The debate on the rules that have transposed the Community Directive on bail-in, i.e. the mechanism available to each intervention member state to manage situations of failure or risk of failure of a bank, it is progressively moving from a purely technical-financial plan to a more purely legal-constitutional one. This thing, which should have had, from the outset, equal dignity in being able to verify the compatibility of the measures implemented with the founding principles of the legal system of our country.
To tell the truth, the Bank of Italy, at the same time as its implementation, had posed the problem of whether Directive 2014/59/EU, the so-called "Bail-in Directive", in the part in which it affects investors who at the time of purchase of the subordinated bonds, could not, in any way, know the risks inherent in these instruments, was or was not contrary to the art. 47 of the Constitution. However, the Bank of Italy itself had concluded that, as regards the applicability of the bail-in, even to instruments already in circulation, the assessments of constitutionality are "obviously" the responsibility of the Constitutional Court. Several months have passed since then but, in the meantime, no appeal has been presented and, therefore, the Supreme Court has not had the opportunity to express itself.
It is worth taking a step back to understand how these measures, from a field of evaluation and analysis among insiders, making their way through the Community institutions, have been transformed into a European Directive. The launch of the multiple bailouts – carried out at the expense of public budgets through the use of tax leverage – of the banking systems of northern Europe, polluted by derivatives, date back to 2010. They have generated, above all in the political arena, the need and urgency to identify alternative solutions to public intervention that make use of the resources of shareholders, bondholders and unsecured creditors to recapitalize bank intermediaries at risk of failure.
This solution was also supported by the Economist which, in January 2010, hosted an article: "From bail-out to bail-in" by the president of a leading Swiss investment bank and his risk officer in which described a mechanism based on time-tested international procedures already applied to airlines, or to particular industrial companies, bound to strict operational continuity in situations of serious financial distress. This intervention highlighted, on the one hand, the best "efficiency" of intervention in exceptional circumstances towards financial and banking companies operating in rapidly changing markets and, on the other, the advantage of strengthening market discipline on banks to reduce potential systemic risk. How would the fate of Lehmann Brothers on that weekend in September 2008 have changed, with the bail-in – the authors asked at the end of the article?
The origin of this rescue solution, which arose in areas and circumstances distant from the banking, financial and legal realities of individual states, constitutes yet another classic example of how, in recent years, numerous cases and abstract configurations have taken on a form binding regulation, creating predictable regulatory conflicts and very probable violations of constitutional principles. The actual constitutional compatibility of the bail-in legislation can only raise numerous doubts also in the light of the pressure exerted by the Community institutions at the legislative level which tends to build a European corpus-juris and which often creates rules that are difficult to compatible with the Italian legal system and profound problems between Community rules and constitutional principles. The search for a balance, albeit dynamic, between the Community legislative requirements and the constitutional system of our country is still to be sought. The process of adapting Italian law to EU regulations is inevitable, but an effective evaluation of EU regulations with respect to the founding principles on which our country's legal system has been modeled is all the more necessary.
Conversely, it affects the very intense activity of the German Constitutional Court based in Karlsruhe in ruling not only on purely legal and regulatory issues, but also on regulatory aspects concerning, for example, the functions of the ECB in the exercise of management of the EU's monetary policy. The last pronouncement concerned the program for the purchase of securities of countries in crisis (OMT) launched by the ECB in 2012, rejecting the appeal presented by a group of citizens. A group of "Eurosceptic" citizens and associations, including some politicians, had turned to the judges in Karlsruhe, contesting the legitimacy of the program developed by the ECB.
The problem of the initiative to reach the Constitutional Court and thus allow the scrutiny of the Directive, therefore remains, in Italy, a central and open point to remedy the error of having transposed a Community legislation without noting the very probable conflict with the Constitution ; on closer inspection, therefore, in terms of the activity of verifying the constitutional legitimacy of the laws there are already two two-speed Europes.
