The European Banking Union (EBU) emerged as a response to the 2007/2008 global financial crisis to better integrate the banking system in the euro-area countries. It currently consists of two pillars that became functional in 2014 and 2016, respectively: a Single Supervisory Mechanism (SSM) and a Single Resolution Mechanism (SRM). A single rulebook ensures uniform application in the participating European Union (EU) Member States. A third pillar, a European Deposit Insurance Scheme (EDIS), is under current discussion to complete the EBU.
Judicial Review in the European Banking Union analyzes the current two-pillar framework of the EBU with a particular focus on judicial review and the case law of the European Court of Justice (CJEU). The book is part of the Elgar Financial Law and Practice series. As such, it is written by leading practitioners with experience in the institutions covered and scholars in the field of finance, banking, and EU law. Their combined experience makes this book a valuable resource for practitioners and academics alike. It is not intended for a novice in (European) banking and financial law. A solid background knowledge of (European) banking and financial law is necessary to understand the many references to legislation and court decisions, abbreviations, and technical terms.
The book is divided into four parts. A general introduction to the EBU and an overview of the structure and objective of the book precedes the first part. Part one deals with common aspects of judicial review in the SSM and SRM pillars of the EBU. Part two focuses on specific aspects of judicial review within the SSM, whereas part three does the same for the SRM. Part four discusses the first significant EBU cases decided by the CJEU. The parts build on each other but also stand separately. Each part contains numerous individual contributions that cover a specific topic in more depth. Readers may refer to the index at the end of the book or the table of cases or legislation to identify the chapters pertaining to their particular interests.
Even though each chapter is worth reading, it would be impossible to cover all of them in the manner they deserve in this review. As the EBU is a very recent development, all of the topics discussed are timely. In their conclusions, the authors evaluate whether the objectives of the SSM and the SRM are achieved and provide a future outlook. Key topics covered include procedural issues, such as pre-litigation review, standing, and jurisdiction; democratic accountability; the relationship between EU and national institutions and between national and EU courts; banking authorizations; investigatory powers; instructions of the ECB; challenges to fines or to decisions on contributions and fees; and state aid, among others. In addition to the detailed CJEU case reviews in the fourth part, most of the other contributions also include case references to put the theoretical discussion into context.
Some contributions are worth highlighting for their particular practical relevance. Eleni Koupepidou's chapter on the Administrative Review Board in the SSM (ABoR) and Marco Lamandini and David Ramos Munoz's chapter on the SRM Appeal Panel discuss these pre-litigation review mechanisms and considerations for the concerned parties to seek review by one of these bodies instead of or in addition to review by EU courts. Furthermore, the discussion of composite procedures and whether review can be sought by national or EU courts provided by Filipe Brito Bastos and Vittorio Di Bucci in their respective chapters is highly relevant for applicants.
Of particular interest to academics is the interplay between national and EU law and the unusual application of national law by the ECB mandated by the SSM Regulation. Andreas Witte's chapter on the topic first lays out the background of national transposition of directives, which are prevalent in most areas of EU banking law and its implications for judicial review by EU courts. He then analyzes options and discretion accorded to Member States under directly applicable EU legislation such as the Capital Requirements Regulation (CRR) and their consequences for judicial review, in particular with regard to the ECB's O&D Regulation and the accompanying O&D Guide. As Witte concludes, the difficulties and complexities arising from the interplay of national and EU law in the EMU will most likely persist, but solutions may be found by applying established doctrines from other areas of EU law.
Another interesting topic from a constitutional and institutional perspective is the “close cooperation process,” examined in the chapter written by Agnese Pizolla. This process was introduced to enable non-euro-area countries to join the EMU without adopting the euro, thereby avoiding further divergences between the two groups of EU Member States. The exercise of supervisory tasks within the close cooperation process is characterized by unique features available exclusively to these Member States—namely, “specific instructions” issued by the ECB and “reasoned disagreement procedures” initiated by the Member States’ national competent authorities (NCAs) to express formal disagreement with a draft decision of the Supervisory Board. These unique and novel features trigger specific issues for the judicial review process, which are examined in depth.
Several authors also note issues that have not been fully resolved or are unique to the EBU, such as the fact that the prudential and resolution rules of the single rulebook are made up of directly applicable rules and rules requiring transposition into national law, thereby creating divergent rules that the EBU aimed to avoid. Another novel legal issue is the explicit obligation of the CJEU to apply national law in this area. These as well as the future third pillar, the EDIS, are certainly issues that should be covered in more depth in later editions when the case law has evolved. In summary, the book covers an evolving topic that becomes more relevant each day as the European Economic and Monetary Union (EMU) is deepened and is therefore a good addition to any law library.
