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Andrea Minto, The principles guiding the ECB’s enforcement and sanctioning powers, Capital Markets Law Journal, Volume 17, Issue 2, April 2022, Pages 150–166, https://doi.org/10.1093/cmlj/kmac002
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Extract
1. Introduction
When the 2007–2008 crisis unfolded, the creation of the European Banking Union (EBU) became a pressing policy issue. As is well known, in fact, the wide array of institutional and substantive challenges brought up by the crisis prompted a legal overhaul that culminated in the creation of an unprecedented architecture.1 This original architecture comprises, amongst other things, a new body of rules—ie the ‘Single Rulebook’—new administrative entities—ie the three European agencies EBA, ESMA and EIOPA—and the conferral of innovative powers and responsibilities on the European Central Bank (ECB), reshaping the contours of this independent European institution.2
The ECB has in fact been endowed with supervisory powers thanks to the ‘enabling clause’3 in Article 127 TFEU. According to Article 127(6) TFEU ‘the Council, acting by means of regulations in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament and the European Central Bank, confer specific tasks upon the European Central Bank concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings’. These fascinating few lines contain all the ground-breaking essence of the EBU (rectius, its first pillar). They set the constitutional ground and the legal basis (a kind of ‘identity card’) for the ECB to be endowed with tasks that have to be connected to prudential policies.4
