The Banking Union: Agencies and the Lesson from the US

Abstract

This paper contributes to conceptualising the Banking Union of the European Union (EU) by focusing on judicial control of Independent Agencies (IAs) in comparison with the US administrative law experience. The article explores a potential trade-off between the potential loss of democratic scrutiny and more efficient governance. IAs may indeed prove – as a result of the crisis - to be a tool around which further integration will pivot. Absent sound finances, regulatory agencies may be the most efficient instrument to achieve the desired policies.

First, the paper explores the concern over the judicial and democratic control of two IAs set up by the EU Banking Union: the Supervisory Board, considered a de facto agency, within the European Central Bank (ECB), and the Single Resolution Board within the Single Resolution Mechanism.

Second, the paper draws insights from the creation of a unitary market in the United States. Much like the EU since 2008, nineteenth-century United States also experienced debt crises and default. The classical study of Skowroneck (1982) shows that the US reacted with new administrative capacities and policy instruments to preserve the market. Even before the establishment of the Interstate Commerce Commission in 1887, which starts the emergence of regulatory agencies, the expansive role for administrative discretion emerged under broad delegations of Congressional authority. As Mashaw and Perry (2009) have explained by analysing the role of administrative role in American development, the Congress that generated substantial regulatory activity on the part of administrative agencies, through permissive acceptance of administrative adjudicatory and enforcement authority. Thus, a comparison between EU and US 19th century administrative law offers an important reference point for understanding the institutional allocation of power. It shows that integration also passes by stages where agencies have to enjoy a rather large amount of discretion.

Keywords: EU Law, banking union, administrative law, judicial review, EU agencies, independent agencies