Date: 2023-04-27Category: Not ApplicableState: Union GovernmentCountry: Europe
Decision (EU) 2023/864 of the European Central Bank of 13 April 2023 amending Decision ECB/2014/16 concerning the establishment of an Administrative Board of Review and its Operating Rules (ECB/2023/11)
**Executive Summary:**
This decision amends Decision ECB/2014/16 regarding the Administrative Board of Review's operating rules, clarifying aspects related to alternates, review scope, admissibility assessments, cost apportionment, and organizational matters. It aims to adapt the rules based on experience gained since the Board's establishment. The decision enters into force twenty days after its publication in the Official Journal of the European Union.
**Key Points / Main Content:**
* **Membership and Appointments:**
* Governing Council designates an alternate as a member in case of permanent incapacity/death/resignation/removal and appoints a new alternate or member.
* Executive Board submits nominations for members and alternates to the Governing Council after a public call for expressions of interest.
* **Notice of Review Requirements:**
* The notice must state grounds for review, grounds for suspensory effect application (if applicable), and include copies of relevant documents.
* Notices exceeding 10 pages should include a summary of grounds and documents.
* The notice must clearly indicate the applicant's full contact details.
* The Secretary sends confirmation of receipt within three working days, indicating completeness.
* Applicants have a maximum of five working days to complete incomplete notices. Failure to do so may result in non-initiation of the review procedure.
* **Scope and Admissibility of Review:**
* The Administrative Board's review is limited to the applicant's stated grounds and breaches of essential procedural requirements.
* The Board determines the admissibility of the review request before examining procedural and substantive conformity.
* Manifestly inadmissible requests may be declared inadmissible within 10 working days, with reasons stated.
* A notice of review filed in respect of a new decision of the Governing Council as referred to in Article 24(7) of Regulation EU No 1024/2013 shall not be admissible.
* **Hearing Procedures:**
* Hearings take place at the ECB's premises or via videoconference, with the Secretary present.
* Hearings are not open to third parties.
* **Supervisory Board's Role:**
* The Supervisory Board assesses the Administrative Board's opinion and proposes a new draft decision to the Governing Council, taking into account other elements beyond the applicant's grounds.
* Where the internal administrative review is not initiated due to the absence of a complete notice of review in accordance with Article 7(4) or where the Administrative Board declares the request for review inadmissible in accordance with Article 11(2), the Supervisory Board shall not propose a new draft decision to the Governing Council.
* **Cost Apportionment:**
* The Supervisory Board proposes the proportion of costs borne by the applicant after the new decision, withdrawal of the notice, or declaration of inadmissibility.
* Applicants are entitled to make representations regarding cost apportionment.
* Methodology for cost apportionment is outlined in the Annex.
* **Annex: Cost Methodology**
* ECB reimburses applicant costs if the Governing Council abrogates or amends the operative part of the initial decision (excluding disproportionate costs for written/oral evidence and legal representation), up to EUR 50,000.
* If the Governing Council replaces the decision with an identical one or amends only the non-operative part, or if the request is declared inadmissible, the applicant contributes to the ECB's costs: EUR 500 for natural persons, EUR 5,000 for legal persons.
* If the applicant withdraws the notice or in justified specific circumstances, each party bears its own costs.
**Impact Analysis**
* **Applicants (Entities Requesting Review):**
* *Impact:* Modified procedures for submitting notices of review, clarified scope of review, potential for cost contribution in certain circumstances, and specified reimbursement conditions.
* *Action Required:* Adhere to revised requirements for notices of review, including content, completeness, and deadlines. Be prepared to contribute to costs if applicable.
* **Administrative Board of Review:**
* *Impact:* Clarified role of alternates, refined process for assessing admissibility of review requests, and changes to the scope of their review.
* *Action Required:* Implement the revised operating rules, particularly concerning admissibility assessments and the scope of review.
* **European Central Bank (ECB):**
* *Impact:* Amendments to cost apportionment rules, potential for cost reimbursement to applicants, and adjustments to internal procedures.
* *Action Required:* Adapt internal procedures to reflect changes in cost apportionment and reimbursement.
* **Supervisory Board:**
* *Impact:* Modification of the assessment process, the Supervisory Boards assessment shall not be limited to examination of the grounds relied upon by the applicant as set forth in the notice of review, but may also take other elements into account in its proposal for a new draft decision.
* *Action Required:* Adapt internal procedures to reflect changes in assessment process of the Administrative Boards opinion and to propose a new draft decision to the Governing Council.
* **Governing Council:**
* *Impact:* Responsible for designating Board members and alternates.
* *Action Required:* Implement modifications to the Board's procedure.
Key Entities Referenced
European Central Bank (ECB): The central bank of the European Union countries that have adopted the euro.
Treaty on the Functioning of the European Union: A treaty that forms the constitutional basis of the European Union.
Council Regulation EU No 1024/2013: A Council Regulation conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions.
Administrative Board of Review: An internal review body within the European Central Bank.
Governing Council of the European Central Bank: The main decision-making body of the European Central Bank.
Decision ECB/2014/16: Decision of the European Central Bank concerning the establishment of an Administrative Board of Review and its Operating Rules.
Decision EU 2019/1378: Decision of the European Central Bank amending Decision ECB/2014/16 concerning the establishment of an Administrative Board of Review and its Operating Rules.
Supervisory Board: The supervisory arm of the European Central Bank responsible for the prudential supervision of credit institutions.
L 112/46 EN Official Journal of the European Union 27.4.2023
DECISION (EU) 2023/864 OF THE EUROPEAN CENTRAL BANK
of 13 April 2023
amending Decision ECB/2014/16 concerning the establishment of an Administrative Board of
Review and its Operating Rules (ECB/2023/11)
THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EU) No 1024/2013 of 15 October 2013conferring specific tasks on the European
Central Bank concerning policies relating to the prudential supervision of credit institutions(1), and in particular
Article 24 thereof,
Whereas:
(1) In the light of the experience gained since the establishment of the Administrative Board of Review, it is necessary to
clarify and adapt certain aspects of its Operating Rules, which are laid down in Decision ECB/2014/16 of the
European Central Bank(2), as amended by Decision (EU) 2019/1378 of the European Central
Bank (ECB/2019/27)(3), in particular with respect to the role of alternates, the scope of the review by the
Administrative Board of Review, the assessment of the admissibility of the request for review by the Administrative
Board of Review, the methodology for the apportionment of the costs of the review incurred by the applicant and
by the European Central Bank in the context of a review by the Administrative Board and certain organisational and
practical matters.
(2) Therefore, Decision ECB/2014/16 should be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Amendments
Decision ECB/2014/16 is amended as follows:
(1) in Article 3, paragraph 4 is replaced by the following:
‘4. In case of permanent incapacity, death, resignation or removal from office of a member of the Administrative
Board, the Governing Council shall (a) designate one alternate as a member of the Administrative Board and appoint
an alternate in that alternate’s place, or (b) appoint a new member of the Administrative Board. Any appointment
made pursuant to this paragraph shall be made in accordance with the procedure laid down in Article 4(2).’;
(2) in Article 4, paragraph 2 is replaced by the following:
‘2. Following a public call for expressions of interest published in the Official Journal of the European Union, the
Executive Board, after hearing the Supervisory Board, shall submit nominations for the members of the
Administrative Board and the two alternates to the Governing Council for appointment.’;
(3) in Article 7, paragraph 4 is replaced by the following:
‘4. The notice of review shall: (a) state the grounds on which it is based; (b) if an application is made for the review
to have suspensory effect, state the grounds of such application; and (c) have attached to it copies of any documents
on which the applicant intends to rely. The notice of review should have attached to it the contested decision and, if
the notice of review exceeds 10 pages, it should include a summary of the grounds and documents specified in
points (a) to (c).’;
(1) OJ L 287, 29.10.2013, p. 63.
(2) Decision ECB/2014/16 of the European Central Bank of 14 April 2014 concerning the establishment of an Administrative Board of
Review and its Operating Rules (OJ L 175, 14.6.2014, p. 47).
(3) Decision (EU) 2019/1378 of the European Central Bank of 9 August 2019 amending Decision ECB/2014/16 concerning the
establishment of an Administrative Board of Review and its Operating Rules (ECB/2019/27) (OJ L 224, 28.8.2019, p. 9).27.4.2023 EN Official Journal of the European Union L 112/47
(4) in Article 7, paragraph 5 is replaced by the following:
‘5. The notice of review shall clearly indicate the applicant’s full contact details so that the Secretary may send
communications to the applicant or its representative as the case may be. The Secretary shall send a confirmation of
receipt to the applicant within three working days stating whether the notice of review is complete. Where the notice
of review is incomplete, the Secretary shall set a time limit of a maximum of five working days within which the
applicant shall complete the notice of review.
Where, in the view of the Administrative Board, the applicant fails to complete the notice of review within the set time
limit, the Secretary shall notify the applicant within ten working days from the expiry of that set time limit that the
administrative review procedure could not be initiated because the applicant did not complete the notice of review.
The notification shall state that under Article 24(11) of Regulation (EU) No 1024/2013 the administrative review
procedure is without prejudice to the right to bring proceedings before the Court of Justice in accordance with the
Treaties. Where the administrative review procedure is not initiated due to the absence of a complete notice of
review, an opinion on the review shall not be adopted.’;
(5) in Article 10, paragraph 2 is replaced by the following:
‘2. The Administrative Board’s review shall be limited to examination of the grounds relied on by the applicant as
set out in the notice of review and to examination of breaches of essential procedural requirements.’;
(6) Article 11 is replaced by the following:
‘Article 11
Admissibility of the request for review
1. Before examining the procedural and substantive conformity of an ECB decision with Regulation (EU)
No 1024/2013, the Administrative Board shall determine the admissibility of the request for review.
2. If the Administrative Board deems the request for review manifestly inadmissible, it may declare the request for
review inadmissible within 10 working days from the receipt of the complete notice of review. The Administrative
Board shall state the reasons on which that assessment is based.
3. Where the Administrative Board declares that the request for review is inadmissible in accordance with
paragraph 2, the Secretary shall notify the applicant immediately. The notification shall state that under
Article 24(11) of Regulation (EU) No 1024/2013 the administrative review procedure is without prejudice to the
right to bring proceedings before the Court of Justice in accordance with the Treaties. Where the request for review is
declared inadmissible in accordance with paragraph 2, an opinion on the review shall not be adopted.
4. Where paragraph 2 does not apply, the Administrative Board shall rule on the admissibility of the request for
review in the opinion on the review it adopts pursuant to Article 16. In this case, the Secretary shall notify the
applicant within 10 working days from the receipt of the complete notice of review that the Administrative Board
shall rule on the admissibility of the request for review in the opinion on the review.
5. A notice of review filed in respect of a new decision of the Governing Council as referred to in Article 24(7) of
Regulation (EU) No 1024/2013 shall not be admissible.’;
(7) in Article 14, paragraph 3 is replaced by the following:
‘3. The hearing shall take place at the ECB’s premises or via videoconference. The Secretary shall be present. The
hearing shall not be open to third parties.’;
(8) in Article 17, paragraph 1 is replaced by the following:
‘1. The Supervisory Board shall assess the Administrative Board’s opinion and propose a new draft decision to the
Governing Council. The Supervisory Board’s assessment shall not be limited to examination of the grounds relied
upon by the applicant as set forth in the notice of review, but may also take other elements into account in its
proposal for a new draft decision. Where the internal administrative review is not initiated due to the absence of aL 112/48 EN Official Journal of the European Union 27.4.2023
complete notice of review in accordance with Article 7(4) or where the Administrative Board declares the request for
review inadmissible in accordance with Article 11(2), the Supervisory Board shall not propose a new draft decision to
the Governing Council.’;
(9) in Article 21, paragraph 2 is replaced by the following:
‘2. After notification of the new decision by the Governing Council or after the applicant has withdrawn the notice
of review or after the Administrative Board has declared the request for review inadmissible, the Supervisory Board
shall propose the proportion of costs to be borne by the applicant. The applicant shall be entitled to make
representations in this regard.’;
(10) the Annex is replaced by the Annex to this Decision.
Article 2
Entry into force
This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the
European Union.
Done at Frankfurt am Main, 13 April 2023.
The President of the ECB
Christine LAGARDE27.4.2023 EN Official Journal of the European Union L 112/49
ANNEX
The Annex to Decision ECB/2014/16 is replaced by the following:
‘ANNEX
Methodology for the apportionment of the costs of the review incurred by the applicant and by the
European Central Bank in the context of a review by the Administrative Board
In cases in which the Governing Council abrogates the initial decision or amends its operative part as a consequence of the
notice of review, the ECB will reimburse the costs incurred by the applicant in the context of the review, with the exclusion
of any disproportionate costs incurred by the applicant in submitting written or oral evidence and in respect of legal
representation, which will be borne by the applicant. In any case, the reimbursement by the ECB of costs incurred by the
applicant shall not exceed EUR 50 000for each individual review by the Administrative Board.
In cases in which the Governing Council replaces the initial decision with a decision of identical content or amends only the
non-operative part of the initial decision as a consequence of the notice of review, and in cases in which the Administrative
Board declares a request for review inadmissible, the applicant will contribute to the costs incurred by ECB in the context of
the review. Natural persons must pay a lump sum of EUR 500. Legal persons must pay a lump sum of EUR 5 000. The
payment of this lump sum remains without prejudice to the application of Article 13 of this Decision.
In cases in which the applicant withdraws a notice of review pursuant to Article 7(6) of this Decision, as well as in cases
where this is justified in view of the specific circumstances, the applicant and the ECB will bear their own costs, if any.’