Il cosidetto sistema paneuropeo di protezione dei depositanti: un ulteriore euro autogol? Un'analisi critica della direttiva 2014/49

Founded on the wreckage wrought by the explosion of the 2008/2009 financial crisis, Directive 2014/49 (DGS Directive) was expected to revolutionise the EU/EEA depositors' protection scheme. The reason for such optimism was attributed to the long-awaited introduction of a more effective system of financial assistance among the different national schemes and, therefore, the achievement of a fully integrated system of depositors' protection. This paper, in focusing on the legal provisions of the DGS Directive relating to the way the national schemes financially prop up one another, attempts to demonstrate that the new legal framework is far from being satisfactory. The new safety net, still hinged on depositors' protections schemes which operate at national level, is fettered by the quantitative limits and legal constraints of mutual borrowing which, ultimately, still leave the EU/EEA depositor facing an element of uncertainty. Moreover, in addition to the food for thought generated by these concerns of a doctrinal nature, this contribution seeks to illustrate that the recent Greek mass withdrawal from the bank deposits (June/July 2015) has proved to be an unsuccessful test case for the new legislation, ironically already in force at the time the crisis unfolded. This case study, coupled with the Landslaki dictum which is deservedly afforded equal attention in this paper, give significant credence to the view that the Directive, seemingly not totally conscious of the lessons of the 2011 Eurozone crisis, has been rendered obsolete and thus should be amended as soon as possible. Prospectively, it is advocated that the ultimate goal of the depositors' protection should be a fully unified scheme, forged at the Eurozone level, with an opt-in clause for the other EU/EEA countries. With a considerable measure of boldness, it is also suggested that the level of protection should be reduced to a lower amount, from the current Euro 100.000. This caveat would ensure that, on the one hand, the new fully integrated Eurozone scheme does not become too expensive for the contributing banks and, on the other, the inevitable moral hazard risk is kept at bay.