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The Directive in the context of the European Banking Union
5
From a ‘lato sensu perspective’, however, the single rulebook should al-
so refer to the total harmonisation of rules pertaining to the resolution of
credit institutions and the operation of deposit guarantee schemes. In the
author’s opinion, the term ‘total harmonisation’ denotes a combination of
full (in terms of scope) and maximum (in terms of level) harmonisation.
(b)
The EBU initiative is broader than an initiative aimed at the mere es-
tablishment of a pan-European banking (or even financial) supervisory au-
thority, which was also not in place. It should be recalled that the launch on
1 January 1999 of the EMU did not bring about any changes to the regime
on the authorisation and micro-prudential supervision of credit institutions
incorporated in euro area Member States. Contrary to the definition and im-
plementation of the single monetary and foreign exchange policy, for which
competences became supranational, the ECB has not shifted into a supervi-
sory authority for the EU financial system or at least one of its sectors, but
rather relevant competences have remained with Member States.
9
Competence for both the authorisation and micro-prudential supervision
of EU credit institutions still lies exclusively (until 4 November 2014) with
the authorities designated as such by the Member States. This was provid-
ed explicitly in
Article 105, para. 5 of the Treaty establishing the European
Community
10
(carried over verbatim in
Article 3.3 of the Statute of the Eu-
ropean System of Central Banks (the ‘ESCB’) and of the ECB,
11
and then
also in
Article 127, para. 5 TFEU
), stipulating that:
“the ESCB shall contribute to the smooth conduct of policies pursued by
the competent authorities relating to the prudential supervision of credit in-
stitutions and the stability of the financial system
”.
12
(c)
At the political level, the prospect of establishing pan-European finan-
cial supervisory authorities was put forward, for the first time, in 2009 by
9. For a summary of the different proposals with regard to the creation of one or more
supranational financial supervisory authorities in the EU, see
Lastra (2006)
, pp. 324-
328, and
Hadjiemmanuil (2006),
pp. 818-828.
10. OJ C C 325, 24.12.2002, pp. 33 f.
11. Protocol No 4 TEU and TFEU (OJ C 83, 30.3.2010, pp. 230-250).
12. These provisions were in force since the launch of Stage III of the EMU (Article 116,
para. 3, second indent TEC, with a reference to the provisions of Article 105, para.
5). For a historical background of their content, see
Smits (1997)
, p. 334-350,
An-
denas, Gormley, Hadjiemmanuil and Harden (1997),
pp. 386-394,
Lastra (2006)
, p.
216-222,
Louis (2009)
, p. 162-166 (with specific reference to the powers of the ESCB
during the recent (2007-2009) international financial crisis), and
Lastra and Louis
(2013), pp. 82-94
.