{"id":775,"date":"2018-07-31T14:06:42","date_gmt":"2018-07-31T14:06:42","guid":{"rendered":"http:\/\/eulawenforcement.com\/?p=775"},"modified":"2019-03-15T13:53:21","modified_gmt":"2019-03-15T13:53:21","slug":"constitutional-challenges-of-administrative-enforcement-centralization-transparency-in-banco-popular","status":"publish","type":"post","link":"https:\/\/eulawenforcement.com\/?p=775","title":{"rendered":"Constitutional challenges of administrative enforcement centralization \u2013 Transparency in Banco Popular"},"content":{"rendered":"

This blog has paid careful attention to the current strengthening<\/a> of centralized enforcement of EU law by European institutions, organisms and bodies, which is increasingly replacing national implementation in many areas of law. This process is also taking place when national authorities were entrusted with the enforcement of EU secondary law that provided for transnational administrative acts. In particular, both transnational authorizations and ex post<\/em> administrative measures adopted by national authorities are being substituted by enforcement decisions taken by EU agencies, at times after the implementation of a composite procedure. The point that I want to make here is twofold: leaving aside its impact on EU law effectiveness, centralization transfers problems of compliance with constitutional requirements of administrative enforcement towards EU agencies<\/strong>, and ultimately it intensifies the constitutional dimension of the Court of Justice<\/strong> of the European Union (CJEU). <\/span><\/p>\n

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I will develop these two claims from the perspective of the principle of transparency<\/strong>, where they are particularly visible, and I will use the resolution of Banco Popular<\/a><\/em>, a case which is still pending before the General Court (GC), as an example to illustrate them. Resolution of credit institutions is one of those areas of law that have been subject to administrative enforcement centralization. Regulation (EU) 806\/2014<\/a> establishes uniform rules and a uniform procedure for resolution decisions. Instead of being implemented by national authorities, the corresponding enforcement competences are conferred upon the Single Resolution Board<\/strong> (SRB), which is an EU agency. <\/span><\/p>\n

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On 6 June 2017, the European Central Bank (ECB) announced<\/a> that Banco Popular<\/em> was \u201cfailing or likely to fail\u201d and communicated this finding to the SRB. According to the ECB, \u201cthe significant deterioration of the liquidity situation of the bank in recent days led to a determination that the entity would have, in the near future, been unable to pay its debts or other liabilities as they fell due\u201d. On the following day, the SRB adopted a resolution decision, transferring all shares and capital instruments<\/strong> of Banco Popular to Banco Santander<\/em> for one euro. The resolution decision, which was endorsed by the European Commission the very same day, was addressed to the Spanish resolution authority (the FROB) for implementation. <\/span><\/p>\n

Transparency raises constitutional problems here, from two different standpoints. The first one relates to the SRB’s duty to give reasons for the resolution decision<\/strong>. In its resolution decision<\/a>, the SRB argued that the requirements laid down in Article 18 of the Regulation (EU) 806\/2014 were fulfilled in the Banco Popular<\/em> case, namely: <\/span><\/p>\n