Duty of care as a judicial review tool for SSM composite procedures

Budinská, B.; Tegelaar, J.T.; Böffel, L.; Schürger, J.

doi:doi:10.1007/978-3-031-17077-5_11

In the Single Supervisory Mechanism (SSM), decisions to grant or oppose an acquisition of a qualifying holding in a bank are adopted in a so-called composite procedure. First, the national competent authority (NCA) assesses the proposed acquisition based on five criteria enshrined in Art. 23(1) of the Capital Requirements Directive IV (CRD IV) and implemented into national law. Then, it forwards a proposal for a decision to the European Central Bank (ECB). The ECB adopts the final decision. One of the criteria requires an assessment of whether, in connection with the proposed acquisition, there are reasonable grounds to suspect (potential) breaches of rules on the prevention of money laundering (AML) or financing of terrorism (CFT). While the NCAs have the competence to assess such (potential) breaches, the SSM Regulation did not confer AML and CFT-related supervisory tasks on the ECB. The ECB must thus to a certain extent rely on the national AML/CFT assessment. The question is...Show moreIn the Single Supervisory Mechanism (SSM), decisions to grant or oppose an acquisition of a qualifying holding in a bank are adopted in a so-called composite procedure. First, the national competent authority (NCA) assesses the proposed acquisition based on five criteria enshrined in Art. 23(1) of the Capital Requirements Directive IV (CRD IV) and implemented into national law. Then, it forwards a proposal for a decision to the European Central Bank (ECB). The ECB adopts the final decision. One of the criteria requires an assessment of whether, in connection with the proposed acquisition, there are reasonable grounds to suspect (potential) breaches of rules on the prevention of money laundering (AML) or financing of terrorism (CFT). While the NCAs have the competence to assess such (potential) breaches, the SSM Regulation did not confer AML and CFT-related supervisory tasks on the ECB. The ECB must thus to a certain extent rely on the national AML/CFT assessment. The question is how to reconcile the ECB’s lacking AML/CFT competence with its sole responsibility and legal accountability for the final decision on a proposed acquisition. This contribution suggests that the general principle of duty of care can be calibrated to allow the ECB to review the AML/CFT assessments made by the NCA without exceeding the limits of its competence and ensure a judicial review by the EU courts.
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Duty of care as a judicial review tool for SSM composite procedures