An annual overview of the Appeal Panel's activities.
During 2021, the Appeal Panel received two different types of appeals, one relating to access to documents used in the resolution of Banco Popular and three other appeals contesting decisions taken by the Board in setting the MREL of respective particular credit institutions. Two of the latter appeals were received in late December 2021 and thus the procedures of the two cases will take place in 2022.
After the Parties’ submissions in the access to documents appeal, the Appeal Panel reached its final decision, which was communicated to the Parties and the anonymised version is published here.
Due to the complexity and the implications of first MREL appeal and for its just determination the Appeal Panel considered necessary to call on the two Parties to make oral representation before the Panel, hearing which finally was held remotely on 7 December 2021. As at the moment of this publication, the appeal is still ongoing, further details cannot be published. In due time, the publication of the anonymised version of the Panel’s decision will follow.
Following the rebranding of the SRB, which included its public website, in mid-2021 the first steps in implementing the Appeal Panel Thematic Register of decisions were taken, aiming for the final version to be available on the Appeal Panel page mid-2022. The Thematic Register will be set-up according to Article 24(2) of the Appeal Panel’s Rules of Procedure and will allow interested parties to easily search though the existing published decisions of the Panel in view also of allowing a correct representation in front of the Appeal Panel.
In 2021, the work of the Panel was conducted exclusively remotely, including the hearing in case 02/2021, as the restrictions imposed by the COVID-19 pandemic did not allow the members to hold in-person meetings.
As in the previous years, the Appeal Panel actively participated in the (virtual) network meeting and annual meeting of the Inter-Agency Appeal Proceedings Network (IAAPN) which saw activity in various fields, such as: the definition and Creation of European Appeal Case Law Identifier (EACLI), the quality management of appeals and measurement of decision-making quality and Common terminology for appeal proceedings: with the scope to draw a list of terms between the IAAPN and the Centre de Traduction (CdT).
The Appeal Panel has reviewed its Rules of Procedure (RoP), taking the practical experience gained since taking up its duties into account. The process started at the end of 2019 and the new document was adopted in September 2020. This review was instrumental in gradually enhancing the Appeal Panel’s role and improving its overall efficiency and transparency. The updated version can be found here.
As the first five-year mandate of the Panel members was set to expire on 1 January 2021, the renewal process was carried out during 2020. In its Executive Session of 16 September 2020, the SRB voted unanimously to extend the mandates of the five members of the Appeal Panel. In turn, on 9 November 2020, the Appeal Panel members and alternate members voted unanimously in favour of re-electing the current Chair and Vice-Chair of the Panel in their roles.
During the year, the Panel dealt with appeals against Confirmatory Decisions issued by the Board refusing partial or total disclosure of documents related to various topics: the Banco Popular resolution, procurement procedures, or documents issued in light of the Covid-19 pandemic that hit Europe in the beginning of March 2020.
Following these appeals, the Appeal Panel issued its decisions, either dismissing the case or remitting the appealed decision to the Board for review.
All Appeal Panel decisions are published on the SRB website in an anonymised way, guarding the identity of the Parties and the confidentiality of sensitive information. They are available here.
In addition, the Appeal Panel actively participated in the (virtual) network meeting and annual meeting of the Inter-Agency Appeal Proceedings Network, dealing with topics such as the quality management of appeals and the best ways to assess decision-making quality.
In the course of 2019, the Panel continued to deal with appeals related to SRB’s confirmatory decisions refusing access to documents related to the Banco Popular resolution. Many of these appeals were received in the second part of 2018, but new appeals came in the course of the year.
In April 2019, a joint hearing was held in Brussels where the parties were given the opportunity to present their arguments in the respective cases. Following this hearing, the Panel issued 6 decisions dismissing the appeals but in one case.
In June 2019, a second joint hearing was held in Brussels. Following that hearing, with its decisions issued in the same month, the Panel either dismissed the cases or remitted the appealed decision to the Board for review on very limited matters.
At the moment of this publication, a small number of cases on access to documents related to the Banco Popular resolution is pending.
A second group of appeals related to SRB’s confirmatory decisions refusing access to documents related to the Banco Popular resolution was addressed by the Panel in 2018. In April 2018 a second hearing took place in Brussels. With 11 decisions issued on 19 June 2018, the Appeal Panel concluded that yet further disclosure of documents related to the Banco Popular resolution was necessary. In the course of 2018 the Panel adopted also a number of decisions related to the obligation of credit institutions to contribute to the system of administrative contributions. The Appeal Panel emphasised once again the inherent link between the scope of SRMR as specified by Art.2 SRMR and the obligation to pay administrative contributions. On 16 October 2018, the Appeal Panel adopted a decision on a MREL determination.
At the moment of this publication, a third group of cases on access to documents related to the Banco Popular resolution is pending.
After the Banco Popular resolution, the Appeal Panel received a large number of emails from affected parties. Between June 2017 and October 2017 a number of approx. 300 emails were received. In the period between June 2017 and September 2017 a number of those emails were misdirected as the senders were asking the Appeal Panel to decide on and annul the SRB’s Resolution Decision of Banco Popular, which is not a subject-matter within the Appeal Panel’s competence. The requests were declared inadmissible.
Several affected parties expressed their interest to appeal the SRB’s initial decisions refusing access to documents without having requested or waited, as required by the applicable Regulation No. 1049/2001, for the SRB confirmatory decisions. Those requests were declared inadmissible as well. The senders received a letter from the Appeal Panel explaining the reasons of such inadmissibility.
Starting from September 2017, the Appeal Panel received appeals against SRB’s confirmatory decisions refusing access to documents related to the Banco Popular resolution. These appeals were timely conducted granting the parties their right to be heard. A joint hearing was also held in Brussels and with 6 decisions adopted on 28 November 2017 the Panel, having assessed the Parties’ arguments, determined, also in light of the centrality of the principles of transparency and democratic accountability, that some of the requested documents should be disclosed, with redaction where strictly necessary. While ruling in favour of such disclosure of documents, the Appeal Panel conceded that a margin of discretion should be granted to the SRB in this respect, as regards the assessment of whether or not the conditions for an exception to access to documents, e.g. for risk of financial stability, were met.
In 2016, the Appeal Panel decided on several cases relating to the contributions to be paid by credit institutions under the SRMR. The vast majority of these cases proved inadmissible because they related to contributions to the Fund whose review was outside the remit of the Appeal Panel. One was admissible because it related to the provisional system of administrative contributions to the SRB and the Appeal Panel clarified which entities are subject to the payment obligation of administrative contributions and in what circumstances an entity ceases to be subject to the duty to pay contributions.