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ESCB Legal Conference 2020 ESCB Legal Conference 2020 11 September–2 November 2020 February 2021 Contents Contents 1 Introductory remarks 5 By Chiara Zilioli Keynote speech Legal aspects of the ECB’s response to the coronavirus (COVID-19) pandemic – an exclusive but narrow competence 9 By Yves Mersch Panel 1 Enhancing access to EU law and case-law 18 Introduction to the panel on enhancing access to EU law and case-law 20 By Per Nymand-Andersen Enhancing access to EU law and case-law 24 By Maria Westermann Establishing the foundation for visual navigation: the ECB legal framework in EUR-Lex 30 By Valérie Saintot Enhancing access to EU law: Why bother? 47 By Dimiter Toshkov Panel 2 Benchmark rate transition and continuity of contracts: UK, US and EU developments 60 Introduction to the panel on benchmark rate transition and continuity of contracts: UK, US and EU developments 62 By Bram van der Eem Benchmark rate transition and continuity of contracts: EU developments 66 By Sarah Jane Hlásková Murphy The role of market participants, supervisors and legislators in interest rates reform 81 By Iliana Lani Benchmark rate transition and continuity of contracts 87 By Joanna Perkins The Transition from US Dollar LIBOR from a US Perspective 98 By Thomas C. Baxter, Jr. Contents Panel 3 EU Taxonomy and action plan on sustainable finance: what uses may these have for the ESCB? 110 Introduction to the panel on the EU Taxonomy and action plan on sustainable finance: what uses for the ESCB? 112 By Iñigo Arruga Oleaga EU Taxonomy, action plan & supervisory developments on sustainable finance: what uses may these have for the E(S)CB? 118 By Willem Bovenschen and René Lieshout Sustainable Finance: Global Opportunities and Challenges - A Fine Balance 130 By Shirmila Ramasamy EU Taxonomy and the monetary policy prism 144 By György Várhelyi Panel 4 Central bank digital currencies 166 Introduction to the panel on central bank digital currencies – in the distant future or tomorrow? 168 By Otto Heinz Issuing a digital euro 172 By Ulrich Bindseil CBDC: how central banks approach innovation 179 By Valérie Fasquelle Wholesale central bank digital currencies: an overview of recent central bank initiatives and lessons learned 191 By Phoebus L. Athanassiou Retail central bank digital currency: a (legal) novelty? 203 By Panagiotis Papapaschalis Panel 5 Transparency versus confidentiality of supervisory decisions, documents and information 217 Introduction to the panel on transparency versus confidentiality of supervisory decisions, documents and information 219 By Eleni Koupepidou The principle of confidentiality in banking supervision 223 By Michael Ioannidis Contents 2 The rule of professional secrecy in banking supervision (Hillenius, Altmann and Baumeister) and exceptions to professional secrecy (Buccioni) 242 By Cristina Pérez Cajal The interaction between the rule of professional secrecy and the rights of defence. Access to files in supervisory procedures 255 By Carmen Hernández Saseta Panel 6 Judicial review of the acts of EU institutions and bodies in a multi-level administrative framework 267 Introduction to the panel on judicial review in a multi-level administrative framework 269 By Klaus Lackhoff The banking union as a new field for composite administrative procedures 273 By Prof. Dr. Dimitrios Triantafyllou Judicial review in the multi-level administrative framework of the SRM 278 By Anastasia Valavanidou Judicial review in a multi-level administrative framework – the case of the SSM 286 By Asen Lefterov Concluding remarks 304 By Chiara Zilioli Programme 312 Biographies 318 Contents 3 Introductory remarks By Chiara Zilioli 1 This book is very special. It is the product of an experiment, the first “Special Online Edition” of the ESCB Legal Conference, held in 2020. When, at the end of 2019, we put the programme together, with all the speakers, and selected the invitees, nobody imagined that a few months later the world would be transformed, by a tiny virus, into a very different place. And yet, despite everything, despite the evident impossibility of holding our treasured yearly conference at the ECB’s premises to meet with the legal and scholarly community, we dared to continue with our planning for both the conference and the book. And we succeeded, also in 2020, to be the catalyst for important legal discussions. Since 2015, every year the Directorate General Legal Services brings together lawyers from central banks, European institutions, international financial institutions, academia and private practice for a legal conference. A rich programme covering the topical legal issues that the lawyers of the European System of Central Banks (ESCB) are experiencing in central banking and in supervision is developed every year. We alternate between a conference with an academic and judicial focus, which took place last time in 2019, and a conference with a more technical legal focus of specific interest to ESCB lawyers, of which a very good example is the one of this year, 2020, reflected in this book. This year was a special year. We all missed the opportunity to meet in person at the ECB’s premises to exchange our views. But we did not give up. We adapted to the changed situation and trialled and experimented with a new online format for our conference, which was run over a series of dates, from 11 September until 2 November, and included six panels and two keynote speakers. We were not sure it would work, as it was the first time we were using the technology, and our participants might find it difficult and artificial to have remote discussions. As it turned out, I was deeply impressed by the possibilities offered by this format: despite the constraints caused by the coronavirus (COVID-19) pandemic it enabled us to reach out to our audience of on average 150 participants, wherever they were located, to overcome the impossibility of meeting in person and to nevertheless continue our reflections and intellectual cross-fertilisation. In accordance with our traditions, after the conference our thoughts and our intellectual exchanges have been preserved through the publication of a book. It is with great pride that I can point out that this is the sixth book we have published, following our annual ECB and ESCB Legal Conferences. All these books are made freely available on the ECB’s website and provide a resource to whomever wishes to learn more about the legal issues encountered by the ECB and the ESCB. 1 Director General Legal Services, European Central Bank. Introductory remarks 5 It has been said that books are the greatest weapons in the world. And a library is the greatest arsenal. I think we can safely say that we are now well placed to arm ourselves with the knowledge – and indeed wisdom – of our excellent contributors over the past six years. Now, more than ever, we need this arsenal to face the challenges of our world. Not only did the ECB have to respond to the COVID-19 crisis in the short term; the global pandemic has also accelerated topics that were already simmering on the backburner. These include the digital transition, and the possible role of central bank digital currencies. They also include the climate emergency, sustainable finance, and the possible contribution of central banks to the vitally important steps to fight global warming. These were central topics at our conference, and not for the first time. Even without the pandemic, central banks and supervisors face complex legal debates, especially in respect of accountability and transparency. The conference covered further facets of this debate, namely judicial review in a multi-level administrative framework, and the balance between transparency and confidentiality of supervisory information. Moreover, ensuring a smooth benchmark transition and enhancing access to EU law and case-law present fascinating legal challenges that merit discussion, debate and reflection. This book deals with various aspects of all these topics in a uniquely focused way, thanks to the contributions of true experts in these fields. Let us arm ourselves with this knowledge! Introductory remarks 6 Keynote speech Legal aspects of the ECB’s response to the coronavirus (COVID-19) pandemic – an exclusive but narrow competence By Yves Mersch1 1 Exploring the legal framework governing the ECB’s actions: scope and general legal principles Over the last few months, we have been dealing with an extraordinary and unprecedented situation created by the economic consequences of the reactions to the coronavirus (COVID-19) pandemic. In response, the European Central Bank has acted forcefully by adopting bold monetary policy and banking supervision measures. When exploring the scope of our actions we are cognisant that the ECB has exclusive but narrow competence to define the European Union monetary policy for the purpose of maintaining price stability, according to Article 127(1) of the Treaty on the Functioning of the European Union (TFEU). 2 Moreover, the European Court of Justice has consistently held that the ECB enjoys broad discretion in defining monetary policy within its mandate to pursue the objective of price stability. Discretion without limits increases the risk of arbitrariness. Therefore, the Court has insisted on being able to control this discretion on the basis of the criteria that some refer to as the self-imposed constraints. Furthermore, we are bound to respect certain established legal principles. Our measures must be proportionate to the ECB’s legitimate objectives. They must not undermine the spirit of the “no bailout
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