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

Lamandini Marco and Ramos Muñoz David
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Lamandini Marco: Marco Lamandini is professor of commercial law at the Alma Mater Studiorum Università degli Studi di Bologna. He also serves as a vice-chair of the Academic Board of the European Banking Institute (EBI) and as a member of the Academic Board of the European Capital Markets Institute (ECMI). He has been the second President of the Joint Board of Appeal of the European Financial Supervisory Authorities and is a member of the Appeal Panel for the Single Resolution Board (SRB), as well as a member of the Italian Arbitro Bancario Finanziario. Italy
Ramos Muñoz David: David Ramos Muñoz is associate professor of commercial law at Universidad Carlos III de Madrid, and a regular visiting professor at the Alma Mater Studiorum Università degli Studi di Bologna. He is a member of the European Banking Institute (EBI) and of the European Law Institute (ELI). He is an alternate member of the Joint Board of Appeal of the European Financial Supervisory Authorities and an alternate member of the Appeal Panel for the Single Resolution Board (SRB). Spain

European Company and Financial Law Review, 2022, vol. 19, issue 6, 950-970

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

Date: 2022
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DOI: 10.1515/ecfr-2022-0027

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