This study provides a comprehensive analysis of the enforcement of fines and pecuniary obligations imposed by the ECB within the Eurosystem and the Single Supervisory Mechanism (SSM) under Art. 299 TFEU – an issue which has, to date, been treated only rudimentarily in literature/judicature. The focus in Part I lies on five categories of monetary obligations that the ECB may levy. Against the background of these case groups, the European law requirements that exist for enforcement will be shown. Part II will show how these requirements are fulfilled in euro and non-euro Member States (MSs). The latter will be based on a comparative analysis of the respective data collected in 2020 via a questionnaire survey in 21 MSs. The relevance of the findings are, however, not limited to the ECB. Legal acts of the Council and the EC[2], as well as judgments of the CJEU (Art. 280 TFEU), are enforced under the same regime; Art. 82 of the Agreement on a Unified Patent Court (UPCA)[3]is modelled on Art. 299 TFEU.
1. Introduction
1.1. Problem and Subject of the Analysis
Among the categories of sanctions that the ECB may impose, especially supervisory sanctions stand out for their severity: on 21 October 2019, the ECB imposed an administrative penalty on Natixis Wealth Management Luxembourg for an amount of EUR 1,850,000 for infringing large exposure and reporting requirements[4] and, on 13 August 2019, on Piraeus Bank S.A. for an amount of EUR 5,150,000 for breaching own funds provisions.[5] The enforcement of those sanctions is governed by Art. 299 TFEU, which provides for certain requirements: the enforcement shall be governed by the civil procedure regime of the State in the territory on which it is carried out; before issuing an order for the enforcement, only the authenticity of the underlying decision may be examined (Para. 2); and – although complaints that enforcement is being carried out in an irregular manner are dealt with by the national authorities – the enforcement may only be suspended by a decision of the CJEU (Para. 4). The regime applicable to the enforcement, therefore, is a hybrid legal regime consisting on the one hand of European law requirements enshrined in Art. 299 TFEU and other provisions of Union law, e. g. general principles and the Charter of Fundamental Rights of the EU (‘CFR’), and, on the other hand, of the applicable national procedural law. Since Art. 299 TFEU makes very few stipulations, some of which are open to interpretation and some of which must be subject to further development of the law, currently a ‘mismatch’ in procedural law can be identified that leaves gaps in protection for the credit institutions or third parties. It is crucial to close those because within the European multi-level constitutional order, European and national legal protection must be effectively interlinked as underlined by Art. 19 (1) TEU and Art. 47 CFR[6];[7] nothing else may apply to the enforcement. Against this background, the paper aims to resolve this mismatch and analyses whether and how the vague requirements of European law concerning the enforcement of pecuniary obligations can be elaborated more precisely and how the competences between EU and national level are to be delimited.
In the first part, the structure and allocation of sanctioning powers will be outlined as well as the legal bases of the monetary obligations that the ECB may levy, namely concerning fees and four types of sanctions (fines, periodic penalty payments, administrative penalties and penalty interest). These case groups will serve as a reference point for the further investigation. In the second part, the relevant Union law requirements enshrined in primary and secondary law will be analysed, firstly with regard to the ECB decision, and secondly, with regard to the (order for the) enforcement.
1.2. Pecuniary Obligations and Division of (Sanctioning) Powers
1.2.1. Penalties or: the Jumble of Referrals
To resolve the mismatch, first the division of powers between EU institutions and national authorities concerning ‘sanctions’[8] must be determined. Therefore, the tasks entrusted to the ECB may be divided into tasks regarding the monetary policy within the European System of Central Banks (ESCB)[9] and such regarding the SSM.[10]
1.2.1.1. ESCB/Eurosystem[11]
Art. 132 (3) TFEU and Art. 34.3 of the Statute of the ESCB, consisting of the central banks of all EU-MSs and the ECB[12] (E(S)CB-Statute), provide that the ECB shall be empowered to ‘impose fines or periodic penalty payments on undertakings[13] for failure to comply with obligations under its regulations and decisions’. The provisions do not provide for the relevant non-compliance, which rather can be found in the individual ECB legal acts. The Council has defined the limits and conditions regarding the sanctions in Regulation 2532/98, amended by Regulation 2015/159 (Sanction-Reg)[14]; the ECB elaborated on it in Regulation 2157/1999, last amended by Regulation 2021/1814 (ECB-Sanction-Reg)[15].[16] Given the wording and the obvious purpose of Art. 132 (3) TFEU, i. e. effecting certain obligations imposed by ECB’s regulations/decisions, it follows that the Council only has to specify the limits and conditions of the sanctions but not the relevant non-compliance itself. Since the relevant non-compliance does not need to be defined by the Council (or primary law)[17], but rather the ECB,[18] its sanctioning power is linked to tasks within the ESCB.
In short, the proceedings are structured as follows: In the case of an alleged infringement, the ECB’s Executive Board initiates an infringement procedure and the undertaking has at least 30 days to present its defence.[19] The procedure is carried out by the ECB’s investigating unit, unless the simplified procedure applies (if the sanction to be imposed will not exceed EUR 25,000, Art. 1 b (3), Art. 10 ECB-Sanction-Reg). The investigating unit has the right to require the submission of documents, to examine the books/records of the undertaking as well as to obtain written/oral explanations and it may request assistance of the authorities of the respective MS.[20] After consulting the national central bank (NCB), the ECB’s Executive Board adopts a decision on the alleged infringement and the sanction,[21] which must be effective, proportionate and dissuasive.[22] Within 30 days after notification of the decision, the undertaking may challenge the decision before the ECB’s Governing Council or directly call upon the EGC.[23] The decision to initiate the procedure can alternatively – but not in parallel – be adopted by the NCB, which will then also carry it out. The adoption of the final decision, however, remains with the ECB.[24] If a non-compliance also touches upon areas outside of the ESCB, the national authorities may initiate separate proceedings in addition to the proceedings under the Sanction-Reg.[25] The possibility given to the ECB to have recourse to the NCB to carry out ‘operations’ forming part of the tasks of the ESCB (Art. 12.1 (3) E(S)CB-Statute) should be mentioned here. Due to the wording, however, this will in general not affect the described distribution of sanctioning powers.
Within the tasks of the ESCB conferred upon the ECB, the application of the minimum reserves holds a special position with regard to the legal basis of the sanctioning power and the penalty (a similar position is held by the statistical reporting requirements).[26] The obligation to hold minimum reserves is primarily laid down in Regulation 2531/98 (‘Minimum-Reserve-Reg’)[27] and, since it is a Council Regulation, the ECB’s sanctioning power may not stem from Art. 132 (3) TFEU.[28] However, Art. 19.1 E(S)CB-Statute explicitly states that if an institution infringes the obligation to hold the necessary minimum reserves in accordance with the aforementioned Council Regulation (or ECB regulations/decisions associated with it), the ECB might levy penalty interest under the (modified)[29] procedure laid down in the Sanction-Reg.[30] Here, the NCB may only be involved by notifying the undertaking of the alleged non-compliance and the corresponding sanction on behalf of the ECB.[31] For infringements of other obligations enshrined in the Minimum-Reserve-Reg/associated acts of the ECB, the latter may impose sanctions according to the limits and procedure set in the Sanction-Reg.[32]
Although it is also provided for the sanction of a non-interest bearing deposit up to three times the amount of the minimum reserves which were failed to provide, this sanction is not further dealt with in the light of Art. 299 TFEU: minimum reserves themselves cannot be brought in by force, which follows, in particular, from the period related nature of the deposit and the resulting, primarily repressive, function that otherwise would not have been necessary. As a consequence, this must apply a fortiori to a multiple thereof.
1.2.1.2. Single Supervisory Mechanism
Furthermore, the ECB is competent to impose sanctions in the context of the SSM, consisting of the ECB and National Competent Authorities (NCAs) of the participating MSs (see Council Regulation 1024/2013 (SSMR)[33] and the ECB Framework-Regulation 468/2014 (SSM-Framework)[34]). Within the SSM, the ECB is responsible for the supervision of significant entities, whilst the NCAs supervise less significant entities (cf. Art. 6 (4) SSMR).[35] The sanctioning power is divided along this distinction:
Art. 18 (1) and Recital 36 SSMR provide that the ECB may (not: must)[36] impose administrative pecuniary penalties on credit institutions, financial holding companies and mixed financial holding companies (but no other persons; see Recital 53 SSMR) if they are significant entities and breach a requirement enshrined in directly applicable acts of Union law (other than regulations and decisions adopted by the ECB)[37] ‘in relation to which administrative pecuniary penalties shall be made available to competent authorities under the relevant Union law’.[38] An example for such an obligation would be the large exposure requirements enshrined in Art. 395 (1) Regulation 575/2013.[39] The procedure is laid down in the Sanction-Reg[40] and the SSM-Framework (Art. 1 (1) (h) SSM-Framework); whereas the ECB-Sanction-Reg does not apply.[41] Again, it will be essentially the ECB’s Investigating Unit that carries out the procedure and grants the supervised entity the right to be heard;[42] however, it is ECB’s Supervisory Board which proposes its draft decision to the Governing Council.[43]
In constellations not covered by Art. 18 (1) SSMR, the ECB may request NCAs to open proceedings with regard to breaches of significant supervised entities if it is necessary to perform the duties entrusted upon the ECB by the SSM-Regulation (Art. 18 (5) SSMR; Art. 134 SSM-Framework). Such constellations might concern e. g. breaches of national law implementing directives, non-pecuniary penalties or breaches by persons other than those named in Art. 18 (1) SSMR. Regarding less significantentities, the NCAs retain their sanctioning power but they have to report to the ECB on a regular basis (Art. 135 SSM-Framework).
However, concerning breaches of obligations under ECB regulations/decisions, the sanctioning power falls again to the ECB, which may – for the purpose of carrying out the tasks conferred upon it by the SSMR – impose fines and periodic penalty payments on significant or less significant supervised entities (Art. 18 (7) SSMR, Art. 4 a Sanction-Reg). Concerning less significant entities, the ECB regulations/decisions must specifically impose obligations on them vis-à-vis the ECB.[44] Regarding the procedure, the SSMR refers to the –prevailing – Sanction-Reg (see Art. 4a-4c Sanction-Reg), which is to be complemented by the SSM-Framework.[45] Here too it is the ECB’s Supervisory Board which proposes a draft decision to the Governing Council.[46]
Finally, it should be pointed out that Art. 18 SSMR shall be applied in accordance with national legislation transposing directives or regulations (provided that the MSs were granted a choice of options).[47] This application of national law by institutions of the EU is a rare phenomenon;[48] however, it does not constitute an object of the present analysis.
1.2.2. Tabular Interim Résumé: Systematisation of a Jumble
| Sanctioning Power | 1. Relevant non-compliance | 2. Procedure | 3. Penalty[49] | 4. Competences of National Authorities |
| A. Art. 132 (3) TFEU in conjunction with e. g. Art. 23 Regulation 795/2014 | e. g. breaching the obligation of an SIPS-operator to hold sufficient liquid resources to effect same-day settlement (Art. 8 (3) Regulation 795/2014[50])[51] | Sanction-Reg ECB-Sanction-Reg |
Fines (single amount of money of up to EUR 500,000);[52] Periodic Penalty Payment (calculated for each day of continued infringement following the notification of the undertaking; the upper limit is EUR 10,000 per day)[53] |
In case the non-compliance only falls within the ESCB’s competences, the national authorities may only assist the ECB upon request; the NCB may initiate a procedure and carry it out; in case a non-compliance also falls within areas outside of the ESCB’s competences, the national authorities may initiate separate proceedings |
| B. Art. 19 (1), (2) E(S)CB-Statute in conjunction with Art. 7 (2) Minimum-Reserve-Reg | Non-compliance with the minimum reserve requirements | Sanction-Reg modified by Art. 7 (2) Minimum-Reserve-Reg ECB-Sanction-Reg |
Penalty interest[54] (of up to 5 percentage points above the ESCB’s marginal lending rate or twice the ESCB’s marginal lending rate; applied to the amount which was failed to be provided)[55] | In case a non-compliance also falls within areas outside of the ESCB’s competences, the national authorities may initiate separate proceedings |
| C. Art. 19 (1), (2) E(S)CB-Statute in conjunction with Art. 7 (3) Minimum-Reserve-Reg | Breaching obligations (other than holding minimum reserves) enshrined in the Minimum-Reserve-Reg and ECB regulations/decisions associated with it | Sanction-Reg ECB-Sanction-Reg |
Fines (see A.3.) Periodic Penalty Payments (see A.3.) |
See mutatis mutandis A.4. |
| D. Art. 5.4 E(S)CB-Statute in conjunction with Art. 7 (1) Reporting-Reg | Non-compliance with the obligations enshrined in the Reporting-Reg and ECB regulations/decisions associated with it | Sanction-Reg ECB-Sanction-Reg Decision ECB/2010/10 on non-compliance with statistical reporting requirements |
Fines (not exceeding EUR 200,000)[56] Daily penalty payment (not exceeding EUR 10,000 per day, total fine not exceeding EUR 100,000)[57] |
See mutatis mutandis A.4. |
| E. Art. 18 (1) SSMR | In the context of the SSM: breach of an obligation enshrined in directly applicable Union law by significant supervised entities, e. g. breach of the large exposure requirements enshrined in Art 395 (1) Regulation 575/2013 | SSM-Framework in accordance with Art. 18 (4) SSMR Sanction-Reg |
Administrative pecuniary penalty (of up to twice the amount of the profits gained/losses avoided because of the breach, or up to 10% of the total annual turnover, of a legal person in the preceding business year)[58] | In cases not covered by Art. 18 (1) SSM-Regulation (e. g. breaches of national law implementing directives, non-pecuniary penalties or breaches by natural persons), the ECB may request the NCA to sanction breaches of significant supervised entities. Regarding less significant entities, in general, the NCAs sanction infringement and report to the ECB |
| F. Art. 18 (7) SSMR | In the context of the SSM: breaching an obligation enshrined in ECB regulations/decisions | (Art. 4a–4c) Sanction-Reg Complemented by the SSM-Framework |
Fines (the upper limit corresponds to supra E.3.); Periodic Penalty Payments (of up to 5% of the average daily turnover per day of infringement; maximum period of six months ) |
Regarding less significant entities (see above E.4.), the ECB is responsible only if the ECB regulations/decisions specifically impose obligations on significant entities vis-à-vis the ECB. |
1.2.3. Fees
Beyond penalties, the ECB may unilaterally[59] levy certain fees. An example can be found in the supervisory fees levied on supervised entities pursuant to Art. 30 SSMR, which are determined on the basis of the bank’s importance and risk profile.[60] In the case of non-compliance with its fee notice, the ECB may levy additional (penal) interest and impose sanctions according to the Sanction-Reg and complemented by the SSM-Framework.[61]This does not, however, prevent national authorities from levying separate fees e. g. for tasks that have not been delegated to the ECB or for costs of cooperating with/assisting the ECB and acting on its instructions (Art. 30 (5) SSMR).
Against this background, it is questionable whether the ECB can already enforce the fee notice itself or only the corresponding sanctions that are imposed for non-payment: Although the wording of Art. 299 TFEU would be open to an enforcement, it might be precluded by the reference made in Art. 15 Supervisory-Fee-Reg[62] indirectly to periodic penalty payments. The reasoning is similar to the one used regarding the enforceability of non-interest bearing deposits for minimum reserve requirements: If the fee notice itself could already be enforced, there would be no need for a (repressive) sanction to force the performance of a certain act, a single penalty could suffice.
2. European Law Requirements concerning the Enforcement
2.1. Regulatory Content and Purpose of Art. 299 TFEU
Art. 299 (1) TFEU firstly provides that acts of the ECB which ‘impose a pecuniary obligation on persons other than States’ are enforceable. Secondly, it entrusts the issuance of the order of enforceability and the enforcement itself to the MSs (Art. 299 (2), (3) TFEU). Thirdly, it specifies the jurisdiction of the CJEU and the national courts to the effect that the CJEU shall have sole jurisdiction for a ‘suspension’ of the enforcement, whereas the national courts have jurisdiction for ‘complaints that enforcement is being carried out in an irregular manner’ (Art. 299 (4) TFEU). Art. 299 TFEU therefore contains provisions concerning the title, the order for the enforcement and the enforcement, which will be analysed in the following chapter.
Against the background of the main objective of ensuring the effective enforcement of the pecuniary obligations, it follows from the delimitation of jurisdictions in Art. 299 (2) and (4) TFEU that the provision also aims at preventing the MSs/national authorities from interfering with the content and validity of the ECB’s legal act itself. In this sense, Art. 299 TFEU can be understood as an accompanying provision to the (sole) jurisdiction of the CJEU to review the legality of legislative acts of the ECB (Art. 19 (1) TEU; Art. 261, 263 TFEU). On the other hand, concerning the carrying out of the enforcement by the national authorities and the issuance of the order for the enforcement, the additional notion of adherence to national sovereignty can be identified.[63]
2.2. Requirements Concerning the Enforceability of the Title
2.2.1. Requirements Enshrined in Art. 299 TFEU
Art. 299 TFEU provides that it must be an act of the ECB that shall be enforced.[64] Since the title must contain a concrete addressee and impose an obligation to pay, decisions are primarily considered here. Abstract-general legal acts, such as regulations, would not be suitable to be enforced themselves.[65] Legal acts of the ECB imposing penalties are also qualified as decisions by secondary law (see Art. 127 (8), (9), 131 (1) SSM-Framework, Art. 3 (4)-(8) Sanctions-Reg). As far as the fee notice[66] is concerned, the nature has not yet been clarified in the literature. However, even if it is not enforceable itself (supra 1.1.3), it will have to be qualified as a decision on account of other legal effects vis-à-vis the individual (considering the start of the payment period and the interest in the case of late payment).[67]
The wording could seem to also cover obligations under private law (contractual penalties, for example, could be understood as unilaterally ‘imposed’). Yet Art. 274 TFEU (cf. also Art. 35.2. E(S)CB-Statute) assigns jurisdiction for disputes that are not explicitly assigned to the CJEU and consequently, also disputes under ‘private law’ if there is no arbitration clause, to the courts of the MSs. By its very nature, this divided jurisdiction manifested in Art. 274 TFEU must include the enforcement procedure.[68] Consequently, the ECB may in general only enforce those obligations under Art. 299 TFEU where it acted under the prerogatives it enjoys as a public authority and where acts are reviewable by the CJEU.[69]
Furthermore, the legal act must impose a monetary obligation (in contrast to another performance or a cease and desist order),[70] a criterion which is unlikely to pose a problem with regard to sanctions. Since the ECB’s sanctions in question also impose pecuniary obligations on addressees other than MSs[71] (namely ‘undertakings’, credit institutions, etc.), they generally fulfil the criteria listed in Art. 299 (1) TFEU.[72]
2.2.2. Other Requirements
In addition, further requirements naturally arise from the fact that the instrument must be suitable for enforcement: the legal act must be final and not a mere threat or recommendation.[73] Furthermore, it must be decisive concerning the debtor and the pecuniary obligation.[74] Whereas the latter will also hold true for default interest that may be charged in case of late payment of the penalty,[75] the executing MS, on the other side, will not have to be specified.[76] The CJEU also held that obligations must be expressed in the national currency, but in the given context, this will only pose a problem if the enforcing state is a non-euro MS.[77] A lack of the aforementioned requirements leads to a deficiency of the title (cf. concerning the competences 2.4.2).
In contrast, time limits or conditions are generally not a hindrance as shown in Art. 152, 162 of the Rules of Procedure of the ECJ concerning the dependence on a security deposit.[78] Furthermore, according to Art. 297 (2) TFEU, decisions take effect upon notification to their addressees.[79] A specific payment period is not specified in Union law and its absence will not constitute a deficiency of the title; however, the EC, for example, grants in general three months.[80] Since appeals before the CJEU lack a suspensory effect (Art. 278 TFEU), it also would not be necessary to wait for the decision to become final,[81] unless the underlying rules of procedure provide for leges speciales (as e. g. Art. 3 (8) Sanction-Reg does). The EC, for example, normally awaits the procedure before the CJEU (against interest and securities).[82]
2.3. Requirements Concerning the Enforcement
2.3.1. Requirements Enshrined in Art. 299 TFEU
With regard to the enforcement procedure, Art. 299 TFEU sets out some – but few – requirements:
2.3.1.1. Applicable Procedural Law and Remaining National Leeway
Art. 299 (2) TFEU states that ‘(e)nforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out’. However, in accordance with the principle of procedural autonomy, it is up to the MSs to regulate the procedural modalities of remedies designed to ensure the protection of individuals’ rights under Union law; nothing else can apply to corresponding obligations. Against this background, it can be assumed that ‘civil procedure’ is to be understood very broadly and may, for example, also include administrative procedures.[83] It should also be noted that the pecuniary obligation itself is not specified in Art. 299 TFEU, but without the legal qualification of the subject matter of the proceedings, no qualification of the applicable procedure seriously could have been attempted. Against this background, the reference in Art. 299 (2) TFEU should only be understood to underline the MS’ obligation to comply with certain minimum procedural guarantees (see next para.), but not to oblige the national authorities to apply ‘core’ civil procedure law or to qualify the underlying matter as civil in nature. Art. 82 (3) UPCA accordingly no longer contains any reference to national ‘civil procedure’ law. In practice, however, the surveys carried out in the MSs (which are discussed in detail in Part II) have shown, that enforcement is usually already carried out according to national civil procedural law – the application of criminal procedural law was not indicated in any of the MSs surveyed. The application of administrative procedural law is the exception rather than the rule and is applied solely to the order for the enforcement or in addition to civil procedure law.[84]
Although no concrete restrictions on the applicable enforcement law may be inferred from Art. 299 TFEU, the MS’ leeway is limited – besides the principles of effectiveness and equivalence – especially by the obligation to safeguard certain minimum requirements stemming in particular from the CFR. In case the subject matter at hand is qualified as a civil or criminal matter, the main proceedings before the ECB as well as the enforcement proceedings, as an ‘extension’ of the main proceedings, may have to satisfy such requirements. The essential issues of procedural restrictions are therefore not contained in Art. 299 TFEU but rather shifted to the level of fundamental rights (see infra 3.3.2).
2.3.1.2. Checking the Authenticity of the Title
The order for the enforcement (‘Vollstreckungsklausel’, ‘formule exécutoire’) should be issued by the competent national authority (see 2.4.2), which is limited to solely checking the authenticity of the title. The elements of this test are not defined, neither in Union law nor in most domestic legal systems of the MSs. Firstly, it can be assumed, however, that they ought to be interpreted autonomously and narrowly, since Art. 299 (2) TFEU considers it to be a mere ‘formality’. Furthermore, the purpose of preventing the MSs from interfering with the content and validity of the ECB’s legal acts (see supra 2.1.) should be reiterated. Against this background, recourse to the concept of ‘authenticity’ laid down e. g. in Art. 3 (1) (i) Succession-Law-Reg[85] is to be rejected as too broad.[86] Rather, Art. 3 (1) eIDAS-Reg[87] could serve as a guide when it provides that ‘authentication’ means a (here: electronic) process that enables, among others, the confirmation of ‘the origin and integrity of data’. An equivalent interpretation of Art. 299 (2) TFEU would be covered, apart from its wording, by its purpose and context. With regard to authenticity, the origin and integrity must therefore be checked, i. e. whether the title (signature and content) originates from the ECB (it bears the signature of an official who is authorised to represent the institution) and whether its submission was complete and unaltered.[88] Logically, it may also be checked whether Art. 299 TFEU is applicable in the first place; hence, also a translation may be required. The procedure under Art. 299 (2) TFEU also seems to be open to an appeal against the order for the enforcement, which is de facto available in several MSs:[89]
Concerning the examination of certain further grounds for objection within the proceedings under Art. 299 (2) TFEU, (e. g. a security was not lodged), one may refer to the ECJ’s case law on Brussels I-Regulation, where it took a purely formalistic, restrictive approach with regard to the examination of authenticity.[90] The underlying reasons (speed of the procedure, mutual trust) are also applicable under Art. 299 TFEU mutatis mutandis.[91] However, these grounds may be raised in the subsequent enforcement procedure before the national authorities (2.4.2). Prohibited is, concerning both the order for the enforcement and the enforcement, a révision au fond[92] by the national authority of whether the decision complies with substantive and formal law, as is, for example, a review of whether the proceedings leading to the title or the enforcement would be contrary to the ordre public[93] or other reasons laid down in Art. 45, 46 Brussels I-Regulation (such as proper notice, irreconcilability of decisions and human rights infringements; see furthermore Art. 7 Framework Decision 2005/214/JHA and infra 2.3.2.2.2).[94] These objections will have to be brought before the CJEU (Art. 261, 263 and Art. 267 TFEU).[95]
2.3.2. General Principles and Fundamental Rights
The vast discretion remaining with MSs regarding Art. 299 TFEU must be interpreted in the light of, in particular (although not exhaustively), the general principles of Union law and the CFR:
2.3.2.1. (General) Principles of Union Law
Art. 19 (1) TEU obliges MSs in the fields ‘covered by Union law’ (in concreto 1.1.2) to provide ‘remedies sufficient to ensure effective legal protection’; on the other hand, it implies the principle of procedural autonomy of the MSs (reiterated in Art. 299 (3) TFEU). However, as already mentioned, the latter is not unlimited and must be assessed in the light of especially the following principles, which can only be mentioned as an overview: the principle of sincere cooperation (Art. 4 (3) TEU), meaning that the MSs shall assist the ECB (and vice versa) in carrying out the tasks conferred upon it and furthermore ‘take any appropriate measure, general or particular, to ensure fulfilment of the obligations’ arising out of Union law.’[96] Enforcement has to be carried out with the same diligence as in comparable national constellations and under analogous procedural and substantive conditions (principle of equivalence)[97] and domestic rules governing the enforcement proceedings must not ‘render virtually impossible or excessively difficult the exercise of rights conferred by Community law’ (principle of effectiveness)[98]. As long as this is ensured, it will not be necessary for ECB decisions to be regarded as equivalent to domestic titles.[99] From the results of the surveys in the MSs (see Part II) it may be anticipated that the latter would be the case e. g. in BG, FI, IT and LT (whereas in AT ECB decisions would be equivalent to foreign acts and in LV, NL and PL to acts of international organisations). The principles of proportionality and dissuasiveness were already described (1.1.1.1.). Although most principles are primarily mentioned in connection to main (i.e. sanctioning) proceedings,[100] they are applicable mutatis mutandis in enforcement proceedings.
2.3.2.2. Fundamental Rights
The applicability of fundamental rights to enforcement proceedings has received little attention.[101] This chapter will focus on the most important fundamental rights contained in the CFR,[102] drawing on the case law also of the ECtHR (see Art. 52 (3) CFR). Since the enforcement of ECB decisions constitutes a situation ‘governed by European Union law’ in the broad sense of the Åkerberg Fransson case law,[103] the CFR is in general applicable (Art. 51 (1) CFR). Special emphasis may be given to the following rights:
2.3.2.2.1. Substantial Rights
Within the enforcement proceedings, the right to property can be interfered with from the perspective of i.a. credit institutions as debtor, if e. g. an asset is sold at a disproportionately low price;[104] or from the perspective of third parties in case they hold rights with regard to the assets drawn into execution. Secondly, the right to the inviolability of the home (enshrined in Art. 7 CFR)[105] might be interfered with by e. g. a forced sale of a residential property[106] or a search for the debtor’s assets for a consequent seizure. It should be emphasised that business premises of legal persons in general also enjoy protection but the interference by a public entity regarding business facilities might be extended in contrast to private facilities.[107] Thirdly, an interference with the right to liberty (Art. 6 CFR) is conceivable if a coercive detention is applied e. g. in connection with the obligation to disclose the financial situation and localisation of assets (see however Art. 5 (1) (b) ECHR).[108]
2.3.2.2.2. Procedural Rights
The applicability of Art. 6 ECHR to enforcement proceedings has also received little attention to date; in some cases, national courts have even apodictically rejected it.[109] The fact that, in contrast to the right to a fair trial enshrined in Art. 6 ECHR,[110] Art. 47 CFR is not limited concerning its scope, means that it may also be applicable prima vista to the enforcement (of sanctions). However, there can also be little doubt that the procedural guarantees provided are primarily tailored to the main proceedings and are in tension with the subsequent enforcement proceedings, which should lead to fast and effective (albeit proportionate) satisfaction of the ECB as creditor. If the credit institution or other debtors were to be granted the complete canon of rights in the enforcement proceedings as well, they would have sufficient time to ‘secure’ all assets and thwart enforcement.
An understanding of the enforcement proceedings[111] not as a ‘separate’ procedure but as an annex procedure to the main proceedings[112] would be the right starting point to finding a fair balance. Against this background, it could be justified, firstly, that they share the legal nature of the main proceedings,[113] secondly, that not all procedural safeguards need to be (re-)granted and, thirdly, that (re-)granted rights might be limited if they conflict with the purposes of the enforcement procedure.[114] Consequently, e. g. the ‘right to a court’[115] may be limited in the enforcement stage in the sense that the enforcing authority may also be another public/private entity if there is the possibility of a judicial review in certain constellations. Also, the principle of ‘equality of arms’ may be limited in the sense that proceedings conducted ex parte may be justified.[116] However, a case-by-case approach cannot be avoided here.
In several decisions,[117] the ECtHR has been open about the application of Art. 6 ECHR to civil enforcement proceedings, because ‘determination of a civil right’ within the meaning of Art. 6 ECHR shall only be assumed when the right ‘actually becomes effective’. In contrast, this shall not apply to criminal enforcement proceedings, although the according justification for this distinction has been left open by the court.[118] Relying on the wording would not be convincing, because Art. 6 (1) ECHR differs in the language versions (‘soit des contestations sur ses droits et obligations de caractère civil, soit du bien-fondé de toute accusation en matière pénale’; ‘Streitigkeiten in Bezug auf ihre zivilrechtlichen Ansprüche und Verpflichtungen oder über eine gegen sie erhobene strafrechtliche Anklage‘ in contrast to ‘determination of his civil rights and obligations or of any criminal charge’). A comprehensive analysis of the applicability of fundamental rights to enforcement measures has not yet been conducted in the literature and cannot be carried out here for reasons of space. Generally spoken, however, a categorical rejection of procedural rights in criminal enforcement proceedings seems to be artificial (which holds true all the more against the background of the more open wording of Art. 47- Art. 50 CFR). It would also be inconsistent if e. g. the res iudicata objection could be raised in the enforcement of a civil case, but the ne bis in idem objection was cut off in the enforcement of a criminal case, which may be much more intrusive for the person concerned as a civil matter (and also affecting the national sovereignty of the MSs even to a greater extent). Nonetheless, certain procedural rights, when interpreted teleologically, will immanently be restricted to the main proceedings. Therefore, also concerning criminal enforcement, a case-by-case examination on the basis of the precise (criminal) procedural right invoked seems appropriate to ensure effective application of the fundamental rights.
Returning to the ECB’s sanctions, the preliminary question[119] that needs to be clarified is that of the nature of the monetary obligations and therefore the question which specific procedural rights would be applicable at all: ECB sanctions cannot be qualified as ‘civil rights and obligations’ in the sense of Art. 6 ECHR since they may not be classified in one of the three case groups established by the ECHR.[120] Much more difficult is the question of classification as a criminal charge, which is (by the CJEU and the ECtHR) assessed on the basis of the so-called ‘Engel-Criteria’[121], i. e. qualification under domestic law as the starting point, nature of the relevant non-compliance and/or[122] severity of the penalty:[123]
A classification as criminal charge under domestic law (here in terms of Union law) must be negated with regard to the procedure (see 1.2.2) as well as the limited EU competence in criminal matters[124] (cf. also Art. 18 SSM where the term ‘administrative’ penalties is used).[125] The fact that e. g. Art. 2 (1) and Recital 7 ECB-Sanction-Reg provide that the ne bis in idem prohibition shall be applicable regarding the initiation of infringement proceedings may not change this assumption. Firstly, it is limited to the initiation and Art. 2 (3) (f) Sanction-Reg provides that ‘prior sanctions imposed by other authorities on the same undertaking and based on the same facts’ shall only be ‘take(n) into consideration’. Secondly (and more convincing, since the ne bis in idem prohibition does apply to ECB sanctions), it has to be noted that the application of the principle is also undisputed in the case of sanctions in competition law, although Art. 23 (5) Reg 1/2003[126] expressly excludes the criminal nature of the sanctions.[127]
Concerning the nature of the infringement, the courts ascertain whether the purpose of the penalty is punitive in nature.[128] Although the ECB’s sanctions including periodic penalty payments[129] (though not the fees!) have a punitive, deterrent[130] character, the underlying objectives, for example to ensure an effective implementation of monetary policy or the functioning of payment systems, are predominant.[131] Concerning the severity of the penalty, the ECtHR also regards mere fines irrespective of a (substitute) custodial sentence as sufficient for the presumption of a criminal nature if they are of a – not further defined – severity. Against the background of case law, the range of penalties of the ECB sanctions will suffice to assume a criminal character;[132] however, it must be taken into account that the degree of stigma associated with the underlying non-compliance is rather low compared to the ‘core criminal law’[133]. The fact that it is bad publicity is of course a different matter. It follows from these considerations, from an overall perspective, that the sanctions and the fees do not form part of the ‘hard core’ of criminal law,[134] but that the sanctions have at least a criminal character.[135]
If one now makes use of the case law in the area of competition law, it follows from the aforementioned classification that although criminal law guarantees might be applicable, not all of them – especially also those granted under Art. 47 CFR – must be applied in their full rigour to the main proceedings.[136] However, this too is not a blanket rule, as a gradation sometimes will not be conceivable (e. g. regarding ne bis in idem).[137] Concerning the enforcement stage and taking into account its annex character mentioned earlier, this would indicate that certain criminal law guarantees – albeit to an even more weakened extent – would also have to be ensured at this stage. For credit institutions subject to enforcement of an ECB sanction, it would mean, for example, that the ne bis in idem principle (Art. 50 CFR; Art. 4 of Prot. 7 of the ECHR) will also have to be safeguarded in enforcement proceedings. Therefore, if an obligation has already been imposed on a credit institution once for the same non-compliance, another conviction in the same matter could still be averted in the enforcement stage (on the final decision whether a violation of fundamental rights occurred, see infra 2.4.2.2.2). To this extent, the procedural scope of action granted at first glance by Art. 299 TFEU to the national authority enforcing the ECB decision would be restricted – regardless of whether enforcement was assigned to civil or administrative procedural law under the MS’ legal regime. The same would hold true e. g. with regard to the nulla poena sine lege principle, laid down in Art. 7 ECHR and Art. 49 (1) CFR. On the other hand, the credit institution would not be able to invoke procedural rights if their purpose is limited to the main proceedings, which would apply e. g. to the presumption of innocence enshrined in Art. 48 (1) CFR and Art. 6 (2) ECHR. This shows that the respective assessment will have to be carried out on the basis of the respective procedural law in each individual case.
2.3.3. Requirements Enshrined in Secondary Law
With regard to the enforcement of sanctions in the MSs, it should be noted that (not many, but) some requirements can also be found in secondary legislation; such as e. g. Art. 3 (8) Sanction-Reg, according to which, the sanction can only be enforced once it has become ‘final’; Art. 4 (3) Sanction-Reg, which states that the right to initiate enforcement expires six months after the decision has become final; Art. 4 c (4) Sanction-Reg, establishing a time limit of five years after adoption of an ECB decision relating to supervisory tasks; or Art. 9 (5) ECB-Sanction-Reg, whereas information relevant to the enforcement shall be saved for five years.
2.4. (Allocation of) Jurisdiction
The purpose of this chapter is to examine the provisions of Union law on the division of jurisdiction in enforcement proceedings, i. e. the question of which authority shall be involved and in what form. This question arises specifically with respect to the creditor (ECB) as well as with respect to the deciding authority.
2.4.1. Locus Standi
Primarily, the locus standi concerning the order for the enforcement and the enforcement of sanctions is granted to the ECB,[138] which is also supported by the fact that the proceeds ultimately go to the ECB.[139] However, Art. 9 (3) ECB-Sanction-Reg provides that the ECB may request the NCB of the MS in whose jurisdiction the sanction is to be enforced ‘to adopt all measures necessary to that end.’[140] This option should be read in conjunction with the E(S)CB-Statute, which focuses – in the light of the subsidiarity principle –[141] in several Articles on decentralised implementation (see e. g. Art. 5.2. and Art. 12.1 (3) concerning monetary policy operations)[142].[143] Against this background, the ECB may seek assistance from NCBs concerning the enforcement proceedings.[144]
Within the SSM, Art. 9 (3) ECB-Sanction-Reg is not applicable (see supra 1.1.2). The NCAs could be obliged to assist the ECB pursuant to Art. 90 SSM-Framework (‘Role of the NCAs in assisting the ECB’),[145] whereby the ECB may also require NCAs to ‘assist the ECB in enforcing its decisions’ (Art. 90 (1) (c) SSM-Framework).[146] Although the wording also covers the enforcement of ECB sanctions, the systematic of the Regulation seems to indicate otherwise: the provision is located in part VI regulating ‘Procedures for the Supervision of Significant Supervised Entities’ whereas the sanctions are located in part X, lacking a reference to Art. 90 leg cit.[147] However, as the CJEU also underpinned in the L-Bank case[148], the logic underlying Art. 4 and Art. 6 SSMR is to allow the (exclusive) competences delegated to the ECB to be implemented within a decentralised framework. Art. 6 (3) SSMR could also be read in this light, whereas NCAs shall be responsible for assisting the ECB, ‘under the conditions set out in the framework’, with ‘the preparation and implementation of any acts relating to the tasks referred to in Article 4 (SSMR )’ (including ensuring compliance) and related to all credit institutions. While this could constitute a legal basis for delegating enforcement proceedings to NCAs, the further conditions – as mentioned – have not yet been implemented in particular in the SSM-Framework.
2.4.2. Decision Making Body
2.4.2.1. Order for the Enforcement
Concerning the order for the enforcement, Art. 299 (2) TFEU provides that MSs shall notify the competent authorities to the EC/CJEU. There are no further requirements as to the quality of the authority (e. g. qualification as tribunal). An up-to-date list of all competent authorities is not recorded by the Union institutions since, in practical terms, the enforcement orders are distributed by the EC via the Permanent Representations of the MSs. Yet it has to be noted that every additional authority potentially slows down the enforcement process.[149] In this respect, the – as the survey conducted in the MSs has shown (see in detail Part II) – often envisaged splitting of the verification of authenticity and the issuing of the order should be viewed critically.[150] In contrast, in BG for example, an order for the enforcement would not be necessary at all,[151] which would be preferable in view of Art. 4 (3) TEU and the very limited purpose of the order.
Data collection in the MSs in 2020 has also shown that the authority designated varies mainly between the Ministry/Minister of Foreign Affairs, the Minister/Ministry of Justice and courts;[152] only some MSs also provide for an appellate body.[153] In chapter 2.3.1.2 reasons have been set out which the authority may address; the appellate body’s jurisdiction would be limited accordingly.[154] However, legal acts of the ECB that impose pecuniary sanctions constitute acts of an organ of the EU (Art. 13 (2) TEU, Recital 54 SSMR) and are subject to review or interpretation by the CJEU (cf. Arts. 35.1 EC(S)B-Statute).[155] Other objections may therefore have to be raised before the CJEU in the form of a review under Art. 261, 263 TFEU (‘recours de pleine juridiction’)[156] or a preliminary ruling procedure. Although a preliminary ruling procedure cannot be initiated by a Ministry (it lacks the qualification as ‘court or tribunal’), it should be noted, that the majority of the MSs provide for a court at least within the enforcement proceedings under Art. 299 (3) TFEU (for an in-depth analysis of the national implementation, see Part II).[157]
2.4.2.2. Enforcement
2.4.2.2.1. General
Concerning the enforcement proceedings, the CJEU shall have sole jurisdiction to suspend enforcement (Art. 299 (4) 1st sentence TFEU), whereas the national authority shall have jurisdiction ‘over complaints that enforcement is being carried out in an irregular manner’ (Art. 299 (4) 2nd sentence TFEU).[158] As far as the enforcement procedure is concerned, it follows from Union law that a court should decide on objections concerning the manner in which enforcement is to be carried out.[159] Concerning the first instance, the survey conducted in the MSs showed that the competent authorities vary greatly in practice, but they usually have in common that the authority differs from the one competent for issuing the order for the enforcement and that a combination of the two procedures is not provided for.[160]
2.4.2.2.2. The Core of Friction – Art. 299 (4) TFEU
Art. 299 (4) TFEU does not provide for a coherent delimitation of the competences concerning the CJEU and the national authorities and is therefore subject to considerable legal uncertainty for i.a. the credit institutions and third parties concerned. The incongruity becomes clear if one asks whom the credit institution should address to suspend proceedings if there is an objection concerning not the title or the enforcement as a whole, but rather only the precise manner of the enforcement – the CJEU (responsible for suspensions in general) or the national courts (responsible for irregular execution).
The question of whether or not the suspension provided for in Art. 299 (4) 1st Sentence TFEU is accessory to a (main) procedure before the CJEU and the limits of this jurisdiction should be addressed first.[161] Primary law contains provisions on interim measures (Art. 278 f TFEU), which are both accessory to proceedings before the CJEU. The detailed rules can be found in the Rules of Procedure of the courts[162], to which reference is made for Art. 299 (4) TFEU in an apodictic way and not mutatis mutandis;[163] a first indication for accessoriness. Furthermore, it would be inconsistent if the CJEU’s competence to suspend the enforcement of monetary obligations under Art. 299 (4) TFEU was broader than that concerning other obligations and the application of a whole Union act under Art. 278, 279 TFEU. The Practice Rules for the Implementation of the Rules of Procedure of the EGC[164] appear to confirm an accessoriness by stressing that the application for suspension ‘of operation or enforcement or other interim measures’ must state i.a. ‘the pleas of fact and law on which the main action[165] is based’. The better arguments therefore support the assumption of an ancillary nature that presupposes a main procedure before the CJEU.[166] Against this background, it must be assumed that Art. 278 TFEU is the lex generalis (concerning the whole application), whereas Art. 299 (4) TFEU concerns precisely the enforcement.[167] Therefore, the same criteria will apply (namely: necessity including, in particular, the likelihood of success in the main proceedings[168], urgency[169] and weighing up of interests)[170]. It may not be assumed that the European legislator has adopted a provision without any concrete added value, though. This value must be seen in the fact that the distinction just described could have an impact on the accrual of interest (which would not be stopped in the case of a mere suspension of enforcement in contrast to a suspension of the whole application of the decision).[171]
Although the CJEU in general ensures the uniform interpretation and application of the Treaties, it only has jurisdiction in case the Treaties confer a corresponding competence to it (Art. 5 TEU). In this context, the addressee of an ECB sanction could bring an action for annulment (Art. 263 TFEU) of the ECB decision before the GC or request a preliminary ruling (Art. 267 TFEU) and could apply for suspension in this context, but it will be bound by the respective (limited) grounds of action and procedural requirements (such as time limits) of the main proceedings. In the absence of a legal basis, it could not, however, bring an action against national enforcement measures, yet alone a separate ‘action for suspension’. That the ECJ cannot simply decide on a suspension without an explicit basis is a consequence of the above considerations on accessoriness. Art. 299 (4) TFEU itself does not seem to imply any competence; on the contrary, it rather seems to focus on the mere delimitation of a presupposed EU competence (for a main proceeding) from the one of the national courts. There may therefore be situations where (accessory) proceedings before the CJEU are out of the question, either because the CJEU has no jurisdiction at all or because the above-mentioned requirements for accessory proceedings are not/no longer met.[172] This leaves the addressee with a (fragmentary) interplay between exclusive, yet rather limited jurisdiction of the CJEU to suspend proceedings and the – again only limited – competence of national courts to decide on irregularities of the execution; or in the end: evident gaps in protection of i.a. the credit institutions concerned or third parties[173].
Consequently one might ask how those gaps may be closed: A solution might be to impose this problem on the undertaking and let it bring an action for failure to act against the ECB (Art. 265 TFEU) for not exercising its own power of suspension (see Art. 4 c (5) (b) Sanction-Reg and Art. 1 (24), Art. 34 and 131 (4) (b) SSM-Framework).[174] However, this solution would be limited insofar as such a power is not provided for all ECB sanctions. Further, even in cases where the ECB enjoys a respective competence, it will have a discretionary power to suspend or not. It is therefore not suitable for filling the gaps in protection. But does that really mean no accessory proceedings, no suspension? There are better reasons to object to this solution and to fill remaining gaps by authorising national authorities to suspend proceedings in certain cases. Art. 299 (4) TFEU only refers to the suspension of enforcement (of the whole title), but leaves room for the suspension of individual enforcement measures.[175] This would also be consistent with the understanding that, in preliminary rulings, the suspension of the Union act itself falls to the CJEU, while the suspension of a national act based on it falls within the competence of the national court.[176] So despite the prima vista restrictive wording of Art. 299 (4) TFEU, there is room for a respective competence at the national level.[177]
Since there would be two competences of suspension, a demarcation must be made, whereby the competence to suspend would have to depend on the underlying ground for suspension and must be in line with the respective competence.[178] Competences for suspension (and discontinuation) of proceedings could be distributed along the following legal grounds, which, in turn, may be used as ground for suspension by the credit institution (or third parties): The CJEU would be responsible if (indirectly)[179] the grounds for actions/preliminary procedures before the CJEU are invoked (e. g. if the title is too vague, violates positive Union law or rights of the credit institution stemming from it). National authorities, on the contrary, would have jurisdiction (1) if enforcement/enforcement measures are carried out in an irregular manner (e. g. if they are carried out extensively or multiple times, if they intervene in assets of third parties or assets of the debtor which are not subject to the enforcement, if they violate domestic enforcement law or fundamental rights) and (2) if the claim enshrined in the title ceased to exist or was deferred (e. g. if the ECB has waived payment or has granted a moratorium/facilities, if the ECB has been (partially) satisfied, etc.).
3. Summary in the Form of Theses
1) Concerning the division of sanctioning powers between the EU (ECB) and national authorities (NCBs, NCAs), the underlying relevant non-compliances and procedures provided for in primary as well as secondary law represent a non-transparent jumble of referrals. This jumble is best resolved in tabular form, to which reference is made (supra 1.1.2). Apart from four types of sanctions (fines, periodic penalty payments, penalty interest and administrative (pecuniary) sanctions), the ECB may also levy (supervisory) fees. In the case of non-payment, the latter may lead to the imposition of enforceable penalties, whereas the fee notice itself is reviewable, but not enforceable (under Art. 299 TFEU).
2) Since the ECB’s sanctions constitute acts under public law, they only comprise pecuniary obligations and they are imposed on persons other than states (namely undertakings, credit institutions, etc.), they are enforceable under Art. 299 TFEU. However, Union law provides for further requirements regarding the enforceability of the title, e. g. that the legal act must be final and decisive in terms of the obligation and the debtor. Formal legal force is not a prerequisite though (unless secondary law provides for a lex specialis as for example Art. 3 (8) Sanction-Reg does) and conditions may be attached to the decision.
3) The scope of examination concerning the order for the enforcement represents the first major area where procedural mismatches can be identified; they may be resolved as follows:
The examination of authenticity is specified neither in Union law nor in most domestic legal systems. However, it has been shown that Art. 3 (1) eIDAS-Reg (in contrast to e. g. Art. 3 (1) (i) Succession-Law-Reg) could serve as a guide to close this gap. An equivalent interpretation of Art. 299 (2) TFEU would result – before the issuance of the order for the enforcement – in the examination of the origin and integrity of the ECB’s title, or precisely whether the title (signature and content) originates from the ECB and whether it has been submitted in a complete and unaltered manner. Moreover, the assessment will cover logical premises, i. e. elements that have to be ascertained in order to decide whether Art. 299 TFEU is applicable in the first place (e. g. a translation) or the jurisdiction of the authority called upon. If the subject matter falls within the competence of the national authority, an appeal may be provided for in national law, yet the examination competence of the appellate body will be limited as outlined above.
Regarding both the procedure of the order for the enforcement and the enforcement, however, a révision au fond, the ordre public[180] or other reasons laid down in Art. 45, 46 Brussels Ibis such as proper notice, irreconcilability of decisions and human rights infringements (see also Art. 7 Framework Decision 2005/214/JHA) cannot be addressed on a national level; here the CJEU has to be called upon.
4) Apart from requirements enshrined in Art. 299 TFEU and secondary law, the MSs also have to safeguard general principles of Union law in particular (i.e. principle of effectiveness, equivalence, proportionality, etc.) and fundamental rights within the enforcement proceedings. Concerning the latter, substantive rights (e. g. right to property, liberty and inviolability of the home) as well as procedural rights (e. g. Art. 47 CFR) may be interfered with.
5) Whereas the distribution of competences in Art. 299 (2) TFEU is relatively clear with regard to the first instance (= authority notified), Art. 299 (4) TFEU can be seen as the core of friction. To resolve this, it may be assumed that Art. 299 (4) 1st Sentence TFEU depends on main proceedings before the CJEU and that it is only a lex specialis with regard to Art. 278, 279 TFEU. The remaining gaps in legal protection for i.a. credit institutions and third parties require a gap-filling (Art. 19 (1) TEU and Art. 47 CFR) by involving national authorities. Regarding the necessity to effectively interlink European and national legal protection, the following distribution of competences to suspend (and discontinue) proceedings can be outlined concerning the following grounds: The CJEU would be responsible if (indirectly) the grounds for actions/preliminary procedures before the CJEU are invoked; whereas national authorities would have jurisdiction, firstly if enforcement/enforcement measures are carried out in an irregular manner and secondly, if the claim enshrined in the title ceased to exist or was deferred.
Note
This paper was prepared under the Legal Research Programme in 2020 financed by the ECB. I would like to thank the ECB’s Legal Service, Prof. Dr. Ulrich Torggler, LL.M. (University of Vienna) and Chief Public Prosecutor Hon.-Prof. Dr. Fritz Zeder (Ministry of Justice, AT) for the critical review of the paper and the valuable comments and Chief Public Prosecutor Dr. Franz Mohr (Ministry of Justice, AT), Judge Dieter Swoboda (AT) and Research Assistant Elisabeth Drach for the valuable remarks during the preparation of the questionnaire. Special thanks may also be given to the following persons/institutions for providing a comprehensive insight into their legal system: Biagio Zammitto (Federal Public Service Justice), Nikolay Bebov and Kristina Dimitrova (Tsvetkova Bebov Komarevski Attorneys at Law), Prof. Dr. Alan Uzelac (University of Zagreb), Vladimír Čížek and Matěj Šarapatka (Schoenherr Attorneys-at-Law, Prague office), Ulrich Hejle (DLA Piper Denmark), Hanna Esko (Attorney at Magnusson Law, Tallinn office), Ass. Prof.Tuomas Hupli (University of Turku), Prof. Rudy Laher (University of Limoges), Prof. Dr. Beate Gsell and Rodrigo Araldi, LL.M. (Ludwig-Maximilians-University Munich), Prof. Christos Gortsos and Prof. Dimitrios Tsikrikas (both National Kapodistrian University of Athens), Siegler Bird & Bird Law Office (Budapest), Prof. Elena Zucconi Galli Fonseca, Prof. Paolo Biavati, Ass. Prof. Michele Angelo Lupoi, Ass. Prof. Lea Querzola, Ass. Prof. Carlo Rasia (Department of Legal Studies, University of Bologna), Viktor Veips (Latvijas Banka); Tautginas Mickevičius (Lithuanian Ministry of Justice), Julian Vella (Office of the Maltese State Advocate), Tim Alferink (Baker McKenzie Amsterdam), Prof. Rui Pinto (Universidade de Lisboa), National Bank of Slovakia and Dr. Markus Bruckmüller (WOLF THEISS Attorneys-at-law, Slovenian Branch).Any views expressed are only those of the author and do not necessarily represent the views of the ECB or the Eurosystem. Any errors remain those of the author.
© 2021 Helene Hayden, published by Walter de Gruyter GmbH, Berlin/Boston
This work is licensed under the Creative Commons Attribution 4.0 International License.
