This contribution examines three interrelated questions that are essential for any challenge of a measure adopted under the framework the Banking Union (BU). The question of jurisdiction is analysed both vertically, as between EU and national courts, and horizontally, between different national courts. Specific problems resulting from compound decisions are addressed. The author examines and criticizes the (insufficient) interaction between the Union and Member State judiciary on BU measures. The question of locus standi is discussed both for actions and omissions by Union and national authorities. Special consideration is given to the challenge of regulatory acts issued by the ECB. The BU leads to instances in which decisions of a national court must be recognised by a Union court or the courts of another Member State. The author therefore suggests that a mechanism allowing for the circulation of judgments is strongly needed.
Given that many banks and financial institutions operate across borders, the success of restructuring and resolution measures is conditioned upon their effects in other jurisdictions. Yet the classic determination of the applicable law through private international law rules poses serious obstacles to the transboundary effect of national administrative orders. This chapter lays out the difficulties in the context of the BRRD and the SRM Regulation, which govern in the EU and the Euro Area, and examines possible solutions. Other laws, in particular those of the US and Switzerland, are taken into account. The chapter concludes that mere regulatory cooperation is insufficient for the judicial solution of private disputes, and therefore suggests that states harmonize their laws by following an international text, such as a legislative guide or a model law, that has to be developed.
While extraterritoriality is often bemoaned, this chapter makes the point that it is actually indispensable. If the state wants to maintain its regulatory grip under the conditions of globalization on phenomena such as the internet, it must reach beyond its borders. Without extraterritoriality, its laws could easily be circumvented. Extraterritoriality is therefore nothing else than the state’s response to the growing interconnectedness and interdependence of the modern world. Yet from extraterritoriality springs the more problematic phenomenon of ‘superposing laws’, defined here as the overlap of various mandatory rules that often require contradictory behaviour and result in conflicting duties. The chapter suggests that we should shift the discussion to this issue, arguing that classic public and private international law are incapable of dealing with the problem. Instead, a new path is suggested: enlightened self-restraint by states and the widespread acceptance of substituted compliance.