I decreti salva-banche: dal diritto delle risoluzioni bancarie al diritto globale dell’emergenza

Abstract

Within the Italian legal system, the decree-law (or “decreti legge”) were used as the most important legal instrumentthat the Italian Government relied upon to govern the regulation of bank insolvencies. Yet, the most recent legislative framework on this matter, i.e., the bank resolution, is based, consistently with the EU broader framework, on two legislative-decrees, more precisely, legislative-decree no. 180 and 181 of 2015. However, while the latter pieces of“statute” were supposed to work for the entire spectrum of banking crises, as general principles, the decree-law, from a more empirical perspective, has been used quite frequently, and not without some reasonable doubts of a constitutional matter. In this respect, Scholars unceremoniously highlighted both flaws and numerous critical aspects of the legal provisions encompassed with the number of decree-laws passed on this area. More specifically, the reference goes to decree-law no. 99 of 2017, better known as Venetian banks decree-law. From a more theoretical perspective, the underlying issue of this paper is concerned with an analysis of the bank resolution from both a financial legal perspective and an interdisciplinary one. To elaborate, while the bank resolution is only prima facie a commercial or a company matter, from a more holistic perspective, it requires a constitutional law analysis too. Consequently, to strike abalance between depositors’ protection on one hand, and financial and economic stability on the other hand, issomehow reminiscent of a public law task. Finally, the research stretches to a philosophical analysis of the management of bank crises, in order to test ontologically the legal nature of these sui generis tools, frequently perceived as mysterious and opaque in both their origins and their empirical dimension.