EU Banking Union: Agencies and the Lesson from the US

What is the Banking Union and how will it develop? My paper ‘EU Banking Union: Agencies and the Lesson from the US’ (available here) argues that a comparative analysis between EU and US administrative law offers a conceptual framework with which to theorise about the role of Independent Agencies (IAs) and their internal mechanisms of review, and thereby provide insights into potential future developments of the EU Banking Union. My research explores the issue of judicial oversight of the acts of independent agencies, both in the present-day EU and in the post-Civil War United States, when the US experienced debt crises and defaults. As Skowroneck[1] has shown, the US responded to the economic crisis after the Civil War with new administrative capacities and policy instruments which were intended to preserve the market. Even before the establishment of the Interstate Commerce Commission in 1887, which marks the emergence of regulatory agencies, an expansive role for administrative discretion emerged under broad delegations of Congressional authority. Thus, 19^th century US administrative law offers an important reference point for understanding the institutional allocation of power in current EU banking regulation.

The paper focuses on the boards of appeal of the two most recent IAs set up by the Single Supervisory Mechanism regulation and the Single Resolution Mechanism regulation as part of the EU Banking Union: the Supervisory Board within the ECB, and the Single Resolution Board. The key finding of my paper is that IAs, despite giving rise to concerns from a judicial protection standpoint, may prove necessary to tackle the complex technical issues which arise from the Eurozone crisis, and may constitute a preferential form of governance within the EU Banking Union, as was the case in the US in the 19^th century.

Luigi Lonardo is a PhD candidate at The Dickson Poon School of Law, King’s College London, and a guest contributor to the Oxford Business Law Blog.