The mission was led by Mr. Alvaro Piris (IMF, Monetary and Capital Markets Department), and comprised Ms. Ruth Walters and Mr. Vijay Tata (FSB Secretariat), and Messrs. Alessandro Gullo (IMF, Legal Department) and Jan Nolte (World Bank, Finance and Markets Global Practice).
The authorities’ have noted their disagreement with this representation (see “The Authorities’ Response”, p. 68). Given the interference with shareholders’ economic and governance rights under ordinary corporate law, the assessors decided to leave the representation unchanged, considering that an explicit legal provision for overriding shareholder consent, applying generally to resolution actions, is necessary to support effective implementation of resolution and allocate losses to shareholders and creditors in the public interest in line with the KAs.
While the text of EOSF art. 115 states that the takeover and control decision is subject to the approval of the MHCP, the authorities explain that a comprehensive interpretation of the legislation currently in force is that such approval is no longer necessary. Indeed, while the text of art. 115 has remained unaltered, the explanatory statements to the law 795 of 2003 amending the EOSF, refer to the abrogation of the requirement for the MHCP approval. Moreover, as a matter of practice, no approval was sought or given in the recent cases of application of art. 115, nor was this aspect raised by affected parties in litigation. The mission defers to the arguments made by the authorities.
See Article 116.1 of the EOSF. It should be noted that, while this article regulates takeover and control in a liquidation context, Articles 22.214.171.124.1, 126.96.36.199.2 and 188.8.131.52.1 of D2555 provide for the appointment of a special agent in the context of a takeover and control to administer the bank that is specifically relevant for this KA. It may therefore be argued that the power to remove managers and directors could apply also to takeover and control for administration purposes.