Resumen de Avoiding Lacunae for Judicial Review in the Interplay between National and Union Law in the Banking Union: Notes on the Judgment of the Court of Justice in Joined Cases C-663/17 P, C-665/17 P and C-669/17 P Trasta Komercbanka
Since 2014, the ECB has been competent for the granting and withdrawal of banking licences in the euro area. On 5 November 2019, the Court of Justice ruled on three appeals from an order of the General Court on the admissibility of an action for annulment against such a withdrawal. In addition to procedural oddities, the case is interesting from the substantive point of view: it constitutes an excursion of European law into an area traditionally thought to be governed exclusively by national law, namely the representation of legal persons incorporated nationally. The present article argues that this was motivated by a dilemma: it was necessary to avoid an outcome which would be unacceptable from a fundamental rights and effective judicial review perspective; this could be achieved by either undertaking such an excursion, or by deviating from established case law on non-addressee standing under the Plaumann formula. The two courts took different views as to which was the lesser of these two evils. On a more general scale, the judgment demonstrates that, where the ECB—unique among EU Institutions—applies national law, the Union courts will not shy away from superimposing European fundamental rights over such national laws.
