Bulletin n. 1/2017
June 2017
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
  • Marco Lamandini, David Ramos and Javier Solana
    The European Central Bank (ECB) Powers as a Catalyst for Change in EU Law, Part 2: SSM, SRM, and Fundamental Rights
    in Columbia Journal of European Law , volume 23, issue 2 ,  2017 ,  199-263
    The new financial and supervisory architecture in the EU has put the European Central Bank (ECB) on center stage as a bulwark of the system's stability. In relation to the architecture's initial design, the critical questions concern the insertion of the ECB's mandates in the constitutional balance of the EU Treaties. Yet, as the new structure settles, the more pervasive questions will concern its fit within the framework of fundamental rights, as these will determine the ECB's legitimacy and accountability on an on-going basis. Any balance will have to resolve the conundrum between the conception of fundamental rights as "trumps" of government policies, and the design of financial stability and central bank policies as "trumping policies. " This Article, examines the EU framework of fundamental rights, including its scope of application, substantive rights, and procedural rights, in relation to the ECB's supervisory policies and powers under the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). The picture shows that there are undesired "dark corners." Major uncertainty surrounds critical issues, such as, to what extent property rights can limit the ECB's functions as a "lender of last resort" and its supervisory interventions; to what extent the ECB is bound by the nondiscrimination principle in the exercise of its functions; to what extent the principles of certainty and legality of penalties have any bearing in the situations of banking groups; and the actual meaning and extent of judicial review of ECB acts. A major construction effort is needed for the sake of fundamental rights and to provide a sound orientation in the implementation of the SSM/SRM framework.
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