JUDICIAL PROTECTION IN THE SINGLE RESOLUTION MECHANISM

Transcription

1 JUDICIAL PROTECTION IN THE SINGLE RESOLUTION MECHANISM Yves HERINCKX Avocat (Brussels), Solicitor (England and Wales) Deputy Judge at the Brussels Court of Appeal Vice-Chair of the SRB's Appeal Panel1 I. INTRODUCTION 1. The Single Resolution Mechanism ("SRM") is operated by multiple authorities. The Single Resolution Board ("SRB"), the Single Resolution Fund (the "SRF", which is owned by the SRB and does not have a separate legal personality2) and the national resolution authorities of each of the 19 eurozone countries are its main actors. The ECB, the European Commission and the Council also have their role. This leads to an intricate regime of judicial review. Appeals against measures adopted under the SRM are handled, depending on the type and the origin of the measure, by the SRB's Appeal Panel, by the Court of Justice of the European Union ("CJEU") or by national courts. 2. Recital 120 of the SRM Regulation outlines the organisation of the judicial review within the SRM: The SRM brings together the Board, the Council, the Commission and the resolution authorities of the participating Member States. The Court of Justice has jurisdiction to review the legality of decisions adopted by the Board, the Council and the Commission, in accordance with Article 263 TFEU, as well as for determining their non-contractual liability. Furthermore, the Court of Justice has, in accordance with Article 267 TFEU, competence to give preliminary rulings upon request of national judicial authorities It goes without saying that the views expressed by the author in this contribution are his own and do not necessarily reflect those of the Appeal Panel. Article 67(3), Regulation No 806/2014 of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund (the "SRM Regulation"). 77

2 THE SINGLE RESOLUTION MECHANISM Robby HOUBEN Werner VANDENBRUWAENE (eds.) I intersentia Cambridge - Antwerp - Portland

3 CONTENTS Introduction Recovery and Resolution, Future Solutions for Dealing with Insolvency Eddy WYMEERSCH The Single Resolution Mechanism. Institutional and Financing Arrangements for Bank Resolution in the European Banking Union Pierre E. BERGER and David VANDERSTRAETEN I. Introduction II. Scope of the SRM Regulation A. Scope ratione personae B. Scope ratione materiae C. Scope ratione temporis Ill. Institutional framework of the Single Resolution Board A. Legal status and composition B. Governance C. Accountability of the SRB IV. Division of tasks between the Single Resolution Board and NRAs V. Cooperation and information exchange within the SRM A. Cooperation between the Single Resolution Board and NRAs B. Cooperation between several actors within the Eurozone C. Cooperation with national authorities of non-participating Member States VI. Resolution process A. Resolution planning B. Early intervention C. Resolution General principles governing resolution and resolution principles Conditions for resolution Resolution procedure Resolution tools VII. The Single Resolution Fund VIII. What will the future bring for banking resolution within the European Banking Union? vii

4 I Contents Resolution from the Belgian Resolution Authority's Perspective Evy DE BATSELIER I. Introduction II. Resolution from an institutional perspective A. The origin of national resolution authorities as first line of defence B. The subsequent creation of a European line of defence by the SRMR III. Division of tasks A. Division of tasks between the SRB and the Belgian Resolution Board Ratione personae Ratione materiae B. Division of tasks within the NBB in its capacity of both supervisory authority and resolution authority IV. Two phases of resolution - Preparation and actual resolution A. The preparation phase - Drafting of resolution plans The difference between recovery and resolution plans Resolution strategy for groups: single point of entry (SPE) vs multiple point of entry (MPE) Determining the level ofliabilities eligible for bail-in: MREL Resolvability assessment Some practical observations B. The phase of actual resolution Conditions before entering into resolution Resolution tools Bail-in and the principle of no creditor worse off V. Resolution financing VI. Conclusion Judicial Protection in the Single Resolution Mechanism Yves HERINCKX I. Introduction II. The Appeal Panel A. Boards of Appeal at European agencies B. Composition and status C. Jurisdiction D. Procedure E. A quasi-judicial body F. Standard ofreview viii

5 Contents I III. The Court of Justice of the European Union A. Appeals against decisions of the Appeal Panel B. Actions for annulment C. Actions for damages IV. National courts A. Preliminary references B. Ex-ante judicial approval of crisis management measures C. Valuations V. Conclusion Tue Rules on State Aid and the Framework for Bank Resolution: Foreplay and Interplay Hans GILLIAMS and Stijn GoovAERTS I. Foreplay: State aid rules as precursor and inspiration for the Single Resolution Mechanism A. Precursor: From bail-out by the State to bail-in of shareholders and creditors B. Inspiration: the SRM & the BRRD's rules on the prevention of moral hazard II. Interplay: The possibility of authorizing R&R aid within the Single Resolution Mechanism A. When does a measure qualify as State aid? B. Prior to clearance of State aid: Standstill Obligation C. Assessment of State aid for the resolution of credit institutions Concluding Remarks on Resolution and Resolvability Challenges Rudi BONTE I. The move from policy design to implementation II. The complex process of pulling the resolution trigger III. The comprehensive menu for the resolution authorities IV. The drivers to achieve resolvability V. The learning points from crisis management ix