With this issue of 'Pandectae', the periodic review of European and national case law on Banking Union continues, covering the second half of 2022. In addition to the usual CJEU's rulings, the issue expands, when compared to the previous one, the spectrum of national court judgments analysed. Indeed, besides the summaries of the judgments of the Italian courts, the issue includes, thanks to the contributions of the Banco de España's Legal Department and of the University of Salzburg, the summaries of the Spanish courts' rulings on the liability of the Banco de España in the BPE affair and those of the Austrian courts' rulings of 2022 on several Banking Union topics, as well as a summary and a short note on the judgment of the German Federal Constitutional Court on the amendments to the ESM treaty and the introduction of the common backstop for resolution.
The issue also reports on two judgments of the European Court of Human Rights on the protection of fundamental rights in the areas of banking supervision and crisis management as well as a decision of the Board of Appeal of the ESAs. In its judgment on the appeal filed by Mr Berlusconi and Fininvest spa, who complained about an alleged violation of Article 6 of the European Convention on Human Rights, the Court, referring to its settled case-law, maintained that the EU law grants a protection to human rights equivalent to that provided by the Convention and that no 'manifest deficiency' was to be found in the case at hand. As for the ruling of the ESAs' Board of Appeal, although it did not directly concern the Banking Union but rather payment services topics, it shed light on the interpretation of the EBA's general power on the breach of Union law, whose addressees include not only the NCAs and NRAs but also the ECB and the SRB.
Among the ECJ's judgments, the one on the limits to the admissibility of the central bank's liability for resolution procedures of banks in light of the prohibition of monetary financing and the principle of independence stands out first. Notable GC rulings include the General Court's judgment on the ECB's decision placing Banca Carige S.p.A. under temporary administration. In the Court's view the ECB's decision was unlawful, because it erroneously relied on Article 70 of Italian Consolidated Law on Banking (TUB) that did not allow for the adoption of such measure for the reason stated by the ECB, namely the significant deterioration of the bank's situation.
