Ensuring effective judicial protection in case of ECB decisions based on national law

Abstract

The centralization of the prudential banking supervision within the EU has been organized via the Single Supervisory Mechanism, through a mechanism existing of the European Central Bank (ECB) and the national supervisors, and embedded in the composite legal order within the EU. The said mechanism required some innovative solutions to ensure effective supervision, including the obligation for the ECB, laid down in Article 4(3) of the SSM Regulation, to apply national law transposing the relevant directives. As a result of this novelty under Union law, the CJEU is facing actions brought before it against ECB decisions based on national law. Therefore, in its review national law is to be assessed as a question of law. The central question in this research is how effective judicial protection can be ensured by the CJEU in such case, considering the limitations to the CJEU’s jurisdiction with respect to national law. The article starts with discussing the recent cases in which the CJEU was asked to review ECB decisions based on national law (Joined Cases C-152/18 P and C-153/18 P Credit mutuel Arkea v ECB & Joined Cases T-133/16 to T-136/16 Caisse regionale de credit agricole mutuel Alpes Provence v ECB), and the legal questions that remain unanswered in this respect. It then explores the CJEU’s approach vis-a-vis national law in other types of legal proceedings. The lessons learned from the latter analysis is subsequently discussed, as well as new ideas to ensure a more effective judicial protection of national law, on which ECB decisions are based, before the CJEU.