The ex ante contributions to the Single Resolution Fund – Innovative financing and legal challenges

The establishment of the Banking Union is one of the key developments in the European Union with far-reaching constitutional, financial and institutional consequences. The celebration of the 10-year anniversary of this incredible project provides the opportunity to reflect on all its aspects and their evolution since its creation. This presentation focused on one specific pillar of the Banking Union: the Single Resolution Mechanism, which is made up of the Single Resolution Board and of the Single Resolution Fund and more specifically, one chosen topic: the ex ante contributions to the Single Resolution Fund. These contributions are provided for mainly in the Single Resolution Mechanism Regulation (No 806/2014). They have been in the spotlight of legal discussions since the inception of the Single Resolution Fund and have been and are still subject to a lot of litigation. My contribution explored several structural legal aspects related to the ex ante contributions from the elaboration of the related legal framework to the current state of the implementation of this framework. The first aspect is the choice of the legal basis for the main instrument at stake: the Single Resolution Mechanism Regulation based on Article 114 TFEU. This would include developments on the legal nature of these contributions showing that it follows an insurance-based logic and not a taxation one. The second aspect is the question of legal certainty related to the methodology of calculation of these contributions in order to show that despite its complexity the legal framework is sufficiently clear and foreseeable to levy these ex ante contributions. All this was assessed on the basis of the history of the adoption of the relevant legal package and of the evolving case law of the European Court of Justice.