Democratic Legitimacy of the Single Resolution Board: Is Legality the Right Question?

The choice to entrust EU banking resolution to an independent body opened the familiar democratic legitimacy conundrum that besets independent institutions in national and in EU law. This paper examines both the conventional view on the relationship between legality control and democratic legitimacy, that the German Federal Constitutional Court endorsed in its SSM/SRM judgment, and the limits of such conception. Conceived as a “compensatory measure”, legal protection through judicial review and internal administrative review enables the Court to bring independent institutions within the (national) constitutional framework that they strain. Law’s binding character becomes a matter of ensuring not only the rule of law but also democracy. Yet, even detailed legal mandates cannot preclude administrative bodies to define the way law is completed and concretised. While the Court does not adhere to a ‘transmission-belt model’ of administrations, not surprisingly – as a court deciding on democratic legitimacy – it falls short of recognising that legality can do very little to ground the democratic legitimacy of fundamental political choices, such as those entrusted to the Single Resolution Board.