The Protection of Fundamental Rights in Composite Banking Supervision Procedures

6.1 Joint Supervisory Teams (JSTs) 82
6.1.1 Composition and tasks 82
6.1.2 Enforcement powers and applicable legal safeguards 84
6.1.3 Any room for national powers? 89
6.2 On-site inspection teams (OSITs) 90
6.2.1 Composition and tasks 90
6.2.2 Enforcement powers and applicable legal safeguards 91
6.3 Independent investigating unit (IIU) 97
6.3.1 Composition and tasks 97
6.3.2 Enforcement powers and applicable legal safeguards 97
6.4 NCA assistance in the supervision of significant institutions 102
6.5 Judicial control of ECB acts in the obtainment phase 104
6.5.1 Action for annulment and interim relief 104
6.5.2 A taxonomy of ECB decisions and acts in the information- gathering stage and possibilities for judicial control 105
6.6 Interim conclusion 106
7 The transfer of information by the ECB for enforcement purposes 107
7.1 The transfer of information within the ECB for enforcement purposes 108
7.1.1 From joint supervisory teams and on-site inspection teams to the independent investigating unit 108
7.1.2 From the Independent Investigating Unit to the Supervisory Board 108
7.2 The exchange of information between SSM authorities for enforcement purposes 109
7.2.1 Information transfers from the Independent Investigating Unit to the National Competent Authorities 109
7.2.2 Information transfers from the National Competent Authorities to the ECB 111
7.3 Information transfers outside the SSM 112
7.3.1 The transfer of information from the ECB to national judicial authorities via the NCAs 112
8 The use of information by the ECB, NCAs, and national judicial authorities for punitive purposes 115
8.1 The use of information by the ECB for punitive purposes 116
8.1.1 ECB’s sanctioning powers 117
8.1.2 The imposition of sanctions by the ECB and applicable legal safeguards 119
8.2 The use of information by the NCAs for punitive purposes 121
8.2.1 Lawful obtainment, but unfair use: the example of the privilege against self incrimination 123
8.2.2 The use for punitive purposes of information obtained on the basis of divergent standards: the example of the legal professional privilege 124
8.2.3 The use as evidence for punitive purposes of unlawfully obtained information: the example of the legal professional privilege 125
8.2.4 The use for punitive purposes by NCAs of lawfully obtained information and the ne bis in idem principle 125
8.3 The use of SSM information by national judicial authorities for punitive purposes 127
8.3.1 Punitive follow-up by national judicial authorities and applicable legal safeguards 127
8.3.2 Parallel proceedings by national judicial authorities and applicable legal safeguards 131
9 Conclusions and outlook 132

Chapter IV Enforcement of Prudential Banking Legislation in the Netherlands
1 Introduction 136
2 Enforcement of prudential legislation in the Netherlands 136
2.1 Key concepts and legal sources 136
2.2 The Dutch Central Bank (DNB) 140
2.2.1 Introduction 140
2.2.2 DNB mandate, tasks and governance arrangements 141
2.3 Judicial authorities responsible for the investigation and prosecution of prudential offenses 143
3 The obtainment of information by DNB 144
3.1 Introduction 144
3.2 Requests for information and applicable defense rights 145
3.3 On-site inspections and the right to privacy 150
3.4 Interim remarks 153
4 The transfer of information by DNB to the ECB and to national judicial authorities 155
4.1 Introduction 155
4.2 The transfer of information by DNB to the ECB: possibilities and limits 155
4.3 The transfer of information by DNB to national judicial authorities 157
5 The use of SSM materials in Dutch punitive proceedings 160
5.1 Introduction 160
5.2 The use of SSM materials by DNB and applicable legal safeguards 161
5.2.1 DNB sanctioning powers 161
5.2.2 The use of SSM materials by DNB and applicable defense rights 163
5.2.3 Judicial review of DNB punitive decisions and preceding investigative acts 164
5.2.3.1 DNB sanctioning decisions and the right of access to a court 164
5.2.3.2 DNB sanctioning decisions adopted pursuant to composite procedures and the right of access to a court 165
5.2.4 The use by DNB of ECB materials and the ne bis in idem principle 168
5.3 The use of DNB-gathered materials by the ECB and/or other NCAs and applicable legal safeguards 169
5.4 The use of SSM materials by Dutch judicial authorities and applicable legal safeguards 170
5.4.1 Criminal sanctions for violations of prudential norms 170
5.4.2 The use of SSM materials by judicial authorities in the Netherlands and applicable defense rights 171
5.4.3 The use of SSM materials by judicial authorities in the Netherlands and the right of access to a Court 172
5.4.4 The SSM, Dutch judicial authorities and the una via/ne bis in idem principle 175
6 Conclusions and outlook 178

Chapter V Enforcement of Prudential Banking Legislation in Greece
1 Introduction 182
2 Institutional design of banking supervision in Greece 182
2.1 Enforcement of prudential legislation: concepts, legal sources, and ongoing challenges 182
2.1.1 Enforcement of prudential legislation through administrative law 182
2.1.2 Enforcement of prudential legislation through criminal law 186
2.2 The Bank of Greece 187
2.2.1 Introduction 187
2.2.2 BoG mandate, tasks and governance arrangements 187
2.3 Judicial authorities responsible for the investigation and prosecution of economic crime 190
3 The obtainment of information by the BoG 191
3.1 Introduction 191
3.2 Information requests, oral statements and applicable defense rights 192
3.3 On-site inspections and the right to privacy 197
4 The transfer of information by BoG to the ECB and to national judicial authorities 198
4.1 Introduction 198
4.2 The transfer of information by BoG to the ECB and to other NCAs 198
4.3 The transfer of SSM information by BoG to national judicial authorities 201
5 The use of SSM materials in Greek punitive proceedings 202
5.1 Introduction 202
5.2 The use of SSM materials by BoG and applicable legal safeguards 203
5.2.1 BoG’s sanctioning powers 204
5.2.2 BoG’s sanctioning powers and applicable defense rights 206
5.2.3 Judicial review of BoG final decisions and preceding investigative acts 207
5.2.3.1 BoG sanctioning decisions and the right of access to a court 207
5.2.3.2 Judicial review of BoG sanctioning decisions adopted pursuant to composite enforcement procedures 209
5.2.4 Ne bis in idem between the ECB and BoG 213
5.3 The use of SSM materials by Greek judicial authorities and applicable legal safeguards 213
5.3.1 Introduction 213
5.3.2 Criminal law sanctions for violations of prudential norms 213
5.3.3 The use of SSM materials by Greek judicial authorities an appicable defense rights 214
5.3.4 The use of SSM materials by Greek judicial authorities
and the right of access to a court 215
5.3.5 Ne bis in idem between an SSM authority and Greek judicial authorities 217
6 Concluding remarks 218

Chapter VI The Protection of Fundamental Rights in Composite SSM Enforcement Procedures
1 Introduction 220
2 SSM composite enforcement procedures 220
2.1 The institutional design of the Single Supervisory Mechanism 221
2.2 The obtainment of information by the SSM 223
2.2.1 Direct obtainment of information by the ECB 223
2.2.1.1 Joint Supervisory Teams 223
2.2.1.2 On-site inspection teams 225
2.2.1.3 The independent investigating unit 227
2.2.2 Indirect obtainment of information by the ECB 228
2.3 Top-down and bottom-up information transfers inside the SSM for enforcement purposes 230
2.3.1 Information transfers from the ECB to the NCAs for enforcement purposes 230
2.3.2 Information transfers from the NCAs to the ECB for enforcement purposes 230
2.4 The use of SSM obtained information by the ECB and by NCAs for punitive purposes 231
2.4.1 The use of information obtained by the NCAs in ECB punitive proceedings 231
2.4.2 The use of information obtained by the ECB or another NCA in DNB and BoG punitive proceedings 232
2.5 Intermediate remarks 233
3 Interactions between the SSM and national criminal law enforcement 235
3.1 Enforcement of prudential legislation through criminal law in the Netherlands and in Greece 235
3.2 National judicial authorities requesting information obtained by an SSM authortiy 237
3.3 Spontaneous transfers of criminally relevant information from the ECB to national judicial authorities 237
3.4 National judicial authorities transferring criminal information to an NCA 238
3.5 Intermediate conclusion 239
4 The protection of fundamental rights in composite SSM enforcement procedures 240
4.1 The right to privacy in composite SSM enforcementprocedures 240
4.1.1 The right to privacy and issues of legal certainty 241
4.1.1.1 Issues of legal certainty with respect to the applicable law 241
4.1.2 The right to privacy and issues of legal protection 243
4.1.2.1 The organization of judicial control of SSM on-site inspections 243
4.1.2.2 Vertical (bottom-up) issues of privacy – related legal protection 245
4.1.2.3 Vertical (top-down) issues of privacy – related legal protection 247
4.1.2.4 Diagonal issues of privacy-related legal protection 248
4.1.3 Intermediate conclusions 250
4.2 Defense rights in composite SSM enforcement procedures 251
4.2.1 Defense rights and legal certainty: the example of the legal professional privilege 251
4.2.1.1 Divergent standards between legal orders 252
4.2.1.2 Is Akzo Akcros the answer to legal certainty concerns in composite enforcement procedures? 255
4.2.2 Defense rights and procedural fairness: the example of the privilege against self incrimination 257
4.2.2.1 The privilege against self-incrimination in composite SSM enforcement proceedings 258
4.2.3 Defense rights and issues of legal protection 264
4.2.3.1 Legal protection and divergent standards of defense rights 264
4.2.3.2 Legal protection and evidence obtained in violation of defense rights 266
4.2.4 Intermediate conclusions 271
5 The protection of fundamental rights at the intersection between administrative SSM enforcement and national criminal law enforcement 275
5.1 Issues of legal certainty: Top-down transfers of criminally relevant information and the determination of the receiving legal order 276
5.2 Issues of procedural fairness 277
5.3 Issues of legal protection 279
5.4 The ne bis in idem principle 283
5.4.1 Unclear content in sufficiently interlinked proceedings taking place in different legal orders 283
5.4.2 ECB and national judicial authorities: Systemic risks for ne bis in idem violations 287
5.4.3 NCAs and national judicial authorities: Violations possible, depending on the national legal order 289

Chapter VII Synopsis, Conclusions, and Recommendations
1 A synopsis of the research problem and key concepts 292
2 Research question and guiding sub-questions 296
3 The protection of fundamental rights in composite SSM procedures: Conclusions 297
3.1 Right to privacy 297
3.1.1 Privacy-related legal certainty 297
3.1.2 Privacy-related legal protection 298
3.2 Rights of the defense 300
3.2.1 Defense rights-related legal (un)certainty 300
3.2.2 Procedural fairness may often be compromised 301
3.2.3 Defense rights-related legal protection 303
3.2.3.1 Evidence gathered on the basis of divergent procedural standards and legal protection 303
3.2.3.2 Unlawfully obtained evidence and legal protection 304
3.3 Ne bis in idem: Ambiguous content, but systemic risks for violations are unlikely 306
4 The protection of fundamental rights at the intersection between SSM administrative law enforcement and national criminal law enforcement: conclusions 307
4.1 Issues of legal certainty at the intersection between SSM administrative law enforcement and national criminal law enforcement 307
4.2 Issues of procedural fairness at the intersection between SSM administrative law enforcement and national criminal law enforcement 308
4.3 Issues of legal protection at the intersection between SSM administrative law enforcement and national criminal law enforcement 310
4.3.1 Legal protection and unlawfully obtained evidence 310
4.3.2 Lawful obtainment but unfair use: issues of legal protection 311
4.4 The ne bis in idem principle at the intersection between SSM administrative law enforcement and national criminal law enforcement 312
5 Recommendations 313
5.1 Introduction 313
5.2 A roadmap toward protecting fundamental rights in the composite SSM landscape 314
5.3 A roadmap toward protecting fundamental rights at the interface between SSM administrative and national criminal law enforcement 324
5.4 Suggestions for a future research agenda 327

References
Bibliograpy 330
Legislation 346
Table of Case Law 348
Nederlandse samenvatting 356