Skip to main content

SRB Legal Conference - Closing remarks by SRB Vice-Chair, Jan Reinder de Carpentier

Speeches
|
Thursday, 28 April 2022
| Sean Pol DE BURCA

[Introduction]

Good afternoon,

The task falls to me to say a few concluding remarks and close this event – not an easy one after the outstanding contributions throughout our panels today!

But, I’ll do my best and I’ll be as brief as possible.

First offa word of thanks. Thanks to all of you who participated in our panels, both here at the SRB in Brussels and online. Thanks to our audience today, most of whom are connected remotely – I know you have busy diaries, so as Vice-Chair of the SRB, I am grateful for the time you have given to us today. Your input and expertise, whether as a panellist or as an audience member, offers us a fresh perspective on banking resolution in Europe.

Today’s conference – the first of many I hope – shines a light on the challenges and triumphs we encounter in achieving financial stability in Europe. That light allows us to see clearly the outstanding issues and potential solutions with regard to the existing framework, and it may even provide inspiration to those drafting future laws in the area of banking resolution in Europe.

[A good framework, but room to improve]

Elke spoke this morning about the Sberbank resolution in her opening remarks so I will not repeat them. However, it was a case that allowed us to test various legal provisions. Sberbank is a reminder to us all, that while we have a good legal framework in place, it is by no means perfect. It is worth studying areas such as the moratorium tool or the resolution college decision-making process, to see where there is room to improve the EU’s resolution framework.

But if I speak of room to improve, I would also like to speak of the progress made.

In the seven years since the SRMR entered into force, the framework, and the SRB itself, have evolved and matured. Of course, the creation of the framework was just the beginning, but as the saying goes, ‘a good start is half the battle’.

And ladies and gentlemen, we can be sure we have made a good start in the battle to deliver financial stability while protecting Europe’s taxpayers from having to bail-out banks. 

A good start, but there is much more work to do.

We have many challenges in relation to the implementation of this legal framework. This is a task undertaken on a daily basis both here at the SRB and by our counterparts throughout the Banking Union, and even internationally.

Key to this implementation has been the judicial scrutiny of the framework by the EU’s Court of Justice. This includes, in particular, the scope and implementation by the SRB of its resolution powers and the system for the calculation and raising of ex-ante contributions to the Single Resolution Fund.

The legal issues that have been raised before the courts are diverse. They range from technical aspects of the resolution framework itself, to substantive and procedural legal principles central to the development and application of EU law. I have in mind here issues such as transparency, our duty to state reasons, the right to be heard, the right to conduct a business, the right to property, and proportionality. But this is just to mention a few.

Overall, both the framework and the actions of the SRB have generally withstood the judicial scrutiny of the Court of Justice.

This is, of course, very good news for the SRB and the Banking Union’s framework as a whole. And, of course, the Court of Justice has given valuable judicial guidance on the interpretation and application of the EU resolution framework. This also creates legal certainty and reinforces credibility and trust in the system.  Our framework is maturing.

For me, at least, this process of evolution and maturity was one of the things that shone out clearly from the discussions from the three separate panels.

I want to mention a few points that stood out for me from our panels today.  

[Highlights from the panels]

In our first panel, we saw the importance of cooperation. Finance is a global, interconnected industry. We can never hope to have the same legal framework in every single jurisdiction across the world. What we can hope for however, and what we can work on, is building relationships of trust and confidence with our partners at national, EU and international level. This is of course helped by initiatives such as the Legal Network within the SRM which serves as a forum to bring the SRB and national authorities together to discuss legal topics. Internationally, we see cooperation through forums such as the Crisis Management Groups and Resolution Colleges.

The role of internal administrative review bodies was an interesting topic in our second panel. I mentioned the importance of judicial review earlier, and an important part of this process is the role played by the SRB’s internal administrative review body, the Appeal Panel.

In my previous role as General Counsel here at the SRB, I appeared at the SRB Appeal Panel, and I understand the importance of the interplay between administrative proceedings before review bodies and judicial proceedings before the Court of Justice. Perhaps some food for thought emerging from discussions today, is whether or not recourse to review bodies should be mandatory and what should be their scope of review? Questions that cannot be answered in a day perhaps, but nevertheless, questions worth bringing to the fore. 

This brings me to the third and final panel and the question of administrative discretion.

How can we find the right balance between respect for the principle of institutional balance and accountability, on the one hand, and the exercise of administrative discretion by banking authorities, on the other? It was interesting to note the different views on this between those from Europe and those from the US.

What is clear from the discussions, is the need for nimbleness on the part of supervisory and resolution authorities, given the dynamic nature of the banking market. Administrative discretion is key to ensuring this. However, such discretion is not limitless. It must be clearly framed by the legislator and exercised in an appropriate and proportionate manner and in conformity with standing jurisprudence. All of this helps ensure that administrative accountability is properly accommodated.

[Conclusion]

Ladies and gentlemen, I am coming to a close.

Today’s conference is not about talking for the sake of talking.

At the outset I spoke about shining a light on certain issues to bring them to the fore of our minds. It is through dialogue and discussion and the sharing of our experiences to date, that we can – all of us here – offer new ideas to improve the banking resolution framework.

And hopefully some of your good ideas will be picked up upon and some may even be put into future revisions of the framework.

Thank you again for your participation and my thanks also to the SRB teams involved in putting together today’s event.

Have a nice afternoon. 

Contact our communications team

Spokesperson & Communications Team Leader
Name
Susan Carroll
Email
Susan.Carroll [a] srb.europa.eu
Phone:
+ 32 2 490 3439
Mobile:
+32 470 96 48 01
Seán De Búrca
Speechwriter & Communications Expert
Name
Seán De Búrca
Email
Sean.de-Burca [a] srb.europa.eu
Phone:
+32 2 490 3710
Mobile:
+32 477 02 87 10
Camille De Rede
Communications Expert
Name
Camille De Rede
Email
Camille.de-Rede [a] srb.europa.eu
Phone:
+32 2 490 3530
Mobile:
+32 477 028 530

Recent speeches