Introduction
On June 1st, 2022, the General Court delivered five much-anticipated rulings on the Banco Popular case. The rulings are gargantuan in length and raise numerous issues from the perspective not only of the Single Resolution Mechanism but also of European administrative law in general. This contribution focuses solely on one of those issues – on the review, by the General Court, of whether the resolution of Banco Popular respected the duty of Union authorities to give reasons.
The violation of that duty was invoked by the claimants in all five rulings. In three (T‑510/17, T‑523/17, T‑570/17), the applicants argued that the Commission had failed to fulfil its duty to give reasons because it merely expressed agreement with the SRB’s resolution scheme. Recital 4 of Decision 2017/1246, which endorsedthat scheme, limited itself to declaring:
“The Commission agrees with the resolution scheme. In particular, it agrees with the reasons provided by the SRB of why resolution is necessary in the public interest in accordance with Article 5 of Regulation No 806/2014.”.
The crux here was the admissibility of what some systems of administrative law refer to as reasons-giving per relationem or, in the terminology chosen by the English version of CJEU case law, referential statements of reasons. Referential statements of reasons are statements of reasons in which the deciding authority, rather than setting out itself the reasons for the decision it takes, points out the reasons contained in prior (often preparatory) acts. To my best knowledge, the batch of rulings birthed by the Banco Popular saga constitutes the most developed analysis on referential reasons-giving in the CJEU’s case law to date. Crucially, the rulings illustrate well how tools of administrative procedure that are broadly accepted in many national laws may need to be adapted to the Union’s unique constitutional framework (an argument I made elsewhere before).
Referential reasons-giving in brief
The possibility of giving referential reasons for an administrative decision is explicitly enshrined in the public law of several Member States. Section 3:49 of the Dutch General Administrative Law Act and Article 153 of the Portuguese Code of Administrative Procedure are just two examples. The latter provides, for example, that statements of reasons “may consist in a mere declaration of agreement with the motives of previous opinions, [shared] information or proposals, which constitute, in that case, an integral part of their respective [administrative] act”.
CJEU case law also allows the Union administration to resort to this technique. The CJEU has held that “the statement of reasons for an administrative act may refer to other acts and, in particular, take note of the content of an earlier act, especially if it is connected” (see Case C-119/97 P, Ufex, EU:C:1999:116, para. 57).
The advantages of referential reasons-giving are easy to grasp. It prevents unnecessary duplication of efforts, as the deciding authority, by simply referring to prior acts, will need neither to draft a full statement of reasons nor to replicate the text of those acts into one. One further and less discussed advantage is that referential reasons-giving allows authorities to transparently disclose deference to the judgment of authorities with greater expertise on the subject matter at hand.
What is crucial, in comparative and Union administrative law, is that, when combined, the act requiring reasons and the prior act to which it refers should meet the general requirements of statements of reasons. If the referred act contains obscure or contradictory reasons; or if the reference is made in unclear terms, the duty to give reasons will not have been fulfilled.
Referential reasons-giving and the Meroni doctrine
In the Banco Popular rulings, the General Court began by recalling that the statements of reasons must be (i) appropriate to the measures in question, (ii) clearly and unequivocally disclose the reasoning of the institution, and (ii) enable effective judicial control. The General Court also restated some factors which may justify easing the burden of giving reasons. A statement of reasons does not need “to specify all the relevant facts and points of law”. It may be assessed in regard “not only to its wording but also to its context and to all the legal rules governing the matter in question”. Its ‘degree of precision’ must “be weighed against practical realities, and the time and technical facilities available for taking the measure” (for example, here, at paras 146-147).
In Banco Popular, factors such as these were decisive for the General Court to consider that the Commission had adequately reasoned its endorsement of the SRB’s proposed resolution scheme. Indeed, the General Court might have found its statement of reasons insufficient had it not been for the urgency of decisions on the resolution of banks.
When examining the sufficiency of the Commission’s referential statement of reasons, the General Court observed that, under the SRM Regulation, the Commission has two options once it receives the SRB’s proposed resolution scheme. After examining its discretionary aspects, the Commission may either endorse or object to the resolution scheme. Accordingly, the General Court held, “[where] the Commission endorses the resolution scheme, the statement of reasons for its decision may be limited to indicating that it agrees with the reasons contained in the scheme” (for instance, T-510/17, at para 557; T-523/17, at para 556; and 570/17, at para 154). Referential reasons-giving, it seems, is perfectly admissible when the Commission adopts a measure proposed by a Union agency.
Comment
However, as some applicants claimed – and indeed, as the General Court, itself recognised – referential statements of reasons may be difficult to square with the Meroni doctrine.
The resolution of credit institutions under the Single Resolution Mechanism follows an administrative procedure with multiple distinct stages Multiple authorities are involved – the European Central Bank, the Single Resolution Board, the national resolution authority, the European Commission, and if necessary, the Council of the European Union. The reason for the involvement of the latter two is the Meroni doctrine. Delegating discretionary choices of economic policy (such as those involved in a resolution scheme) to Union agencies (such as the SRB), without the competent Union institutions (the Commission or Council) having the final word, would amount to absolving the latter from the legal and political responsibility which, according to the Treaties, should belong to them. For that reason, referential reasons-giving in administrative procedures involving Union agencies raises constitutional issues that would not arise in administrative procedures which exclusively involve Union institutions – and indeed, which would not arise in purely national administrative decision-making either.
Adopting a statement of reasons merely agreeing with the SRB – especially in a context where the Commission decision was taken within a little more than an hour after the SRB measure – makes it impossible to assess whether the Commission actually exercised its discretion or merely rubber-stamped the outcome of the procedure.
Indeed, the need for the exercise of discretion by a Union institution at the conclusion of an administrative procedure makes it possible for that institution, rather than the Union agency involved, to take legal and political responsibility for the policy choices made in the final decision. As with any instance of Union administrative discretion (see for example here, at para 55), how the Commission exercises its discretion when engaging with a Union Agency’s preparatory acts constitutes a matter which requires reasons-giving. Accordingly, the failure of a Union institution to sufficiently explain how it analysed the assessment contained in an Agency’s acts, or to justify why it agreed with such assessment, constitutes, in my view, a violation of the duty to give reasons.
In conclusion, had it not been for the urgency of the decision – which, as mentioned before, may ease the need for extensive reasons – it would have been more difficult for the General Court not to conclude that the duty to give reasons to have been breached. The question will remain if that duty should not require that, when referential statements of reasons are used in the interest of urgency, at least some explanation should be given as to why a decision is so very urgent. Lastly, it must be recalled that not all administrative procedures involving Agencies are urgent. Only time will tell whether the Court will be as lenient in future cases involving statements of reasons which limit themselves to laconic references to prior Agency measures.
Posted by Filipe Brito Bastos, Assistant Professor, Nova School of Law and researcher at CEDIS
Suggested citation: F Brito Bastos, “Referential reasons-giving and the limits of Union Agencies’ power”, REALaw.blog, available at https://wp.me/pcQ0x2-tx
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