Main recommendations

AuthorBrito Bastos, Filipe; Zeitlin, Jonathan
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.
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.

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