This article describes the instruments the ECB has adopted in its role as banking supervisor in recent years.
The ECB may adopt a wide range of legal instruments in the exercise of its supervisory tasks, and has also has regularly published non-legal acts to further clarify its position.
The ECB may adopt a number of legally binding legal acts for the purpose of exercising its supervisory powers and its supervisory discretion. The ECB has some regulatory powers to fulfil its supervisory tasks, but it can only exercise them within the scope granted to it by the legislator; it cannot legislate to amend or deviate from the Single Rulebook, or enact new legislation in the form of generally applicable regulations.
By adopting legal acts, legal instruments or by disclosing documents, the ECB can, however, bind its discretion with a view to the principle of self-commitment.
On the other hand, the ECB is mandated to adopt individual supervisory decisions addressed to credit institutions, and it does so on a continuous basis. In addition, the ECB has adopted decisions without addressees, mainly to further organise the functioning of the SSM. The ECB may also also adopt non-binding legal acts, primarily consisting of recommendations to banks and NCAs.
An important tool for banking supervisors, and also for the ECB in the exercise of its supervisory tasks, is the disclosure of non-binding policy documents to provide transparency on supervisory practices and expectations towards credit institutions. These policy documents are not legal acts and are therefore to be distinguished from recommendations. The ECB has made public a large number of such policy documents on its website and is expected to continue to make use of this useful and practical tool.
Considering that there may be only a very fine line between adopting rules of general application, on the one hand, and providing transparency on the consistent application of relevant Union law and equal treatment, on the other, the ECB must give due consideration to the limitations of such documents and make adequate efforts to be clear on the non-binding nature of its stances in this respect.
Policy documents should not appear to contain rules of general application, in either title or content, as the content of a document and not its name determines its legal effect and whether it can be challenged.
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