Call for papers
Legal Research Programme 2017
European Central Bank, Frankfurt am Main
Application deadline: 15 February 2017
The European Central Bank (ECB) is seeking applications from established or promising younger researchers for up to four legal research scholarships to be awarded in 2017. The Legal Research Programme 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. Each scholarship is endowed with a grant of EUR 10 000, which is not compatible with any other fellowships or grants received from third parties in relation to the research project for which it is awarded, unless the ECB has expressly provided its consent.
Applicants who are awarded a scholarship under the Legal Research Programme (the 'Scholars') will be required to write a research paper during 2017 on one of the following research topics:
Topic 1: Dealing with set-off risk in financial collateral arrangements and securities
Set-off risk is of particular relevance when credit claims are used as collateral, but it is relevant in other contexts as well, such as loan trading, or the cover pools linked to covered bonds or asset-backed securities (ABS). Given that set-off rights are determined by civil law concepts that are not harmonised across the Member States, the solutions for dealing with set-off risk are also diverse.
The issue of set-off risk is also of relevance to the Eurosystem in particular in situations where credit claims are used as collateral. The key piece of relevant Union legislation is Directive 2002/47/EC of the European Parliament and the Council (the “Financial Collateral Directive” (FCD)), which aims to “improve the legal certainty of financial collateral arrangements” and to create a protective regime to ensure the enforceability of such arrangements regardless of the insolvency of the collateral provider. The FCD requires Member States to ensure that a debtor may waive its set-off right (arising from counterclaims against its creditor) in respect of credit claims owed by him to the creditor, if the claims were provided as collateral, “without prejudice to Council Directive 93/13/EEC on unfair terms in consumer contracts and national provisions concerning unfair contract terms” (Article 3(3)(i) FCD). Although this provision aims to facilitate the use of credit claims as collateral by central banks, the applicability of the waiver is rather limited. Thus, a future amendment could usefully provide for a more comprehensive protection of collateral takers in the Union. The aims of the proposed research would be to examine the following issues: (1) the difference between how set-off risk is handled in the various national legal frameworks in the Union; (2) means of enhancing the Union regulatory framework to enable a more comprehensive protection for collateral takers in the Union (both in the central banking context and more generally). The scope of the research should not be limited only to credit claims, but should cover also other asset types, such as covered bonds and ABS and deal with the ways in which set-off risk is or could be handled in relation to these types of assets. Furthermore, the research should address set-off risk not only in the context of collateral-taking, but also in the context of purchase transactions, such as loan-trading or investing in covered bonds and ABS.
Topic 2: Liability and accountability for policies announced to the public and for press releases
The notion of acts of Union institutions and bodies that may be subject to judicial scrutiny (validity and/or interpretation) or may give rise to liability has been broadly construed by the Court of Justice of the European Union over the years and has been further elaborated in recent decisions (see for example, case C-62/14 Gauweiler v Deutsche Bundestag and case T-496/11 United Kingdom v ECB (regarding the location of central counterparty clearing systems). The analysis for the research paper should focus on the elements that would render an act mandatory, or cause it to be perceived as such, in particular in the area of policy-making. The research paper should also address the strategies that Union institutions and bodies might pursue to clearly distinguish between acts having legal effects and those that are intended purely for information or other non-binding purposes.
Topic 3: Relationship between supervision / resolution and monetary policy / supervision (issues of separation, overlapping, conflict of competence and complementarity)
The analysis for the research paper should first describe the present situation in the Union, then look at the national situations and the original understanding in the legislative projects that the supervisory and the resolution authority would be the same institution (Financial Stability Board principles etc.). Against this background, the research paper could then proceed to discuss the advantages and disadvantages of the multiplicity of actors in the present system and look at possible simplifications to increase efficiency and reduce blurred responsibilities, including possible changes in the allocation of competences (i.e. between the Single Supervisory Mechanism and the Single Resolution Mechanism) and their legal basis.
Topic 4: The mandate of national state auditors vis-à-vis national supervisory authorities (evaluation of the relevance of the so-called audit gap)
The contact committee of the supreme audit institutions of the European Union indicated in a statement issued on 25 September 2015 that an audit gap has emerged in those euro area Member States where the existing mandates of the national state auditors over national banking supervisors have not been replaced by a similar level of audit over the supervisory activities attributed to the ECB. The proposed analysis for the research paper will aim to assess whether the so-called audit gap involves a lowering of the accountability/audit standards in relation to the banking supervisory functions attributed to the ECB. The analysis will compare (in selected jurisdictions) the role of state auditors in examining the activities of supervisors before and after the adoption of the Single Supervisory Mechanism, including the specific powers of state auditors in relation to the access to confidential documentation. The research paper should provide a comprehensive analysis of the law and the auditing practices of the relevant jurisdictions.
Topic 5: Securities ownership rules in the EU: national regimes, transnational investments?
Issues related to the ownership and transfer of marketable securities evidenced by book entries are largely regulated under national law. Such laws differ across jurisdictions and difficulties may arise, in particular when financial intermediaries hold securities accounts for their clients with respect to securities that have been issued in another jurisdiction and recorded on securities accounts in that jurisdiction. Furthermore, initiatives to harmonise conflict of laws rules have also stalled. The research paper proposal could focus on the possibilities for future reform in this area and priority steps for the EU and other countries.
Topic 6: Inviolability of the ECB’s archives under the Protocol of the Privileges and Immunities of the European Union
The ECB is different from other EU institutions insofar as it is part of the ESCB/Eurosystem and it is not the ECB alone, but the entire ESCB/Eurosystem that has been entrusted with tasks under the Treaties. What influence does this have on the scope of the inviolability of the ECB’s archives? May documents and information owned or held by the ECB but located at ESCB/Eurosystem NCBs be seized by national authorities of the Member States? Do similar considerations apply in the context of the SSM? To what extent does the ECB’s duty to cooperate with national authorities under the Protocol limit the ECB’s privilege, if at all? Does the duty to cooperate under the Protocol also apply to the national authorities? If so, how? Finally, considering that privileges and immunities of international organisations under public international law are generally applied and interpreted by national courts, who is to decide on the scope of the inviolability of the ECB’s archives and the limitations following from the duty to cooperate under the Protocol?
Topic 7: Judicial review of central bank policies and decisions, including in the area of monetary policy, payment systems, financial stability, resolution and supervision, in a comparative perspective
Central banks’ mandates on policy matters are subject to different forms and degrees of judicial review under legal systems rooted in the civil law or common law traditions and reflecting differences in social preferences and political environments, including the choice of the level of independence granted to the central bank in defining and implementing its policies. The purpose of the proposed research paper would be, by comparing the justiciability regime in relevant jurisdictions, to analyse the reasons underlying the differentiated judicial protection afforded to policy decisions. In addition the research paper should also assess why the level of judicial control seems to be more intense for supervisory decisions in certain jurisdictions; the different situations should be analysed.
Topic 8: Scope for financial stability considerations in the fulfillment of the mandate of the ECB/ Eurosystem
The precise role financial stability considerations may play in the policies pursued by the ECB and the Eurosystem under the Treaties and national central banks under their national law is still unclear. Even though there is no separate ECB/Eurosystem objective that relates to financial stability, the question still arises as to the extent to which financial stability considerations may form part of the reasoning behind ECB/Eurosystem decisions, including on the basis of the ECB/Eurosystem’s secondary objective to support the general economic policies in the Union.
Researchers with an established reputation, relevant experience and a track record of relevant legal publications are, in particular, encouraged to apply; proposals submitted by promising young researchers will also be considered on their merits. None of the Scholars involved in a research paper may be in an employment relationship with the ECB.
The ECB will award up to four legal research scholarships for one or more of the eight research topics listed above. The ECB may decide not to award a scholarship for any or all of the above research topics if, in its opinion, no application of sufficient quality has been submitted. 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 approximately 20 000 words in length, excluding footnotes, which must meet, at the ECB’s discretion, the overall standard expected of papers published in internationally renowned and peer-reviewed academic journals. The Scholars may be invited to the ECB to present their research, even after the completion of the Research Programme and the 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 Scholarships will be paid upon completion by the selected Scholars of all phases of the Legal Research Programme, as laid out in the following five steps, and acceptance for publication of the research paper in an internationally renowned and peer-reviewed academic journal.
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. The proposal must consist of:
- a statement of issues to be addressed;
- the proposed methodology;
- an analysis of the originality and significance of the proposed research paper in view of the existing academic literature; and
- a discussion of the feasibility for completion of the research project by 30 November 2017.
Proposals should be no longer than 1 500 words (not including charts, graphs, or bibliography). Applications should be sent by e-mail to LegalResearchProgramme@ecb.europa.eu no later than 15 February 2017. The ECB will notify the Scholars of the acceptance of their proposal for a research paper by 31 March 2017.
Phase 2 - Presentation of the research proposal
The selected Scholars will be invited to a seminar to be held at the ECB in spring 2017, to present their proposal against the background of their previous research in the relevant field. Such seminar is intended to establish a fruitful relationship between the ECB Legal Services and the Scholars, and to provide them with constructive feedback on the 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 15 July 2017, 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 30 September 2017.
Phase 4 - Submission of the second draft
The Scholar will take the remarks and suggestions of the ECB's report into consideration and complete the research paper by 30 November 2017.
Phase 5 - Completing of the final draft and publication
Scholars are expected to seek publication of the research paper in a well-recognised, internationally renowned and peer-reviewed academic journal, when necessary or appropriate following revision of the paper. The research paper may be also considered for publication in the ECB’s Legal Working Paper Series and/or on its website.
Following completion of all of the phases above and acceptance of the research paper for publication in an internationally renowned and peer-reviewed academic journal, Scholars will receive a final honorarium of EUR 10 000.