Sanctioning Powers of the European Central Bank and the Ne Bis In Idem Principle within the Single Supervisory Mechanism

Valentina Felisatti

doi:10.5771/2193-5505-2018-3-378

Contents
- Chapter Expand | CollapseAuthorsPage
- 313–314 Titelei/Inhaltsverzeichnis 313–314
- 315–316 Editorial M. Kaiafa-Gbandi M. Kaiafa-Gbandi 315–316
- 317–439 Articles 317–439
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EuCLR European Criminal Law Review , page 378 - 403

Sanctioning Powers of the European Central Bank and the Ne Bis In Idem Principle within the Single Supervisory Mechanism

Autoren

Valentina Felisatti

DOI
- doi.org/10.5771/2193-5505-2018-3-378
- ISSN: 2191-7442
- ISSN online: 2193-5505
Zusammenfassung

The article focuses on the enforcing powers of the European Central Bank (ECB) after the entry into force of (EU) Regulation 1024/2013 establishing the Single Supervisory Mechanism (SSM). More precisely, the article discusses whether the attribution of direct sanctioning powers to the ECB in the field of banking supervision may result in a violation of the ne bis in idem principle as defined at the EU level. In fact, the coexistence of different authorities within the same sector - the ECB, on the one hand, the NCAs, on the other - provided with sanctioning powers gives rise to a potential risk of double jeopardy. Moreover, the relevant European sources in this field do not mention the ne bis in idem principle, but only other fundamental rights such as the right to the protection of personal data, the freedom to conduct a business and the right to an effective remedy and to a fair trial. The article therefore seeks to describe one of the potential problematic issues deriving from the attribution of direct sanctioning powers to the ECB and the NCAs. For that purpose, after a brief description of the institutional framework of the SSM, the article analyses the allocation of sanctioning competences between the ECB and the national competent authorities within this framework; then, specific attention is given to the ECB’s sanctions that are labelled as administrative, but may be considered substantially criminal: indeed, the principle can be violated only in so far as the sanctions concerned are criminal in nature. The article finally describes the ne bis in idem principle with the aim of verifying whether the prohibition of double jeopardy is guaranteed in the field of banking supervision.

Abstract

The article focuses on the enforcing powers of the European Central Bank (ECB) after the entry into force of (EU) Regulation 1024/2013 establishing the Single Supervisory Mechanism (SSM). More precisely, the article discusses whether the attribution of direct sanctioning powers to the ECB in the field of banking supervision may result in a violation of the ne bis in idem principle as defined at the EU level. In fact, the coexistence of different authorities within the same sector - the ECB, on the one hand, the NCAs, on the other - provided with sanctioning powers gives rise to a potential risk of double jeopardy. Moreover, the relevant European sources in this field do not mention the ne bis in idem principle, but only other fundamental rights such as the right to the protection of personal data, the freedom to conduct a business and the right to an effective remedy and to a fair trial. The article therefore seeks to describe one of the potential problematic issues deriving from the attribution of direct sanctioning powers to the ECB and the NCAs. For that purpose, after a brief description of the institutional framework of the SSM, the article analyses the allocation of sanctioning competences between the ECB and the national competent authorities within this framework; then, specific attention is given to the ECB’s sanctions that are labelled as administrative, but may be considered substantially criminal: indeed, the principle can be violated only in so far as the sanctions concerned are criminal in nature. The article finally describes the ne bis in idem principle with the aim of verifying whether the prohibition of double jeopardy is guaranteed in the field of banking supervision.
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