Appeals Panel Research Articles

Analysis of Legal and Practical Aspects of the Vetting Process

Albania’s quest for accession to the European Union necessitates sweeping judicial reforms, with a primary focus on bolstering the judiciary’s independence, accountability, and professionalism. Collaborative endeavors with the Venice Commission underscore Albania’s unwavering commitment to this transformative process. At the heart of this reform agenda lie constitutional amendments and legislative enactments, prominently among them being the law governing the re-evaluation of judges and prosecutors. This legislative framework facilitates the establishment of innovative judicial institutions. The inception of the “vetting process” in 2018 marks a pivotal mechanism aimed at combating corruption and fostering public confidence in a fair and impartial judicial system. The evaluative criteria encompass the disclosure of wealth, professional competence, and public image. This analysis critically examines the operations of the Independent Qualification Commission and the Special Appeals Panel, scrutinizing their investigative, administrative, and decision-making processes within the framework of the vetting law. Of particular interest is the examination of auxiliary bodies, notably the Public Commissioner and the International Monitoring Body, as key entities tasked with ensuring transparency and impartiality in the vetting process. Recognizing the vetting process as a transformative, albeit non-panacea, initiative underscores its historical significance. While acknowledging short-term repercussions, such as the suspension of the Constitutional Court, as sacrifices in the pursuit of upholding the rule of law, the overarching objective is to establish a robust and qualitatively sound justice system. This paper aims to contribute to scholarly discourse by offering a comprehensive examination of the vetting process in Albania and its implications for judicial reform, the rule of law, and the country’s European integration aspirations.

The ‘judicial’ control of discretionary measures in banking and financial fields: the role of EU Courts (and Boards of Appeal)

Abstract 978 The paper aims at reflecting on the judicial control of the discretionary measures in banking and financial fields exercised by the EU Courts, as well as the ‘quasi-judicial’ control, in the same fields, exercised by the Boards of Appeal. Therefore, the present article firstly discusses the EU Courts’ general approach over discretionary acts, assessing the peculiarities of the cases related to decisions taken by banking authorities. Secondly, the papers assessesthe ‘new’ means of quasi-judicial accountability, i.e. SRB Appeal Panel and the ESAs JBoA, their jurisprudence vis-à-vis discretionary choices of EU banking authorities and whether and how their role could be enhanced for improving a greater accountability. Finally, the article discusses the possible evolution of EU Courts in reviewing banking law, particularly after the 2015-2019 Reforms of CJEU Statute (and those currently ongoing). 979

Some Reflections on the Standard of Review in the Experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel

Abstract 950In light of the experience we surmise that, in the EU law of finance, both for European courts and the BoA and AP the question is not about changing the standards of review as they stand; it is about ensuring that the standard of legality review is meaningfully applied, because the reviewing court or quasi court is capable of engaging in a dialogue with the supervisory institution in its own terms and challenge its reasoning, having due regard to all factual elements of the case. What kind of error of assessment counts as ‘manifest’ cannot be determined independently of the Court’s understanding of what falls within the acceptable range, which, in turn, cannot be established without reference to the court’s willingness to take an hard, or better said, closer look at all factual and legal elements of the reasoning. Thus, albeit with nuances often determined by the specific features of each case, in the supervisory and resolution context it seems to us that the marginal v full review debate is, in the Banking Union, more academic than practical and that a full assessment of facts, to the extent that procedural rules allow a proactive evidentiary role, Q&A and expert witness, and a stringent review of the interpretation and application of law (and thus of the substantive legality) is possible, and thus full legal accountability and full effective judicial protection is warranted.951

The Financial Appeal Bodies of the European Union: Nature and Future of the Appeal Panel of the Single Resolution Board

Abstract 936The three financial appeal bodies established in the EU (Board of Appeal of the European Supervisory Authorities, Administrative Board of Review of the SSM, and Appeal Panel of the Single Resolution Board) have certainly a number of advantages. Particularly, their technical expertise in matters of financial supervision and resolution makes them well placed to understand the intricacies, complexities and reactions of financial markets. The members of these bodies are individuals of high repute, with a proven record of relevant knowledge and professional experience and are not bound by any instructions, thereby acting independently and in the public interest. Yet, there are also drawbacks as the nature of these financial appeal bodies is hybrid, quasi-judicial, combining features from both advisory committees and courts of justice. Also, the legal regime applicable to these financial appeal bodies is both complex and not uniform. The rationale of the new European financial regulatory regime post GFC, which prompted the creation of the appeal bodies, resides in the primacy of financial stability and public interest considerations. Although there is no doubt that administrative decisions need to be motivated if they are to be reviewed, most of such decisions in the area of banking and finance are very complex and yet timing is crucial for them to be effective. On these grounds, legitimacy and accountability are of utmost importance for any democratic system to properly function; however, the more complex the activity, the more difficult it is to establish clear standards of conduct and specific outcomes.937

A promise kept? The first years of experience of the Appeal Panel of the SRB

Abstract Within the institutional architecture for financial supervision within the EU, courts coexist with quasi-courts, i. e., review bodies like the ESAs Joint Board of Appeal, the SSM’s Administrative Board of Review (ABoR) and the SRB’s Appeal Panel. This has parallels e. g. US Administrative Law Judges (ALJs). Some argue that this flight away from courts is justified because administrative law and procedure are more flexible. Yet administrative mechanisms are deceptively simple. This paper offers a cautionary tale about the complexities of all quasi-judicial arrangements and their competing and complementary role with courts and presents an analysis of the European framework from both a functional and a comparative perspective.

Final Decision of the Single Resolution Board (SRB) Appeal Panel, BNP Paribas S.A., BNP Paribas Personal Finance and BGL BNP Paribas v the Single Resolution Board (Case 1/2022, 14 April 2023)

Zusammenfassung Nach Veröffentlichung der damals jüngsten Entscheidung des Joint Board of Appeal der ESAs vom 21. 7. 2022 in ZBB 2022, 240 findet sich nachfolgend die aktuellste Entscheidung einer weiteren Institution, die im Zuge der Bankenunion eingerichtet wurde, dem Beschwerdeausschuss des Einheitlichen Abwicklungsausschusses (SRB Appeal Panel), Art. 85 Abs. 1 VO (EU) Nr. 806/2014. Gem. Art. 85 Abs. 3 der Verordnung kann jede natürlich oder juristische Person einschließlich der Abwicklungsbehörden Beschwerde gegen einen der aufgeführten Beschlüsse des Abwicklungsausschusses einlegen, sofern dieser gegen sie gerichtet oder sie unmittelbar von diesem betroffen ist. Die in der nachfolgenden Entscheidung verhandelten MREL waren auch bereits Thema der Entscheidung 3/22 des Beschwerdeausschusses vom 13. 2. 2023. Ausführungen zu dieser finden sich bei Lamandini/Ramos Munoz, ZBB 2023, 158 – in diesem Heft.

PD53 Improving Patient Involvement In The National Institute For Health And Care Excellence’s Appeals Process

IntroductionInvolving patients in the health technology assessment (HTA) lifecycle is a core principle at the National Institute for Health and Care Excellence (NICE) that helps build public confidence in healthcare decision-making. The last stage in this lifecycle is an appeal whereby stakeholders, including patient organizations, can appeal against the HTA committee’s decision based on two specific grounds: (i) the committee has failed to act fairly or NICE has exceeded its powers; and (ii) the recommendation is unreasonable considering the evidence submitted to NICE. Improving patient involvement in the appeals process was identified as a key area from consultative work undertaken with patient organizations in 2019.MethodsIn September 2020, surveys were sent to patient organizations for their feedback. The organizations received a survey tailored to their circumstances in relation to the following four outcomes.(i)An appeal was lodged that: (a) resulted in an appeal hearing; or (b) did not result in an appeal hearing.(ii)An appeal was not lodged but the organization had received: (a) negative guidance; or (b) ‘optimized’ guidance.ResultsSixteen responses were received across the four surveys. The key findings in priority order were as follows.(i)The legalist nature of appeal hearings is off-putting.(ii)The online appeals guide and template letter are not easy to use.(iii)Organizations would like more information on appeal hearings and timelines.(iv)Organizations would like patient-friendly materials and training on par with the support they receive for other HTA participation.ConclusionsAs a result of these findings, we are iteratively developing materials to support patient organizations, including:•a glossary;•a redesigned appeals web page with clearer timelines and a template letter;•a ‘Frequently Asked Questions’ document specifically for patient organizations; and•a video podcast from a lay appeals panel Chair explaining appeals in a patient-friendly way.We are also including a section on appeals in our introductory training for all patient organizations participating in medicines HTAs.

As the Water Grinds the Stone: Comparison of Represented and Self-represented Appellant Populations in the Federal Court of Appeal

This article reports a quantitative and statistically reliable population investigation of 552 Federal Court of Appeal proceedings that were appeals by represented and self-represented appellants who, in 2016 or 2017, appealed decisions of the Federal Court or Tax Court of Canada. Appeals by the Crown, non-Crown represented appellants, and self-represented appellants exhibited markedly different frequencies at which appeals were granted, and patterns for how appeals were terminated. Nearly half of Crown appeals were granted, but less than one in twenty self-represented appellants had any degree of success. While 70% of appeals conducted by lawyers completed the appeal process, less than 40% of self-represented appellant proceedings resulted in a full appeal panel hearing. Incomplete appeals by self-represented appellants usually terminated prior to the appeal record stage, and typically were either abandoned or discontinued. The time required to complete appeals for represented and self-represented appellants is similar. The high observed frequency of problematic litigation records for self-represented appellants supports the hypothesis that a “Distillation Effect” is concentrating abusive litigants in appellate forums.
 High resolution investigation of self-represented appellant subgroups revealed differences within the overall self-represented appellant population. Self-represented appellants emerging from the Federal Court and Tax Court of Canada are different populations. The former were much more likely to have an abusive litigation history, while the latter voluntarily discontinued appeals, and were never subject to Federal Court of Appeal vexatious litigant management steps. Self-represented appellant proceedings that terminated prematurely or that were conducted by persons who are subject to court access restrictions had significantly more filed documents and docket records. Litigation management steps did not reduce the Registry and Court workload resulting from self-represented appellants subject to court access restrictions. These observations challenge modelling self-represented litigants as a single population with uniform characteristics.

‘… they had interpreted “disability” as referring to a patently visible disability’: experience of a patient group with NICE

Erythropoietic protoporphyria (EPP) is an ultra-rare genetic disorder characterised by intolerance to visible light. Starting in early childhood, people with EPP suffer from social isolation, impaired educational and occupational opportunities, and low quality of life. Afamelanotide is the only effective and approved therapy for EPP. In England, its cost-effectiveness is currently assessed by the National Institute for Health and Care Excellence (NICE), which in 2018 issued a negative recommendation for funding. Stakeholder organisations, including our patient organisation, submitted appeals against the recommendation, which were upheld in all possible grounds. Moreover, the appeal panel expressed concerns about whether the evaluating committee discriminated against people with EPP and suggested that it seek guidance regarding the Equality Act 2010. However, three years later, the identified issues have not been addressed and patients in England remain without treatment. Afamelanotide represents another example for the trend towards a loss of fairness in NICE decisions.

Information constraints and examination quality in patent offices: The effect of initiation lags

Using an exogenous policy change in Japan that accelerated patent examination, we examined how information constraints in a patent office affect patent examination quality in terms of both type I errors (wrong grants) and type II errors (wrong rejections). We found that accelerated examination increased both types of errors, but the increase in the number of wrong grants dominated that in the number of wrong rejections. Furthermore, the effect was stronger for technology sectors wherein the information constraints on examiners were stronger (short technology cycles and early examination requests) before the policy change. Our main results held when using the examination and appeal panel data of the Japan Patent Office (JPO) as well as for the matched sample of the JPO and European Patent Office examinations. In conclusion, a better information gathering system is important for improving the quality of patent examination by patent offices.

PNS61 The Second Coming of the Nice Appeal Process?

The National Institute of Health and Care Excellence (NICE) evaluates the clinical and economic impact of new healthcare technologies to inform public reimbursement recommendations. Consultees can lodge appeals to NICE recommendations within 15 days of final draft guidance. These are subject to scrutiny to see if they fall within the grounds for appeal, and if so, an appeal panel is convened. This research systematically evaluated NICE technology appraisal appeals.

Law and practice of financial appeal bodies (ESAs’ Board of Appeal, SRB Appeal Panel): A view from the inside

This paper offers some lessons drawn from the first years of experience of both the joint Board of Appeal (BoA) of the European Supervisory Authorities and the Appeal Panel (AP) of the Single Resolution Board.The paper outlines their institutional design and the main substantive and procedural issues that have arisen in the cases so far decided by both bodies. It offers a view “from the inside”, which shows not only the certainties of appeal bodies, but also their many challenges. The paper also discusses design strengths and weaknesses of the current EU adjudicatory system of public law disputes in the Banking Union and the Capital Markets Union, bearing in mind the importance of independent review, and the Vaassen criteria for “courts”. The paper concludes by offering preliminary stocktaking and reflections on a possible way forward to enhance the complementary (and supporting) role of financial appeal bodies to the EU courts.

The WTO in 2018: Systemic Developments, Disputes and Review of the Appellate Body's Reports

2018 has been a momentous year for the WTO, a turning point in the history of the organization, with the US turning its back to a 70-year old support of multilateralism in principle and practice. Notwithstanding the looming blockage of the Appellate Body and the wave of restrictive measures imposed by the United States, or rather, also due to the latter, 2018 has been a very busy year for the DSS especially at the panel level. In 2018 the DSB established in respect of distinct disputes 33 panels (the highest number ever), nine of which concerning the US steel and aluminum tariffs. During the same period the DSB adopted 11 panel reports, including six that had not been appealed and five together with the corresponding appeal panel and five Appellate Body reports (seven proceedings). At the end of 2018 there were 12 appeals pending before the Appellate Body (9 cases).

Administrative Kontrolleinrichtung auf EU-Ebene

The Single Resolution Board (SRB), created by a Regulation of the EU, is the response of the European Union to the financial crisis. It’s intervention powers and competences are respectively wide. The SRB collects from the systemically relevant credit institutions of the „Eurocountries“ contributions to cover its administrative expenses on the one hand and in a significant degree for financing the Single Resolution Fund on the other hand. The experience of the SRB Appeal Panel confirms that such an expert committee is an appropriate instrument for the review and correction of administrative decisions. Currently, its experts come from Finland, Greece, Italy, Austria, Portugal, Spain and Germany. With the support of its independent Secretariat based in Brussels, the communication takes place to a large extent via electronic media and teleconferences, but also in form of physical meetings of its members in Brussels.

The Wto in 2017: Systemic Developments, Disputes and Review of the Appellate Body’s Reports

2018 has been a momentous year for the WTO, a turning point in the history of the organization, with the US turning its back to a 70-year old support of multilateralism in principle and practice. Notwithstanding the looming blockage of the Appellate Body and the wave of restrictive measures imposed by the United States, or rather, also due to the latter, 2018 has been a very busy year for the DSS especially at the panel level. In 2018 the DSB established in respect of distinct disputes 33 panels (the highest number ever), nine of which concerning the US steel and aluminum tariffs. During the same period the DSB adopted 11 panel reports, including six that had not been appealed and five together with the corresponding appeal panel and five Appellate Body reports (seven proceedings). At the end of 2018 there were 12 appeals pending before the Appellate Body (9 cases).

Retroactive Judicial Imputation of Consent to (Arguably) Predatory Loan Terms into a Student's Loan Application: A Critique of Foster v. NCSLT 2007-4, No. 01-17-00253-CV, 2018 WL 1095760 (Tex. App. Houston [1st Dist.] March 1, 2018, no. pet. h.).

In March 2018, a Texas Court of Appeals panel in Houston affirmed a judgment for one of the National Collegiate Student Loan Trusts as to liability on a very costly private student loan based on the theory that Ladanta Foster, a student at Texas Southern University (TSU) in 2007, had agreed to what turned out to be much costlier loan terms than those printed on the loan application by signing the loan application. To reach this result, the Court relied on the theory that the TIL Disclosure was part of the contract, and that the terms on the Disclosure became incorporated into her signature on the application even though the signature on the loan application preceded the TIL Disclosure statement by about a week. Significantly, the loan terms stated on the Note Disclosure Statement that the Trust produced in its collection suit against Foster were much more onerous than those stated on the application form, both with respect to the APR and the amount of the origination fee to be immediately added to the loan balance. There was no evidence that the TIL Disclosures had been sent to the applicant, but the Court nevertheless enforced them as contract terms. After the Foster opinion was handed down, the Trusts’ attorneys promptly moved to have the problematic precedent applied in three additional pending appeals, one involving the same trust (NCSLT 2007-4), two involving different trusts (NCSLT 2003-1 and NCSLT 2005-3). This amicus brief, to be submitted in one of the other pending cases, offers a critique of the opinion disposing of Foster v. National Collegiate Student Loan Trust 2007-4 and discusses the relevant legal issues within the framework of the four currently pending appellate cases involving three different National Collegiate Student Loan Trusts in the Texas appellate system. The brief also addresses the factual and procedural distinctions among these four private student loan cases that have reached the appellate level, which is a rare occurrence, and two prior appeals that were resolved in the defendants' favor by the Fort Worth Court of Appeals in 2017. An Appendix provides a systematic overview of case characteristics for the six most recent appeals involving National Collegiate Student Loan Trusts private student loan collection cases in Texas courts.

Legal Protection against Decisions of the Single Resolution Board pursuant to Article 85 Single Resolution Mechanism Regulation

The Single Resolution Board is a powerful authority in the European Union – perhaps even one of the most powerful. The system for legal protection against decisions of the Single Resolution Board based on Article 85 of the Regulation (EU) No 06/2014 is complex. The competent Appeal Panel has rejected more than 80 percent of all cases up to now and decided that the large majority of all appeals were not even admissible. Nevertheless, the legal literature on legal protection against decisions of the Single Resolution Board is minimal. As far as can be seen, no in-depth examination of the appeal procedure has been published yet. Case law of the General Court is not (yet) available. This study examines Article 85 of the Single Resolution Mechanism Regulation and presents an interpretation of the legal protection system that balances the interests of credit institutions as well as the interests of the European financial market and the European taxpayers in a powerful European resolution authority. The results are summarised in 10 theses at the end of this paper for further discussion.

ANALISIS YURIDIS PUTUSAN BEBAS TERDAKWA ANGGOTA POLRI DALAM PERKARA TERTEMBAKNYA WARGA SIPIL DI MESUJI LAMPUNG

The Free Verdict handed down by the Appellate Court of the Tanjungkarang High Court is a judgment that has fulfilled the sense of justice for the defendant AKP WH as a member of the Police, because the Panel of Judges has shown the authority of this law in the eyes of the public in general and gives appreciation to the Indonesian Police measures in securing the show anarchist feelings that people do. However, the justification justifying the decision of the Tanjungkarang High Court of Appeals Court is the issue that needs to be investigated to determine what is considered by the Panel of Justices so that in its decision to free the Defendant AKP WH from all charges.The conclusion of the research that has been done is that the free judgment handed down by the Appeals Judge to the defendant is based on several considerations that are used as justification reasons, among others; the defendant has performed his duties in accordance with the procedures laid down in the applicable law and the use of firearms to disperse anarchist masses and no longer any party to the act of the defendant, material or moral, as all parties have agreed to make peace. Reviewing the facts presented in the appeals court by the Appeals Panel is used as the Rejection and Forgiveness Reason because there is no longer any legal provisions violated by the defendant AKP WH, the Panel of Judges frees the defendant from all charges

Clostridium difficile multidisciplinary team root cause analysis: impact on clinical care and circumvention of financial penalties posed by clinical commissioning groups, but at what cost?

In Hampshire Hospitals NHS Foundation Trust, in addition to an on-the-spot investigation into hospital-onset Clostridium difficile infection (CDI) by the infection prevention team, a multidisciplinary team root cause analysis (MDT-RCA) forum has been developed. The MDT-RCA aims to deliver a more thorough investigation into individual cases and the recommendation of cases to the clinical commissioning groups (CCG) appeals panel against potential financial penalties (£10,000 per breached case). We mainly aimed to investigate the financial impact of MDT-RCAs to the Trust. Over two years, 84 cases of hospital-onset CDI cases were reviewed by the MDT-RCA forum. Among this cohort, no additional learning outcomes were identified by the MDT-RCAs over those that were found by on-the-spot investigations. In total, 543 staff members attended the MDT-RCAs at a potential cost to the Trust of £23,795.74-£51,670.10. The Trust appealed against financial penalties for 27 cases and 14 were successful, i.e. £140,000 would have been avoided had targets been breached by 14 cases. However, targets were only breached by two cases, meaning only £20,000 in fines was avoided. Deducting this from the total costs of the MDT-RCA meant the Trust lost £3,795.74-£31,670.10. Over the two years reviewed, the MDT-RCA proved to be costly to the Trust, with no additional learning or quality improvement measures identified.

Legal Protection against Decisions of the Single Resolution Board Pursuant to Article 85 of the Regulation (EU) No 806/2014 (Single Resolution Mechanism)

The Single Resolution Board is a powerful authority in the European Union – perhaps even one of the most powerful. The system for legal protection against decisions of the Single Resolution Board based on Article 85 of the Regulation (EU) No 806/2014 is highly complex. The competent Appeal Panel has rejected more than 80 per cent of all cases up to now and decided that the large majority of all appeals were not even admissible. Nevertheless, the legal literature on legal protection against decisions of the Single Resolution Board is minimal. As far as can be seen, no in-depth examination of the appeal procedure has been published yet. Case law of the Court of the European Union is not (yet) available. This study examines Article 85 of the Regulation (EU) No 806/2014 and presents an interpretation of the legal protection system that balances the interests of credit institutions as well as the interests of the European financial market and the European taxpayers in a powerful European resolution authority. The results are summarised in 10 theses at the end of this paper for further discussion.