Does the Emperor have Financial Crisis Clothes? On the Legal basis of the European Banking Authority

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Fahey, E. (2011)

The European Union institutional package launched in response to the financial crisis used Article 114 TFEU as its legal basis. The author explores the legal basis for one of the European Supervisory Authorities recently established – the European Banking Authority (EBA). The use of Article 114 TFEU, the main Treaty basis used to harmonise laws in order to further the internal market, as the foundation for the EBA, is considered in detail. A paradox of contemporary EU institutional law is assessed here, considering whether on the one hand, the EBA is functionally both too narrow and too broad as a matter of law, while on the other hand, it may prove to be central to restoring confidence in EU regulatory powers, rendering it ‘too big to fail,’ despite its slender foundations in Article 114 TFEU.
  • References (4)

    61 As Alford states: “The success of integrating European financial markets, particularly wholesale markets, facilitated by the common currency, the euro, has highlighted the need for improved supervisory coordination among EU regulators. However, colleges of regulators are not supranational regulators.” See supra, fn. 6, at 360.

    62 Quoted in House of Commons Treasury - Sixteenth Report The Committee's Opinion on proposals for European financial supervision Session 2008-09 (11 November 2009) p. 3.

    63 Building a Crisis Management Framework for the Single Market," (Brussels, 19 March 19, 2010):

    64 Opinion Of The European Central Bank of 18 March 2010 on a proposal for a Directive of the European Parliament and of the Council amending Directives 1998/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC, and 2009/65/EC in respect of the powers of the European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority (CON/2010/23).

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