SUPREME COURT OF IRELAND
3 FEBRUARY 2011
This is an appeal of the above named appellants against an order of the High Court refusing their application for certain reliefs by way of judicial review against the above named respondents. The application for relief by way of judicial review, as amended, centred upon a purported decision of the first named respondent, NAMA, to acquire from particular banks’ certain ‘eligible bank assets’, (hereafter eligible assets) within the meaning of s. 69 of the National Asset Management Agency Act 2009. These assets consist of substantial loans made by the banks concerned to the appellants. It is relevant to note at this point that it is common case that NAMA has not actually acquired those eligible assets since it has not taken the necessary legal step pursuant to s. 87 of the Act of 2009. The exercise of its powers under that section is a necessary legal step before any decision to acquire eligible assets has practical or legal effect in that respect.
It would appear that in or about late May 2010 the appellants first became aware that NAMA proposed to exercise its powers pursuant to the Act of 2009 to acquire their eligible assets, that is to say their credit facilities, from both Bank of Ireland and Anglo Irish Bank. The appellants had initiated their application for leave to seek judicial review on July 1st 2010 by way of a motion returnable for July 5th 2010.
Thus no issue arose concerning any delay in applying for leave to bring judicial review proceedings.
The first fifteen appellants are companies, bodies corporate and/or partnerships incorporated in the State, in the United Kingdom and in France in respect of which the sixteenth appellant, Mr. Patrick McKillen, has a 50% or 100% beneficial interest. Mr. McKillen is a businessman and property developer. These appellants have extensive loan credit facilities with Anglo Irish Bank and the Bank of Ireland (although the appellants have focused in these proceedings on their loans from the latter which constitute the vast bulk of such loans) which, for the purpose of these proceedings are not disputed as constituting “eligible assets” within the meaning of s. 69 of the National Asset Management Agency Act, 2009 (hereafter referred to as “the Act of 2009”) and Regulation 2 of the National Asset Management Agency (Designation of Eligible Bank Assets) Regulations 2009.
The National Asset Management Agency, commonly and hereafter referred to as NAMA, was established by the Act of 2009 under which, as explained later in this judgment, it has powers to acquire the interest of certain banks in “eligible assets”, including those relating to the appellants. As also explained later in this judgment, relevant to the powers and actions of NAMA is the work of an interim team, from the National Treasury Management Agency, and in particular a purported decision of that interim team to acquire those assets on 11th and 14th December 2009, carried out in anticipation of the establishment of NAMA. The Act of 2009 came into force by virtue of a Ministerial Order under the Act, on 21st December 2009. The Board itself was appointed on 22nd December 2009. The third named respondent is sued in his capacity as representative of the State, the second named defendant.
The proceedings in the High Court were heard and determined by a divisional court consisting of the President, Kelly and Clarke J.J. The High Court refused to grant any of the reliefs sought by the appellants.
The approach adopted by the High Court was what it called a “telescoped hearing”, whereby it heard the application for leave and the merits of the application together. It refused leave to apply for judicial review in respect of four grounds and dismissed the appellants’ claim on the merits in respect of the other or fifth ground. That ground concerned the contention of the appellants that there was a breach of their constitutional right to fair procedures by reason of a failure and refusal by NAMA to receive and consider submissions on behalf of the appellants prior to taking a decision to acquire their bank loans as eligible assets.
Section 194 of the Act of 2009 permits an appeal from the High Court to this Court only where the High Court has certified that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
In this case the High Court granted such a certificate to the appellants and certified a point of law with respect to the fair procedures argument, in the following terms:-
.... whether the Court was correct in concluding that the applicants did not have a right to be heard prior to a decision of NAMA to acquire loans in respect of which the applicants are borrowers ....
Having appealed on foot of the said certificate the appellants raised four additional issues in the appeal which are essentially the same four issues in respect of which the High Court refused to grant leave to apply for judicial review. Accordingly all five issues were raised by the appellants in their appeal before this Court.
Four of these issues may be said effectively to arise from the particular decision which NAMA said it took to acquire the loans of the appellants.
A distinct and separate ground was raised concerning the scheme of the Act generally where the appellants claimed that the scope of the power of NAMA to acquire assets was unlawful on the grounds that it was in breach of a European Commission decision approving the NAMA scheme as a State aid measure.
The issues before the Court in this appeal accordingly, were as follows:
Whether the decision of the European Commission dated 26th February 2010 on the NAMA Scheme as a state aid requires that the Agency be precluded from acquiring loans from borrowers that are not impaired?
This latter issue regarding state aid is addressed in the separate judgment of Fennelly J.
The judgment of the High Court comprehensively sets out the factual background to this case; in particular at paragraphs 5.1 – 5.20. These background facts are not an issue and it is not considered necessary to replicate them in this judgment except in part for the purpose of summarising them.
By way of summary, the factual background to the case concerns both the general context of the financial or economic crisis which the State has been experiencing since 2008, and the narrower context of the business carried on by the appellants.
The general or national context of the financial crisis includes the State’s three-pronged policy response to that crisis: enactment of the Credit Institutions (Financial Support) Act, 2008 which provided a statutory basis for the State to guarantee deposits held by lending institutions; measures to recapitalise most of the main financial institutions in the State and to nationalise Anglo Irish Bank; and the establishment of NAMA under the National Asset Management Agency Act, 2009 to address significant losses suffered by banks in the State as a result of the collapsing of the property bubble, through the acquisition of eligible assets from participating credit institutions in order to remove uncertainty about those assets and to alleviate the effect of such uncertainty on the credit institutions in the State.
As the High Court noted at paragraphs 5.4-5.6, the context in which these three measures were taken, particularly concerning those institutions with which Mr. McKillen and his companies have significant loans, is at least of background relevance:
It must be recalled that the context in which the bank guarantee was given was the view that, at a minimum, most of the Irish banks were, in September, 2008, arriving at a position where they would be unable to obtain adequate funding to carry on their business. If there had been no major policy intervention, then it seems almost certain that the consequences for some, if not all, of the institutions which became participating institutions in the NAMA scheme, would have been severe. In the case of Anglo, it is now apparent that that bank had become insolvent and having regard to the scale of the losses which have now been shown to have been incurred, it seems certain that, in the absence of major intervention, Anglo would have ceased to trade in any way and would, as a matter of high probability, have gone into liquidation. Mr. McKillen had, of course, significant dealings with Anglo. The other bank with whom Mr. McKillen had major dealings was BOI. There can be little doubt but that the scale of BOI’s problems were less than those in the other participating institutions but, nonetheless, were significant. The Government has been required to place an additional sum of €3.5bn into BOI as a recapitalisation.
.... in the absence of some significant executive and legislative response to those problems, it is almost certain that the existing banks operating in Ireland (including those with whom Mr. McKillen had long standing banking relationships) would have ceased to function or, at least, function in any way remotely resembling the traditional model of a bank.
While the true scale of losses in at least many of the participating institutions was not apparent at the time when the Act was passed, it does appear on the evidence to have been clear from an early stage that there were very significant losses in the banks which needed to be dealt with in some fashion. In that context, the Government announced in the Spring of 2009 (during the budget speech of the 7th April) that what has now become NAMA would be established. The relevant legislation was published in a preliminary form in July of that year, with the Act being passed by the Oireachtas in November and coming into force on the 21st December, 2009.
It is also relevant to the appeal to note that prior to, and in anticipation of, the establishment of NAMA under the Act of 2009 a significant level of preparatory work was carried out by senior officials of the National Treasury Management Agency (NTMA). This is germane to the appellants’ argument concerning the legal status of NAMA’s decision to acquire Mr. McKillen’s loans. The facts and evidence relating to this issue are considered in full later in this judgment.
With respect to the narrower context of the appellants’ business activities, Mr. McKillen and the companies in which he has an interest own a portfolio of approximately 62 properties, some 26% of which are located in Ireland, with the remainder in France, the United Kingdom and the United States. According to the expert evidence these properties are valued at between €1.7bn and €2.28bn and generate an annual income in the order of €150m.
Loans secured on those properties with banks in the State who are participating institutions under the NAMA scheme amount to approximately €2.1bn. The status of those loans, namely as to whether the loans could be considered as “impaired loans”, was disputed by the parties in the High Court. However, the Court, having concluded that the loans were “eligible bank assets” within the meaning of section 2 of the National Asset Management Agency (Designation of Eligible Bank Assets) Regulations 2009 (S.I. No. 568 of 2009) (hereafter “the Regulations”), irrespective of whether they were deemed to be impaired or not impaired, considered it unnecessary to express any view as to whether those loans were impaired or non-impaired. The High Court did note that on the uncontested evidence of the appellants, 96% of those properties are let, the majority of the tenants being described as “blue chip tenants on long leases predominantly with a 25 year duration”, and that the income stream thus generated, at an aggregate level, appears to provide interest cover of the loans of between 1.7 and 1.8 times: that is to say, the income is between 1.7 and 1.8 times the interest payable on the loans at current interest rates. As this is an aggregate figure the interest cover on certain individual loans may be lower.
At paragraph 5.13 of its judgment the High Court referred to one particular feature of the appellants’ business model. It noted:
|Many of the loans in question are for a short term duration. It would appear that there has, in general terms, been a practice for Mr. McKillen to successfully negotiate renewals of such loans from time to time. However, the legal position does also need to be recorded. That legal position is to the effect that adopting a policy of financing long term property investments by short term loans undoubtedly leaves the borrower, to an extent, at the mercy of his banks who are in a position, on a regular basis, to revisit the question of whether they are to lend and, if so, on what terms. A party who, on the other hand, has long term loans, has the added security that, provided the terms of the loan are met, the relevant bank is given no opportunity to re-negotiate the terms of the loan until its expiry. It should also be noted that Mr. McKillen’s property portfolio is geographically spread between Ireland, the United Kingdom, France and the USA with, it would appear, approximately 26% by value representing properties in Ireland.|
It is appropriate at this point to refer to the definition of “eligible bank assets” which may be acquired by NAMA. Section 2 of the Regulations of 2009 provides a broad definition of “eligible bank assets” which may be transferred from participating institutions to NAMA. The principal assets under this definition are what may be termed land and development loans which are held by a borrower, but the definition also covers a wide range of other types of loans held by a borrower who has land and development loans. The definition in regulation 2 of the Regulations is as follows:
Eligible bank assets.
The following classes of bank assets are prescribed as classes of eligible bank assets for the purposes of the National Asset Management Agency Act 2009 (No. 34 of 2009):
As acknowledged by counsel for the appellants, some 2.5%-5% of the appellants’ loans proposed to be transferred to NAMA are loans in respect of land and development; the remainder of the appellants’ loans are unrelated to land and development and come within the definition of an “eligible bank asset” solely by reason of their being owned by Mr. McKillen or the companies or partnerships in which he has an interest.
The Arguments of the Parties
Counsel for the appellants advanced his case on the basis of five distinct arguments, which may be summarised in turn.
Counsel for the appellants focused primarily on this argument. It was contended that Mr. McKillen enjoys certain rights connected to his bank loans and that due to interference, or potential interference, with these rights arising from NAMA’s decision to acquire the said loans, Mr. McKillen is entitled to be heard before the decision to acquire is made by NAMA. The appellants contend, in this context, that the Act of 2009 can, and should, be interpreted as affording Mr. McKillen an entitlement to be heard prior to that decision being made.
It was also submitted that the High Court erred in its judgment under this heading, in that the Court misunderstood the constitutional position concerning what constitutes an interference with constitutional rights sufficient to trigger an entitlement to fair procedures; the Court incorrectly applied the test for interference with constitutional rights; and in its assessment of the facts of the case and its interpretation the Act of 2009 the Court failed to address the facts peculiar to Mr. McKillen’s case by reference to the evidence.
The Attorney General on behalf of the respondents submitted that the conclusions of the High Court under this heading were correct. It was submitted that there is no interference or potential interference with any constitutional right which triggers an entitlement to fair procedures in favour of Mr. McKillen, that the test for interference with constitutional rights was correctly applied by the High Court and that, if this Court on appeal was to find that acquisition of the said loans does constitute an interference with the Mr. McKillen’s constitutional rights sufficient to trigger a right to a fair procedures, the exclusion of an entitlement to fair procedures in the Act of 2009 is proportionate and justifiable. It was submitted that the Act of 2009 cannot be interpreted as requiring or permitting an entitlement to be heard.
The NAMA decision to acquire the appellants’ loans
The appellants argued that, in making its decision to acquire Mr. McKillen’s loans, NAMA did not take into account relevant considerations. It was submitted that the High Court erred in finding that NAMA had had regard to certain criteria approved by the Board of NAMA on 7th January 2010 in making its decision to acquire Mr. McKillen’s loans on the 11th and 14th December 2009. It was claimed that while NAMA made its decision to acquire Mr. McKillen’s loans on the basis that the said loans represented a systemic risk or contributed to a systemic risk to the banking system, NAMA had not made any qualitative assessment of the loans in this regard. It was further submitted that the High Court erred in separating its analysis of the Act of 2009 from its analysis of the actual basis upon which NAMA had made its decision to acquire Mr. McKillen’s loans.
On behalf of NAMA and the State it was submitted that the appellants’ arguments under this heading are untenable and have no credible legal basis.
The Legal Status of the NAMA decision
Counsel for the appellants contended that the decision to acquire Mr. McKillen’s loans had no validity in that the said decision was taken before NAMA came into existence under the Act of 2009. It was submitted that the Act of 2009 provides no mechanism for ratification of decisions made before the establishment of NAMA under that Act, that the decision was accordingly not capable of being ratified by NAMA in a legal manner and that, as a matter of fact, NAMA did not ratify or re-make the decision. Counsel submitted that the High Court erred in finding that, as a matter of fact, NAMA had ratified the decision to acquire the eligible assets relating to the appellants.
Counsel for the State submitted that the decision was legally adopted by NAMA subsequent to its establishment under the Act of 2009 and that the High Court’s finding in this regard was correct.
The European State Aid Issue
It is not in dispute that the NAMA scheme and, in particular, the acquisition of Mr. McKillen’s loans, constitutes State Aid within the meaning of Article 107 of the Treaty on the Functioning of the European Union (“TFEU”). Nor is it disputed that the European Commission, in a Commission decision (State Aid Reference No. 725/2009 – 14.4.2010 OJC 94/10) did not raise any objection to the scheme established by the NAMA Act of 2009.
The appellants’ argument under this heading was that the Commission decision has direct effect and that the decision, correctly interpreted in light of materials extraneous to the decision itself, restricts NAMA to acquiring solely “impaired loans”. The respondents contended that this is not a matter within this Court’s jurisdiction to consider and further submitted that, even if the Court has such jurisdiction, on a proper construction of the Commission decision the limitation contended by the appellants is not imposed, and in any case Mr. McKillen’s loans may properly be described as “impaired”.
The Constitutional Issue
As the High Court correctly noted, the appellants posit this argument as a fallback position should the Court find against them on the other substantive arguments. It is submitted under this heading that, if the Court holds that the NAMA Act of 2009 cannot be interpreted as affording Mr. McKillen an entitlement to be heard as regards the acquisition of his loans by NAMA and/or the Act is interpreted as permitting the acquisition of unimpaired loans, the Act is accordingly inconsistent with the Constitution. A second constitutional issue raised is whether the broad definition of “eligible bank assets” in the Act of 2009 and the Regulations, and the lack of guidance provided to NAMA as to the exercise of its discretion in the acquisition of bank loans coming within this definition constitutes an interference with the constitutional property rights of the appellants.
The Attorney General for the respondents submitted that, if this Court finds no interference with constitutional rights, this was sufficient to dispose of both the fair procedures argument and the constitutional issues. It was also argued that the object and purposes for which an acquisition of assets is made under the Act affects only the interests of the Banks concerned rather than the borrowers. Furthermore, a decision to acquire assets could not be affected or was not dependent on the interests of a borrower having regard to the objects and purposes of the Act. Alternatively, if this Court was to find that Mr. McKillen has an entitlement to fair procedures, the Attorney General contended that the absence of any entitlement to fair procedures for borrowers under the Act of 2009 was justified and proportionate, having regard in particular to the purposes of the NAMA scheme under the Act to address a serious and unprecedented disturbance in the economy of the State and the necessity for expedition in the acquisition of eligible bank loans. As to the broad definition of “eligible bank assets”, the Attorney General submitted that this definition is necessarily broad given that the purpose of the Act of 2009 is to acquire all land and development loans which are capable of contributing to the serious risk to the economy and the financial system presented by exposure to such loans.
Relevant statutory provisions
A number of provisions of the Act of 2009 are of particular relevance.
The purposes of the Act
As stated above, the Act of 2009, in its long title, sets out that its purpose is to:
|address a serious threat to the economy and to the systemic stability of credit institutions in the State generally by providing, in particular, for the establishment of a body to be known as the National Asset Management Agency [....].|
Section 2 provides, in more detail, that the purposes of the Act are as follows:
To address the serious threat to the economy and the stability of credit institutions in the State generally and the need for the maintenance and stabilisation of the financial system in the State, and
To address the compelling need–
The acquisition of eligible bank assets by NAMA involves a sequence of steps under separate provisions of the Act of 2009.
Designation of a credit institution as a “participating institution”
Under section 62 of the Act of 2009, a credit institution may apply to the Minister for Finance, within 60 days of the establishment of NAMA under the Act, to be designated as a “participating institution” under s. 67 of the Act. Five credit institutions in total applied and were designated “participating institutions” under this section: Bank of Ireland; Allied Irish Bank; Anglo Irish Bank; Irish Nationwide Building Society; and Educational Building Society.
Section 67(2) of the Act sets out the criteria for the designation of an applicant credit institution as a participating institution:
the applicant credit institution is systemically important to the financial system in the State.
the acquisition of bank assets from the applicant credit institution or its subsidiaries is necessary to achieve the purposes of this Act, having regard to –
the applicant credit institution has complied with all of its applicable obligations under this Act.
Provision of information to NAMA by the participating institution
Under section 80 of the Act of 2009, NAMA may direct an applicant or participating credit institution to provide NAMA with information about each of its bank assets that may be an eligible bank asset within the meaning of section 2 of the Regulations of 2009, in order to allow NAMA to make an informed decision either to acquire the relevant asset or to decide on its acquisition value. Section 80(2) makes clear that this includes information on debtors, associated debtors, guarantors and sureties concerned and the enforceability and marketability of the security associated with each such bank asset.
Section 80(3) provides that a credit institution, if it is of the opinion that the bank asset is not an eligible bank asset, must state that fact when providing information on that asset and must also state that it objects to the acquisition of the bank asset and the reason for its opinion.
Under Section 80(5) NAMA may require that any information provided by a credit institution regarding a bank asset is certified as accurate and complete jointly by the chief executive officer and chief financial officer of the institution. Section 80(6) requires credit institutions to disclose “in utmost good faith” all matters and circumstances in relation to each bank asset concerned that might materially affect, or might reasonably be expected to materially affect, NAMA’s decision to acquire the bank asset or the determination of its acquisition value.
It is appropriate to note also that sections 7(2) and 7(3) of the Act of 2009 create two criminal offences that may be committed by a credit institution or an individual, including a borrower whose loans are transferred to NAMA: the first offence concerns the provision of false or inaccurate information to NAMA intentionally, recklessly or through gross negligence; the second offence concerns the withholding of information regarding an asset which has a material impact upon how NAMA deals with or values the asset.
Designation of “eligible bank assets”
Section 69(1) of the Act provides that the Minister for Finance, after consultation with NAMA, the Governor of the Central Bank and the Regulatory Authority (now known as the Financial Regulator), is entitled to designate “eligible bank assets” under that section.
The Minister has, by enactment of the Regulations of 2009 (S.I. 568 of 2009) prescribed the classes of bank assets which constitute “eligible bank assets” for the purposes of the Act of 2009, and has in those Regulations included all classes of bank assets the inclusion of which is permitted under the terms of section 69(2) of the Act of 2009. As already stated, the definition of “eligible bank assets” set out in section 2 of the Regulations and quoted earlier in this judgment is broad. While the principal assets covered by this definition are land and development loans held by a borrower, the definition also extends to a broad range of other types of loans held by a borrower who has land and development loans, simply by virtue of their being owned by that borrower.
Objection to designation of a bank asset as an “eligible bank asset”
Any credit institution participating in NAMA may object to the acquisition by NAMA of a bank asset or assets. However, the sole basis for such an objection under the Act is a review of the decision, the procedure for which is provided for in Part 7 of the Act. There is no express provision permitting a borrower to raise any objections to acquisition of his or her assets.
The Act provides wide scope to NAMA in the acquisition of assets given that section 84 of the Act expressly provides:
|NAMA may acquire an eligible bank asset of a participating institution if NAMA considers it necessary or desirable to do so having regard to the purposes of this Act and in particular the resources available to the Minister.|
Sections 84(2) and 84(3) respectively provide that NAMA may acquire both performing and non-performing eligible bank assets from a participating institution and that NAMA may pursue acquisition of a bank asset notwithstanding an objection by a participating institution to the effect that it does not consider the asset to be an eligible bank asset. Section 84(4) of the Act sets out a list of fourteen factors which NAMA may take into account in deciding whether to acquire a particular eligible bank asset.
The formal acquisition process
Section 87 of the Act provides that, in order to formally acquire an asset deemed to be an eligible bank asset, NAMA must serve an “acquisition schedule” on the participating institution which holds that asset. An asset may only be included in such an acquisition schedule where its acquisition value has been determined by NAMA in accordance with the valuation methodology provided in Part 5 of the Act.
Once NAMA has served the acquisition schedule on a participating institution, under section 121 of the Act the institution can formally raise an objection to the acquisition value specified in that schedule in relation to a bank asset and NAMA may, on foot of that objection, remove the bank asset from the acquisition schedule, revoke the acquisition schedule or continue with acquisition in accordance with the schedule. Where NAMA decides to continue with acquisition of the bank asset, the participating institution may then only object to the total portfolio acquisition value in accordance with the criteria set out in section 122.
Under section 92 of the Act, payment for the asset(s) acquired by NAMA is effected by way of government bonds issued by the Minister for Finance. Section 97 requires that NAMA must then serve a “completion notice” on each participating institution. This formally completes the entire acquisition process and no further acquisition schedules may be served after service of the “completion notice”.
NAMA does not engage with individual borrowers whose loans are to be acquired until the transfer of each eligible bank asset has been completed. Only then will NAMA engage with the relevant borrowers by, inter alia, inviting the borrower to submit a business plan setting out how the credit facility acquired is intended to be managed and ultimately repaid. As the High Court noted in its judgment, the respondents indicated on affidavit that NAMA, while under no obligation to do so under the Act of 2009, has a policy of meeting with borrowers prior to the transfer of a borrower’s loans to NAMA, where such meetings are requested, in order to answer certain questions or queries that the borrower may wish to raise.
The Powers of NAMA under the Act
Section 12 of the Act of 2009 sets out the powers of NAMA. Section 12(1) provides that:
|NAMA has all powers necessary or expedient for, or incidental to, the achievement of its purposes and performance of its functions.|
Without prejudice to the general powers of NAMA under subsection (1), section 12(2) then sets out an extensive range of specific powers. As the High Court noted, many of these powers have no bearing on the issues in these proceedings. Powers relevant to the issues in these proceedings include the power to:
provide equity capital and credit facilities on such terms and conditions as NAMA thinks fit,
initiate or participate in any enforcement, restructuring, reorganisation, scheme of arrangement or other compromise,
distribute assets in specie to the Minister,
do all such other things as the Board considers incidental to, or conducive to the achievement of, any of NAMA’s purposes under this Act.
Part 9 of the Act sets out NAMA’s specific powers in relation to bank assets it has acquired. Under Chapter 2 of Part 9 NAMA has a general power to dispose of assets including by way of transfer, assignment, conveyance, sale or otherwise, to any person, notwithstanding any restrictions on such a disposal at law or equity and notwithstanding any enactment or contractual requirement, including any requirement for the consent of, notice to, or a document from, a third party or any other statutory provision which would otherwise prohibit or restrict such disposal. Chapter 2 also grants NAMA the power to discharge any prior charges on an acquired asset and the power to make applications to the District Court for an order authorising NAMA to enter onto land that is the security for an acquired bank asset.
Under Chapter 3 of Part 9 NAMA has the power to appoint statutory receivers, which is additional to the right to appoint a receiver in the normal course.
Chapter 4 of Part 9 grants NAMA the power to apply to the High Court for a vesting order over land where the chargee’s power of sale has become exercisable and NAMA forms the view that it is unlikely that the sum secured can be recovered by a sale within three months after the application. NAMA in an application for a vesting order must satisfy the Court as to the necessity for such an order and the Court may direct that evidence be given on affidavit. The Court may also direct that notice must be given to any other person. Among its effects a vesting order extinguishes the chargor’s equity of redemption in the land concerned.
Under Chapter 5 of Part 9, NAMA has the power to compulsorily acquire land. NAMA’s exercise of this power is subject to a number of conditions, including the making of an application to the High Court on notice to interested parties, the right of parties affected by such acquisition to raise objections, and the entitlement of such affected persons to compensation.
Chapters 6 and 7 deal, respectively, with NAMA’s general powers in relation to land and in relation to the development of land. Chapter 6 places limitations on certain dealings in land which may have an adverse effect on land held directly or as security for an asset held by NAMA. Chapter 7 grants NAMA the power to engage in the development of land in certain circumstances such as where the High Court has granted a vesting order or where a statutory receiver has been appointed under Chapter 3.
Other relevant provisions
Other relevant provisions of the Act of 2009 include the following:
No cause of action lies or is maintainable against NAMA or any NAMA group entity by reason solely of the acquisition of a bank asset by NAMA or a NAMA group entity.
Of the first four issues raised by the appellants in this appeal one of them directly raised the issue as to whether NAMA could be considered to have made any decision to acquire the eligible assets related to their loans or whether any purported decision had any legal status or effect. The other three issues could be said to be contingent on, or based on a presumption that, NAMA had taken such a valid decision for the purposes of the Act.
In the circumstances the Court considers it proper that it should firstly address the question whether NAMA, as a matter of law, had made any decision to acquire those assets. This issue is not a mere question of form but is fundamental in this particular case to the exercise of its statutory powers by NAMA in respect of the eligible assets in question. In the light of the Court’s decision on that issue the justiciability of the other three issues just referred to will have to be considered.
As regards the fifth and final issue concerning state aid, which concerns the NAMA scheme generally, as already indicated, Fennelly J. will deliver a judgment on this matter.
Whether NAMA has made a Decision
Under the title of the “timing issue,” the appellants question whether NAMA has made any decision to acquire the loans. The first and fundamental question is whether NAMA has made any decision. Stripped to its essentials the appellants’ claim is that the decision to acquire their loans was made on 11th and 14th December 2009, without legal authority, before NAMA was established and that it is, for that reason, a legal nullity.
The National Asset Management Agency Act 2009 was passed on 22nd November 2009. NAMA was established on 21st December, 2009 pursuant to an order of the Minister for Finance (the National Asset Management Agency Act 2009 (Establishment Day) Order 2009 (S.I. No. 547 of 2009) made in exercise of the powers conferred by section 8 of the Act). The Act was brought into force on the same day: the commencement day was fixed by S.I. No. 545 of 2009. The Board of NAMA was appointed on 22nd December 2009.
A number of important steps had been taken before these dates. The intention to establish NAMA had been announced in the budget in April 2009. On 5th May, the Minister for Finance appointed Mr Brendan McDonagh to be Interim Managing Director of NAMA. The Minister on 7th May 2009, pursuant to section 4(4) of The National Treasury Management Agency Act, 1990, gave directions to the Chief Executive of the Agency to provide staffing and to carry out preparatory work required to establish NAMA including the engagement of expert advisers and consultants. Ms Aideen O'Reilly was part of the "interim NAMA team” which carried out extremely extensive preparatory work in anticipation of the establishment of NAMA. The other members of the team were Mr Brendan McDonagh, Mr John Mulcahy and Mr Sean O’Faolain. Each member of the team, except Mr Mulcahy, was, at the time, an employee of the National Treasury Management Agency; Mr Mulcahy was a consultant.
As an administrative strategy, this was entirely legitimate insofar as it involved advance collating and assessment of matters material to the functions of NAMA in anticipation of the Act coming into force. What is in issue here is not the usefulness or benefits of such an administrative exercise but the legal status and effect of any purported decision of the interim team. This is a matter of primary relevance, as is explained later, to the question of whether NAMA made a decision in the exercise of its statutory powers to acquire the loans of the appellants.
The respondents had contended in opposition to the application for judicial review that the acts of the interim team were made by employees of, or persons retained on a consultancy basis by, the National Treasury Management Agency, and who were duly authorised to make such decisions pursuant to and in accordance with a direction of the Minister for Finance made pursuant to the provisions of the National Treasury Management Agency Act, 1990 and on the authority of Brendan McDonagh, who had been duly appointed by that direction as interim Managing Director of NAMA. The High Court examined the relationship between the Act of 1990 and NAMA and could find no basis upon which a power of the Minister under that Act could be used to authorise the Agency to acquire loans for NAMA. The respondents have made it clear in their submissions to the Court that they no longer contend that the decision to acquire the appellants’ loans were authorised by the provisions of that Act or any ministerial directions.
The High Court judgment deals in detail with the work performed by the interim team. It is not necessary for the purpose of this appeal to go into further detail.
The interim team met on the 11th and 14th of December 2009. Ms. Aideen O’Reilly, a solicitor and the Head of Legal and Tax at the National Treasury Management Agency swore an affidavit on 30th July 2010 in response to the original application for judicial review. At that point, she was responding to the appellants’ claim that NAMA did not have the power to acquire their loans. No point had yet been made about the timing of the decision. In the course of that affidavit Ms O’Reilly made a statement about what occurred on 11th and 14th December which is central to this issue. She swore:
The decision to exercise the discretion of NAMA to acquire the loans connected with Mr. McKillen was taken by a group consisting of myself, Brendan McDonagh, John Mulcahy and Sean O’Faolain on 11th and 14th December 2009. At these meetings we went through the asset lists and the objections raised by the five institutions which were likely to participate in NAMA. We decided to exercise our discretion to acquire Mr McKillen’s loans because of our belief that the extent of the aggregate exposure of the relevant participating institutions to Mr McKillen and his companies .... under credit facilities granted by those institutions, being the sum of approximately €2 billion was such as to create a systemic risk.
No formal minutes of this decision were kept. The fact of the decision on each loan was simply recorded by way of a notation on the relevant spreadsheet. For brevity, and without any assumption as to their legal effect, the acts described by Ms O’Reilly will be described as the “December decision”.
The appellants, not having been previously aware of these facts, submitted an amendment of their Statement of Grounds seeking declarations that the purported decision of NAMA to exercise its discretion to acquire the loans was taken on dates prior to the establishment of NAMA and by individuals having no authority to make such a decision and that it was “null, void and of no effect.” They included in their application for judicial review and pursue in their Notice of Appeal an application for an order of prohibition and/or an injunction restraining NAMA from service of any acquisition schedule pursuant to section 87 of the Act in respect of the appellants’ loans. Mr McKillen, in his grounding affidavit, stated that the appellants anticipated that the service of such a schedule was imminent. NAMA agreed before the High Court not to proceed with the acquisition of the appellants’ loans pending the outcome of these proceedings.
The respondents, in their amended grounds of opposition, claimed that:
The December decision was authorised through the National Treasury Management Act, 1990; this ground is no longer pursued;
The December decision was “duly ratified” at NAMA Board meetings on 23rd December 2009 and 7th January 2010 and confirmed by a letter of 9th January 2010 and by acceptance, acknowledgement and adoption by agents of NAMA at all material times since, including in court in the course of these proceedings;
The Chief Executive of NAMA duly confirmed, adopted and ratified the December decision on 17th September 2010.
It is of critical importance to consideration of this case that NAMA, as it has made abundantly clear, has never reached the stage of serving on the financial institutions concerned with the appellants’ loans an acquisition schedule as provided for in s. 87 of the Act. The service of such a schedule on the relevant financial institution has legal effects under Part 6 of the Act which do not need to be considered in this case. For example, the service of an acquisition schedule operates, according to section 90 of the Act, to effect the acquisition of the relevant assets by NAMA.
If that stage had been reached, any examination of whether NAMA had made a decision to acquire the appellants’ loans would have had to be considered from a different perspective.
As counsel of the appellants emphasised, the present case is focussed entirely on the particular circumstances of the appellants and their loans which have been treated as eligible assets under the Act. The question under consideration is, therefore, whether NAMA has made a decision pursuant to section 84 of the Act in respect of the appellants’ loans.
The facts relied upon in support of the grounds of opposition set out in paragraph 11 are as follows. Firstly, it is said that the Board of NAMA approved the Tranche 1-3 borrower lists at its first meeting on 23rd December 2009. According to the minutes of that meeting, under agenda item 7, “NAMA Acquisition Timetable and Borrower list,” the “board considered the proposed acquisition timetable and a list of borrowers whose loans are scheduled for transfer as part of the first three tranches.” The minutes do not, however, record any decision.
In support of the submission that the Board has subsequently adopted and approved the December decision, Mr Frank Daly, Chairman of NAMA, swore an affidavit to which the respondents attached particular importance.
Mr Daly said it had been obvious to the Board at its first meeting that “a great deal of preparatory work had been done…” Mr Daly had himself been advised by Mr McDonagh of “decisions of the interim team at the meetings held on the 11th and 14th of December 2000 and the Board would have been aware of the outcome of these decisions during its consideration of the item “NAMA acquisition and borrower list” under Agenda Item 7…” He said:
The Board at this meeting and at subsequent meetings operated on the basis that all preparatory work carried out by the interim team prior to that date, was, in effect, considered to be work carried out by NAMA and it was treated as such for the purpose of NAMA exercising its statutory functions and powers.
He added that under Agenda Item 7 “the list of borrowers based on eligible asset lists was considered by the Board and this is recorded in the Minutes of that meeting.”
Secondly, the Board, at a meeting on 7th January 2010, accepted the "CRITERIA FOR REVIEW OF EliGIBLE ASSET liSTS SUBMITTED BY INSTITUTIONS.” It noted that the financial institutions had submitted lists of loan assets considered to be eligible for acquisition. It mentioned the criteria applied by the interim NAMA team. These included the following:
the primary consideration was the eligibility of the assets by reference to the provisions of the Act and the Regulations ....
In terms of then assessing whether some assets, though eligible, should not be acquired by NAMA, a major guiding principle was the extent to which the borrowers overall exposure across the system was sufficiently material as to contribute to the systemic risk which NAMA is intended to address. Some borrowers, apparently, were keen to exclude some of their loans on the basis that the loans were performing. It was emphasised to institutions, however, that it was always intended that NAMA would acquire full exposures rather than only the non-performing elements of those exposures ....
Thirdly, in a letter of the 9th January, 2010 Mr Sean O’Faolain, on NTMA headed paper, confirmed to Anglo that certain credit facilities, including those of the Applicants, were being acquired and there was a similar letter to Bank of Ireland during January, 2010.
Fourthly, NAMA maintain in these proceedings that NAMA’s agents have accepted, acknowledged and adopted the decision at all material times.
Fifthly, Mr Brendan McDonagh swore an affidavit of 17th September 2010, in which he referred to “the fact that the decision to acquire the credit facilities associated with [Mr McKillen] was taken at meetings held on the 11 and 14 December 2009. He said that,
for the avoidance of any doubt and without prejudice to any points made by Aideen O'Reilly in this regard, I have considered afresh whether, in the light of the submissions and contentions in affidavits delivered on behalf of the Applicants, the decision to acquire the credit facilities .... was correct.
This passage is quoted more fully below.
The High Court ruled on what it termed “the timing issue” in the following paragraphs:
Ultimately, however, the Court is satisfied that the decision made on the 11th and 14th December 2009, was adopted, albeit not expressly, by the subsequent actions of NAMA following its establishment and in particular at the Board meeting of the 23rd December, 2009. The Court is also satisfied that the additional matters relied on by NAMA as evidencing adopting provide further support for the Court’s conclusion in this regard. The Court accepts the contention of NAMA that the term “decision” requires particularly careful consideration in the context in which the NAMA scheme operates. A decision may be a simple “once and for all” determination of a particular matter or may be but one in a series of steps which together and cumulatively constitute a decision. The acquisition of loans under the NAMA scheme is, in the opinion of the Court, very much in the latter category. When the initial decision or formation of view was taken on the 11th and 14th December, it was no more than a first step in a sequence.
the decision under attack in the instant case .. was nothing more than the formation of an initial opinion which preceded subsequent steps by NAMA, including the proposed service of an acquisition schedule, the opportunity of the relevant institution to have a review by an expert reviewer of the eligibility of the assets in question and the ultimate acquisition of the asset or assets thereafter.
there is a seamless continuity in the approach and actions of NAMA in relation to the proposed acquisition of the McKillen loans such as to satisfy the Court, on the basis of the material set out in Ms O’ Reilly’s affidavits in particular, that the board of NAMA adopted the decision by its actions on the 23rd December 2009 and confirmed that adoption by its decisions, approbation and further actions thereafter.
The High Court rejected a further argument of the respondents, namely that the decision was validated by section 17 of the Interpretation Act, 2005. The Court also rejected the submission that Mr McDonagh, had, in his affidavit of 17th September 2010, confirmed and ratified the December decision. Finally, the Court held that it would not, as matter of discretion have granted the order sought.
The appellants point to section 84 of the Act, being the provision which confers on NAMA the power to decide, in the exercise of its discretion, to acquire eligible bank assets. In keeping with standard administrative law principles, NAMA must actually exercise the power by duly considering all the relevant considerations. It was submitted that NAMA has never at any time since establishment considered these matters or exercised this discretion. The appellants characterise the respondents’ argument as being to the effect that it effectively rubber-stamped the decision made on the 11th and 14th December 2009 by ex post facto adoption or ratification.
The respondents submit that the decision, under the Act, to acquire eligible bank assets has, of itself, no legal effect. It does not have to take any particular form and there is no point in time at which it must be made. It acquires a legal effect when and only when steps are taken to include the assets in an acquisition schedule. The respondents do not contend that there was any act of ratification, stricto sensu, of a pre-establishment decision to acquire the assets. They, nonetheless, accept that the decision to exercise the discretion to acquire is a necessary preliminary to acquisition. Prior to the service of an acquisition schedule, the Act requires that NAMA be of the view that the assets are eligible bank assets and that their acquisition is necessary or desirable having regard to the purposes of the Act.
The respondents continued to maintain that NAMA has in fact decided to acquire the assets. NAMA, it is submitted has manifestly evinced the intention to acquire them by the various acts listed above and its general restatement of its entitlement to acquire them including its defence of these proceedings. The respondents accept that the December decisions were not a decision of NAMA. When pressed to identify when that decision had been made by NAMA, counsel for the respondents, at the hearing of the appeal, replied that the decision of 11th and 14th December was “adopted,” not ratified, albeit not expressly, by a series of actions of NAMA subsequent to establishment. He then cited the views of the High Court as quoted above, laying some emphasis on Mr Daly’s affidavit and Mr McDonagh’s subsequent review of the original purported December decision to acquire. In respect of Mr McDonagh’s affidavit it was submitted, in the appellants’ written submissions (though not in oral argument), that Mr McDonagh has under section 38 of the NAMA Act power to make decisions in relation to the acquisition of eligible bank assets.
Counsel submitted that the only inference to be drawn from the minutes was that a decision had been made. He said that from a series of decisions, events and facts, the Court can arrive at no other conclusion.
The respondents also rely on section 17(b) of the Interpretation Act, 2005. They submit that the initial decision to acquire the Applicants’ loans was made “after the passing of the Act.” In terms of considering whether section 17 has application, they then submit that the essential issue is whether the taking of that decision can properly be regarded as “necessary or expedient to enable the Act or provision to have full force and effect immediately on its coming into operation” (emphasis added).
Conclusion on the Issue of Whether There Was a Decision
It is correct that there are several stages to the acquisition process culminating in the service of an acquisition schedule. However, as appears to be accepted by the respondents, an essential pre-condition is that NAMA have formed an intention to acquire. Section 84 provides that NAMA “may acquire an eligible bank asset of a participating institution if NAMA considers it necessary or desirable to do so having regard to the purposes of this Act ....” Subsection (4) refers to considerations which NAMA may take into account “in deciding whether to acquire a particular bank asset ....”
Thus, NAMA must exercise its discretion as conferred by the section and make a decision to acquire. It must form an opinion that it is necessary or desirable to acquire the asset. To state the obvious, NAMA must make the decision and the Board of NAMA is, under section 18 of the Act, the decision-maker. That section deals with the functions of the Board. Principally, they are “to ensure that the functions of NAMA are performed effectively and efficiently.” Subsection (2) permits the Board to provide “for the performance of any of its functions by an officer of NAMA” but it is not suggested that the Board has made any such provision. Insofar as the respondents’ written submissions suggest that section 38 of the Act conferred power on the Chief Executive Officer (Mr McDonagh) to make decisions in relation to the acquisition of eligible bank assets, that section contains no such provision. Nor has Mr McDonagh purported, in any event, to make such a decision, a matter which will be discussed in connection with the respondents’ reliance on his affidavit of 17th September 2010.
NAMA is a body established by statute and no act performed in its name has any legal effect except as provided in the Act. The Act contains no provision such as section 37 of the Companies Act, 1963 which permits private companies to ratify contracts and other transactions “purporting to be entered into by a company prior to its formation or by any person on behalf of the company prior to its formation ....” It is axiomatic that NAMA could not make any decision before it came into existence. It is a matter of fundamental legal principle that a statutory body may only perform its functions as authorised by its founding statute.
It follows that the decision of the interim team made at meetings on 11th and 14th December 2009 was, in law, at the time when it was made, a nullity and had no legal effect.
NAMA could have made a valid decision following establishment. It could have done this independently of any prior work of the interim team. It could also have done so by reference to that work. In either event, the essential point is that it would have to be a decision of the NAMA Board. The respondents have accepted very clearly that NAMA made no explicit decision but argue for an implied decision. The High Court held that the December decision “was adopted, albeit not expressly, by the subsequent actions of NAMA following its establishment.”
NAMA first rely on the board minutes of 23rd December 2009. Those minutes merely record that the “board considered the proposed acquisition timetable and a list of borrowers whose loans are scheduled for transfer as part of the first three tranches.” This entry appears indeed to refer to the appellants’ loans, but to consider is not to decide. The minutes provide no evidence of a decision. By the same token, the board on 7th January 2010 merely approved certain criteria to be applied in considering whether to acquire eligible assets. Unlike the minutes of 23rd December 2009, those minutes do not even refer to the appellants’ loans.
Mr Daly, however, swore that the Board, at the meeting of 23rd December, was aware of the December decision and that the Board at that and “subsequent meetings operated on the basis that all preparatory work carried out by the interim team prior to that date, was, in effect, considered to be work carried out by NAMA and it was treated as such for the purpose of NAMA exercising its statutory functions and powers.” That statement goes no farther than to say that the Board considered the December decision to be the effective decision and to have been made on behalf of NAMA. If so, the Board were under a serious misapprehension as to the legal effect of the December decision. Being of that view, it did not address the need for a new decision and did not purport to make one, even a decision taking the form of adoption of the December decision.
The Board meeting of 23rd December, as already indicated, records no decision. This is not a mere matter of defective recording. The more fundamental point is that it is clear from the evidence of Mr Daly that no decision was in fact made.
The events surrounding the meeting of 23rd December as explained in Mr Daly’s affidavit are the high point of the respondents’ case on this issue. Since it is not contended that the Board ever expressly decided to acquire the appellants’ loans, the search is for an implied decision. It is clear from a reading of all the material offered that the Board of NAMA and its officers considered the matter to have been decided on 11th and 14th December. There being in their minds no need for a further decision, it is not surprising that they never purported to make one.
The respondents rely on the following paragraph from Mr McDonagh’s second affidavit:
|I have considered afresh whether, in light of the submissions and contentions advanced in affidavits delivered on behalf of the Applicants, the decision to acquire the credit facilities, the subject matter of the proceedings, was correct. I have also in particular reviewed the documentation and information, relating to these credit facilities referred to in the Affidavits, and I believe that there is no new information which has come to light since the original decision was taken in December 2009 which makes the original decision incorrect or which in my view would make it appropriate for NAMA to decide not to acquire the loans. I, as Interim Managing Director of NAMA appointed under a direction by the Minister for Finance was the person ultimately responsible for the decision, and it was made with my full knowledge and authority.|
The principal difficulty about this paragraph is that it is founded entirely on the decision of 11th and 14th December, which it twice describes as “the original decision.” It does not refer to any later decision and, even assuming Mr McDonagh to have had the authority to make a new decision, he does not say that he made one and does not purport to make one. Mr McDonagh’s affidavit adds nothing to the respondents’ case on this point.
The consistent assumption of all concerned was that the decision to acquire had been made by the interim team on 11th and 14th December. Ms Aideen O’Reilly, for example, in her second affidavit again refers to that decision by naming the four individuals. She expressed her belief that all preparatory work was carried out by the National Treasury Management Agency in accordance with a direction of the Minister for Finance and that the Agency had full authority to do this work. To the credit of those swearing the various affidavits, they have not attempted to contend that any decision was made after the establishment of NAMA. At most they argue for an implied decision. But they believed that the decision had already been made and were not conscious of any legal difficulty about this. Therefore, it is not possible to clothe their actions with an implied intention to do something which they did not consider necessary.
NAMA could have taken steps to prevent this problem arising by the simple expedient of making a Board decision, which, in addition should have been properly evidenced following establishment, to exercise the discretion conferred by section 84 of the Act. If it had done so, it would not have been driven to rely, as evidence of the making of a decision by implication, on a variety of statements, particularly in the affidavits of the Chairman and Managing Director of NAMA. Regrettably, all of these, without in any sense calling into question the credibility of the deponents, on close analysis, served only to demonstrate the belief of those responsible that the decision to acquire had been made prior to establishment and that it was authorised through the National Treasury Management Act, 1990, a point which NAMA has not pursued before this Court.
Finally, it is necessary to refer to the argument based on section 17 of the Interpretation Act, 2005. That section provides, in certain circumstances, for the exercise of statutory powers at a time between the enactment of a statute and its coming into effect. The relevant provision is paragraph (b), which provides:
|If, for the purposes of the Act or the provision, the Act confers a power to make a statutory instrument or do any act or thing, the making or doing of which is necessary or expedient to enable the Act or provision to have full force and effect immediately on its coming into operation, the power may, subject to any restriction imposed by the Act, be exercised at any time after the passing of the Act.|
The respondents’ main point is that the making of the December decision was “necessary or expedient to enable the Act or provision to have full force and effect immediately on its coming into operation.” That submission ignores the need for the Act to have conferred a power on the persons who purported to make the decision. Clearly, no such power was conferred on the employees of the National Treasury Management Agency or its employees. Thus, section 17 can have no effect so far as the acts of the “interim team” were concerned. The respondents have pointed to no power conferred by the NAMA Act on those persons. The Interpretation Act does not rescue the December decision from invalidity.
The Court is satisfied, therefore, that the December decision made by the interim team had no legal effect and, that contrary to what was decided by the High Court, it was not given legal effect by any subsequent act or series of acts of NAMA. This is no mere matter of form. It is fundamental to the functioning of a statutory body that it, itself, take such decisions as it is empowered to make by the statute and exercise any discretions conferred on it. Consequently, NAMA has made no decision to acquire the appellants’ loans. The appellants are, therefore, entitled to a declaration to that effect.
The Court does not consider that there are any grounds, such as those mentioned by the High Court, upon which the Court should exercise its discretion to refuse relief to the appellants. The Court does not agree that the question of whether NAMA has made a decision is a purely technical and formal one; a decision to acquire eligible assets is an essential step in the statutory process; there was no need to seek certiorari of a decision which is a mere nullity; whether the appellants are entitled to fair procedures does not affect this legal point.
Accordingly the appeal is allowed and the appellants are entitled to a declaration that NAMA has not made a decision to acquire the eligible bank assets represented by their loans.
As indicated Mr. Justice Fennelly will deliver a judgment, with which I agree, on the appellants’ ground of appeal concerning state aid.
As regards the other issues in the appeal the Court will invite the views of the parties as to whether they can now be considered to be a justiciable controversy between the parties at this stage.
The appellants claim a “declaration that the powers vested in [NAMA] under the [National Asset Management Agency Act 2009] Act must be exercised in accordance with Articles 107 and 108 of the Treaty on the Functioning of the European Union (“TFEU”) and, in particular with European Commission Decision of 26th February 2010 .... the effect of which decision is clarified in the European Commission’s letter of 8th September 2010.” The appellants seek a declaration that NAMA has failed to exercise its powers in accordance with the Treaty and/or the Commission Decision by purporting to acquire credit facilities with which they are connected (“the appellants’ loans”) “absent any consideration as to whether the appellants .... were impaired borrowers.” Although the appellants do not expressly seek an injunction, that is the effect of the declaration sought. Furthermore, the appellants’ case is fundamentally based on the Commission Decision having direct effect.
Although the Court has decided that NAMA has not in fact made any decision to acquire the loans of the appellants, this aspect of the appeal is capable of being decided. It is based entirely on the effect of the Commission Decision of 26th February 2010.
For reasons which I will explain this must be understood as a claim that the proposal by NAMA to acquire the appellants’ loans would constitute the unlawful grant of state aid contrary to Articles 107 and 108 TFEU and that NAMA should be restrained from acquiring the loans. The legal ground for this contention is that NAMA maintains that it is not required to give any consideration to whether the appellants’ loans were “impaired.”
It is common case that the NAMA scheme entails the grant of state aid within the meaning of Articles 107 and 108 TFEU. The state implicitly acknowledged this fact when it duly notified the Commission of its proposals. The Commission in its Decision of 26 February 2010 (case N725/2009 “Establishment of a National Asset Management Agency (NAMA): Asset relief scheme for banks in Ireland,” hereinafter “the Commission Decision”) determined that the NAMA scheme would constitute aid provided from state resources to the participating institutions within the meaning of Article 107(1) TFEU.
The Commission concluded, however, that the scheme fulfilled the requirements of Article 107(3) (b) TFEU and that it was thus compatible with the internal market. It communicated to the government its Decision which took the form that it “raised no objections to the scheme.”
The appellants argued both in the High Court and on the hearing of the appeal that, pursuant to the terms of the Commission Decision, NAMA is not empowered to acquire the appellants’ loans from participating institutions given the fact that NAMA will not consider and has not considered and claims that it does not need to consider whether the appellants’ loans were impaired loans.
In advancing this argument, the appellants place special reliance on the later explanation of the Commission Decision said to be contained in a letter addressed by the Director of Competition at the Commission to Senator Eugene Regan (hereinafter “the Commission letter”).
The essence, therefore, of the appellants’ claim is that the Commission Decision, interpreted in the light of the Commission letter has direct effect and that this Court is obliged to give effect to its terms. They rely on the judgment of the Court of Justice in Case 9/70 Grad v Finanzamt Traunstein  ECR 825 as authority for the direct effect of decisions of the institutions of the Union.
The respondents, in the High Court, raised by way of legal objection to this argument the principle that, in accordance with settled case law, the question of the compatibility with the internal market of any particular scheme of state aid falls within the exclusive competence of the Commission and that the national court has no authority to rule whether any particular grant of state aid is compatible with the internal market. The High Court did not find it necessary to rule on this objection. Following detailed substantive analysis of the Commission Decision, it found that the Commission did not confine its approval of the NAMA scheme to the acquisition of impaired assets. It decided that the Commission letter addressed to Senator Regan was inadmissible for the purpose of interpreting the Commission Decision and that, even if it had been admissible, it did not bear the meaning contended for.
Whether the implementation of the NAMA scheme by the acquisition of the loans granted to the appellants constitutes the grant of unlawful state aid requires consideration, in the first instance, of the form and nature of the Commission Decision. Depending on whether the Decision is capable of having direct effect, it may be necessary to consider its content. I will commence by setting out the history and background to that Decision.
Articles 107 and 108 TFEU (formerly Articles 87 and 88 and originally Articles 92 and 93 of the Treaty Establishing the European Community) contain the Treaty provisions on “Aids granted by States.” Article 107(1) lays down a general prohibition on the grant of state aid in the following terms:
|Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.|
Article 107 (2) provides that in three special exceptional cases, of no relevance to the present case, aid “shall be compatible with the internal market.” Article 102(3) lists types of aid which may be considered “compatible with the internal market.” Paragraph (b), the second part of which was successfully invoked by the Irish government in the present case, covers:
aid to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of a Member State.
Article 108 lays down procedures for the review by the Commission of state aid. Firstly, the Commission is required, in cooperation with Member States, to “keep under constant review all systems of aid existing in those States.” (existing aid). Secondly, Article 108(3) obliges Member States to inform the Commission of any plans to grant new state aid. It is a fundamental feature of this scheme that the Commission has the exclusive function of ruling on the compatibility of aid, whether existing or new, with the internal market.
The courts of the Member States are obliged to support the Commission in the exercise of its functions. Most importantly, they must give effect to the standstill provision of Article 108(3) and are obliged to make orders, where appropriate, restraining the state from implementing aid where the state in question has failed to notify the Commission or, where notice has been given, without awaiting the Commission decision on compatibility. Aid granted in contravention of Article 108(3) is described as “unlawful aid.” (see Commission Notice 2009/C 85/01 of 9th April 2009 on enforcement of State Aid law by national courts, especially paragraph 28). The national court may also be obliged to make orders for the recovery of unlawful aid, a matter which does not arise in the present case. In addition, it is common case that the State duly notified the Commission of its intention to grant the aid in the present case. There is no suggestion of any deficiency in that notification.
The government, on 29th September 2009, in advance of the introduction of the legislation, notified the Commission of its intention to introduce the NAMA scheme as an “asset relief measure.” From that time there was regular contact by way of meetings and otherwise between the Irish authorities and the Commission services. The National Asset Management Agency Bill 2009 was introduced in Dáil Eireann on 16th September 2009. The National Asset Management Agency Act 2009 was enacted on 22nd November 2009 and came into effect on 21st December 2009. On 23rd December 2009 the Irish government gave formal notice of the NAMA scheme to the Commission. Further submissions and exchanges of information took place between that date and February 2010. The Commission Decision was communicated to the Irish government on 26th February 2010.
The Commission determined that the notified measures would, if implemented, constitute aid to the participating institutions for the purposes of Article 107(1) TFEU for three principal reasons, which can be summed up by saying that, through the NAMA scheme, the State provides State guaranteed bonds designed to enable NAMA to finance an asset relief scheme by the purchase of assets from financial institutions at a price above market value and that this distorts competition by conferring benefits on the participating financial institutions.
The Decision considered all aspects of the NAMA scheme in great detail. The Commission concluded that the scheme fulfilled the requirements of Article 108(3)(b) TFEU as being designed “to remedy a serious disturbance in the economy of a Member State ....” Thus, it made a “decision of no objection” to “NAMA as a scheme.”
This was a “decision not to raise objections” which is made when “the Commission, after a preliminary examination,” finds that “no doubts are raised as to the compatibility with the common [now the internal] market of a notified measure.” This procedure is described in Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (now Article 108 TFEU). Under that procedure, the Commission simply decides that the “measure is compatible with the [internal] market.” The form of the decision is “not to raise objections,” the Commission has no power to impose conditions and the member state may introduce the aid.
By way of contrast, the Commission may initiate the formal investigation envisaged by Article 108(2) TFEU, in which case, the Commission may make a positive decision that the aid is compatible but may also impose conditions (see Article 7 of Council Regulation (EC) No 659/1999).
It is firstly necessary to identify the precise ground of the appellants’ complaint. The appellants contend that, on a correct interpretation of the Commission Decision, an assessment of what are eligible assets requires NAMA to consider impairment at the borrower level and that the appellants have the right to rely in this Court upon the direct effect of the Decision and to ask that the Court make an order declaring the transfer of the appellants’ loans to NAMA to be incompatible with Articles 107 and 108. The wording of the declaration sought is that NAMA’s powers “must be exercised in accordance with” those Articles and with the Commission Decision. Furthermore, the appellants argue that, in accordance with the principle of conforming interpretation, the term “eligible bank assets”, in the Act must be interpreted as requiring consideration of whether the borrower in respect of the credit facilities in question is “impaired.”
The appellants claim that the NAMA scheme was approved by the Commission on the basis that it applied to impaired borrowers only. In support, they rely on a number of paragraphs of the Commission Decision, principal among them paragraph 18, which reads:
|According to the Irish authorities, eligible assets are expected to be concentrated on a small number of very large real estate developers, involved across the whole cycle of property development. Loans to such developers are closely interconnected and interlinked (through cross default and cross guarantee clauses for example as described in footnote 6) which is viewed as significantly contributing to the impairment problems currently threatening credit institutions in Ireland. Therefore, the approach to determining asset eligibility under the scheme is based on the concept of impairment at the borrower relationship level as opposed to impairment at the asset level only (impaired borrower relationship).|
The expression “impaired borrower relationship” or cognate expressions occur at a number of other points in the Decision. Paragraph 15 states that the
|Irish authorities intend to concentrate on assets from the riskiest parts of the portfolios of the participating institutions, namely land and development loans and associated loans.|
The appellants also draw attention to paragraph 138 of the Commission Decision, which reads:
|Concerning the format, scale and scope of the measure, the Commission firstly recalls that the choice of management arrangement for impaired assets is the responsibility of each Member State. Further, the eligibility criteria proposed by the Irish authorities for both participating institutions and bank assets are in line with the provisions of the IAC (paragraphs (106) and (112)). In particular, the Commission views the inclusion of the associated commercial loans as necessary to capture the entire exposure to the impaired borrower relationship as well as to help with aligning the measure with public policy objectives5. Concerning the potential participation of Anglo Irish Bank in the Scheme, this participation will be assessed according to eligibility criteria for applicant institutions which the Commission has found to be objective and non-discriminatory.|
The appellants also submit that the Commission Decision expressly incorporated the requirements of Section 5.4 of the Commission’s own February, 2009 Communication Concerning the Treatment of Impaired Assets in the Community Banking Sector (“the Impaired Assets Communication”), referring to the requirement for a clear identification of impaired assets, and concluded that the scope of assets to be included in NAMA was in line with the eligibility requirements of the Impaired Assets Communication.
Insofar as it will be necessary, as explained below, for the appellants to demonstrate that the term of the Commission Decision upon which reliance is placed is unconditional, clear and precise, it is significant that they conceded both in the High Court and before this Court that “the Commission’s conclusions approving NAMA could, on one interpretation, be viewed as accepting the application of a more general definition of eligible bank assets.”
Faced with this difficulty, the appellants call in aid the Commission letter of 8th September 2010 addressed to Senator Regan. Senator Regan had participated in the Commission’s decision-making process: he had lodged a formal complaint against some aspects of the NAMA scheme and had met with members of the Commission services. Following the Commission Decision, he wrote to the Commission seeking confirmation that the NAMA scheme applied only to “impaired loans” and an “impaired borrower.” The appellants’ submit that the Court should take this letter into account when interpreting the Commission Decision.
In her letter written on behalf of the Commission, Dr. Irmfried Schwimann referred in detail to the Commission Decision. She quoted paragraph 18, which I have quoted above, as containing a “more detailed definition of the concept of impaired borrower.” The appellants rely on the following elucidation of that paragraph:
|According to the definitions above, the relevant concept to determine whether an asset is eligible or not to be transferred to NAMA is that the debtor on the loan in question is regarded as an ‘impaired borrower’. Impaired borrowers, as considered by the Irish authorities ‘are expected to be concentrated on a small number of very large real estate developers, involved across the whole cycle of property development.’ Furthermore, it stems from paragraph 18 and footnote 6 that it is the concept ‘impaired borrower’ which is relevant, instead of ‘impairment at the asset level’ due to the existence of contractual links among loans, which may trigger a ‘technical events of default’ [sic].|
The High Court determined that it “ought not to take the contents of the letter into account at all.” It declined to have regard to the Commission letter. It said:
|The Decision has to be construed by reference to itself and cannot be amended or altered save by a subsequent decision of the Commission. Neither can subsequent correspondence emanating from a Commission official, regardless of status or distinction, be utilised to construe the terms of the Decision itself.|
The appellants submit that this refusal to take account of external material is not supported by case law of the Court of Justice. That Court, it is claimed, often refers to external materials, such as travaux preparatoires, in the course of its decision-making and says that this letter has similar status, in light of the ongoing review by the Commission of the NAMA acquisitions. The authorities cited in support of this proposition are: Case C-324/98, Telaustria Verlags GmbH Telefonadress GmbH v Telekom Austria AG  E.C.R.-I 10745; Case C-368/96, R v The licensing Authority established by the Medicines Act 1965, ex parte Generics  ECR I-7967; Case C-322/88 Grimaldi v Fonds des Maladies Professionnelles  ECR 4407; Joined Cases C-317/08, C-318/08, C-319/08 & C-320/08 Alassini v Telecom Italia SPA (judgment 18th March 2010 nyr)  3 C.M.L.R. 17; Case C-310/90 Nationale Raad van de Orde van Architecten v Ulrich Egle  E.C.R. I-177; Case C-188/91 Deutsche Shell AG v Hauptzollamt Hamburg-Harburg  E.C.R. I-363.
The appellants also rely on the duty of sincere co-operation between Member States and EU institutions as being incumbent on the courts of the Member States, by virtue of Article 4.3 of the Treaty on European Union which provides:
|Pursuant to the principle of sincere co-operation, the Union and the Member States shall, in full and mutual respect, assist each other in carrying out which flow from the Treaties.|
Consideration of the effect of the Commission Decision
The appellants ask the Court for orders affecting the exercise by NAMA of its powers under the 2009 Act to acquire the lenders’ rights in credit facilities granted to them. The object, therefore, of the proceedings is to restrain NAMA in the exercise of its decision-making powers under the Act.
Section 84 confers power on NAMA to “acquire an eligible bank asset of a participating institution if NAMA considers it necessary or desirable to do so having regard to the purposes of this Act and in particular the resources available to the Minister.” The term, "eligible bank asset" is, as the appellants acknowledge, defined in an extremely broad fashion by the National Asset Management Agency (Designation of Eligible Assets) Regulations 2009 pursuant to the power conferred on the Minister by section 69 of the Act. Section 84(2) provides:
|For the avoidance of doubt, NAMA may acquire, from a participating institution, performing or non-performing eligible bank assets.|
The terms performing and non-performing eligible bank assets are defined in section 4 of the Act. Non-performing assets include, in particular, an asset where payments are not being or have not been met or covenants are not being or have not been complied with.
Nothing in the Act, therefore, restricts the Minister to acquisition only of “impaired” or “non-performing” loans or credit facilities and that was the view expressed by the High Court. As the High Court points out in its judgment (paragraph 9.8), the appellants abandoned an argument originally made that the definition of “eligible bank assets” in the 2009 Act had to take account of the concept of impairment.
The first and principal argument of the appellants is that the Commission Decision has direct effect and that NAMA may accordingly acquire only "impaired loans." The principle that decisions of the institutions of the Community, now the Union, are capable of having direct effect and of being invoked by individuals before the courts of the Member States is established by the decision of the Court of Justice in Case 9/70 Grad v Finanzamt Traunstein  ECR 825. That case concerned a decision of the Council concerning turnover taxes in the transport sector. The Council decision imposed two obligations on the Member States: firstly, to apply a common system of turnover tax in that sector; secondly to replace existing taxes with that system prior to a specific date. The latter obligation was interpreted by the Court as implying "a prohibition on introducing or re-introducing" such existing taxes. It was this latter negative obligation which the court considered to be "unconditional and sufficiently clear and precise to be capable of producing direct effects in the legal relationships between the Member States and those subject to their jurisdiction."
These conditions for the invocation of direct effect, namely that the provision be unconditional and sufficiently clear and precise, originated, of course, in the foundation judgment in Case 26/62 Van Gend en Loos  ECR 1, in that case, in respect of a Treaty provision. In every case, it is necessary to consider the nature and wording of the provision and the scheme of which it forms part. Similarly, for a provision of a directive to have direct effect, the Court of Justice has said that it is necessary that it be “unconditional and sufficiently precise ....” (Case 8/81 Becker v Finanzamt Münster-Innenstadt  ECR 53.
The High Court proceeded on the hypothesis, but without so deciding, that the Commission Decision had direct effect. This had the consequence that the Court did not address the conditions to be met before a particular provision is considered to have direct effect.
The High Court pointed out that the Commission Decision contained 140 paragraphs and that the parts cited by the appellants had to be seen in the context of the Decision as a whole. The High Court carried out a detailed and comprehensive analysis and assessment of the Commission Decision. It arrived at the conclusion that:
|Impairment either at borrower or asset level is not a condition for eligibility under the Act. Neither is it made so by the Decision. It is the view of the Court that the Commission understood that the category of eligible bank assets comprised all loans in the land and development category.|
While it is possible to approach the matter by conducting a substantive review of what the Commission intended, I believe the first and essential question is whether the Commission Decision or any its provisions satisfies the requirements for direct effect. Here it is appropriate to recall the essential principles.
Firstly, the national court has no power to pronounce on the compatibility of any system of state aid with the Treaty. The Court of Justice in Case 6/64 Costa v ENEL  ECR 585 explained that “[b]y so expressly undertaking to inform the Commission ‘in sufficient time’ of any plans for aid, and by accepting the procedures laid down in Article 93, the States have entered into an obligation with the Community, which binds them as States but creates no individual rights except in the case of the final provision of Article 93(3), which is not in question in the present case.”
Secondly, it has not been suggested that the NAMA scheme was not duly and fully notified to the Commission in accordance with Article 108 TFEU: thus this Court is not called on to enforce the standstill provision in Article 108(3).
Thirdly, the Commission did not open the formal investigation procedure under Article 108(2); following a preliminary investigation, it made a decision not to raise objections, which meant that the aid could be implemented.
Fourthly, it followed that the Commission had no power to impose conditions on the State as part of its decision and it did not purport to do so.
In these circumstances, the technical position is that the State proposes to implement a state-aid scheme, which it has duly notified to the Commission, which, considering it compatible with the Treaty, has not objected. It follows, that the NAMA scheme may be implemented. The appellants might conceivably have challenged the Commission Decision in the General Court, a matter on which it is not necessary to comment. What is clear is that there is no condition attached to the Commission decision whose direct effect can be invoked by the appellants. It is evident from the decision cited by the appellants, Grad v Finanzamt Traunstein, that the conditions for the direct effect of a decision of an institution of the Union are that it be unconditional and sufficiently clear and precise.
The appellants say that the NAMA scheme was cleared by the Commission on the basis that it applied to impaired borrowers only. At one point in their written submissions, they go so far as to claim that the Decision imposes an obligation on NAMA to acquire only the loans of impaired borrowers, but the Decision contains no provision purporting to impose any such an obligation. However, the essential argument is that the Commission made its decision “on the basis that ...,” which apparently means on the understanding or assumption that, only the loans of impaired borrowers would be acquired. When one reviews the extracts from the Decision most relied upon, it becomes clear that the Commission there refers to the content of the scheme as submitted by the State. Each of these extracts refers in one way or another to what is proposed by “the Irish authorities,” not to anything approaching the imposition of a requirement by the Commission. Paragraph 18 commences: According to the Irish authorities ....; paragraph 15 says that the “Irish authorities intend to concentrate on assets from the riskiest parts of the portfolios ....;” paragraph 138 refers to “the eligibility criteria proposed by the Irish authorities ....” In none of these paragraphs does the Commission purport to lay down a requirement or a condition. That is, of course, explained by the fact that the Decision was merely not to object.
The appellants correctly and fairly concede that the Commission’s conclusions approving NAMA could, on one interpretation, be viewed as accepting the application of a more general definition of eligible bank assets than that for which they contend. That commendable concession makes it impossible for the appellants to contend that the decision is unconditional, clear and precise.
If that concession is correctly made, it is difficult to accept that the letter addressed to Senator Regan could possibly lead to a different result. Accepting the principle that a provision of a Decision may have direct effect, one is compelled to ask how a decision which, read alone, does not meet the criteria for direct effect could become sufficiently clear and precise when read in the light of a subsequent letter.
The crucial paragraph of the Commission letter is quoted above. It relates and refers throughout to the terms of the original Commission Decision. It uses the expression, “the definitions above” to refer to paragraph 18 of the Commission Decision, which, in turn, refers back to the explanation of “eligible assets” “provided by the Irish authorities.” It goes on to state that “[i]mpaired borrowers, as considered by the Irish authorities ‘are expected to be concentrated on a small number of very large real estate developers, involved across the whole cycle of property development.’” At several points both the Decision and the letter refer to the existence of contractual links among loans, which may trigger a ‘technical events of default’ [sic]”
It should be noted that the appellants go no further than to submit that the Commission letter should be “taken into account” as an aid to the interpretation of the Commission Decision. When considering the extensive case law cited by the appellants, it must be borne in mind that the letter offered as an aid to interpretation post-dates the Decision which it is supposed to interpret.
The appellants cite some paragraphs from my opinion as Advocate General and the judgment of the Court in Case C-324/98, Telaustria Verlags GmbH Telefonadress GmbH v Telekom Austria AG. In deciding whether concessions were included within the scope of a public procurement directive, regard was had to the prior legislative history, especially of changes during the legislative process, of directives in the same field. In R v The licensing Authority established by the Medicines Act 1965, ex parte Generics, it was held that a declaration recorded in the minutes of the Council which adopted a directive could be taken into consideration inasmuch as it served to clarify a general concept used in the directive. In Grimaldi v Fonds des Maladies Professionnelles, the Court held that national courts were bound to take into consideration recommendations of the Council made pursuant to what was then Article 189 of the Treaty “where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community measures.” (Paragraph 18 of the judgment). In Case C-310/90 Nationale Raad van de Orde van Architecten v Egle, the Court found confirmation for its interpretation of a directive in “a joint declaration of the Commission and the Council, contained in the minutes of the session at which the directive was adopted ....” (paragraph 12 of the judgment). Case C-188/91 Deutsche Shell AG v Hauptzollamt Hamburg-Harburg concerned the implementation of an international convention regulating the carriage of goods between the Community and the then EFTA states. The Convention entrusted responsibility for its administration to a joint committee, which was given power to take decisions and make recommendations. Although the recommendations did not confer rights on individuals, the Court held that the arrangement under the Convention formed part of Community law and that national courts were obliged to take them into consideration in the resolution of disputes.
It is apparent that none of the cited cases involved giving interpretative effect to a letter written by a Commission official even one of high position and importance subsequent to the making of a Decision. A decision is one of the legal acts mentioned in Article 288 TFEU by which the Union exercises its competence. A decision made under Article 108 such as the Commission Decision of 26th February 2010 was one such act. From a reading of the Decision it is apparent that the Commission examined the proposals of the government with great care. While it is not possible, at the level of principle, to exclude entirely the possibility of reference to a subsequent letter, for example, to clarify or correct an error or omission, I do not accept that the Commission letter in this case can be used in order to make a key and important change or addition to the Commission Decision itself.
I agree with the judgment of the High Court both as to the admissibility of the letter and as to its contents.
I conclude that there is no term of the Commission Decision, invoked by the appellants, which meets the requirements for the Decision to have direct effect by conferring rights on the appellants capable of being relied upon before this Court. The Decision did not purport to lay down any requirement and certainly not one which was unconditional, clear and precise.
The appellants also cite Article 4.3 of the Treaty on European Union, which provides:
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.
I cannot see that this adds anything to the appellants’ case. I have no difficulty in accepting that the Court is bound, by virtue of Article 4.3 to apply the principle of sincere co-operation. The question is, however, whether the Commission’s approval of the NAMA scheme contained a requirement that only loans made to “impaired borrowers” would be acquired. If the Decision does not bear that meaning, Article 4 TEU cannot alter that fact.
By precisely the same process of reasoning, I am satisfied that the principle of conforming interpretation cannot assist the appellants. They submit that the term “eligible bank assets” in the Act must be interpreted as requiring consideration of whether the borrower in respect of the credit facilities in question is “impaired, ” an argument which can succeed only if the terms of the Decision require that result. For reasons already given, it does not.
In the result, I am satisfied that the appellants have not shown that they are entitled to any declaration to the effect that NAMA is attempting to exercise its powers in breach of Articles 107 and 108 TFEU or of the Commission Decision.
12 APRIL 2011
The Court, having delivered its judgment concerning two primary issues in this case on the 3rd day of February 2011, heard submissions from the parties concerning the mootness or otherwise of certain outstanding issues which had been raised by the appellants. One of these issues concerned a direct challenge to the compatibility of s. 69 of the National Asset Management Agency Act 2009 with the provisions of the Constitution having regard to the potential impact of the section and the regulations made thereunder on the property rights of the appellants.
The Court is satisfied that, in the circumstances of the case, the appellants’ direct challenge to the constitutionality of s. 69 of the Act is not rendered moot by its earlier decision and is one which the appellants continue to have locus standi to maintain. It is not in issue that credit facilities which the appellants had obtained from banks who had opted to participate in NAMA are eligible bank assets within the meaning of the Act. Therefore, notwithstanding the decision of the Court that the purported decision of NAMA to acquire those assets was a nullity, those credit facilities nonetheless remain assets which may be acquired by NAMA in the exercise of its statutory powers and the appellants’ contractual interests and rights arising from the relevant credit facilities may be affected if acquired by NAMA. It is also a fact that at the hearing on the question of mootness the respondents, pointed out, as they were perfectly entitled to do, that they continued to have the right to consider and decide whether the eligible bank assets relating to the appellants’ loans should be acquired and do so in accordance with the provisions of the statute.
In those circumstances, given that the appellants have credit facilities with banks who are participating in NAMA and that those facilities as eligible bank assets are open to being acquired by NAMA in the exercise of its statutory discretion the Court is satisfied that the appellants currently face a real and immediate risk of being adversely affected by the operation of the Act and therefore continue to be entitled to maintain their direct challenge to the constitutionality of s. 69. The Court considers that the appellants, as concerns this issue, fall within the ambit of what was stated in Cahill v Sutton  I.R. 269 at 28 namely that a plaintiff should be able to assert that his interests “stand in real or imminent danger of being adversely affected, by the operation of the statute”.
The Constitutional Issue
The appellants have raised the issue concerning the compatibility with the Constitution of s. 69 of the National Asset Management Agency Act 2009, and the regulations made pursuant to that section on the grounds that the meaning given to eligible bank asset is so broad and the discretion of NAMA so untrammelled, as to represent an unjust and disproportionate attack on the appellants’ property rights contrary to the provisions of Article 40.3.2 and/or Article 43 of the Constitution.
Thus the appellants rely on two elements related to the power of NAMA to acquire eligible assets, namely, the over broad, as they put it, definition of eligible bank asset combined with the vagueness or indeterminate nature of the criteria according to which NAMA may exercise its statutory power to acquire such an asset, as giving rise to the constitutional frailty. In their written and oral submissions to this Court the appellants have not contended that the over broad definition of eligible bank asset on its own gives rise to the constitutional frailty for which they contend, although that point appears to have been pursued in the High Court. As the appellants put it, it is the breadth of the “jurisdiction” of NAMA in exercising its statutory powers, combined with the untrammelled discretion of NAMA as to whether to exercise that statutory “jurisdiction” which renders s. 69 unconstitutional.
Section 4 of the Act provides that eligible bank asset has the meaning given by subsection (4) of s. 69. That subsection provides that “a bank asset that is in a class prescribed under subsection (1)” of s. 69 “is referred to in this Act as an eligible bank asset.”
Section 69(1) provides as follows:-
The Minister may, after consultation with NAMA, the Governor and the Regulatory Authority, and considering the purposes of NAMA and the resources available to the Minister, prescribe, by regulation, classes of eligible bank asset.
Section 69(2) describes the classes of bank assets which may be prescribed under s.s. (1) and provides as follows:-
The classes of bank assets prescribed under subsection (1) may include—
Subsection (3) of s. 69 provides as follows:-
In forming an opinion for the purpose of subsection (2) (b), the Minister may take into account—
The Regulations referred to by the appellants are the National Asset Management Agency (Designation of Eligible Bank Assets) Regulations 2009 (S.I. No. 568/2009) made by the Minister pursuant to s. 69(1) of the Act. Specifically the appellants referred to Regulation 2 of those Regulations which provides as follows:
The following classes of bank assets are prescribed as classes of eligible bank assets for the purposes of the National Asset Management Agency Act 2009 (No. 34 of 2009):
As the appellants have pointed out Regulation 2 of the Regulations sets out the classes of eligible bank assets in a manner that broadly follows the scheme of s. 69(2) of the Act and contains seven main classes of eligible bank assets although the final six mostly refer back to the first class in some way.
Arguments of the Appellants
In his submissions counsel on behalf of the appellants pointed out that s. 4 of the Act provides that eligible bank assets has the meaning provided by s. 69(4), which in turn provides that a bank asset that is in the class prescribed under s. 69(1) is an eligible bank asset. Section 69(1) allows the Minister for Finance to prescribe, by regulations, classes of bank asset as classes of eligible bank asset. Then s. 69(2) provides a list of classes of bank asset that may be prescribed under s. 69(1). Counsel then referred to Regulation 2 of the above mentioned regulations which sets out the classes of eligible bank assets in a manner that broadly follows the list contained in s. 69(2) and pointed out that it refers to seven main classes of eligible bank assets although the final six mostly refer back to the first class in some particular way. Counsel further commented by stating that the first class, class (a) includes credit facilities connected in any way with development land. The other classes then seek to capture other credit facilities that are connected with those in class (a) either through the identity of the asset or the identity of the debtor. Counsel indicated that once a debtor has credit facilities which are connected to development land, all credit facilities granted to that debtor are eligible bank assets.
Counsel submitted that, accordingly, the meaning of ‘development land’ is a key element in the application of the provisions in question.
The appellants in their submissions went on to refer to the definition of ‘development land’ in s. 4 of the Act which is defined as meaning:
land wherever situated (regardless of its zoning or its status under the Planning and Development Acts 2000 and 2007 or any other enactment or applicable law) –
that was intended to be sold or otherwise exploited.
Counsel also referred to the fact that s. 4 provides that “land” should have the same meaning as under the Land and Conveyancing Law Reform Act 2009, where that term is broadly defined.
Counsel submitted that all these provisions mean that land falls within the definition of development land for the purposes of the Act of 2009 if it was at any time intended to be sold or exploited and there was or was intended to be any material change of use (including a change of use to agriculture) or any of a litany of works, many of a minor character, which were or were intended to be carried out. On that basis most, if not all, land constitutes development land. It was further submitted that it follows from the foregoing that class (a) of eligible bank assets includes all credit facilities issued by a participating institution to a debtor in connection with the purchase, exploiting or development of most (if not all) land. The other classes then come into play, it was submitted to widen the net so as to include associated debtors and credit facilities. The notion of “development land” is a key element which triggers the involvement of NAMA under the Act and this is remarkably broad being far removed from any concept of “development land” as that term would be generally understood or even as that term might be understood by planners and lawyers in the context of the Planning and Development Acts.
The appellants then went on to submit that the breadth of the application of the Act by reason of the broad definition of eligible bank asset combined with the untrammelled discretion of NAMA as to whether or not it should exercise its powers in respect of any asset is what gives rise to the unconstitutionality of the provisions impugned.
This untrammelled discretion combined with the broad definition of eligible assets means that it is difficult for a person in the position of the appellants to know in advance on what basis NAMA would exercise its powers in respect of an eligible asset, or on what basis such a decision could be made.
The combination of these two factors, broadness of definition and vagueness of criteria, also had the consequence of making it impossible for a court to properly judicially review any decision of NAMA in particular as to whether, in acquiring an asset, it had acted intra vires or ultra vires.
Accordingly, it was submitted, that a decision by NAMA to acquire an eligible bank asset on the basis of such broad and general terms without any meaningful statutory guidance for NAMA itself or, in appropriate proceedings for a court, constitutes an unjust attack on the appellants’ property rights.
In the submissions on this issue a parallel was drawn with the arguments of the appellants relating to constitutional justice and the right to a fair hearing. It was submitted that an integral aspect of constitutional justice is that a potentially affected person knows the basis on which a decision could be made and that otherwise the right to make submissions is meaningless.
In effect the submission of the appellants was that in the absence of sufficiently discernible criteria for a decision to acquire an eligible asset the appellants were deprived of an opportunity to effectively invoke the judicial review jurisdiction of the courts since the courts would not be in a position to properly review such a decision made in the context of such broad and general criteria. These provisions in the foregoing circumstances constituted a disproportionate interference with the rights of the appellants.
Arguments of the Respondents
On behalf of the respondents it is first of all submitted that there is no principle of constitutional law which requires definitions in civil statutes to be declared unconstitutional solely on the grounds that such definitions are unduly broad. The legislature, it is submitted, is entitled to define the jurisdiction and powers of public bodies broadly and has frequently done so. Accordingly, the breadth of the definition of eligible bank asset does not give rise to any basis for declaring s. 69 unconstitutional. While the respondents take issue with the degree of broadness attributed to the definition of eligible bank asset by the appellants they submit that the definition of such assets in s. 69 is necessarily broad having regard to the purposes for which the Act of 2009 was enacted. This broad definition is required not merely to ensure beyond doubt that all development loans may be acquired where this is required for the purposes of the Act but it also has to be broad enough to address the range of assets related to development land which are capable of contributing to the systemic problem which prompted the enactment of the Act. It was submitted that the definition of eligible bank asset provided for in the Act was necessary to enable NAMA to achieve those purposes by focusing on the borrower exposure rather than individual loans.
Nonetheless, it was contended by the respondents, the definition, while necessarily broad, was defined and definite. It is not the case that NAMA can acquire any loans it sees fit to do. The category of eligible bank assets is limited and defined and anyone having recourse to the Act and to the regulations made under it will be in a position to identify with reasonable precision the assets which are subject to the acquisition.
It was further submitted that s. 4 conferred a discretion on NAMA, an administrative function, to decide whether, having regard to the purposes of the Act, it is necessary or desirable to acquire particular eligible bank assets. Section 84(4) provides further criteria to which NAMA may have regard in the exercise of that discretion. It follows that s. 84 cannot be described as conferring an “untrammelled” discretion since the statute clearly outlines the basis on which the discretion is to be exercised. Moreover the power conferred on NAMA is such that there must be an inherent degree of flexibility in order to enable NAMA to take into account individual circumstances.
It is also submitted that the appellants have not established any basis on which it can be suggested that were NAMA to exercise its discretion in a wholly irrational manner that it would not be open to appropriate judicial review.
The respondents also point out that the appellants have not referred to any judicial authority for the proposition that a provision of an Act must be treated as unconstitutional solely because the definition of a particular matter is too broad. The case-law otherwise relied upon by the appellants, it is submitted, does not support the propositions for which they contend concerning the constitutionality of the Act.
Insofar as the appellants have relied on the judgment of this Court in Re (Health Amendment) No. 2 Bill  1 I.R. 105 the judgment supports the position adopted by the respondents rather than the appellants. In that case this Court stated:-
As regards the criticism made of the discretionary power conferred on the Chief Executive Officer to waive or reduce a charge in the case of individual hardship, the Court considers that counsel for the Attorney General were correct in pointing out that that does not constitute the exercise of a delegated power to legislate but rather is the exercise of an administrative discretion to address the particular circumstances of an individual case. When public officials are charged with administering a statutory scheme it may be difficult, if not impossible, for the Oireachtas to prescribe in legislation for every special circumstance of individuals who find themselves on the margins of such a scheme. In this incidence the task of the administrator is to avoid undue hardship in individual cases in the general application of the scheme. That is simply an administrative function. A subsidiary argument of counsel assigned by the Court was that judicial review of the decision of the Chief Executive Officer in the exercise of such a discretion would not be an adequate remedy to a person who felt they had been wrongly refused a waiver or reduction of a charge. The Court does not accept this argument. The criterion (undue hardship) according to which the Chief Executive Officer should exercise his or her discretion is adequately set out in the Act and there is no reason to consider that an arbitrary decision or other unlawful misuse of his or her powers by a chief executive officer could not be subject to judicial review in the ordinary way.
It was submitted that in that case the Supreme Court acknowledged that it would frequently be necessary for the Oireachtas to ensure that an administrative body in applying a particular scheme is given sufficient flexibility to be able to take into account individual circumstances.
The respondents finally submit that having regard to the provisions of s. 84 and the manner in which NAMA is required to exercise its discretion there are no grounds for concluding that a decision made by NAMA under that section would not be subject to appropriate judicial review in the ordinary way.
It is relevant to note at the outset that the appellants do not contend that the system of acquiring eligible bank assets established by the Act of 2009 is in itself incompatible with the Constitution (leaving aside the separate issue of fair procedures). Rather it is the breadth of the definition of eligible bank assets combined with the vagueness of the criteria according to which NAMA may acquire such assets that constitutes an unjust attack on the property rights of the appellants, principally since it would have no opportunity of knowing the basis on which NAMA might consider or decide to acquire assets pertaining to them and that the appellants would not be in a position to bring an effective challenge to a decision by NAMA to acquire the assets relating to the appellants since the vagueness of those criteria would not permit a court to decide whether NAMA had acted intra vires or ultra vires its powers.
In this appeal the appellants have not pursued the proposition that the broad definition of an eligible bank asset is on its own a ground for impugning the constitutionality of s. 69. Nonetheless it would be appropriate to make some comments on the breadth of the definition.
The purposes of the Act, as referred to in s. 2 and reflected in the preamble, include the necessity to address a serious threat to the stability of credit institutions and the need for the maintenance or stabilisation of the financial system in the State and to respond to a compelling need to remove uncertainty about the valuation and location of certain assets of credit institutions of systemic importance to the economy and to restore confidence in the banking sector. Given that the instability of the financial system and loss of confidence in the viability of the banking sector stemmed primarily from borrowings related directly or indirectly to development land and borrowers from the banks who had made very substantial investment on the basis of property values which had subsequently collapsed, it was inevitable that a broad definition of an eligible bank asset would be adopted so as to ensure that NAMA would be in a position, and be perceived to be in a position, to deal with all bank assets of systemic importance. Obviously, the Oireachtas could not determine which particular assets or which borrowings should be acquired. That was a task conferred by the statute on NAMA as an agency whose experts in the financial or banking sector exercise key responsibility. The policy decision of the Oireachtas, as reflected in the Act, (and as the Divisional Court pointed out it is not for the Courts to express approval or disapproval of a lawful policy choice), includes the restoration of confidence in the banking sector by providing a statutory mechanism by which bank assets of specified classes were eligible to be acquired by NAMA, not on any basis but only for the stated purposes of the Act. Public confidence, but particularly confidence in the finance or banking sector, may be profoundly influenced by perception and it seems to the Court entirely rational that the Oireachtas would provide for a broad definition of eligible bank asset to avoid any risk that any bank borrowings which posed a systemic risk to the economy and in particular the banking sector might be considered to fall outside the remit of the statutory provisions.
What is important for parties in the position of the appellants, as indeed they made clear in their submissions, is not the mere abstract point of the breadth of the definition of an eligible bank asset but the impact which the relevant provisions, taken together, might have on them. The Divisional Court of the High Court referred to the fact that it is not unusual for the Oireachtas to adopt legislation which contains broad enabling measures which allow compulsory acquisition for a range of purposes as specified in the statute concerned and put in place appropriate procedures for selecting the assets to be acquired. It went on to give a specific example, namely, compulsory purchase for road improvements or public works which may apply to land generally but where a decision to acquire any particular land, following a compulsory acquisition process, depends on a decision to build a road and the route which it should follow. It went on to state
In some cases it may be possible at the time of the enactment of legislation in question to identify with some high level of precision the precise assets to be acquired. There might, perhaps, be some leeway provided for in the legislation but the broad drift of what is to be acquired might be known. At the other end of the scale might well be the type of road schemes, to which reference has been made, where little more than a general understanding of the routes likely to be chosen may exist at the time of the enactment of general legislation dealing with, for example, motorways.
In any event, it has to be borne in mind, that the Act, in giving a broad definition to an eligible bank asset, does not thereby require that the asset be acquired by NAMA. First of all the relevant bank must decide to opt to participate in the NAMA statutory scheme. Secondly, and more important, an eligible bank asset is not acquired by NAMA by reason of the fact alone of its so called eligibility but only if NAMA, in the exercise of its discretion, concludes that its acquisition is necessary or desirable for the purposes of the Act.
In the circumstances the Court considers that the Oireachtas was entitled, as a matter of policy, to include in the Act a very broad definition of eligible bank asset including a delegation to the relevant Minister of the power to make regulations prescribing classes of eligible bank asset. In the circumstances it is not necessary to examine whether the definition is precisely as broad as that for which the appellants contend.
Grounds for Acquisition
Section 84 of the Act confers on NAMA the power to acquire eligible assets but it also sets out the grounds upon which that power may be exercised. Specifically it provides, in subsection (1), that NAMA may acquire an eligible bank asset, of a participating institution, if it considers it necessary or desirable to do so having regard to the purposes of this Act. The agency, NAMA, itself was established in order to give effect to the purposes of the Act and it is quite clear from the terms of s.84 that an eligible asset can only be acquired in order to fulfil or achieve the purposes of the Act and not for any other purpose. The purposes of the Act are set out in s. 2 of the Act, some of which have been expressly referred to above. Although expressed in general terms the purposes for which such assets may be acquired are clearly stated. Section 84(4) also specifies an extensive list of explicit considerations which, without prejudice to the general power of NAMA in subsection (1), may be taken into account in deciding whether to acquire a particular eligible bank asset. It is true that the last of these refers to “any other matter that NAMA considers relevant” but any such consideration is governed by the requirement in subsection (1), that the asset is acquired for the purposes of the Act.
There is nothing unusual in the manner in which the purposes and policies in accordance with which NAMA must act are defined. In many respects the argument made on behalf of the appellants on this issue echo the kind of argument that would be made if the legislation was being challenged on the basis of Article 15 of the Constitution as being an impermissible delegation of legislative powers to NAMA, an argument which has not in fact been made by them.
The appellants in their written submission argue that powers granted to administrative bodies must be sufficiently precise to enable individuals to know in advance whether the power could be exercised and to enable the Courts to assess whether the administrative body has remained within the scope of the power assigned to it. In this respect the appellants pointed out that this principle was recognised by this Court in Re Health (Amendment) (No. 2) Bill 2004  1 I.R. 105 in which the Court considered a challenge to the Act based, inter alia, on the breadth of a discretionary power, namely the power of a chief executive officer of a health board, to remit nursing home charges in cases of “undue hardship”. The appellants submitted that while the challenge in that case was rejected that the criterion of “undue hardship” was very different from the vague criteria on which NAMA decides whether to acquire an eligible asset. The Court does not consider that there is any fundamental difference in principle between the broad criterion of “undue hardship” given to a chief executive officer in that case and the criteria provided for NAMA in the Act under consideration. Indeed in the Health (Amendment) Bill case this Court rejected the submission that the broad or allegedly vague criteria of “undue discretion” was an obstacle to an effective remedy by way of judicial review in the event of an arbitrary exercise of that discretion and that its broad terms did not give rise to any reason to conclude otherwise.
In the light of the foregoing and in particular the requirement that NAMA can only acquire an eligible bank asset for the purposes of the Act as specified in s. 2 while taking into account the matters listed in s. 84(4), the Court does not accept that the powers of NAMA in this regard are ‘untrammelled’ or vague in the sense argued for by the appellants.
As Henchy J. stated in The State (Lynch) v. Cooney 1982 I.R. 337 (at 380) in relation to the exercise of a statutory discretion:
It is to be presumed that, when it conferred the power, Parliament intended the power to be exercised only in a manner that would be in conformity with the Constitution and within the limitations of the power as they are to be gathered from the statutory scheme or design.
The Court is satisfied that the criteria by reference to which NAMA must exercise its discretion in making any decision to acquire specified eligible bank assets are sufficiently delineated in s. 84 to permit borrowers in the position of the appellants to effectively pursue before the courts any relief which they may claim to be entitled by way of judicial review.
Moreover, there is another aspect to the prejudicial impact which the appellants claim they will suffer as a consequence of the broad definition of an eligible bank asset and the allegedly vague criteria according to which NAMA should exercise its powers. This concerns the right of the appellants to be duly informed by NAMA of a proposal to acquire eligible assets relating to their borrowings, should that occur, and their right to make representations for the purpose of protecting their rights or interests, as found in the several judgments of the Court delivered today on the separate issue concerning fair procedures. Reference should be made to those judgments for their respective analysis and reasons for so concluding.
As noted above counsel for the appellants acknowledged in their submissions that there was a parallel between their arguments on this point and those relating to a constitutional right to fair procedures. Indeed at one point in the course of his oral submissions counsel for the appellants stated that much of his argument was based on the premise that he would be unsuccessful in relation to the fair procedures point.
In the light of the decision given by the Court, in its several judgments delivered today on the issue of fair procedures, the appellants, in the event of NAMA proceeding to acquire any eligible assets related to them, will be entitled to be afforded an opportunity to make appropriate representations to it as indicated above. NAMA will be bound to take account of those representations. Following such a process borrowers in a position such as the appellants will be entitled to seek relief by way of judicial review if it is considered that the decision of NAMA has not been made in accordance with the terms of s. 84, as interpreted by the judgments of the Court referred to, and there are no grounds for considering that the appellants would in any way be hindered or restricted in their ability to seek such relief from the Court in its capacity to pronounce on such an application.
In all these circumstances the provisions of s. 69 cannot be considered an unjust attack on the property rights of the appellants. Also in those circumstances the issue of breach of the principle of disproportionality does not arise.
Consequently the argument of the appellants that the alleged vagueness of the criteria according to which NAMA exercises its power to acquire an asset would deprive it of an opportunity to have an effective remedy by way of judicial review cannot be considered as having been substantiated.
For these reasons the appellants appeal on this constitutional ground is dismissed.
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