Main recommendations

• Author: Brito Bastos, Filipe; Zeitlin, Jonathan
• Pages: 30-30

IPOL | Economic Gove rnance Support Unit

30 PE 645.747

ABoR and the Super visory Board are inter nal bodies, it would be logical to consider that the ABoR

already enjoys the power to check the conformity of the ECB’s decisions with national law – but if such

is t he case, for th e sake of coherence between a dministrative and judicial review, trans parency and

clarit y, t hat shou ld bes t be s pelled o ut exp licitly.

In the d omain of the SR M, recent case law has exposed s ome issues from the perspective of procedural

protection in the SR B’s admin istr ative pr ocedu res. The fact that the General Court unequivocally

considers that even with the NRA’s preparatory support it is the SRB that enjoys an exclusive power to

define ex a nte contr ibutions, and is ther efore suable before EU courts (Case T-365/ 16 Portigo n; Joined

Cases T-377/16, T-645/16 and T-809/16 Hy po Vo rarlbe rg), sho uld also mean tha t the SRB is obliged to

offer credit inst itutions the righ t to be hear d before their ex ante con tributions are d etermined. This

would result not only from the Court of Justice’s longstanding case law (e.g. Case 85/76, Hoffmann-La

Roche), but also from the right to a good administration enshrined in Article 41 of the Charter of

Fundamental Rights. Although that right applies even in the absence of explicit legislative provisions

(Case C-344/05 P, DeBry ), th ere would b e merit in clar ifying how exactly the right to be heard and other

rights o f good adminis tration are to be exercised in the fr amework of the SR F.

One additiona l accountability issue concerns the fact that in some procedures determining the more

detailed aspects of the reso lution of credit institutions, the SRB may have to offer an opportunity to be

heard to a vast number of stakeholders. As explained above, in the Banco Popular case, the SRB needed

to handle more than 20.000 individual comments from the bank’s creditors and shareholders, which

rendered t he procedure to decide whether to g ive compensation to them extremely lengthy. Drawing

on this experience, it wou ld be worth exploring how to pro cess so ma ny written com ments in a more

efficient manner.

6. MAIN RECOMMENDATIONS

By way of conclusion, we summarize our main recommendations, focusing on proposals that would

advance the dynamic, forward-looking approa ch to polit ical, ad ministrativ e, and jud icial accou ntability

of t he SSM and SRM advo cated above, wou ld enhance the effectiveness of scrutiny of these bodies by

the Euro pean Parliament, and could be implemen ted within the existing legal fra mework.

1. Reques t the ECB to publish regular sy nthesis reports on recently completed internal reviews by its

Super visor y Quality A ssurance (SQ A) Division, a nonymised and r edacted to remove confidential

information, and use these as a tool for dynamic accountability and forward-looking scrutiny by

the EP and the Council.

2. Reques t the SRB to publish regular synthesis reports on the work of its internal audit and control

functions, anonymised and redacted to remove confidential information, and use these as a tool

for dynamic accountability and forward-looking scrutiny by the EP and the Council.

3. Request the ECB to publish summaries and synthetic overviews of the d ecision s of its

Administr ative Board of Review (ABoR), with due observance of confidentiality rules, once the time

for lodging a judicial appeal has elapsed.

4. Invite the SRB and the European Commission to a public hearing of the EP on the mismatch

between the Public Inter est Assess ment criteria for EU resolution of failing banks and the

Comm issio n’s crit eria f or as sessing the leg itimacy o f nat ional st ate aid m easu res.