Judicial Review in the European Banking Union
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Judicial Review in the European Banking Union

Edited by Chiara Zilioli and Karl-Philipp Wojcik

This is the first book to offer a profound, practical analysis of the framework for the judicial and pre-judicial protection of rights under the supranational banking supervision and resolution powers in the European Banking Union (EBU). It is also unique in its in-depth commentary on the developing case law from the European Court of Justice in this new field of EU litigation.
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Chapter 15: THE APPLICATION OF NATIONAL LAW BY THE ECB, INCLUDING OPTIONS AND DISCRETIONS, AND ITS IMPACT ON THE JUDICIAL REVIEW

Andreas Witte

Abstract

The set-up of the SSM foresees two instances in which the ECB adopts acts of Union law based on a national legal basis: The application (i) of national transpositions of directives, and (ii) of the way Member States have exercised their options and discretions available under Union law. The present chapter discusses, and suggests solutions to, various problems related to judicial review which these scenarios pose: How will Union courts approach the interpretation of national statutes methodologically? Is it sound to apply national statutes which are incompatible with Union directives? Can doctrines of national administrative law which differ from Union law – e.g. discretion – seep into the latter? How does judicial review over national decisions in the SSM interact with the Union judicature? The chapter attempts to address these and related questions in a structured manner, providing arguments in support of its suggestions that are grounded in existing case-law.

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