Some Reflections on the Standard of Review in the Experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel
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Marco Lamandini
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
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Articles in the same Issue
- Frontmatter
- Frontmatter
- Introduction
- Inter-agency Cooperation Within the SRM: Legal and Operational Challenges for the Cooperation Between Banking Supervision and Resolution Authorities in the EU and With Third-country Authorities
- The Legal and Practical Challenges Which Arise in Recognition of Third-Country Resolution Action: A Case Study in Cooperation Between Banking Supervision and Resolution Authorities
- Panel I of the SRB Legal Conference – Legal and Operational Challenges That Arise in Respect of the Cooperation Between Banking Supervision and Resolution Authorities in the EU and in Respect of Their Cooperation with Third-Country Authorities
- The Financial Appeal Bodies of the European Union: Nature and Future of the Appeal Panel of the Single Resolution Board
- Some Reflections on the Standard of Review in the Experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel
- Legal Conference – Panel II – Role, Scope of Review and Significance of Internal Administrative Review Bodies in the Banking Union and in the European System of Financial Supervision
- The ‘judicial’ control of discretionary measures in banking and financial fields: the role of EU Courts (and Boards of Appeal)
- Administrative Discretion in U. S. Banking Regulation
- Panel III of the SRB Legal Conference – The Exercise of Administrative Discretion by Banking Authorities and the Need to Ensure Accountability; Perspectives From the EU and US
Articles in the same Issue
- Frontmatter
- Frontmatter
- Introduction
- Inter-agency Cooperation Within the SRM: Legal and Operational Challenges for the Cooperation Between Banking Supervision and Resolution Authorities in the EU and With Third-country Authorities
- The Legal and Practical Challenges Which Arise in Recognition of Third-Country Resolution Action: A Case Study in Cooperation Between Banking Supervision and Resolution Authorities
- Panel I of the SRB Legal Conference – Legal and Operational Challenges That Arise in Respect of the Cooperation Between Banking Supervision and Resolution Authorities in the EU and in Respect of Their Cooperation with Third-Country Authorities
- The Financial Appeal Bodies of the European Union: Nature and Future of the Appeal Panel of the Single Resolution Board
- Some Reflections on the Standard of Review in the Experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel
- Legal Conference – Panel II – Role, Scope of Review and Significance of Internal Administrative Review Bodies in the Banking Union and in the European System of Financial Supervision
- The ‘judicial’ control of discretionary measures in banking and financial fields: the role of EU Courts (and Boards of Appeal)
- Administrative Discretion in U. S. Banking Regulation
- Panel III of the SRB Legal Conference – The Exercise of Administrative Discretion by Banking Authorities and the Need to Ensure Accountability; Perspectives From the EU and US
