The aim of the paper is to ascertain which procedural rules apply to the different kinds of decisions within the Single Supervisory Mechanism (SSM) and what safeguards are granted to the addressees of these decisions. The starting point is a previous analysis of the different meanings, under the relevant EU law, of "supervisory decisions", "administrative measures" and "administrative penalties".
A description of the various rules applicable to the decisions above will follow.
Since the SSM does not have legal personality, supervisory decisions cannot be ascribed to it and are therefore imputed to the ECB or to the NCAs according to the general rules on competence contained in Council Regulation 1024/2013 (known as the "SSM Regulation"). These rules are based on the distinction between significant credit institutions, directly supervised by the ECB, and the less significant ones, supervised by the NCAs within a common framework.
As regards the rules on due process and the rights of defence, one has to refer to either the Union law or the relevant national law, depending basically on the authority (the ECB or the NCA) vested with the power to adopt the final decision.
The rules of procedure and due process laid down by national laws may differ partially from those in place at Union level and so impinge on the equal treatement of credit institutions within the SSM.
A question accordingly arises as to whether the ECB, in its capacity as authority vested with the power to adopt the final decision and, in any case, in its role of authority responsible for the smooth functioning of the SSM as a whole, has the duty of monitoring the conduct of the NCAs and, as the case may be, of forcing them to apply, within any SSM supervisory or sanctioning proceeding, the same safeguards of the defence as laid down by Union law.
Aside from the case where the NCAs simply assist the ECB with the preparation of ECB's decisions and so are compelled to follow its instructions, the role assigned to the ECB by the SSM Regulation does not go so far. The adoption of the ECB legal framework under Articles 4(3) and 6(7) of the SSM Regulation will nonetheless represent a "benchmark" for the administrative procedures or phases of procedures which in accordance with the SSM Regulation fall under the national jurisdictions.
