The Banking Union and its effects on the constitutional and administrative regimes in the Member States (II)

Since the early 2000s banking supervision in Austria is mainly exercised by the Finanzmarktaufsichtsbehörde (FMA) - since 2014 it is also in charge of bank resolution. EU reforms – in particular the ESFS and eventually the Banking Union – have created tensions with national (constitutional) law. This can be illustrated by three examples: the FMA – an independent authority under Austrian constitutional law – is now subject to instructions by EU bodies - EU banking law requires national authorities to be able to impose significant fines on banks, but the Austrian constitutional court for a long time has reserved this power to criminal courts - the public liability regime applicable to the FMA has been restricted drastically, in particular where the FMA cooperates with EU bodies, whereby the Austrian legislator may have impinged upon higher-ranking law. In this presentation these dynamics shall be described and analysed both from the perspective of EU law and Austrian constitutional law.

The supervision and resolution of banks in Portugal was subject to reforms at the beginning of the previous decade. Such reforms can be attributed to three events. The first event was the nationalization and liquidation of two small banks prior to 2010, in the wake of fraudulent practices by the banks. The second event was the financial crisis and the request by Portugal of a bailout from the other EU-MS, the granting of which was made conditional upon adoption of new rules for banking regulation. The third and final event was the enactment of the Banking Union, with the setting of the SSM and, crucially, the BRRD. The way and context in which such reforms were implemented have led to national and European questions over how Portuguese authorities are complying with rules of resolution, and to judicial cases at the EU level regarding the compatibility of the EU‘s regime with the Treaties. This paper describes and analyzes the reform of bank resolution in Portugal.

Brexit has disrupted the financial markets in Europe. With the expiry of the Withdrawal Agreement by the end of 2020, important advantages for banks established in the EU are now excluded for British banks, e.g. the EU passporting regime, fleshing out the principle of single authorisation. The Trade and Cooperation Agreement concluded between the EU and the UK does not grant British banks privileged access to the internal market. They now qualify as third country banks and need to apply for a specific authorisation from the EU and national supervisory authorities to operate on the internal market. But also banks established in the EU are confronted with new hurdles if they want to access the market in the UK. These new constellations create a number of intricate legal questions which shall be presented and analysed with a view to EU and British law, and with a view to the EU-UK Trade and Cooperation Agreement.

This paper analyses the current set-up of the institutions of the financial safety net in Poland in the context of the European Banking Union. Polish institutional model of the safety net mirrors solutions known in the other EU countries, however, some of its features may be seen as atypical. One of them is entrusting the resolution authority to the deposit insurer, a solution modelled on the American experience. Relatively weak impact of the Global Financial Crisis on the Polish financial institutions, growing dependence of the financial safety net institutions on the government that can be currently observed, locally induced and driven regulatory reforms that aim at addressing national problems, as well as the specific local approach to applying the European law create a unique policy mix. Scepticism towards Poland joining the European Banking Union persists.