The paper seeks to assess the proportionality of the current institutional framework, from the perspective of the allocation of powers among the European and Italian public authorities entrusted with addressing, including temporary situations of distress affecting banking undertakings. The inquiry follows a line of analysis that has remained largely unexplored in the scholarship, which has mainly focused on whether individual measures comply with the principle of proportionality. It instead examines whether the institutional design is appropriate to ensure interventions that are, as far as possible, both timely and adequate to respond to the crises that, from time to time, come under the scrutiny of the regulatory authorities. This approach rests on the premise that an institutional framework consistent with the principle of proportionality constitutes one of the conditions for giving effect to the requirements flowing from Article 41 of the Charter of Fundamental Rights of the European Union. Accordingly, the study considers how the allocation of competences shapes the procedural architecture upon which the adoption of decisions depends, and thus the capacity to issue measures that are not only prompt but also lawful, balanced, and properly reasoned. The study ultimately reaches an overall favourable assessment of the proportionality of the system, while regarding it as capable of procedural improvement. Without prejudice to the need for a parallel reconsideration of the substantive conditions governing the adoption of the various measures applicable to banking crises, the paper argues that at least certain procedural shortcomings could already be mitigated without awaiting legislative intervention. In particular, it suggests that a first set of corrective measures could be undertaken by the regulatory authorities themselves through the adoption of self-binding instruments of administrative self-discipline, aimed at narrowing the wide margins of discretion conferred upon them.
La proporzionalità dell’assetto istituzionale del sistema dal lato delle competenze relative alle situazioni di crisi, anche temporanea, delle imprese bancarie
Gianluca Romagnoli
2026
Abstract
The paper seeks to assess the proportionality of the current institutional framework, from the perspective of the allocation of powers among the European and Italian public authorities entrusted with addressing, including temporary situations of distress affecting banking undertakings. The inquiry follows a line of analysis that has remained largely unexplored in the scholarship, which has mainly focused on whether individual measures comply with the principle of proportionality. It instead examines whether the institutional design is appropriate to ensure interventions that are, as far as possible, both timely and adequate to respond to the crises that, from time to time, come under the scrutiny of the regulatory authorities. This approach rests on the premise that an institutional framework consistent with the principle of proportionality constitutes one of the conditions for giving effect to the requirements flowing from Article 41 of the Charter of Fundamental Rights of the European Union. Accordingly, the study considers how the allocation of competences shapes the procedural architecture upon which the adoption of decisions depends, and thus the capacity to issue measures that are not only prompt but also lawful, balanced, and properly reasoned. The study ultimately reaches an overall favourable assessment of the proportionality of the system, while regarding it as capable of procedural improvement. Without prejudice to the need for a parallel reconsideration of the substantive conditions governing the adoption of the various measures applicable to banking crises, the paper argues that at least certain procedural shortcomings could already be mitigated without awaiting legislative intervention. In particular, it suggests that a first set of corrective measures could be undertaken by the regulatory authorities themselves through the adoption of self-binding instruments of administrative self-discipline, aimed at narrowing the wide margins of discretion conferred upon them.
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