The protection of fundamental rights in composite banking supervision procedures
PhD student: Mrs A.M. Karagianni
Promotor: Prof R.J.G.M. Widdershoven
Duration: 1/9/2016 - 31/8/2020
PhD defence: Utrecht, 13/5/2022
The research of Argyro Karagianni examines the extent to which Single Supervisory Mechanism procedures – that may lead to national or EU punitive sanctions – comply with the right to privacy, the rights of the defense and the ne bis in idem principle. It answers the normative question of how the existing legal framework should be adjusted to ensure compliance with those fundamental rights.
The Single Supervisory Mechanism (SSM) is the legislative and institutional framework that grants the European Central Bank (ECB) a leading supervisory role over banks in the EU member states. The SSM is composed of the ECB and national competent authorities (NCAs). In 2013 the supervision of euro area credit institutions was Europeanised. Regulation 1024/2013 (SSM Regulation) bestows upon the ECB the exclusive competence to carry out specific prudential supervisory tasks vis-à-vis euro area credit institutions.
Within that system, the EU and national levels are in constant interaction. Final (punitive) decisions are often adopted on the basis of complex composite enforcement procedures. The interlocking of EU and national legal orders for the enforcement of EU law challenge traditional systems of control that were designed for and developed in the context of a single State jurisdiction.
The dissertation looks into the system of fundamental rights protection, as a mechanism that guides and controls executive action. When the EU and the national legal spheres blend and the different components of the various composite procedures cannot easily be segregated, can fundamental rights – as we currently know them – still fulfil their protective function?
By bringing together different aspects of EU and national administrative, constitutional and criminal law, the research provides recommendations for enhanced fundamental rights protection in the Single Supervisory Mechanism. It does so by studying the EU- level legal framework, as well as the legal framework of the Netherlands and of Greece. After studying the mutual interactions of the three legal orders, it is concluded that in certain instances there are gaps in complete fundamental rights protection. Concrete recommendations are thus brought forward, which aim at bolstering the protection of fundamental rights at a) the intersection between different legal orders, and b) the interface between administrative and criminal law enforcement.
The results of the research can be replicated in other domains of Union law, where enforcement is increasingly being carried out through composite procedures.
The PhD project was funded by the Dutch Council for Scientific Research (NWO) under the VIDI grant issued to prof. Michiel Luchtman for the research project ‘The rise of EU law enforcement authorities - Protecting fundamental rights and liberties in a transnational law enforcement area’.