11.2.2.1 A matter of interpretation

The table in Annex VII indicates that there are only 23 decisions that mention that the senior management has been replaced. This number should be regarded with prudence, since categorizing cases on the basis of whether they mention the relevant characteristic is sometimes a question of interpretation. For instance, in the decisions on the Danish banks Amagerbanken, Roskilde Bank and Fionia Bank, the Commission did not explicitly mention the replacement of senior management in the assessment-part of the decision. However, in the decision on the Danish winding-up scheme, the Commission noted positively that removing control from OldBank’s management was a measure to minimise moral hazard.1 Since the cases of Amagerbanken, Roskilde Bank and Fionia Bank are in line with the principles of the winding-up scheme, it can be argued that the relevant characteristic is indirectly mentioned in these cases.2

In only a few decisions, the current relevant characteristic was mentioned in the assessment-part. This is the case in 14 decisions.3 There are 19 decisions in which the change of senior management is only mentioned in the description-part of the decision. It is thus not explicitly taken into account by the Commission in its assessment. However, this does not mean that the change of management is without significance. In these 19 decisions, the change of management is usually mentioned in the context of the description of the restructuring plan. For instance, one of the main features of the restructuring (plan) of Hypo Real Estate (HRE) was that “all the executive board members of HRE who held office before the crisis have been replaced”.4

Thus, this relevant characteristic is sometimes mentioned only in the description-part of the decision. In my opinion, it would be better if this characteristic is explicitly mentioned in the assessment-part of the decision. Since this observation does not only apply to the current relevant characteristic, but to all relevant characteristics discussed in this chapter, this observation will be discussed in the final section of this chapter.