Does the Emperor Have Financial Crisis Clothes? Reflections on the Legal Basis of the European Banking Authority

Abstract

The European Union institutional package launched in response to the financial crisis used Article 114 TFEU as its legal basis. The author explores the legal basis for one of the European Supervisory Authorities recently established- the European Banking Authority (EBA). The use of Article 114 TFEU, the main Treaty basis used to harmonise laws in order to further the internal market, as the foundation for the EBA, is considered in detail. A paradox of contemporary EU Institutional law is assessed here, considering whether on the one hand, the EBA is functionally both too narrow and too broad as a matter of law, while on the other hand, it may prove to be central to restoring confidence in EU regulatory powers, rendering it “too big to fail,” despite its slender foundations in Article 114 TFEU.

Keywords: Legal basis for European Banking Authority, Article 114 TFEU, Institutional Structures, Financial Crisis Package

JEL Classification: K00; K33