On the Scope and Limits of the Application of National Law by the European Central Bank within the Single Supervisory Mechanism

Regulation 1024/2013 has established the Single Supervisory Mechanism (SSM) as a milestone towards the establishment of a full-fledged European Banking Union (EBU). This mechanism represents an unprecedented centralization in the area of financial market supervision in the internal market by shifting powers from national supervisory authorities to the European Central Bank (ECB), to be exercised primarily by its newly established Supervisory Board. In principle, the ECB is in charge of direct supervision of significant credit institutions, whereas the competent national supervisors remain in charge of all other credit institutions. Yet it can be observed as a rather peculiar feature of the SSM model that the ECB has the duty to carry out its tasks under EU law by directly applying national legislation. More specifically, Article 4(3) of the SSM Regulation compels the ECB to apply both national legislation implementing relevant EU directives and national rules exercising options granted by EU regulations. This article examines the application by the ECB of national rules in fulfilling its tasks under the SSM Regulation by focusing on a number of salient legal challenges posed by these novel regulatory arrangements in the EU. For this purpose, the application of different national implementing rules by the ECB is scrutinized. Here the analysis focuses on the difficulties that a supranational authority such as the ECB may face in interpreting, applying, and enforcing the national rules of different member states, as well as the implications these difficulties may have for the coherence of the European financial regulatory and supervisory system that was one of the main goals of the establishment of the EBU. Next, the challenges arising in terms of legal review and protection against ECB measures that are based on the application of national law are analyzed. In particular, issues pertaining to access to justice as regards the competent court(s) and the law applicable to disputes involving the application of national legislation by the ECB are investigated