This study discusses and analyses on a targeted basis and in a systematic way the evolution and key aspects of the case-law of the Court of Justice of the European Union (CJEU) in relation to the two key pillars of the Banking Union in force, namely, the Single Supervisory and the Single Resolution Mechanisms, from their full operationalisation in November 2014 and in January 2016, respectively, up to the beginning of September 2024. This document was provided by the Economic Governance and EMU Scrutiny Unit at the request of the ECON Committee.
Authors
- Pages
- 86
- Published in
- Belgium
Table of Contents
- LIST OF ABBREVIATIONS 8
- TABLE OF CJEU OPINIONS, JUDGMENTS AND ORDERS (only those published in English) 11
- EXECUTIVE SUMMARY 17
- INTRODUCTION1F 19
- 1. THE TWO KEY PILLARS OF THE BANKING UNION (BU) AND THE RELATED SINGLE RULEBOOK 21
- 1.1. A brief overview of the institutional and regulatory framework as in force 21
- 1.1.1. Introductory remarks 21
- 1.1.2. The SSM 21
- 1.1.3. The SRM 22
- 1.1.4. The single rulebook 23
- 1.1.5. Further tasks of the ECB – beyond those in the SSM 24
- 1.2. On the further evolution and certain missing elements of the BU framework 25
- 1.3. Specific related issues through the lens of Court’s earmarked rulings 26
- 1.3.1. On the principles of subsidiarity and proportionality 26
- 1.3.2. On the powers of EU agencies 27
- 1.3.3. On the soft law instruments adopted by the EBA 28
- 1.4. Provisions of the SSMR and the SRMR that have been challenged before the EU Courts 28
- 2. SSMR-RELATED CASE-LAW 30
- 2.1. Relationship between Articles 4(1) and 6 SSMR – interpretation of Article 6(4) on the classification of a credit institution as significant 30
- 2.1.1. The regulatory framework 30
- 2.1.2. Case-law: the “L-Bank case” 30
- 2.2. Interpretation of Article 4(3) SSMR on the application of national law by the ECB 32
- 2.2.1. The regulatory framework 32
- 2.2.2. Case-law 33
- 2.2.2.1 Cases in which the actions for annulment of ECB Decisions were dismissed by the General Court 33
- (A) The “Crédit Agricole cases” 33
- (B) The “Berlusconi cases” 35
- (C) The “Crédit Mutuel Arkéa case” on two aspects 37
- (I) Exercise of supervisory powers by the ECB within the SSM 37
- (II) Supervision of banking groups on a consolidated basis 38
- 2.2.2.2 Cases in which the interpretation of national law by the ECB has been challenged by the General Court 39
- (A) The “Corneli case” 39
- (B) Two recent (2024) judgments on related cases 40
- 2.3. Aspects relating to the withdrawal of banking licenses 41
- 3. SRMR-RELATED CASE-LAW 43
- 3.1. Assessment by the ECB that a credit institution is failing or likely to fail (FOLTF) 43
- 3.1.1. The regulatory framework 43
- 3.1.2. Case-law 43
- 3.2. Resolution action 44
- 3.2.1. The regulatory framework 44
- 3.2.2. Case-law174F 45
- 3.2.2.1 Actions related to Banco Popular Español: the resolution case 45
- (A) Background of the case 45
- (B) Judgments of the Court 46
- (I) A systematic general overview 46
- (II) On the General Court’s 2022 judgment in Case T-481/17 47
- (III) On the Court’s 2024 judgment in appeal 49
- 3.2.2.2 Actions related to ABLV Bank, AS and ABLV Bank Luxembourg, SA: the “no-resolution” case 50
- (A) Actions for the annulment of the ECB Decisions 50
- (B) Actions for the annulment of the SRB Decisions 51
- (I) General overview 51
- (II) On the General Courts’s judgment of 6 July 2022 52
- 3.2.2.3 Action related to AS PNB Banka: another “no-resolution” case 55
- 3.2.2.4 Sberbank: a mixed case 55
- 3.3. On specific aspects relating to the valuations for the purposes of resolution 57
- 3.3.1. The regulatory framework (Article 20 SRMR) 57
- 3.3.2. Selected case-law relating to Banco Popular 58
- 3.3.2.1 On the General Court’s judgments of 2019 in Cases T-599/18 and T-2/19 58
- 3.3.2.2 On the General Court’s judgment of 1 June 2022 in Case T-523/17 59
- 4. CASE-LAW ON OTHER RELATED ASPECTS: LIABILITY OF SUPERVISORY AND RESOLUTION AUTHORITIES – STATE AID IN THE BANKING SECTOR – JUDICIAL REVIEW OF EBA DECISIONS 60
- 4.1. Liability of supervisory and resolution authorities within the SSM and the SRM 60
- 4.1.1. The regulatory framework 60
- 4.1.2. Case-law 61
- 4.2. State aid 62
- 4.2.1. State aid in the context of resolution funding 62
- 4.2.2. State aid beyond resolution funding 63
- 4.2.2.1 State aid and reorganisation measures – interpretation of the Banking Communication 63
- 4.2.2.2 State aid to DGSs: the “Tercas case” 64
- 4.3. On the judicial review of Decisions of the EBA and of the ESAs’ Board of Appeal (BoA) 65
- 5. CONCLUDING REMARKS AND ASSESSMENT 66
- REFERENCES 76
