Marco Lamandini

Stability, Flexibility and Proportionality: Towards a Two-Tiered European Banking Law?

The banking regulatory framework adopted by the European Union is both stern and unidimensional. Proportionality in banking regulation and supervision is mainly a theoretical reference, with little or no practical implementation. On the face of it, the fundamental choice to apply the Basel standards to every European bank, no matter the size, systemic relevance or complexity, would seem to provide certainty and hence stability for the benefit of the whole banking sector. However, the “one size fits all” approach hinders the development of smaller banks by creating competitive distortion. This papers purports to provide ideas that will relax the system and, based on an ad hoc, bespoke assessment, will provide for flexibility and proportionality for a key part of the banking sector, while maintaining stability. The paper contains a proposal for criteria to make a proper distinction between “small” (tier 2) and “large” (tier 1) banks in this context. It also provides the contours of the manner in which the rules applying to the tier 2 banks should be determined.

Free Movement of Capital: Could the CJEU Smooth Brexit?

In Europe free movement of capital is enshrined in Article 63 Treaty on the Functioning of the European Union (TFEU). However, this freedom had a very slow start; it was recognised direct effect only after the Court of Justice of the European Union (CJEU) Bordessa judgement (Joined Cases C-358/93 and C-416/93). Yet, its erga omnes effect, that is, it can be horizontally claimed also by non-EU nationals, makes it potentially the more far-reaching of all EU freedoms. Thus, in the current context, the construction of its scope and content by the CJEU enjoys special importance, because free movement of capital will continue to apply to companies established in the United Kingdom also after Brexit.