11.13.1 Key findings

One of the key findings is that there are many decisions that do not mention the relevant characteristic. For instance, section 11.2 revealed that there only 23 Commission decisions (of in total 90 cases) that mention that the senior management of the bank has been replaced. And as set out in section 11.5, the fact that the restructuring plan provides for an improvement of the bank’s risk management is welcomed by the Commission and is thus a relevant characteristic. Nonetheless, there are 50 decisions (of in total 90 cases) that do not mention risk management issues.

How to interpret this finding? As set out in the present chapter, there are several interpretations. In the first place, the omission to mention the relevant characteristic in several decisions can mean that the Commission did not take into account the relevant characteristics in these cases. This would be clearly inconsistent.

In the second place, the omission to mention the relevant characteristic in several decisions can mean that the relevant characteristic is not present in these cases. This can be elucidated by the following matrix (which was introduced in section 11.2.2.2 of this chapter).

The omission to mention the absence of the relevant characteristic corresponds to situation A/O. Can this situation be justified? This question essentially consists of two questions. Firstly, can the absence of the relevant characteristic be justified? And secondly, can the omission to mention the absence of the relevant characteristic be justified?

With respect to the first question, the present chapter has shown that some relevant characteristics do not have to be present in each and every case. Furthermore, even relevant characteristics that should always be present can be absent if there is a justification. Thus, the absence of a relevant characteristic can be justified.

With respect to the second question, I am of the opinion that the omission to mention the absence of the relevant characteristic can only be justified when it is obvious that the omission means that the relevant characteristic is not present in the case. Whether this is obvious depends on whether one expects the relevant characteristic to be present. In that regard, the distinction between the relevant characteristics that always have to be present (and whose absence has to be justified) and the relevant characteristics that do not have to be present in each and every case, is important. An example of the first type of relevant characteristic is the fact that the bank’s senior management has been replaced. A management change is in principle required (in particular by point 37 of the 2013 Banking Communication). If there is no such management change, then one would expect that the decision clarifies why this relevant characteristic is not present in the case (i.e. why a replacement of senior management is not needed in that case).

An example of the second type of relevant characteristic is the fact that the bank has committed to take measures to improve its corporate governance framework. Such measures only have to be taken when the bank experienced corporate governance problems. Consequently, one does not expect corporate governance measures to be present in every case. This could justify that the absence of this relevant characteristic is not mentioned in every decision.