Il caso ABLV Bank. Natura della dichiarazione failing or likely to fail della BCE ed effettività della tutela giurisdizionale

The ABLV Bank case is the subject of the following interdisciplinary article on composite administrative procedures. The specific case concentrates on the functioning of the Single Resolution Mechanism and some of the issues that — in our humble opinion — still need to be clarified by the European legislator: more specifically, art. 18 of Regulation (EU) No 806/2014 on the ECB’s failing or likely to fail assessment and its binding or non binding nature for the subsequent decision by the Single Resolution Board. As the CJEU judgment suggests, the main issue arises with the interpretation of the ECB’s declaration and its intraprocedural nature in order to grant the fundamental principle of effective judicial protection. This frequent problem in composite administrative procedures, may have found a new interpretation — radically different from the well known Borelli doctrine — in the CJEU’s jurisprudence. ABLV Bank, together with the 2018 Berlusconi judgement  (as explicitly referred to in the conclusions of the Advocate General), may represent a crack for the ‘sacred’ principle of national procedural autonomy within the European Union.