Zeitschrift für öffentliches Recht
ISSN 1613-7663 (Online)
The 2013 Capital Requirements Directive IV and Capital Requirements Regulation: Implications and Institutional Effects
Abstract This survey article considers the background to and major features of the behemoth 2013 CRD IV/CRR regime which governs the prudential regulation and supervision of banks and investment firms in the EU. The CRD IV/CRR regime is in its infancy. Initial empirical assessments suggest, however, that while it is likely to strengthen bank stability, it may also contribute to a contraction in the funding capacity of the EU financial system. While the ultimate effects of CRD IV/CRR are unclear, it can reasonably be speculated that unintended and potentially prejudicial effects may arise. This article suggests that the extent to which CRD IV/CRR can be applied flexibly, amplified and corrected reasonably easily, and supervised in a manner which supports consistency of application across the EU as well as an appropriate level of national supervisory discretion, will therefore have a significant influence on the ability of the EU to mitigate the risk of these effects arising. After reviewing the background to and major features of CRD IV/CRR, the article considers the extent to which the harmonization model deployed under CRD IV/CRR, the EU’s regulatory capacity to amplify and correct CRD IV/CRR, and the supervisory governance arrangements which support CRD IV/CRR are likely to mitigate the risks of unintended and prejudicial effects.
Unconventional Monetary Policies and the European Central Bank’s problematic democratic legitimacy
Abstract Prior to the international financial crisis, the ECB’s policies were shaped by the interpretation that its mandate was primarily to ensure low inflation. Since the outbreak of the sovereign debt crisis in early 2010, the ECB has adopted a range of policies which have pushed its role well beyond that interpretation. This article presents the argument that ECB policy-making since the start of 2010 undermines the democratic legitimacy of the ECB. The problems stem from three developments: the stretching – and arguably breach – of the ECB’s mandate; the increasing politicization of the ECB’s decisions and policies; and the extent to which the ECB’s policies undermine the transparency of both its own monetary policy and national macroeconomic policies.
Abstract The ECJ’s Gauweiler judgment declared the ESCB’s Outright Monetary Transactions Programme (OMT) to be compatible with the Treaties. The ruling clearly demonstrates the growing importance of the ESCB in recent years. It also shows that the Treaties despite their many provisions on monetary policy ultimately leave a lot of room of manoeuvre to the ESCB owing to the technical nature of the relevant issues.
Control without Command: Accountability Mechanisms for the EU Administration and their Limits
Abstract In the European Union administrative functions are assigned to the Commission, the European Central Bank and about 40 agencies. Representative democracy is organised in the Parliament, the European Council and the Council. The two spheres are not linked with a permanent confidential relationship as in national parliamentary government systems because the Commission, the ECB and the agencies are independent. The transmission belt model of administration is not applicable. Democratic legitimacy therefore must be guaranteed by accountability mechanisms, ie ex post control instruments concerning political, financial and legal aspects. Whether this model of accountability fits for the European Border and Coast Guard proposed by the Commission is doubtful.
Abstract This fifth report prepared by our European Law Department of the Legal Service of the Austrian Foreign Ministry (‘Office of the Legal Adviser’, ‘Völkerrechtsbüro’) covers some of the main developments in European Union Law during 2015 that we have been accompanying from the perspective of an actively implied institutional observer. For the latest corresponding report on the Austrian practice in public international law in 2015 refer to Tichy Helmut/Bühler Konrad/Bittner Philip/Köhler Ulrike, Recent Austrian practice in the field of international law. Report for 2015, ZÖR 71 (2016) 103 (103 et seq). The issues covered include a review of recent jurisprudence of the Court of Justice of the entitlement to social benefits for migrant Union citizens (Schneider), a case-study on a constellation involving delegated acts giving rise to a successful action for failure to act, an instrument which seems to enjoy a certain renaissance (Weichenberger), a differential analysis of the mutual assistance clause and the solidarity clause of the EU against the backdrop of the terrorist attacks in Paris on 13 November 2015 (Kumin), questions related to the provisional application of mixed agreements with third countries (Bittner), as well as a critical appraisal of fundamental legal questions arising with respect to restrictive measures (‘sanctions’) issued or implemented by the Union, assessed within the context of current case law (Ehlotzky). We wish to particularly thank the Head of our Legal Service, Univ.-Prof. Bot. Dr. Helmut Tichy, the Head of Section I.4a, Ges. Mag. Tünde Fülöp, and, on behalf of all the other co-authors, also our colleagues Nicole Ehlotzky and Sebastian Schneider for their careful scrutiny of this report and for their helpful suggestions related to both substance and drafting.
Abstract In 2015, the ECJ and the GC adopted 1.603 rulings altogether, among them 969 judgments and 588 decisions. Some of them are directly relevant for Austria, some others brought about substantial developments of EU law in general; as is well known, the latter has to be observed by Austria as an EU member state. Finally, some judgments were adopted following actions brought by natural or legal persons from Austria and are therefore relevant. The present contribution analyses about 30 rulings of the ECJ and the GC. It is elaborated on the judicial developments of the EU legal order and the respective implications for Austria. From an Austrian perspective, the selected rulings confirm the dynamic development of the case-law connected to the obligation imposed on the member states to adapt their respective legal orders accordingly. Even though Austria has gradually implemented these developments, there remains a lot to be done.