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European Banking Supervision in the Age of the ECB: Landeskreditbank Baden-Württemberg—Förderbank v. ECB

European Business Organization Law Review volume 21, pages 545–570 (2020)Cite this article

Abstract

Banking law in the EU has experienced profound changes in the last few years, and one of the most radical was the introduction of the single supervisory mechanism (SSM). The decision of the EU Court of First Instance in the case of Landeskreditbank Baden-Württemberg—Förderbank v. ECB is the first to tackle fundamental questions concerning the SSM. This article considers and develops various topics arising from the case, such as the architecture of the SSM, the division of powers between Supervisory Authorities, as well as the aim and scope of the SSM.

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Notes

  1. 1.

    Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC [2013] OJ L176/338.

  2. 2.

    See ‘Germany stands firm against EU bank deposit guarantee plan’, Financial Times, October 11 2017, https://www.ft.com/content/58c9a172-ae7d-11e7-beba-5521c713abf4 (accessed 3 Sept. 2018).

  3. 3.

    See for a broad and comprehensive perspective the references provided in Alvaro et al. (2017).

  4. 4.

    The decision immediately attracted attention. See for the first comments D’Ambrosio and Lamandini (2017), p 594; Tröger (2017); Magliari (2017).

  5. 5.

    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 [2013] OJ L287/63 (SSM Regulation).

  6. 6.

    Regulation (EU) No. 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) [2014] OJ L141/1.

  7. 7.

    The literature on this topic is very diverse. See, for more general remarks, D’Ambrosio (2013); D’Ambrosio (2015); Binder (2016); Capolino et al. (2013); Ferran and Babis (2013); Mancini (2013); Visco (2013); Weisman (2013); Beck (2012); Elliot (2012); Napoletano (2012); Sarcinelli (2012); Véron (2012); Wymeersch (2012).

  8. 8.

    See Cassese (2014).

  9. 9.

    The definition of a credit institution used by the SSM Regulation derives from Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012 [2013] OJ L176/1 (the Capital Requirements Regulation, CRR) (cf. Art. 2, para. 1, no. 3). On the subjective scope of the SSM Regulation see D’Ambrosio (2016), pp 594 et seq. On the effects that result from the subjective perimeter of the SSM, and on the interplay between the package CRD IV/CRR and the SSM, see the critical considerations by Verhelst (2013); Tröger (2014).

  10. 10.

    The perimeter is established by Recital no. 28 of the SSM Regulation that reads as follows: ‘Supervisory tasks not conferred on the ECB should remain with the national authorities. Those tasks should include the power to receive notifications from credit institutions in relation to the right of establishment and the free provision of services, to supervise bodies which are not covered by the definition of credit institutions under Union law but which are supervised as credit institutions under national law, to supervise credit institutions from third countries establishing a branch or providing cross-border services in the Union, to supervise payments services, to carry out day-to-day verifications of credit institutions, to carry out the function of competent authorities over credit institutions in relation to markets in financial instruments, the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and consumer protection’. Further reflections on this can be found in D’Ambrosio (2016), p 597.

  11. 11.

    According to Art. 6(4) SSM Regulation, the main quantitative criterion, identified as EUR 30 billion, is not the only one. In fact, an entity is also considered as significant when one of the following conditions is satisfied:

    1. (a)

      the ratio of its total assets over the GDP of the participating Member State of establishment exceeds 20%, unless the total value of its assets is below EUR 5 billion;

    2. (b)

      following a notification by its national competent authority that it considers such an institution of significant relevance with regard to the domestic economy, the ECB takes a decision confirming such significance following a comprehensive assessment by the ECB, including a balance-sheet assessment, of that credit institution.

      Furthermore:

    3. (c)

      the ECB may also, on its own initiative, consider an institution to be of significant relevance where it has established banking subsidiaries in more than one participating Member States and its cross-border assets or liabilities represent a significant part of its total assets or liabilities subject to the conditions laid down in the methodology;

    4. (d)

      those for which public financial assistance has been requested or received directly from the European Financial Stability Facility (EFSF) or the European Stability Mechanism (ESM) shall not be considered less significant;

    5. (e)

      notwithstanding the previous subparagraphs, the ECB shall carry out the tasks conferred on it by this Regulation in respect of the three most significant credit institutions in each of the participating Member States, unless justified by particular circumstances;

    6. (f)

      when necessary to ensure consistent application of high supervisory standards, the ECB may at any time, on its own initiative after consulting with NCAs or upon request by a national competent authority, decide to exercise directly itself all the relevant powers for one or more credit institutions referred to in paragraph 4, including in the case where financial assistance has been requested or received indirectly from the EFSF or the ESM. It looks at how this forecast ends to condition, in their actual operation, the non-significant banks.

    See Gasparri (2017).

  12. 12.

    An analytical picture of the allocation of competences between the ECB and National Authorities is offered by D’Ambrosio (2013), pp 27 et seq.

  13. 13.

    The wording is as follows: ‘With respect to the first subparagraph above, a credit institution or financial holding company or mixed financial holding company shall not be considered less significant, unless justified by particular circumstances to be specified in the methodology, if any of the following conditions is met’.

  14. 14.

    On the ECB Board of Review, see Brescia Morra (2016) who points out that in the event that the Council of the ECB, in adopting the opinion of the Board of Review, takes a new decision, then the original one is to be considered as having been repealed and replaced in its entirety by the new decision, p 112.

  15. 15.

    This argument was likely based on the bank’s business model; however, it was discarded on the basis of reasons which do not emerge from the decision of the Court (see para. 87), but which were most likely taken into account in the opinion of the Administrative Board of Review.

  16. 16.

    It is interesting to note that the wording of the decision on this point is quite cautious: in fact, when it refers to situations which fall under the responsibility of NCAs, the decision gives the impression that these situations are considered to be exceptions to the general competence of the ECB as a supervisory authority. However, the Court’s decision refrains from more solid systematic arguments on this point: see the remarks of D’Ambrosio and Lamandini (2017), who suggest that the basis of the solution identified by the Court might be found in the need to ensure the stability of the financial system, as a general objective of the SSM.

  17. 17.

    The very first comments, which appeared after the decision of the Court, demonstrate, on this point, a certain impermeability towards the Court’s statements: see, for example, Gasparri (2017), p 31.

  18. 18.

    It should be noted that, following the introduction of the SSM, some believed that the new system was based not on a logic of centralization, but on a model of decentralization: see Bundesbank (2013). Some authors also refer to ‘decentralization’ to describe the role of National Authorities within the SSM: Teixeira (2014). Others instead talk about ‘functional’ or ‘structural’ cooperation within the SSM: Figliolia (2016).

  19. 19.

    Wymeersch (2012), p 17.

  20. 20.

    Macchia (2016). According to this author, there are various meanings of the notion of ‘cooperation’ as the term may be used in different ways.

  21. 21.

    In this sense see, for example, Cassese (2014), p 20, who notes that the ECB—being responsible for the SSM—operates on the basis of powers and competences originally arising from NCAs, and that the latter actively take part and participate in the exercise of the ECB’s powers.

  22. 22.

    For example, Ciraolo (2013). Likewise, with an emphasis on integration, Angeloni (2017).

  23. 23.

    Wymeersch (2012), pp 3 et seq.

  24. 24.

    Cassese (2014), p 20, who notes that the SSM contemplates a division of roles on the basis of which the ECB exercises the overall direction of the system, while NCAs have an executive role in supporting the ECB. This redistribution of roles in the EU banking area implies a ‘dédoublement fonctionnel’ of NCAs, which in fact play a double role: on the one side, as members of the SSM, and, on the other, as entities that ensure its proper functioning; this is a role similar to what one can find in the context of the United Nations, where the States are, at the same time, members of the Organization and the executors of its decisions.

  25. 25.

    Magliari (2017), pp 22 et seq.

  26. 26.

    Ferran (2015), p 287: ‘The ECB directly supervises the “significant” entities via joint supervisory teams, which comprise staff from both NCAs and the ECB. Whilst the NCAs continue to be responsible for the day-to-day supervision of less significant entities, they do so under the oversight and control of the ECB. The SSM is supported by the Single Resolution Mechanism (SRM) which comprises a centralized decision-making body (Single Resolution Board or SRB) and fund (Single Resolution Fund or SRF).’.

  27. 27.

    D’Ambrosio (2016); a similar distinction, if I understand it correctly, also seems to be sketched by Macchia (2015).

  28. 28.

    Macchia (2015), p 1581.

  29. 29.

    Lamandini (2015), with extensive references to the thesis of Sabino Cassese (2014).

  30. 30.

    Amongst many, see Barbagallo (2014); Guarracino (2013).

  31. 31.

    D’Ambrosio (2016), pp 593 et seq., providing further clarification regarding the distribution of tasks and powers with regard to euro area banks, compared with non-euro area banks. In particular, with regard to the non-euro area countries participating in the SSM, the author points out that there is always a clear separation between the competences of the ECB and the powers of the national authorities. On this subject see also Guarracino (2013), p 191. Others criticize, however, the distinction between ‘competences’ and ‘powers’, which would emerge from the decision: see for example Magliari (2017), p 11, who believes that this distinction fosters further confusion.

  32. 32.

    See Magliari (2017), p 17.

  33. 33.

    The solution adopted in the final version of the SSM Regulation, although different from the original proposal of the Commission, nevertheless seems to express the idea that supervision entrusted to National Authorities is, to say the least, second best when compared to that of the ECB: see Véron (2012); Wymeersch (2012), pp 23 et seq.; Ferrarini and Chiarella (2013); in addition see Macchia (2015), who notes that the transferral of supervisory functions to the ECB clearly reflects a lack of trust towards NCAs. Similarly Tröger (2014), who remarks that ‘In sum, the ECB as the SSM’s primary supervisor will be provided with heavy sticks, yet the carrots for NCAs seem missing’, and therefore considers that the SSM does not provide sufficient incentives for NCAs to ensure that they contribute to achieving the objectives of European banking supervision.

  34. 34.

    On the ECB/EBA model see Gardella (2016).

  35. 35.

    See Tröger (2017), who is particularly critical on this point when he notes that ‘Further, the judgement is based on the assumption that the objective of the SSM to provide for a “coherent application of high supervisory standards” (for instance para. 31 and para. 78; see also SSM Regulation, recitals 12, 15, 87) has to be achieved primarily through extensive ECB supervision’ and he notes that ‘it can be disputed both theoretically and empirically that centralized supervision by an insofar unseasoned institution yields higher quality per se’ (see for instance Ferran and Babis (2013), p 264; it is even unclear if Central Bank oversight over the banking system is stability-enhancing: see Goodhart and Schoenmaker (1995).

  36. 36.

    D’Ambrosio (2016), pp 592 et seq.; Antoniazzi (2014); Ferran and Babis (2013), pp 258 et seq. Others rightly observe that the wording of the SSM Regulation apparently appears to minimize the role of the ECB (where it is only given ‘specific’ tasks), but in reality the formulation is ambiguous: Sorace (2016), p 95.

  37. 37.

    One might think about how to address the broad topic of ‘conduct risk’ in its connections with prudential supervision: on this subject see the interventions of Antonella Sciarrone Alibrandi and Claudio Frigeni during the International Working Group on European Banking Union organized by Università Cattolica del Sacro Cuore and the European Banking Institute (20 October 2017).

  38. 38.

    Naturally, the issue of discretion is also of paramount importance in relation to the ECB’s exercise of monetary policy functions, as is well set out by the Gauweiler case (ECJ, C-62/14, Peter Gauweiler et al v. Deutscher Bundestag, ECLI:EU:C:2015:400), from which the ECB emerged victorious. We cannot provide an analytical account of that case here: for a first, comprehensive reference, we limit ourselves to several contributions collected in Special Issue no. 2016-1 of the Maastricht Journal of European and Comparative Law.

  39. 39.

    See, for example, the decision of the Court of Justice with regard to ESMA’s powers in relation to short selling (Court of Justice of 22 January 2014 in Case C-270/12, ECLI:EU:C:2014:18).

  40. 40.

    Useful elements may be found in Curtin (2017).

  41. 41.

    Reference should be made to D’Ambrosio (2015).

  42. 42.

    On the other hand, it is believed that if the ECB’s Supervisory Board decides not to amend its position in accordance with the Commission’s opinion, there is no express obligation to state the reasons for its decision: Clarich (2016), pp 269 et seq.

  43. 43.

    Clarich (2016), pp 263 et seq.; see widely, with in-depth comparisons between the various commissions, Brescia Morra (2016), pp 20 et seq.

  44. 44.

    Cf. Lamandini (2014); Brescia Morra et al. (2017), pp 568 et seq.

  45. 45.

    Brescia Morra (2016), pp 22 et seq.; Brescia Morra et al. (2017), pp 573 et seq.

  46. 46.

    According to Art. 24, para. 7 SSM Regulation ‘After ruling on the admissibility of the review, the Administrative Board of Review shall express an opinion within a period appropriate to the urgency of the matter and no later than two months from the receipt of the request and remit the case for preparation of a new draft decision to the Supervisory Board. The Supervisory Board shall take into account the opinion of the Administrative Board of Review and shall promptly submit a new draft decision to the Governing Council’. For a general overview of the first issues challenged in before the Board, see Brescia Morra et al. (2017), p 580.

  47. 47.

    Lamandini (2014).

  48. 48.

    Clarich (2016), pp 265 et seq. particularly insists on this point.

  49. 49.

    Court of Justice of 2 December 2009, Case C-89/08, European Commission v. Ireland and others, ECLI:EU:C:2009:742; Judgment of the Court of Justice of 29 June 2010, Case C-550/09, ECLI:EU:C:2010:382.

  50. 50.

    Magliari (2017), explicitly refers to a ‘healing’ effect. This author, however, points out that this solution may reduce the level of judicial review of the ECB’s decisions, since Courts may finally prefer to focus on (mere) procedural aspects. This point is correct: however, judicial review is generally limited in these situations, so this does not sound like something new (see D’Ambrosio (2016), p 620).

  51. 51.

    This is, as someone already noted in the preparatory phase of the SSM Regulation, a focal point of the new architecture: see Wymeersch (2012); Ferran (2015), pp 14 et seq.; Del Gatto (2015), p 1254.

  52. 52.

    Ferrarini and Recine (2015), p 118.

  53. 53.

    On the risk that too many options left to national legislators (not to the Authorities) may compromise EU harmonization, see Binder (2017).

  54. 54.

    See D’Ambrosio (2016); Wymeersch (2012).

  55. 55.

    The ECB exercised such discretion for significant banks under Regulation 2016/445 of 14 March 2016 [2016] OJ L78/60. On this topic Gardella (2014).

  56. 56.

    Complexity is a constant remark when discussing the new architecture of the SSM: see, for example, Wymeersch (2015).

  57. 57.

    See Ferrarini and Recine (2015), p 147.

  58. 58.

    Lafarage (2013); Gardella (2014); D’Ambrosio (2016), p 602; Gurlitt (2014).

  59. 59.

    Among the first to come to this conclusion was Marco Lamandini in the essay Limitations on supervisory powers based upon fundamental rights and SSM distribution of enforcement competences, available at: http://www.lamandini.org. Those reflections were then resumed and redrafted in subsequent writings, among which is the essay written in collaboration with David Ramos Muñoz and Javier Solana Alvarez that appeared, in a first version, in Lamandini et al. (2015), and, in a later version, in Lamandini et al. (2016, 2017).

  60. 60.

    Lamandini et al. (2015), p 13. On a more systematic basis, the interpretation that recognizes the ECB’s power to adopt prudential supervisory regulations is also considered by these authors to be more in line with recital 34 of the SSM Regulation, particularly where the latter states that the ECB must also apply national legislation transposing EU directives and national legislation exercising the powers expressly granted to Member States. The authors note that attributing regulatory powers to the ECB as the ‘competent authority’ under the CRR and the CRD is also consistent with its macro-prudential powers, pursuant to Art. 5 of the SSM Regulation. On the basis of the latter, it is up to the NCAs to impose additional capital buffers including anti-cyclical buffers, but the ECB may impose higher requirements: the exercise of many of the faculties granted in the CRD and the CRR could then be justified as an exercise of macro-prudential functions based on this provision.

  61. 61.

    This was already identified by Moloney (2014): ‘There is, for example, potential for the ECB, already empowered to adopt rules relating to the SSM (Art. 4(3), 2013 ECB/SSM Regulation), to become a competing standard-setter, particularly as its softer “instructions” and “guidelines” are likely to attain a quasi-regulatory colour. Although the ECB is charged in this regard with following EBA guidelines and the EBA Supervisory Handbook, and can only adopt rules with respect to the organizational and operational modalities of banking supervision within the SSM (Art. 4(3)), the potential, at least, for some conflict is there, though this would diminish as the institutional landscape settles’. The problem of the delicate balance between the EBA and the ECB is discussed at a much broader level by Ferran (2015), p. 8, who states that ‘The shadow of the ECB looms large over the EBA’.

  62. 62.

    Ferran (2015), p 25: ‘Whilst regulatory work has dominated thus far, as the single rulebook becomes more complete (and barring an unanticipated new regulatory push on the banking side from the EU institutions—which seems unlikely given the switch of emphasis to strengthening capital markets to reduce the dependency on bank-based finance and to diversify sources of finance for the real economy), the EBA should be in a position to concentrate more of its effort (and resources) on supervision.’.

  63. 63.

    On the essential contribution that the case law of the Courts can offer in order to undo the many knots that are present in the context of the SSM see Brescia Morra (2016), pp 26 et seq.

  64. 64.

    On the instruments used by the EBA, see Lamandini (2015), who seems to propose an extensive approach as, otherwise, judicial review would finally be limited.

  65. 65.

    See D’Ambrosio and Lamandini (2017), who, amongst many others, point out the possible limitations to the centralization of supervisory powers at the ECB that may arise from Constitutional limitations in the Member States.

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  1. Financial Institutions and Markets Law, Department of Legal Studies, University Luigi Bocconi Milano, Milan, Italy

    Filippo Annunziata

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Annunziata, F. European Banking Supervision in the Age of the ECB: Landeskreditbank Baden-Württemberg—Förderbank v. ECB. Eur Bus Org Law Rev 21, 545–570 (2020). https://doi.org/10.1007/s40804-019-00170-y

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Keywords

  • Single supervisory mechanism (SSM)
  • Financial regulation
  • European Union
  • European Central Bank (ECB)
  • Banking law
  • Prudential supervision