Interplay of Administrative Review and Judicial Protection in European Prudential Supervision - Some Issues and Concerns

Abstract

This paper, a draft of which was presented at the Conference Judicial review in the Banking Union and in the EU financial architecture, jointly organized by the Banca d’Italia and the European Banking Institute in Rome on 21 November 2017, discusses the contours of administrative review of prudential decisions of the European Central Bank (ECB) and the main issues facing the Administrative Board of Review (ABoR) of the ECB, of which the author is an alternate member. The paper continues with a discussion of limited options to enhance transparency on review, both administrative and judicial, followed by a discussion of the main cases pending at the European Court of Justice in the area of banking union: the French banking industry against the ECB; Credit Mutuel Arkea against the ECB; and Credit Agricole against the ECB. The L-Bank Case (T-122/15) and the Order in the Trasta Case (T-698/16) are summarised. The paper concludes with a call for more transparency and a possible alignment of financial sector review mechanisms. A postscript added after the Conference discusses developments since: judgments of 13 December 2017 in the Arkea cases (Cases T-712/15 and Case T-52/16) and the appeals lodged against the Order in the Trasta case by the bank and its shareholders (Case C-669/17 P), by the ECB (Case C-663/17 P) and by the Commission (Case C-665/17 P), promising a landmark judgment on admissibility of bank shareholders acting against the withdrawal of a banking authorisation. Also, references to the list of banking union-related judicial cases at the website of the European Banking Institute were added.