The ECB Powers as a Catalyst for Change in EU Law (Part II). SSM, SRM and Fundamental Rights

The newfinancialandsupervisoryarchitecturein the EU hasput the EuropeanCentralBank (ECB) on centerstage as a bulwarkof the system's stability. In relation to the architecture'sinitialdesign, the criticalquestions concern the insertion of the ECB's mandates in the constitutional balance of the EU Treaties. Yet, as the new structure settles, the more pervasive questions will concern its fit within theframeworkoffundamentalrights, as these will determine the ECB's legitimacy and accountabilityon an on-going basis. Any balance will have to resolve the conundrum between the conception offundamental rights as "trumps" ofgovernmentpolicies, and the design offinancialstability and centralbankpolicies as "trumping policies. " This Article, examines the EUframework offundamental rights, including its scope of application, substantive rights, and proceduralrights, in relation to the ECB'ssupervisorypolicies and powers under the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). The picture shows that there are undesired "darkcorners."Major uncertaintysurroundscritical issues, such as, to what extent property rights can limit the ECB's functions as a "lender of last resort" and its supervisory interventions; to what extent the ECB is bound by the non- discriminationprinciple in the exercise of its functions; to what extent theprinciplesofcertaintyandlegalityofpenaltieshave any bearingin the situationsofbankinggroups;andthe actualmeaning and extent ofjudicial review of ECB acts. A major construction effort is neededfor the sake offundamental rights and toprovide a sound orientation in the implementation of the SSM/SRM framework.