Approximation through agencification. Article 114 TFEU as the legal basis for the estabishment and primary tasks of the Single Resolution Board.
As the European Union has deepened and widened in terms of its competences and members, so has the complexity of harmonising Member States’ [MS] legislation. With new regulations and directives touching upon intricate and rapidly developing markets and fields of legislation, it has become clear that the more complex the area, the bigger the risk of differences in MSs’ transposition of the Union law. This has led to a trend of proliferation of agencies/expert bodies, often referred to as agencification, in the attempt to facilitate the process of harmonisation for the MSs. This trend has been put under much scrutiny. This is due to, in part, the questioning of the conferral of powers on agencies on the grounds of separation of powers and, in part, the fact that the power to create agencies has never been explicit in a Union Treaty. However, the Court of Justice of the European Union [CJEU or “the Court”] has found in its case law that the power to establish agencies has been implicitly conferred on the legislature by the authors of the Treaties. This legitimised the establishment of agencies in the EU and the Court has since been the primary force in the development of agencification. Today there are Articles in the Treaty on the Functioning of the European Union [TFEU] that acknowledge the existence of agencies, but what powers can be conferred and on what legal basis, is still a question with an ever-evolving answer. This thesis examines the legal limits to agencification in relation to the newly established Single Resolution Board [SRB]. The SRB is the second pillar in the new Banking Union, created to tackle the European financial crisis. The Banking Union is perhaps the most comprehensive reform of the financial sector in the history of the EU. The thesis attempts answer the question if Article 114 is in fact the correct basis for the establishment of the SRB and its tasks to draw up and adopt resolution plans, and to adopt resolution schemes.