Topic 1 - programme

FIDE XXVII CONGRESS

Budapest, 18-21 May 2016

TOPIC 1: BANKING UNION

General Rapporteur:

Mr. Takis Tridimas

Professor and Chair of European Law, Director, Centre of European Law, The Dickson Poon School of Law, King's College London

Institutional  Rapporteur:

Mr. Alberto de Gregorio Merino

Legal Service of the Council of the European Union

First session, Thursday afternoon, 19 May 2016

Constitutional issues

Moderator:

Mr. Lars Bay Larsen

Judge of the Court of Justice of the European Union

BU and the interaction between internal market and economic and monetary union.

This theme will place BU in the context of EU integration models. It will deal with the distinct nature of BU as a hybrid construction and the resulting tensions between Eurozone and no-Eurozone Member States (e.g., caucusing, the risk of fragmentation of the internal market, etc). It will explore the concept of differentiated integration, sketch out the mechanisms of inclusiveness (close cooperation), and the guarantees for non-discrimination. It will also assess the suitability of the current Treaty framework for the cohabitation of the two prevailing objectives of BU (internal market and financial/euro stability). It will finally seek to explore the UK settlement as an arrangement for co-existence.

The legal basis of BU

This session will deal with the suitability of Article 127(6) and 114 TFEU as legal bases for BU.

BU, institutional balance, and issues of competence

Without prejudice to the more specific examination of institutional questions in subsequent sessions, this topic will seek to give a general overview of horizontal and vertical institutional relations. It will focus on the interaction among the ECB and the other EU institutions, the agencification of EU governance, and the division of powers between the EU and the Member States.

BU and judicial control

This theme will provide a general overview of legal remedies in the SSM and the SRM. It will seek to explore the respective jurisdiction of the CJEU and the national courts and the legal problems arising from the application of national law by the ECB. It will finally discuss the protection of fundamental rights.

Second session, Friday morning, 20 May 2016

The Single Resolution Mechanism

Moderator:

Mr. Thomas van Rijn

Former Director of the Legal Service of the European Commission

Decision making in resolution matters

This session will explore whether the SRM decision making complies with the Meroni/ESMA case criteria; the role and interaction of the EU actors involved (ECB, Commission, Council, EBA, SRB); and the role of the National Competent Authorities.

Resolution objectives and tools

This theme will examine the bail-in tool and the principle of ‘burden-sharing’.

Funding aspects

The focus of the discussion will be on the IGA, the legal problems arising thereunder, its rationale, and its compatibility with the law of the Union. It will also explore the common backstop, ex ante and ex post contributions, and procycality.

SRM and the internal market

This theme will examine the interaction between the SRM regime and the internal market, its implications for participating and non-participating Member States, and the mechanisms to guarantee the integrity of the internal market. It will also look at the relationships between BRRD and SRM, State and Fund aid, and the EBA and the SRB.

Third session, Friday afternoon, 20 May 2016

The Single Supervisory Mechanism

Moderator:

Professor Chiara Zilioli

Director General of the Legal Services of the European Central Bank

Division of competences with Member States and new differentiated integration: close cooperation

This theme will explore the distinction between significant and non-significant banks and instruments of hierarchy and cooperation. It will look at the nature of close cooperation. Is it of private/public nature? Is it closer to enhanced cooperation or to a (public) contractual relationship? How does it differ from enhanced cooperation? Comparisons could also be drawn with the target agreement.

The co-existence between monetary and supervisory functions

Is the combination of monetary policy and supervisory functions in the same institution the right model? Is monetary independence preserved? This session will also look at the separation principle; the establishment of separate decision-making procedures and bodies (Supervisory Board and Governing Council); chinese walls between monetary and supervisory functions; democratic accountability and the standard of independence.  

The single rule book

This session will touch on the interrelationship between supervision and regulation. What space, if any, does the ECB occupy in the regulatory field? Is there too much or too little harmonisation? The session will also explore options and discretionary powers left to Member States and the national competent authorities, and the relationship between EU norms and soft law. It will also reference the UK settlement Decision and the two layers of harmonisation coexisting for Eurozone and non-Eurozone Member States.

Judicial control

This session will explore the judicial control of the application of national law by the ECB: (i) which courts are competent when the ECB applies national law (in particular in relation to the interpretation of national law)? Could we have a “préjudiciel à rebours”? (ii) what is the optimum level of judicial scrutiny of supervisory decisions? Should it be the same as that of monetary policy decisions?

Future developments

This theme will reflect on instances where Treaty reform would be needed (such as the German request to separate supervision from the ECB; close cooperation becoming permanent participation of the outs); and EDIS as part of BU.