Statement by Leszek Balcerowicz, Chairperson of the Commission for Banking Supervision
Warsaw, 11 March 2006
With regard to the statement of Ms Zyta Gilowska, Deputy Prime Minister and Finance Minister, of 8 March 2006 in the matter of excluding Mr Cezary Mech from participation in the proceeding carried out by the Commission for Banking Supervision (CBS) related to Unicredito request dated 29 July 2005 for CBS permission to exercise voting rights at the general meeting of shareholders of Bank BPH S.A, BPH Bank Hipoteczny S.A, and Bank Rozwoju Energetyki i Ochrony Środowiska Megabank S.A. (in liquidation),
I state as follows:
I. With regard to the lack of legal grounds:
Claiming that the provisions of the Code of Administrative Procedure (CAP) do not apply to the exclusion of a member of a collegial body such as the Commission for Banking Supervision since the matter is regulated by art. 25 of the Act on the National Bank of Poland and art. 11 of the Banking Law Act is incorrect.
Such a view does not take into account the fundamental prerequisite that proceedings before public administration authorities in individual matters resolved by administrative decisions are regulated by the Code of Administrative Procedure. This results directly from art.1 section 1 of the Code and means that CAP provisions also apply in individual proceedings before the Commission for Banking Supervision which is, without doubt, a public administration authority.
Art. 11 of the Banking Law Act lists categories of rulings of the Commission for Banking Supervision that are considered by the legislator to be administrative decisions in the meaning of the CAP, i.e. final rulings of the administrative proceeding carried out under the provisions of the Code. Such understanding of relations between art. 11 of the Banking Act and art. 1 of the Code of Administrative Procedure is shared by analysts of the Banking Law Act (Leszek Mazur: the Banking Law Act. Comments; Banking Law Act. Comments. Joint publication edited by Fr. Zoll; Banking Law Act. Comments, published by LexisNexis).
The above means that the provisions of the Code, including provisions relating to the exclusion of a member of a collegial body, i.e. art. 27 § 1 in connection with art. 24 § 3 of the CAP, do apply to the whole course of the proceeding, i.e. from the moment of initiating the procedure until its termination.
Notwithstanding the above it must be noted that by presenting the position that there were no legal grounds for excluding Cezary Mech, Deputy Prime Minister and Finance Minister Ms Zyta Gilowska undermined the legal grounds on which the Treasury Minister based his request to be allowed to participate in the proceeding as party pursuant to art. 28 and 29 of the Code of Administrative Procedure. Hence, the Treasury Minister shares the view that the proceeding before the Commission for Banking Supervision is carried out according to the provisions of the CAP.
The position presented in the statement is also inexplicable as the Deputy Prime Minister and Finance Minister voted for allowing the Treasury Minister to participate as party in the proceeding pursuant to legal grounds provided for in the Code of Administrative Procedure.
II. With regard to the lack of real grounds:
All the circumstances I took into account when I made the decision to exclude Mr Cezary Mech from participating in the procedure have been presented in the justification to the decision. Those were not only materials referred to in Unicredito request but also additional materials related to the statements made by Mr Cezary Mech. In addition, it was also my duty under the law to take into account facts that strengthened and lent credence to the circumstances that could rise doubts as to the impartiality of Mr Cezary Mech in the matter. It should be emphasised that all circumstances listed in the justification had occurred before collecting evidence in the proceeding was terminated.
Statements made by specialists in the field of administrative law for the edition of "Rzeczpospolita" of 9 and 10 March, prof. Michał Kulesza and Ryszard Sowiński (PhD), confirm the rightness of such an assessment of the situation.
III. With regard to the responsibility of Finance Minister for the impartiality of Cezary Mech:
Claiming that the Finance Minister takes responsibility for the impartiality of a representative of the Ministry of Finance in the Commission for Banking Supervision and referring to art. 26 section 1 item 2 of the Banking Law Act remains in contradiction with the generally shared view on the way of forming collegial bodies and their functioning as expressed in Constitutional Tribunal decisions.
The quoted article of the Act on the National Bank of Poland sets forth only the composition of the Commission for Banking Supervision as a collegial body whereas in proceedings related to individual matters terminated by the issue of administrative rulings the provisions of the Code of Administrative Procedure, including the provisions under art. 24 §3 concerning the exclusion of a member of a collegial body, are applied.
My decision of excluding Mr Cezary Mech from only one particular proceeding did not in any way restrict the right of the Finance Minister to shape the composition of the Commission for Banking Supervision under the scope of the minister's competence provided for in art. 26 section 1 of the Act on the National Bank of Poland.