Supervision as a variable set of powers: a new frontier of administrative law

Abstract

Transformations of administrative law in the context of economic and financial policy of the European Union, are rooted in the economic and financial crisis that began in 2008, which put in evidence that deregulation of the financial sector, which takes place in the Union European since the late 80s of XX century, is inconsistent with financial stability, with confidence in the financial system and the protection of European consumers. Supervisory authorities are characterized by attributing to them by the legal system of the Union of a complex and variable administrative powers, among which the discretionary powers of preventive nature stand out. The allocation of discretionary powers of preventive nature, and in particular the difficulties in controlling the determining factors of the performance of such powers, are hardly compatible with the conception of the rule of law, by failing to provide effective control of the legal system parameters Union thereof to the Court of Justice of the European Union. Financial institutions of the Union have mutated their nature as a result of the submission of the same to the authorities equipped monitoring a complex system of skills to the point that you can say that entities are supervised by the supervisory authorities, which support major limitations regarding the autonomy that characterizes private entities in the context of the European Union. It should be noted that the supervisory authorities, including the European Central Bank, are not subject to democratic controls (only have certain reporting requirements on the institutions of the Union), but only to judicial review by the ECJ (Art. 61 of Regulation 1093/2010). They are intended as legal persons with a high level of organizational and functional autonomy (art. 42, 46, 49 and 52 of Regulation 1093/2010) and its regulations are not expected, as would be reasonable, accountability to the Board of European Commission or the European Parliament. And the proliferation of such independent legal entities is becoming a problem within the EU may have to face.