This document discusses how the goals and components of the European Banking Union are translated into private law duties. It provides an overview of the four pillars of the Banking Union, including the Single Supervisory Mechanism and Single Resolution Mechanism regulations. It also examines reformed EU banking supervision law including directives on capital requirements, bank recovery and resolution, and deposit guarantee schemes. The document explores potential clashes between the goals of banking regulation and European private banking law, and looks at how the Banking Union could impact organizations, markets, and individual client relationships through the translation of rules into private law duties. It concludes that coordination of regulation and private law will be an ongoing research area, with banking law playing a lead role.

1. The Banking Union Translated
into (Private Law) Duties
(Infrastructure and Rulebook)
Stefan Grundmann
European University Institute (EUI)
Florence
19 March 2015

2. Grundmann
Banking Union Translated into (Private Law) Duties
Overview
♦ The Topic: Translation into Duties
♦ Short Survey on Components Considered
○ Four „Pillars“ of the Banking Union proper
○ Reformed „Substantive EU Banking Supervision Law“
♦ Clash of Goals
♦ Areas of Application
○ Organizations
○ Markets
○ Individual Client Relationships

3. Grundmann
Banking Union Translated into (Private Law) Duties
I. The Topic: Translation into Duties
♦ Translation into Private Law Duties
○ Examples in Banking Law
○ Other examples of such „translation“
♦ Theoretical Models of such Translation
○ Regulation and Private Law as „Couple“
○ Regulation and Private Law in EU Integration

4. Grundmann
Banking Union Translated into (Private Law) Duties
II. Short Survey on Components Considered (1)
♦ Four Pillars of Banking Union Proper
○ SSM Regulation and ECB
○ SRM Regulation and SRB (plus Fund)
○ EU Deposit Guarantee Scheme
○ Rulebook
♦ SSM and SRM Regulations in Particular (with SSM
Framework Regulation)
♦ Rulebook in Particular

5. Grundmann
Banking Union Translated into (Private Law) Duties
II. Short Survey on Components Considered (2)
♦ „Reformed EU Banking Supervision Law“
♦ ESFS, with EBA and ESMA (… and ECB)
♦ Main Components
○ CRD IV, CRR
○ BRRD
○ Deposit Guarantee Directive 2014/49/EU

6. Grundmann
Banking Union Translated into (Private Law) Duties
III. Clash of Goals? (1)
♦ Protection of Individual „Entitlements“ as Goals vs.
Protection of Individual „Entitlements“ as Instruments
○ Capital Market Law
○ Competition Law
○ Banking Supervision Law
♦ Goals of Banking Union Regulatory Compound and
of European Banking Private Law
○ Looking at the Goals Proper (SSM Regulation)
○ Looking at Actors and Decision Taking

7. Grundmann
Banking Union Translated into (Private Law) Duties
III. Clash of Goals? (2)
♦ Main Goals of the SSM Regulation
○ Reducing Fragmentation
○ Breaking the Link Between State Funds and Bank
Funds
○ Combatting Legislative/Administrative Capture
○ Relevance for Individual (Private Law) Duties?
♦ Actors and Decision Taking
○ Public Character?
○ EU Agency and (mainly) National Courts

8. Grundmann
Banking Union Translated into (Private Law) Duties
IV. Areas of Application (1)
♦ Organziations
○ Re-Definition of the Key Goals in Directors‘
Management of the Company?
○ Strengthening Regulatory Requirements and
Leaving Management Goals Unchanged
○ A Differentiated Company Law Depending on
Level of External Effects?

9. Grundmann
Banking Union Translated into (Private Law) Duties
IV. Areas of Application (2)
♦ Markets, for instance Recovery Regime
○ Incentives of Market Participants vs. Protection
of Individual Rights?
○ The exception of „small“ depositors as starting
point
○ Increased returns and increased losses
stemming from high leverage?
○ Fair Competition between credit institutions
enhanced?

10. Grundmann
Banking Union Translated into (Private Law) Duties
IV. Areas of Application (3)
♦ Individual Client Relationships
○ Prohibitions via prudential supervision
○ Standard Setting via prudential supervision
○ Rulebook as Part of the Contractual Basis?
○ Tort claims Based on the Rulebook?

11. Grundmann
Banking Union Translated into (Private Law) Duties
V. Conclusions
♦ Coordination of Regulation and Private Law as
Longterm Research Area
♦ Banking Law as Lead Area for such Research
…. and Thank You for Listening and Discussing