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2017 | OriginalPaper | Chapter

The Quest for Financial Stability and Democracy in the Banking Union: Promoting Institutional Transformation and Regulatory Evolution Through Unconventional Means

Author : Roberto Cisotta

Published in: Democracy in the EMU in the Aftermath of the Crisis

Publisher: Springer International Publishing

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Abstract

In the context of the new legislation establishing a banking union in the EU, some reporting and democratic accountability duties have been established for the Single Supervisory Mechanism (SSM) and the Single Resolution Board (SRB), essentially to the benefit of the European Parliament and of national Parliaments, as well as of the Council of the EU. These democratic tools reflect in their conception and first applicative praxis those existing for the ECB and can be considered a first attempt to counterweight the marginalisation of the democratically elected bodies in the adoption of responses to the financial and economic crisis. Being it conceived as an esthetic operation or not, and notwithstanding their mild pervasive power, these democratic tools can play a role in strengthening the legitimacy of the SSM and SRB and their actual capacity to make a contribution to preserving financial stability in the EU.

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previous chapter Financial Challenges to Solidarity: Building the European Banking Union in Times of Crisis

next chapter Negative Democratic Externalities in the European Banking System

See Communication from the Commission to the European Parliament and the Council “A Roadmap towards a Banking Union”, COM (2012) 510, 12 September 2012, esp. section 4; Five Presidents’ Report of 22 June 2015 on “Completing Europe’s Economic and Monetary Union” http://ec.europa.eu/priorities/economic-monetary-union/docs/5-presidents-report_en.pdf (hereinafter, Five Presidents’ Report), p. 11 et seq.; Communication from the Commission to the European Parliament, the Council and the European Central Bank on steps towards Completing Economic and Monetary Union, COM(2015) 600 final, 21 October 2015, section 5.

See now the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No. 806/2014 in order to establish a European Deposit Insurance Scheme, COM(2015) 586 final, 24 November 2016; the proposal is based on Article 114 and the legislative procedure [2015/0270(COD)] is still under way at the moment of completion of this chapter.

Alexander (2011), p. 229 et seqq. and (2013), p. 281 et seqq.; Louis (2012), p. 289 et seqq.

Council Regulation (EU) No. 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, OJEU L 287, 29 October 2013, pp. 63–89.

Di Marco (2013), p. 549 et seqq.; Wolfers, Voland (2014), p. 1463 et seqq.

In this chapter the expressions “mechanisms” or “tools” will be used promiscuously to indicate the components of the democratic machinery presented in Sect. 2.

Ibrido (2016), p. 377 et seqq.

See Cisotta (2015), p. 283 et seqq.

This prima facie impression seems confirmed by the somewhat apodictic explanation for the introduction of democratic tools contained in recital (55) of Regulation (EU) No. 1024/2013 (see footnote 14), according to which “[a]ny shift of supervisory powers from the Member State to the Union level should be balanced by appropriate transparency and accountability requirements” (see also recital (D) of Interinstitutional Agreement between the European Parliament and the European Central Bank on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the ECB within the framework of the Single Supervisory Mechanism (see footnote 22) and recital (D) of the MoU between the Council and the ECB on the cooperation procedures related to the SSM (see footnote 24)). Regulation (EU) No. 806/2014 (see footnote 16) does not even try to offer a justification (see recital (42)), but see recital (D) of the Agreement between the European Parliament and the Single Resolution Board on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the Single Resolution Board within the framework of the Single Resolution Mechanism (see footnote 22), where a wording similar to that used in recital (55) of Regulation (EU) No. 1024/2013 is used.

See Article 127, para. 6, laying down the procedure to entrust the ECB with “specific tasks […] concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings”, used as a legal basis for Regulation (EU) No. 1024/2013 (see footnote 14).

Ter Kuile et al. (2015), p. 164 et seqq.

Zilioli (2003), p. 395 et seqq.

Ter Kuile et al. (2015), p. 155 et seqq.

As regards the independence of the ECB, see also Articles 130 TFEU and 7 of the Statute of the ESCB and of the ECB. In general, the ECB conceives four “dimensions” of its own independence: institutional, functional, personal, financial: see European Central Bank (1998), p. 23. In the case considered in the main text, institutional, functional and financial independence seem all, in different respects, object of protection.

See infra, following section.

Regulation (EU) No. 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No. 1093/2010, OJEU L 225, 30 July 2014, pp. 1–90. It is worth noting that the legal basis is provided by Article 114 TFEU.

However, publication of the report on the SSM website is required by Article 1 of the Interinstitutional Agreement between the European Parliament and the European Central Bank on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the ECB within the framework of the Single Supervisory Mechanism (see footnote 22).

However, more specific provisions concerning Article 226 TFEU can be found in section 3 of the Interinstitutional Agreement between the European Parliament and the European Central Bank, cit.

As seen above, Article 127, para. 6, TFEU provides such possibility and has offered the legal basis for the adoption of Regulation (EU) No. 1024/2013.

See supra, footnote 14.

See recital (55) of Regulation (EU) No. 1024/2013.

Interinstitutional Agreement between the European Parliament and the European Central Bank on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the ECB within the framework of the Single Supervisory Mechanism, 2013/694/EU, OJEU L 320, 30 November 2013, pp. 1–6; Agreement between the European Parliament and the Single Resolution Board on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the Single Resolution Board within the framework of the Single Resolution Mechanism, OJEU L 339, 24 December 2015, pp. 58–65.

See supra, Sect. 2.2.

Memorandum of Understanding between the Council of the European Union and the European Central Bank on the cooperation on procedures related to the Single Supervisory Mechanism (SSM), https://www.ecb.europa.eu/ecb/legal/pdf/mou_between_eucouncil_ecb.pdf.

A comprehensive evaluation of the activities of the SSM and of the SRM cannot be provided here. The relevant documents will be analysed only with reference to the kind of information provided—and without summarising all the details provided therein—and their usefulness for the system of democratic accountability.

European central Bank (2014).

A passage from the foreword by Danièle Nouy, Chair of the Supervisory Board, is particularly clear in this respect: “The most important objective of the SSM is to improve the quality and consistency of banking supervision within the euro area. The SSM will deliver increased opportunities for benchmarking and peer comparison among banks across the euro area. The SSM will allow us to improve the tools of supervisory risk assessment, with due regard to the diversity of banks’ business models within Europe—which I believe is a clear strength. The SSM is certainly very well placed to assess, monitor and address the risks in the banking sector on a European scale. Its micro-prudential view is enriched by its macro-prudential responsibilities for monitoring and addressing risks from a system-wide perspective. In addition, the SSM gives us a stronger consolidated perspective, and enhances efficiency in the allocation and transfer of intra-group capital and liquidity.”. (p. 5 of the Report, cit.).

European Central Bank (2015).

Chapter 2 of the report is significantly entitled “Supervisory contribution to financial stability”.

The texts of the speeches are available on-line: https://www.bankingsupervision.europa.eu/press/speeches/date/2016/html/index.en.html.

Responses are available on-line under the “Publications” section of the website of the SSM: https://www.bankingsupervision.europa.eu/press/publications/date/2016/html/index.en.html.

See the response by the Chair to Mr. Sven Giegold, MEP, 11 July 2016, https://www.bankingsupervision.europa.eu/ecb/pub/pdf/160711letter_giegold_1.en.pdf.

See the responses by the Chair to Mr. Mario Borghezio, MEP, respectively 6 April 2016, and 2 March 2016, https://www.bankingsupervision.europa.eu/ecb/pub/pdf/160406letter_borghezio.en.pdf and https://www.bankingsupervision.europa.eu/ecb/pub/pdf/160302letter_borghezio.en.pdf.

See the response by the Chair to Mr. Sven Giegold, MEP, 20 November 2015, https://www.bankingsupervision.europa.eu/ecb/pub/pdf/151120letter_giegold.en.pdf. See also the response by the Chair to Mr. Sven Giegold, MEP, 2 October 2015, https://www.bankingsupervision.europa.eu/ecb/pub/pdf/151002letter_giegold_2.en.pdf.

The following sentence of the response seems at the same time reassuring, but quite generic (which is not uncommon feature of responses in the context of accountability mechanism, as responses should anyway be, at the same time, straight-to-the-point and understandable to the public): “I can assure you that both the ECB and the NCAs [National Competent Authorities] are very much aware of the specificities of small LSIs, and we design the thematic reviews in such a way that the burden on small LSIs, for instance in terms of reporting and the resources involved, is kept to a minimum.”.

See the response by the Chair to Mr. Markus Ferber, MEP, 18 July 2014, https://www.bankingsupervision.europa.eu/ecb/pub/pdf/20140718ssm-reply_to_mep_ferberen.pdf.

Single Resolution Board (2015).

See Report, cit, foreword by the Chair, p. 4.

Some questions have been addressed as regards, in particular, the establishment of the SRM and the starting of activity of the Single Resolution Fund, for instance to the Council: see e.g. the written question submitted by E. Ferreira on 20 November 2015, http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2015-014924&language=EN and the relative response: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2015-014924&language=EN.

Amtenbrink and Van Duin (2009), p. 561 et seqq.

Zilioli and Selmayr (2006), p. 89.

Lastra (2013), p. 1190 et seqq.

Alexander K (2011) Reforming European financial supervision: adapting EU institutions to market structures. ERA Forum 12:229–252CrossRef

Alexander K (2013) Bank resolution and recovery in the EU: enhancing banking union? ERA Forum 14:81–93CrossRef

Amtenbrink F, Van Duin K (2009) The European Central Bank before the parliament: theory and practice after 10 years of monetary dialogue. Eur Law Rev 34:561–583

Cisotta R (2015) Financial stability and the reconstruction of the EU legal order in the aftermath of the crisis. In: European Central Bank (ed) From monetary union to banking union, on the way to capital markets union–new opportunities for European integration. European Central Bank, Frankfurt am Main, pp 283-304

Di Marco A (2013) Il controllo delle banche nell’UEM: la (problematica) nascita di un sistema integrato di vigilanza prudenziale. Il Diritto dell’Unione europea 18:549–592

European Central Bank (1998) Monthly Bulletin, 10th Anniversary of the ECB

European Central Bank (2014) Annual Report on Banking Supervision, available on-line. https://www.bankingsupervision.europa.eu/ecb/pub/pdf/ssmar2014.en.pdf?c50e4de7ccc030381567868a76b97e1d

European Central Bank (2015) Annual Report on Banking Supervision, available on-line. https://www.bankingsupervision.europa.eu/ecb/pub/pdf/ssmar2015.en.pdf?76bfa705d9eb131ceed673b36b94079a

Ibrido R (2016) Le nuove procedure di accountability democratica nel quadro del secondo pilastro della banking union. Quaderni Costituzionali 36:377–380

Lastra MR (2013) Banking union and single market: conflict or companionship? Fordham Int Law J 36:1190–1224

Louis J-V (2012) Éditorial, Vers l’Union bancaire. Cahiers de droit européen 48:289–304

Single Resolution Board (2015) Annual Report, available on-line. http://srb.europa.eu/sites/srbsite/files/srb_annual_report_2015_en_0.pdf

Ter Kuile G, Wissink L, Bovenschen W (2015) Tailor-made accountability within the single supervisory mechanism. Common Mark Law Rev 52:155–190

Wolfers B, Voland T (2014) Level the playing field: the new supervision of credit institutions by the European Central Bank. Common Mark Law Rev 51:1463–1496

Zilioli C (2003) Accountability and independence: irreconcilable values or complementary instruments for democracy? The specific case of the European Central Bank. In: Van der Sanden G, De Walsche A (eds) Mélanges en hommage à Jean-Victor Louis, vol II. Editions de l’Université de Bruxelles, Institut d’Etudes Européennes, Bruxelles, pp 395–422

Zilioli C, Selmayr M (2006) Recents developments in the law of the European Central Bank. Yearb Eur Law 25:1–89CrossRef

Title: The Quest for Financial Stability and Democracy in the Banking Union: Promoting Institutional Transformation and Regulatory Evolution Through Unconventional Means
Author: Roberto Cisotta
Publisher: Springer International Publishing
Book: Democracy in the EMU in the Aftermath of the Crisis
Print ISBN: 978-3-319-53894-5

Electronic ISBN: 978-3-319-53895-2

Copyright Year: 2017
DOI: https://doi.org/10.1007/978-3-319-53895-2_15

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