Banking Authorisation, Composite Procedures and Judicial Review

The issue of judicial review of banking authorisation has to approached from a dual perspective, considering the composite administrative procedure involving the national supervisory authority for the preliminary investigation phase and initial assessment of the application, and the European Central Bank for the decisional phase of adopting the final measure. It is necessary to address the problems of the identification of the jurisdiction and the scope of the relative review in the light of the general principles: on the one hand, the review of legitimacy of the European Court on the decisions of the ECB and, on the other, it is necessary to investigate whether there is an area reserved to the jurisdiction of the national court with regard to the acts of the national supervisory authority inherent to the banking authorisation. In particular, in the Italian legal system, the administrative judge exercises review jurisdiction over the decisions of the Supervisory Authority in execution of European decisions or relating to the supervision of banks classified as «less-significant» for the purposes of centralised supervision. In fact, art. 133, par. 1, lett. l) of the Code of Administrative Procedure provides for the exclusive jurisdiction of the administrative judge over all the measures adopted by the Bank of Italy, excluding the pecuniary administrative sanctions after the intervention of the Constitutional Court. In general, the complex framework of judicial protection is characterised by various institutions and profiles that have required frequent interpretative clarifications from European Court case law, especially with regard to issues of legal standing and the qualification of the acts that can be challenged in the context of composite administrative proceedings, in order to reconstruct reference criteria on the basis of the current discipline for the needs of legal certainty.