11.3.4 Concluding remarks

The fact that the restructuring plan provides for an improvement of the bank’s corporate governance framework is a relevant characteristic (see subsection 11.3.1). The present section has shown that there is a clear link between this relevant characteristic and the (existence and nature of the) corporate governance problems of the bank. Whether the relevant characteristic is mentioned in the decisions depends on the question whether the bank had corporate governance problems (see subsection 11.3.2). In the same vein, the way in which this relevant characteristic is mentioned and elaborated in the decisions depends on the nature of the corporate governance problems (see subsection 11.3.3).

Thus, the mere fact that corporate governance measures are not mentioned in all decisions does not necessarily mean that there is an inconsistency. Likewise, the mere fact that this relevant characteristic is not always elaborated in the same way does not necessarily amount to an inconsistency. As long as the link – between the relevant characteristic on the one hand and the existence and nature of the corporate governance problems of the bank on the other hand – is consistently made, there is no inconsistency.

In other words: I am of the opinion that the Commission should mention corporate governance in its decision when the case is characterised by corporate governance measures and that the Commission does not have to mention corporate governance when there are no corporate governance measures in the case.1 Normally, I would suggest that the Commission should not only mention the presence but also the absence of a relevant characteristic. However, for the reasons set out in subsection 11.3.2, the omission to mention the absence of this particular relevant characteristic can be justified.

Subsection 11.3.2 also discussed that “situation P/O” could not be excluded as a possible explanation for the fact that there are 47 decisions that do not mention corporate governance issues. So there is a risk of inconsistency. Nonetheless, this risk is quite limited for future cases. Indeed, if the Commission does not take into account the corporate governance measures undertaken by a beneficiary bank, then this would be inconsistent. However, since it is in the bank’s own interest that the Commission (positively) notes the presence of corporate governance measures, the bank or Member State should stress the fact that the bank has taken measures to improve its corporate governance framework.