Legal Research Programme 2021

The European Central Bank (ECB) is seeking applications from established scholars or promising early-career researchers for up to seven legal research scholarships to be awarded in 2021. The Legal Research Programme (LRP) was launched in 2008 to foster analysis of areas of law relevant to the ECB’s statutory tasks, and to establish closer contacts with scholars. The LRP scholarships will be awarded in two categories.

The first category of applicants (the ‘Junior Scholars’) includes scholars who are doctoral candidates or obtained their doctoral degree no earlier than 1 January 2019. The second category of applicants (the ‘Senior Scholars’) includes all scholars whose academic qualifications do not meet the criteria for inclusion in the Junior Scholars category.

Each scholarship is endowed with a grant of EUR 6 000 (for Junior Scholars) or EUR 8 000 (for Senior Scholars), which is not compatible with any other fellowships or grants received from third parties in relation to the same research project, unless the ECB expressly consents to this.

Research projects

Applicants who are awarded a scholarship under the LRP (the ‘Scholars’) will be required to write a research paper during 2021 on one of the following research topics.

1. Hierarchy among the ECB’s secondary objectives, what about environmental protection?

   Pursuant to Articles 119(2), 127(1) and 282(2) TFEU, the primary objective of the monetary policy of the Union is to maintain price stability. Without prejudice to that objective, the ESCB is to support the general economic policies in the Union with a view to contributing to the achievement of its objectives, as laid down in Article 3 TEU. Article 3(3) TEU provides, inter alia, that the Union shall work for “the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment”. The paper could discuss the extent to which the ECB could give precedence to a given objective under Article 3 TEU, for instance environmental protection, vis à vis another.

2. International representation of the Eurosystem

   The rules about when the Eurosystem is required to speak ‘with one voice’ to international partners are not totally clear. Some occasions where this has become recently relevant have been in the context of international technical assistance and of the co-ordination on activities for external representations of the ECB and NCBs. To ensure a single external communication, a “single voice”, of the Eurosystem despite the existence of 20 legal entities within it, Article 6 ESCB/ECB Statute requires the approval of the Governing Council when it comes to the representation of the Eurosystem in international cooperation issues involving Eurosystem tasks. The proposed paper could assess the conditions under which the Eurosystem is legally required to coordinate its external representation.

3. Limits for the ECB when adopting soft law instruments in the field of banking supervision

   For the exercise of the Union’s competences, the Treaty on the Functioning of European Union (TFEU) establishes a list of legal acts that the EU institutions may adopt. In addition to adopting legal acts, EU institutions adopt a wide array of instruments, under various names and forms (e.g. guidelines, communications, codes of conduct, notices, recommendations, opinions, interinstitutional agreements, conclusions, statements, resolutions and so on) that are generically referred to as ‘soft law’. The various soft law instruments share the same key feature: they are not binding in the traditional sense. Given that the soft law instruments do not have a legally binding effect, it is often argued that the EU institutions are not so strictly constrained by the principle of conferral when adopting soft law instruments. The analysis could assess what are the limitations for the ECB when adopting soft law instruments in the field of banking supervision.

4. The right to good administration – lessons for the ECB and the SSM from the work of the Commission

   With the creation of the SSM the ECB has taken the central role in numerous administrative proceedings leading to the adoption of individual administrative decisions. Similarly, the ECB conducts administrative proceedings in the context of requests for access to documents prepared in both of its functions.

   Such administrative proceedings raise the relevant question of the steps which the ECB takes in order to comply with the right to good administration, in its manifestations for example as right to receive an answer within an acceptable time period, right to be heard when rights could be affected, right to access the administrative file and right to a reasoned decision.

   Given that the ECB is a rather young organisation and it has been conferred supervisory tasks only relatively recently, there is not much guidance from the Courts of what the right to good administration means in the context of the ECB’s administrative proceedings. Nevertheless Union courts have developed a wealth of jurisprudence on the basis of years of experience of the Commission in Union administrative proceedings, in particular in the field of competition. This jurisprudence has also served as the source for the formulation of Article 41 of the Charter of Fundamental Rights of the EU.

   The ECB may therefore draw valuable lessons for its own proceedings from the Commission’s approach and from the Court’s jurisprudence.

   The ECB may therefore draw valuable lessons for its own proceedings from the Commission’s approach and from the Court’s jurisprudence.

   The paper could therefore analyse, on the basis of the Court’s jurisprudence on the right to good administration, the procedural duties of the ECB as a banking supervisor, and also possibly in other administrative proceedings (such as those in response to a request for access to documents) while elaborating on the main elements of the Commission’s approach (e.g. the role and tasks of hearing officers), seeking to draw lessons for what the ECB could do in order to ensure the respect of the right to good administration.

5. Personal liability of servants towards the Union

   The personal liability of servants towards the Union is governed by Article 340(4) TFEU. This provision is implemented in Article 6 ECB Conditions of Employment and in Article 22 Staff Regulations.

   There is virtually no case from the CJEU on personal liability of servants. Issues such as how ‘gross negligence’ and ‘wilful misconduct’ are defined, what are the conditions of personal liability and the circumstances potentially to be considered by the courts when assessing personal liability remain unclarified at the EU level. The same is true also for the impact, on personal liability, of circumstances such as: instructions or approvals from superiors, the responsibility of subordinates, unclear rules, the environment in which officials are working, misconduct by several people affiliated to either the same or different authorities. This latter point is particularly relevant in the context of the SSM, given the role played by national competent authorities (NCAs) and their staff in the carrying out of ECB decisions and instructions, for instance as regards NCA members of joint supervisory teams (JSTs). Moreover, recent case law of the CJEU, e.g. Landeskreditbank Baden-Württemberg v ECB (C-450/17 P), could have a bearing on the distribution of liability between the ECB and the NCAs. There is also significant uncertainty concerning recourse to national courts: according to case T-377/17 (SQ v European Investment Bank, paras. 168-170) damage caused by an EU official and not attributable to the institution may be remedied through an action for liability, directly against that staff member, under national law and to be judged by national courts.

6. The notion of “market neutrality” from a legal standpoint

   The “principle of market neutrality” is sometimes presented as a general principle of EU law and quite often as deriving from the more general principle (Article 127(1) TFEU) requiring the ESCB to act in accordance with the principle of an open market economy with free competition. However, the notion of “market neutrality” is not mentioned in primary EU law and the meaning given to such a notion in the doctrine is extremely heterogeneous. The proposed research would explore the notion of “market neutrality”, potential interactions with the principle of open market economy and the extent to which such a notion could create legal obligations for the institutions and the ECB.

7. Securities account segregation models and practices in the EU: is there a ‘right’ and a ‘wrong’ approach for Europe’s CSDs to follow?

   Securities account segregation models and practices in the EU: in search of the optimal approach for Europe’s CSDs Different CSDs across the EU currently use different securities account segregation models for (domestic) securities settlement, with the practicalities of account segregation also varying significantly across jurisdictions. The main distinction in terms of models is between, on the one hand, omnibus and, on the other hand, individual client (or ‘end-investor’) segregated accounts. To avoid complex and inefficient cross-border settlement procedures, the T2S-participating CSDs do not apply in their cross border settlements individual client/ end-investor account segregation.

   The core aim of the proposed research is to shed light on the determinants of a European CSD’s choice of securities account segregation, and to explore whether there is an optimal approach for European CSDs to follow. Indicative questions for the scholars to examine in pursuit of the above aim, are as follows:

   • What are the drivers in a CSD’s choice between different account segregation models and practices (is it legal certainty – in the form of the ability to better determine the legal owner of securities – investor protection, issuer transparency, cost/operational efficiency, regulatory compliance considerations, client preferences in particular jurisdictions, national legal traditions or other)?
   • How have regulatory choices (with an emphasis on the introduction of the CSDR, EMIR and the AIFMD) and market developments (such as the start of operations of T2S) impacted (or are likely to impact) securities account segregation choices and practices across the EU, and do they recommend or impose on CSDs specific types of segregation? Does the currently applicable EU and regulatory framework point towards a preference for particular account segregation practices and, if so, is that preference consistently followed through in the framework?
   • Are the rights of investors (i.e. securities holders) dependent on the choice of account segregation model or on other, unrelated considerations? What scope does the currently applicable legal and regulatory framework allow for individual client/end-investor choice in terms of the securities account segregation model followed by a CSD where they hold securities?
   • Is there scope for harmonising the securities account segregation practices followed by Europe’s CSDs and, if so, what would the rationale of such harmonisation be (investor protection, legal certainty, deepening of a Capital Markets Union, other?

   Applicant categories – Research groups

   Junior Scholars: scholars who are doctoral candidates or obtained their doctoral degree no earlier than 1 January 2019.

   Senior Scholars: scholars whose academic qualifications do not meet the criteria for inclusion in the Junior Scholars category.

   Research groups: applications may be also submitted by research groups, comprising a maximum of three scholars. Applications submitted by research groups will be assessed in the Senior Scholars category, unless all the members of the research group individually qualify as Junior Scholars.

   None of the scholars involved in a research paper may be in an employment relationship with the ECB.

   Scholarship details

   The ECB will award up to seven LRP scholarships for one or more of the six research topics listed above. The ECB aims to allocate at least two LRP scholarships to Junior Scholars. The ECB may decide not to award a scholarship for any of the above research topics, or for any category of applicants if, in its opinion, no application of a sufficient quality has been submitted for that research topic or by that category of applicants. The applications will be assessed by a committee composed of legal counsels within the ECB’s Legal Services. Each selected Scholar will be required to prepare a high-quality, original research paper of a minimum of 12 000 words in length, excluding footnotes, which must meet, in the ECB’s assessment, the overall standard expected of papers published in internationally renowned and peer-reviewed academic journals. Scholars may be invited to the ECB to present their research, even after the completion of the research programme and payment of the grant.

   They will be responsible for their own transportation arrangements and costs, but will be reimbursed for such costs under the ECB Terms of Reference for reimbursement of travel expenses. The Scholarship will be paid upon completion by the selected Scholar of all five phases of the Legal Research Programme, ending with acceptance for publication of the research paper in an internationally renowned and peer-reviewed academic journal within the required deadline.

   Phase 1 - Submission of the application

   Applications must include the applicant’s curriculum vitae and a proposal for one of the research topics described above. Applications submitted for the Junior Scholars category must include an official statement confirming the doctoral candidate status of the applicant or the date on which the doctoral degree was obtained The proposal must consist of:

   1. a statement of the issues to be addressed
   2. the proposed methodology
   3. an analysis of the originality and significance of the proposed research paper in view of the existing academic literature
   4. a discussion of the feasibility for completion of the research project by November 2020

   Proposals should be no longer than 1 500 words (not including charts, graphs, or bibliography). Applications should be sent by email to LegalResearchProgramme@ecb.europa.eu no later than 10 PM (CET) on 10 February 2021. The ECB will notify the Scholars of the acceptance of their proposal for a research paper by 15 March 2021.

   Phase 2 - Presentation of the research proposal

   The selected Scholars will be invited to a seminar to be held at the ECB in spring 2021, to present their proposal against the background of their previous research in the relevant field. This seminar is intended to establish a productive relationship between the ECB’s Legal Services and the Scholars, and to provide Scholars with constructive feedback on their research subject from practitioners in the field.

   Phase 3 - Submission of the first draft

   The Scholar must submit a first draft of his or her research paper to the ECB by 1 July 2021, and must immediately inform the ECB if there is a risk of not meeting that deadline. The ECB will review and referee the research paper by end of August 2021.

   Phase 4 - Finalisation of the draft

   The Scholar is expected to take the remarks and suggestions of the ECB’s review into consideration and will complete the research paper by 1 November 2021.

   Phase 5 - Submission for publication

   Scholars are expected to seek publication of the research paper in a well-recognised, internationally renowned and peer-reviewed academic journal. The paper should be accepted for publication by the journal by 30 September 2021 at the latest.

   Following completion of all five phases above, including acceptance of the research paper for publication in an internationally renowned and peer-reviewed academic journal, Scholars will receive the final honorarium.