Analysing the character of the Memoranda of Understanding signed by the European Central Bank

European Central Bank

In recent years the use of instruments characterised as “atypical acts” or “soft law” has proliferated in EU law. Memoranda of Understanding (MoUs) provide a good case in point as they comprise a convenient way to conclude what are perceived as non-binding agreements negotiated and adopted bilaterally by EU Institutions and third parties.

Dr Anastasia Karatzia, Lecturer in Law and Prof Theodore Konstadinides, Professor of Law have recently published an article on the nature, characteristics, and legal effects of MoUs signed between the European Central Bank (ECB) and third parties.

The article explores the practice of the ECB for two reasons: first, owing to historically making active use of MoUs, and secondly, owing to its new role of banking supervisor for the Euro area and the specific role accorded to MoUs in banking supervision. For instance, the ECB’s central role within the EU Banking Union, which requires a high level of co-operation between the ECB and national supervisory authorities, has increased the use of MoUs as co-operation tools. Taking stock of these developments, the article provides the first comprehensive mapping-out exercise of the legal nature and character of MoUs as instruments used by the ECB. It offers an empirical analysis of the respective MoUs and establishes a legal framework that should assist our understanding of their nature, operation, and legal consequences.

The authors’ full paper was published under the title ‘The Legal Nature and Character of Memoranda of Understanding as Instruments used by the European Central Bank’ in 2019 in Vol. 44 Issue 4 of the European Law Review pp. 447 – 467. It was prepared under the Legal Research Programme sponsored by the ECB. It is one of the first articles looking at the ECB’s role in signing Memoranda of Understanding beyond the context of financial assistance provided to EU Member States. Any views expressed are only those of the authors and do not necessarily represent the views of the ECB or the Eurosystem.

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