavo, ‘The Single Supervisory Mechanism: Building the New Top-Down Cooperative Supervisory Governance in Europe’, in F. Fabbrini, E. Hirsch Ballin and H. Somsen (eds), What Form of Government for the European Union and the Eurozone? (Hart Publishing, 2015) 121.

[11] ECB, List of supervised entities (1 January 2018) https://www.bankingsupervision.europa.eu/ecb/pub/pdf/ssm.list_of_supervised_entities_201802.en.pdf accessed 4 April 2018.

[12] For the euro area’s most heterogeneous banking system cf Schoenmaker and Véron, n 4 above, 11-21.

[13] Art 6 para 4 of the SSM-Reg.

[14] cf Madalina Busuioc and Martijn Groenleer, ‘The Theory and Practice of EU Agency Autonomy and Accountability: Early Day Expectations, Today’s Realities and Future Perspectives’, in M. Everson, C. Monda and E. Vos (eds), European Agencies in between Institutions and Member States (Wolters Kluwer, 2014) 179; Walter Frenz, ‘Verwaltungskooperation mit der Union im Lichte von Art. 197 AEUV und des Lissabon-Urteils’ (2010) 2 Die Öffentliche Verwaltung 66 f; see also Council Regulation 1/2003, in particular its Arts 12-16 and 22.

[16] For the unclear legal foundations of EEC public administration in the Treaty of Rome cf Robert Schütze, ‘From Rome to Lisbon: “Executive Federalism” in the (New) European Union’ (2010) 47 Common Market Law Review 1385, 1393-1397.

[17] cf Léontin-Jean Constantinesco, Das Recht der Europäischen Gemeinschaften. Das institutionelle Recht (Nomos, 1977) 292-294 with numerous examples.

[18] cf Art 89 TEEC (Rome); cf also Heike Schweitzer and Kiran K. Patel, ‘EU Competition Law in Historical Context’, in K. Patel and H. Schweitzer (eds), The Historical Foundations of EU Competition Law (Oxford University Press, 2013) 207; for the functioning of the network more recently cf Meike Eekhoff, Die Verbundaufsicht. Gemeinschaftsrechtliche Aufsichtsverfahren und -mechanismen außerhalb des Vertragsverletzungsverfahrens (Mohr Siebeck, 2006) 33-42.

[19] cf C-429/07 Inspecteur van de Belastingdienst v X BV, ECLI:EU:C:2009:359, paras 20 f.

[20] cf Herwig C.H. Hofmann, Gerard C. Rowe and Alexander H. Türk, Administrative Law and Policy of the European Union (Oxford University Press, 2011) 262 f.

[21] Ellen Vos, ‘European Agencies and the Composite EU Executive’, in M. Everson, C. Monda and E. Vos (eds), European Agencies in between Institutions and Member States (Wolters Kluwer, 2014) 33.

[22] cf Thomas Groß, ‘Die Kooperation zwischen europäischen Agenturen und nationalen Behörden’ (2005) 1 Europarecht 54, 58 ff.

[23] cf Paul Craig, EU Administrative Law (Oxford University Press, 2nd edn, 2012) 166 f; Herwig C.H. Hofmann, ‘Composite decision making procedures in EU administrative law’, in H. Hofmann and A. Türk (eds), Legal Challenges in EU Administrative Law. Towards an Integrated Administration (Edward Elgar, 2009) 143-146 with further references and 166; Carol Harlow and Richard Rawlings, ‘Promoting Accountability in Multilevel Governance: A Network Approach’ (2007) 13 European Law Journal 542, 543. For the more specific term ‘network agency’ cf Andreas Orator, ‘Die unionale “Netzwerkagentur” als Paradefall europäischer Verwaltungskooperation’, in K. Gotthard et al (eds), Kooperation und Koordination als Rechtsentwicklungstrends (Jan Sramek Verlag, 2014) 128-132, with further references.

[24] Art 2 of Reg 1093-1095/2010; critical as regards the cooperation between national and EU bodies within the ESFS: Mona P. Ladler, ‘Das Netzwerk der europäischen Finanzaufsicht: Alte Probleme im neuen Kleide?’, in K. Gotthard et al (eds), Kooperation und Koordination als Rechtsentwicklungstrends (Jan Sramek Verlag, 2014) 120.

[25] Art 3 of the SSM-Reg; cf also ECB, Annual Report on supervisory activities 2016 (March 2017), in particular 42-46.

[26] Art 2 para 4 of the ESA-Reg.

[27] Art 3-5 of ECB Reg 468/2014 (SSM Framework Reg). For the cooperation of national competent authorities with regard to the supervision of a less significant credit institution see Art 7 leg cit. Cf also the Colleges of Supervisors established in accordance with Dir 2013/36/EU, in which the ECB may participate, as well; cf ECB, Annual Report on supervisory activities 2016 (March 2017), in particular 52, 59, 76.

[28] ECB, Annual Report on supervisory activities 2015 (March 2016) 30.

[29] cf Schoenmaker and Véron, n 4 above, 10; for the much better functioning of these supervisory teams as compared to their predecessors cf ibid 22 f; cf also https://www.bankingsupervision.europa.eu/banking/approach/jst/html/index.en.html accessed 4 April 2018.

[30] Art 20 f of ECB Reg 468/2014 (SSM Framework Reg). Pointing at the ‘joint generation and exchange of information’ as the ‘backbone of cooperation within integrated administration’: Hofmann, n 23 above, 137.

[31] cf Dieter H. Scheuing, ‘Europarechtliche Impulse für innovative Ansätze im deutschen Verwaltungsrecht’, in W. Hoffmann-Riem and E. Schmidt-Aßmann (eds), Innovation und Flexibilität des Verwaltungshandelns (Nomos, 1994) 332 f with examples.

[32] For this widely-used and related terms see Wolfgang Weiß, Der Europäische Verwaltungsverbund. Grundfragen, Kennzeichen, Herausforderungen (Duncker & Humblot, 2010) 17-19; cf also, for example, Wolfgang Kahl, ‘Der Europäische Verwaltungsverbund: Strukturen – Typen – Phänomene’ (2011) 3 Der Staat 353, 354-357 and 360; Eberhard Schmidt-Aßmann, ‘Einleitung: Der Europäische Verwaltungsverbund und die Rolle des Europäischen Verwaltungsrechts’, in E. Schmidt-Aßmann and B. Schöndorf-Haubold (eds), Der Europäische Verwaltungsverbund (Mohr Siebeck, 2005) 1.

[33] cf, each with further references, Constantinesco, n 17 above, 299; Scheuing, n 31 above, 334-336; Eekhoff, n 18 above, 130-139; Bettina Schöndorf-Haubold, ‘Gemeinsame Europäische Verwaltung: die Strukturfonds der EG’, in E. Schmidt-Aßmann and B. Schöndorf-Haubold (eds), Der Europäische Verwaltungsverbund. Formen und Verfahren der Verwaltungszusammenarbeit in der EU (Mohr Siebeck, 2005) 46.

[34] cf eg Kahl, n 32 above, 366.

[35] cf, for example, the following contributions to E. Schmidt-Aßmann and B. Schöndorf-Haubold (eds), Der Europäische Verwaltungsverbund. Formen und Verfahren der Verwaltungszusammenarbeit in der EU (Mohr Siebeck, 2005): Julia Sommer, ‘Informationskooperation am Beispiel des europäischen Umweltrechts,’ Daniel Riedel, ‘Die Europäische Agentur für Flugsicherheit im System der Gemeinschaftsagenturen’; see also Martin Pawlik, Das REACH-System und die Meroni-Doktrin. Ein imperfekter Quantensprung im Europäischen Verwaltungsverbund (Nomos, 2013) 29 f.

[36] Deirdre Curtin and Renaud Dehousse, ‘European Union agencies: tipping the balance?’ in M. Busuioc, M. Groenleer and J. Trondal, The agency phenomenon in the European Union. Emergence, institutionalisation and everday decision-making (Manchester University Press, 2012) 195.

[37] cf Andreas Orator, ‘Die unionsrechtliche Zulässigkeit von Eingriffsbefugnissen der ESMA im Bereich von Leerverkäufen’ (2013) 22 Europäische Zeitschrift für Wirtschaftsrecht 851, 855 with references to the relevant case law of the Court.

[38] For a detailed presentation and analysis of these procedures cf eg Paul Weismann, European Agencies and Risk Governance in EU Financial Market Law (Routledge, 2016) 138-144

[39] In light of the exceptional crisis situation required for this power to take effect (Art 18 para 2 of the ESA-Regulations), it will, if at all, most probably be applied very rarely.

[40] Cf Niamh Moloney, ‘European Banking Union: Assessing its Risks and Resilience’ (2014) 51 Common Market Law Review 1609, 1665; critical with a view to the institutional balance: Benedikt Wolfers and Thomas Voland, ‘Level the Playing Field: The New Supervision of Credit Institutions by the European Central Bank’ (2014) 51 Common Market Law Review 1463, 1493.

[41] For the instructions given by the ECB to national central banks within the European System of Central Banks (ESCB) cf Eekhoff, n 18 above, 136-138; with regard to the ESCB as a role model for EU network organisations cf Giandomenico Majone, Dilemmas of European integration. The ambiguities and pitfalls of integration by stealth (Oxford University Press, 2005) 100 f.

[42] Art 6 para 6 of the SSM-Reg; cf also Eilís Ferran and Valia S.G. Babis, ‘The European Single Supervisory Mechanism’ (2013) 13 Journal of Corporate Law Studies 255, 260 f.

[43] Art 6 para 5 lit b of the SSM-Reg; cf also Dan Awrey, ‘Law, Financial Instability, and the Institutional Structure of Financial Regulation’, in A. Anand (ed), Systemic Risk, Institutional Design, and the Regulation of Financial Markets (Oxford University Press, 2016) 83.

[44] Art 9 para 1 subpara 3 of the SSM-Reg; Art 22 of ECB Reg 468/2014 (SSM Framework Reg).

[45] For the means of legal protection available in ‘composite decision making procedures’ (Hofmann) under the SSM cf Jörn A. Kämmerer, ‘Rechtsschutz in der Bankenunion (SSM, SRM)’ (2016) 1 Zeitschrift für Wirtschafts- und Bankrecht 1; Laura Wissink, Ton Duijkersloot and Rob Widdershoven, ‘Shifts in Competences between Member States and the EU in the New Supervisory System for Credit Institutions and their Consequences for Judicial Protection’ (2014) 10 Utrecht Law Review 92.

[46] Cf Speech by Ignazio Angeloni at the XXXI. Convegno ‘Adolfo Beria di Argentine’ (22 September 2017) https://www.bankingsupervision.europa.eu/press/speeches/date/2017/html/ssm.sp170922_1.en.html accessed 4 April 2018.

[47] Cf Jens Dammann, ‘The Banking Union: Flawed by Design’ (2014) 45 Georgetown Journal of International Law 1057, 1089 f; Eddy Wymeersch, ‘The single supervisory mechanism or “SSM”, part one of the Banking Union’ (2014) 255 National Bank of Belgium Working Paper Research 1, 41; cf also Jakub Gren, ‘The Politics of Delegation in European Banking Union: Building the ECB supervisory oversight capacity’ (2017) 13 Journal of Contemporary European Research 1109, applying the principal-agent model to the SSM.

[48] Pointing at the differences between the SSM and the traditional Verwaltungsverbund: Kämmerer, n 45 above, 2 with further references.

[49] Art 76 para 3 of ECB Reg 468/2014 (SSM Framework Reg).

[50] For the procedure in more detail see Art 73-79 of ECB Reg 468/2014 (SSM Framework Reg).

[51] For the (possible) coordination with the national resolution authority see Art 80 para 2 of ECB Reg 468/2014 (SSM Framework Reg).

[52] While having to consider the reasons contained in the proposal, the ECB shall not follow it where EU law does not provide for a withdrawal. For the procedure in more detail see Art 80-84 of ECB Reg 468/2014 (SSM Framework Reg). For the special case that the withdrawal of the authorisation would prejudice the resolution procedure see Art 14 para 6 of the SSM-Reg; see also Art 84 of ECB Reg 468/2014 (SSM Framework Reg).

[53] ECB, Annual Report on supervisory activities 2015 (March 2016) 42; see also Annual Report on supervisory activities 2016 (March 2017) 29.

[54] Cf also Ferran and Babis, n 42 above, 264 f.

[55] The criteria laid down in the cases 9, 10/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority, ECLI:EU:C:1958:7; recently reconsidered comprehensively in case C-270/12 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, ECLI:EU:C:2014:18.

[56] See, as one of many examples and with further references, Merijn Chamon, EU Agencies. Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press, 2016) 175 ff.

[57] Cases 9, 10/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority, ECLI:EU:C:1958:7, 152. There are numerous contributions on the Meroni criteria and their respective meaning; cf eg Giandomenico Majone, ‘The Credibility Crisis of Community Regulation’ (2000) 38 Journal of Common Market Studies 273; for a monographic approximation cf Pawlik, n 35 above, in particular 127 ff; for the delegation of discretionary powers to EU bodies heed the more recent case law, such as case C-98/09 P Ralf Schräder v Community Plant Variety Office (CPVO), ECLI:EU:C:2010:196, para 77, or case C-287/13 P Bilbaína de Alquitranes, SA and Others v European Chemicals Agency (ECHA), ECLI:EU:C:2014:599, para 19.

[58] See, with regard to the Commission’s more general approach towards delegation which had, for a long time, been rather reluctant, Claus-Dieter Ehlermann, ‘Die Errichtung des Europäischen Fonds für währungspolitische Zusammenarbeit’ (1973) 8 Europarecht 193, 198; Stefan Griller and Andreas Orator, ‘Everything under control? The “way forward” for European agencies in the footsteps of the Meroni doctrine’ (2010) 35 European Law Review 3, 17 f.

[59] cf case C-270/12 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, ECLI:EU:C:2014:18, in particular para 53; for the development of the doctrine since the late 50s cf Griller and Orator, n 58 above, 15-25. Pointing at the arguments against the applicability of Meroni in the agency-context: Pawlik, n 35 above, 158-160; arguing against an ‘exaggeration’ of the implications of the Meroni doctrine: Damien Geradin and Nicolas Petit, ‘The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform’ (2004) 1 Jean Monnet Working Paper 14 f http://www.jeanmonnetprogram.org/archive/papers/04/040101.pdf accessed 4 April 2018; Madalina Busuioc, ‘Accountability, Control and Independence: The Case of European Agencies’ (2009) 15 European Law Journal 599, 601: doubting the compliance with Meroni (even) of earlier agencies such as the Office for Harmonization in the Internal Market or the European Medicines Agency.

[60] Pointing at the similarities between the ‘supervisory department within the ECB’ and European agencies, and hence doubtful as regards the non-applicability of Meroni: Wolfers and Voland, n 40 above, 1491 f.

[61] cf Eddy Wymeersch, ‘The European Banking Union, a first analysis’ (2012) Financial Law Institute Working Paper Series 9.

[62] This makes it clear that also the Romano case (98/80 Giuseppe Romano and Institut National d’Assurance Maladie-Invalidité , ECLI:EU:C:1981:104) does not apply here, which, besides – at least with regard to its delegation criteria –, appears to have been declared irrelevant in view of the institutional changes brought about by the Treaty of Lisbon: case C-270/12 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union , ECLI:EU:C:2014:18, para 65; cf also Dammann, n 47 above, 1075 f.

[63] cf case C-301/02 P Carmine Salvatore Tralli and ECB, ECLI:EU:C:2005:306, paras 41 f; cf also Wymeersch, n 61 above, 12. The Rules of Procedure of the ECB, of the Governing Council and of the Supervisory Board, respectively, do not explicitly provide for such a possibility. For Board-internal delegation of power (and its limits) see Art 8 of the Rules of Procedure of the Supervisory Board of the European Central Bank; cf also Schoenmaker and Véron, n 4 above, 35.

[64] For this terminological change cf Katja Michel, Institutionelles Gleichgewicht und EU-Agenturen. Eine Analyse unter besonderer Berücksichtigung der European Banking Authority (Duncker & Humblot, 2015) 74.

[65] cf Majone, n 41 above, 89; cf now Art 13 para 2 (first sentence) TEU.

[66] Cases 9, 10/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority, ECLI:EU:C:1958:7, 152.

[67] cf Michel, n 64 above, 71 f with further references. With regard to the ECB cf, for example, case T-79/13 Alessandro Accorinti v ECB, ECLI:EU:T:2015:756, para 68.

[68] cf Reinhard Priebe, Entscheidungsbefugnisse vertragsfremder Einrichtungen im Europäischen Gemeinschaftsrecht (Nomos, 1979) 78 (footnote 39); cf also case C-11/00 Commission v European Central Bank, ECLI:EU:C:2003:395, para 174.

[69] For the irrelevance of Meroni in such a case cf Hofmann, Rowe and Türk, n 20 above, 587.

[70] cf Eddy Wymeersch, ‘Banking Union; Aspects of the Single Supervisory Mechanism and the Single Resolution Mechanism compared’ (2015) 290 ECGI Working Paper in Law 4; Martin Selmayr, ‘Art. 282 AEUV’, in H. von der Groeben, J. Schwarze and A. Hatje (eds), Europäisches Unionsrecht (Nomos, 7th edn, 2015) para 114.

[71] Carol Harlow and Richard Rawlings, Process and Procedure in EU Administration (Hart Publishing, 2014) 288.

[72] It ought to be stressed here that entrusting the ECB with banking supervisory powers requires a clear legal basis, as the Commission is the regular administrative authority of the EU (see Art 17 para 1 TEU) on the one hand, and as it puts at risk the independence of the ECB’s monetary policy, on the other hand.

[73] cf Philipp Lindermuth, ‘Demokratische Legitimation des Agenturhandelns. Delegationsgrenzen in der Unionsverwaltung’, in K. Gotthard et al (eds), Kooperation und Koordination als Rechtsentwicklungstrends (Jan Sramek Verlag, 2014) 161-164 with further references. The discussion about introducing an explicit Treaty base for the establishment of European agencies has been going on prior to the adoption of the Nice Treaty. The then President of the Commission Romano Prodi fervently opposed this idea, because he feared a fragmentation of power at the cost of the Commission: ‘Let us have no illusions: there is a real danger that this will create conflicting centres of power’; Romano Prodi, Speech/00/352 (Plenary Session of the European Parliament, Strasbourg, 3 October 2000).

[74] Stressing the fact that – according to the terminology currently used in EU banking law – credit institutions do not belong to the group of financial institutions: Christos V. Gortsos, ‘The “Single Supervisory Mechanism”: A Major Building Block towards a European Banking Union (The Full Europeanisation of the “Bank Safety Net”)’ (2013) 8 ECEFIL Working Paper Series 18 (fn 47).

[75] Rosa M. Lastra and Jean-Victor Louis, ‘European Economic and Monetary Union: History, Trends, and Prospects’ (2013) Yearbook of European Law 1, 149.

[76] Note that the Commission (as referred to by the legislator in Recital 85 of the SSM-Reg) has expressed its discontent with Art 127 para 6 for a number of reasons.

[77] cf Martin Selmayr, ‘Art. 127 AEUV’, in H. von der Groeben, J. Schwarze and A. Hatje (eds), Europäisches Unionsrecht (Nomos, 7th edn, 2015) paras 42.

[78] The exclusion of supervision of insurance undertakings in Art 127 para 6 TFEU was insisted on by Germany; for the ‘anachronism’ this exception poses see Lastra and Louis, n 75 above, 83.

[79] cf Karl Larenz and Claus-Wilhelm Canaris, Methodenlehre der Rechtswissenschaft (Springer, 3rd edn, 1995) 143.

[80] cf Paul Weismann, ‘Die Bankenunion. Entwicklung, System und ausgewählte Rechtsfragen’, in J. Breitenlechner et al (eds), Sicherung von Stabilität und Nachhaltigkeit durch Recht (Jan Sramek Verlag, 2015) 124 with further references.

[81] ‘Precisely defined tasks’ would make more sense, but this is not what the provision says. Moreover, the precise drafting of tasks and of legislation more generally is an overall quest of the rule of law. It cannot be assumed that the MS intended to highlight this quest when drafting Art 127 para 6 TFEU.

[82] See Art 4 para 1 lit a and c in combination with Art 6 para 4 of the SSM-Reg; see also its Art 15. For further tasks and powers of the ECB under the SSM see Art 4 f and Chapter III of the SSM-Reg.

[83] The supervision also extends to financial holding companies and mixed financial holding companies.

[84] See Art 6 para 4 of the SSM-Reg. The ECB shall be in charge of the three most significant credit institutions in each participating MS, irrespective of whether they meet the thresholds just mentioned.

[85] See Art 6 para 3 of the SSM-Reg.

[86] See Recitals 28 f of the SSM-Reg.

[87] Harlow and Rawlings, n 71 above, 290.

[88] See in particular Council Reg 1096/2010 which is also based on Art 127 para 6 TFEU and in which, by the way, no separation between supervisory and monetary policy tasks is provided for; critically with regard to the delegation of macroprudential powers to the ECB on the basis of this Treaty provision: Kern Alexander , ‘The European Central Bank and Banking Supervision: The Regulatory Limits of the Single Supervisory Mechanism’ (2016) 3 European Company and Financial Law Review 467, 480 f.

[89] Cf Concetta Brescia Morra, ‘From the Single Supervisory Mechanism to the Banking Union. The Role of the ECB and the EBA’ (2014) 2 LUISS Academy Working Paper 5, with further references; Kerstin Peters, ‘Die geplante europäische Bankenunion – eine kritische Würdigung’ (2014) 9 Zeitschrift für Wirtschafts- und Bankrecht 396, 399 and 401; Reiner Schmidt, ‘Wirtschafts- und Währungspolitik’, in R. Schmidt and F. Wollenschläger (eds), Kompendium Öffentliches Wirtschaftsrecht (Springer, 2016) para 71; Wolfers and Voland, n 39 above, 1485 f; doubtful: Ulrich Häde, ‘Art. 127 AEUV’, in C. Calliess and M. Ruffert (eds), EUV/AEUV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta (CH Beck, 5th edn, 2016) para 56; Reinhard Klaushofer, ‘Bankenaufsicht durch die EZB – ein primärrechtlicher Grenzgang’ (2014) 22 Journal für Rechtspolitik 102, 105; Giorgio Monti and Christy Ann Petit, ‘The Single Supervisory Mechanism: legal fragilities and possible solutions’ (2016) 16 ADEMU Working Paper Series 1, 2 f; differently: Moloney, n 40 above, 1659; Selmayr, n 77 above, paras 54 f.

[90] Vesting the EBA with comparable powers would have been in conflict with the Meroni criteria; cf Harlow and Rawlings, n 72 above, 289.

[91] For the decision-making procedure in the context of the ECB’s macroprudential tasks see Art 13h leg cit. For the possibilities of participating MS whose currency is not the euro see, in particular, Art 7 paras 7 f and Art 26 para 8 of the SSM-Reg.

[92] For a graphic representation of the procedure see ECB, Guide to banking supervision (2014) 15 https://www.bankingsupervision.europa.eu/ecb/pub/pdf/ssmguidebankingsupervision201411.en.pdf accessed 4 April 2018. In the terminology of Sunstein, the draft of the Supervisory Board constitutes a ‘default rule.’ Where the Governing Council does not take an express decision – ie an objection – the draft becomes a decision. Hence the question posed to the Governing Council is rather ‘Do you want to object to this quasi-decision?’ than ‘Do you want this draft to become a decision?’. For the relevance the wording of the choice has for its outcome cf Cass R. Sunstein, ‘Empirically Informed Regulation’ (2011) 78 University of Chicago Law Review 1349, 1350 f.

[93] Cf Wymeersch, n 47 above, 53.

[94] Art 7 of the TSCG; critically: Rainer Palmstorfer, ‘The Reverse Majority Voting under the “Six Pack”: A Bad Turn for the Union?’ (2014) 20 European Law Journal 186, 191-193; differently: Andreas J. Kumin, ‘“Reverse Majority Voting” – Auf dem Weg zur Herrschaft der Exekutive über die Legislative?’, (2013) 68 Zeitschrift für öffentliches Recht / Journal of Public Law 441, in particular 449 f. For these and other examples of RMV – such as the WTO dispute settlement – and a critical account thereof see Wim Van Aken and Lionel Artige, ‘Reverse Majority Voting in Comparative Perspective: Implications for Fiscal Governance in the EU’, in B. de Witte, A. Héritier and A. Trechsel (eds), The Euro Crisis and the State of European Democracy (European University Institute, 2013) 129.

[95] Doubtful as regards compliance of the non-objection procedure with Art 127 para 6 TFEU: Wymeersch, n 47 above, 53,

[96] Art 25 para 2 of the Statute of the ESCB/ECB.

[97] Art 51 TEU.

[98] Case 68/86 United Kingdom of Great Britain and Northern Ireland v Council of the European Communities , ECLI:EU:C:1988:85, para 38; case 133/06 European Parliament v Council of the European Union, ECLI:EU:C:2008:257, paras 54 f

[99] Case C-303/94 European Parliament v Council of the European Union, ECLI:EU:C:1996:238, para 23 with further references.

[100] Art 10 of the Single European Act introduced the rule-exception clause in favour of the Commission in Art 145 TEEC (see now Art 291 para 2 TFEU), but also before that the Council had served as a delegatee of implementing powers; see now case C-521/15 Kingdom of Spain v Council of the European Union, ECLI:EU:C:2017:982, para 43.

[101] Art 129 paras 3 f TFEU e contrario.

[102] Wymeersch, n 47 above, 53.

[103] This separation is required because otherwise a conflict of objectives is – in the long run – unavoidable: The primary objective of the ECB within monetary policy is to maintain price stability (Art 127 para 1 TFEU), whereas the primary objective of the ECB under the SSM-Reg is ‘to protect the safety and soundness of credit institutions and the stability of the financial system’ (Recital 65).

[104] cf Palmstorfer, n 94 above, 203, refusing the ‘efficiency argument’ in the context of RMV under the ‘Six-Pack’; cf also Weismann, n 38 above, 188 f. In view of the fact that this constellation increases the powers of one body at the cost of the powers of another body of the very same institution, it cannot possibly infringe the EU’s institutional balance which addresses the inter-institutional (not: the intra-institutional) balance of powers.

[105] For one of these means, the so-called Chinese walls between monetary policy and banking supervision within the ECB see Christos V. Gortsos, ‘The two main pillars of the European Banking Union: the legal framework in a “nutshell”’, in J.-H. Binder and C.V. Gortsos (eds), The European Banking Union. A Compendium (CH Beck/Hart/Nomos, 2016) 25.

[106] Most of these ‘authorisations’ did not concern authorisations within the meaning of Art 14 of the SSM-Reg, ie licensing decisions, but so-called ‘suitability assessments’ of (proposed) members of the management bodies of significant credit institutions.

[107] cf ECB, Annual Report on supervisory activities 2016 (March 2017) 37 and 53; ECB, Annual Report on supervisory activities 2017 (March 2018) 12 and 83 f.

[108] cf Schoenmaker and Véron, n 4 above, 35.

[109] On the number of procedures and procedural efficiency gains cf ECB, Annual Report on supervisory activities 2016 (March 2017) 35-37.

[110] cf ECB, Annual Report on supervisory activities 2015 (March 2016) 50 f.

[111] ECB, Annual Report on supervisory activities 2016 (March 2017) 54.

[112] Cooperation is literally understood here as the working together of different (administrative) actors. Cooperation is not necessarily heterarchical, but may also take place between a principal actor and subordinate bodies; for a different understanding cf Alberto J. Gil Ibañez, The Administrative Supervision and Enforcement of EC Law: Powers, Procedures and Limits (Hart Publishing, 1999) 282.

[113] For the SRM: Art 7 and 28-31 of Reg 806/2014; with regard to the arrogation of powers by the SRB see in particular Art 7 para 4 leg cit; cf also Karl-Philipp Wojcik and Jan Ceyssens, ‘Der Einheitliche EU-Bankenabwicklungsmechanismus: Vollendung der Bankenunion, Schutz des Steuerzahlers’ (2014) 23 Europäische Zeitschrift für Wirtschaftsrecht 893, 896. These similarities shall not conceal the substantial differences between the two regimes which exist as well, and regard, for example, the strong involvement of EU institutions (Council, Commission, ECB) or the SRB’s legal personality (as opposed to the Supervisory Board).

[114] The Meroni criteria, vague as they are and somewhat defused by the ESMA judgement, have retained some relevance. In case of the SRB, for example, the legislator tried to do justice to Meroni, in particular by involving the Commission, the Council and the ECB in its operations under the SRM; cf also the reference to this doctrine in the Commission Proposal for a Council Regulation on the establishment of the European Monetary Fund; COM(2017) 827 final, 6 and 13.