Depicting the Limits to the SSM's Supervisory Powers: The Role of Constitutional Mandates and of Fundamental Rights’ Protection

Quaderni di Ricerca Giuridica, no. 79 (October 2015) pp. 1-119.

120 Pages Posted: 17 Feb 2016 Last revised: 23 Feb 2016

See all articles by Marco Lamandini

Marco Lamandini

University of Bologna - Department of Business Law

David Ramos Muñoz

Universidad Carlos III de Madrid

Javier Solana

School of Law, University of Glasgow

Date Written: October 15, 2015

Abstract

Given the complexity of the new supervisory architecture in the Euro zone, it seems necessary to provide a proper theoretical framework for the lawful exercise of both regulatory and supervisory tasks within the SSM. In this paper we endeavour to offer one such a framework. In particular, Section 2 provides an overview of the new institutional architecture of banking supervision within the SSM and a brief description of selected aspects of the SRM that directly interact with the SSM. Section 3 considers the limits to the SSM’s powers directly stemming from the SSM Regulation. Section 4 and 5 address the constitutional limits to the ECB powers; in particular, Section 4 discusses the limits deriving from the horizontal and vertical distribution of regulatory and supervisory competences within the SSM whereas Section 5 explores the coexistence of prudential and monetary Treaty’s mandates and its implications. Section 6 expands on fundamental right protection and its implications for the SSM. Section 7 concludes, showing that (a) the constitutional distribution of competences within the SSM is likely to be more ambiguous than necessary, (b) the relationship between prudential and monetary tasks described by the SSM Regulation seems to be quite questionable and (c) the SSM may raise important questions about the implications of the exercise of the supervisory tasks conferred upon the ECB and NCAs for the fundamental rights of the entities subject to supervision.

Keywords: European, Central, Bank, Banking Union, powers, mandates, stability, supervision, constitutional, fundamental, rights

JEL Classification: E58, G21, G38, G18, K10, K22

Suggested Citation

Lamandini, Marco and Ramos Muñoz, David and Solana, Javier, Depicting the Limits to the SSM's Supervisory Powers: The Role of Constitutional Mandates and of Fundamental Rights’ Protection (October 15, 2015). Quaderni di Ricerca Giuridica, no. 79 (October 2015) pp. 1-119., Available at SSRN: https://ssrn.com/abstract=2733620

Marco Lamandini

University of Bologna - Department of Business Law ( email )

via San Giacomo, 3
Bologna, Bologna
Italy

HOME PAGE: http://www.diritto.unibo.it

David Ramos Muñoz (Contact Author)

Universidad Carlos III de Madrid ( email )

126, Getafe
Madrid, 28903
Spain

HOME PAGE: http://www.uc3m.es

Javier Solana

School of Law, University of Glasgow ( email )

Stair Building
5 - 8 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

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