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The European Banking Union, by Jens-Hinrich Binder & Christos Gortsos



The European Banking Union, by Jens-Hinrich Binder & Christos Gortsos
"The European Banking Union" is an interesting book presented as "A Compendium" and edited by Jens-Hinrich Binder and Christos Gortsos who are presented below. In 69 pages (a compendium), the European Banking Union is analyzed in two parts. A third part contains Regulations and Decisions, and others legal acts, concerning the European Banking Union (EBU).

We know that, since five or six years, as a consequence of the financial crisis, the UE have adopted about forty acts. In each country, parliaments were obliged to reform their national banking and financial system, although each national system - for a part - was automatically modified. Indeed, the EBU is a (pure) federal mecanism, as the ECB is. This work shows this revolution where powers are concentrated at the federal level and in the European central bank (ECB). We must insist : the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM) [and the Single Resolution Fund (SRF)] are two institutions.

Wanting to do well, perhaps we created a dangerous system. We believe that by knowing all the details of the powers and techniques of SSM and SRM. Are also known in France with the provisions and articles of the Monetary and Financial Code.

As the national powers are limited (in the banking and financial field I mean), there is now only one institution (the ECB) who is in charge of the financial stability... the European Central Bank System (ECBS) is a rather insipid reality. In pure legal analysis, systems are interesting to understand, but they have a distant relationship with financial security. Therefore, if we see tomorrow a financial crisis starting from a great bank, a single institution will then be responsible (without recourse to another institution of last resort). We have the conviction that the EBU is an excessive concentration of power on the European Central Bank, and that this concentration of power creates a major political risk.

So we have now a bank with three heads ! This situation is all the more extraordinary that in the Treaty, the bank is a single, unitary institution. This reform is all the more questionable it comes as the ECB conducts an extraordinary monetary policy. This policy, legal and administrative structure carries in itself a major risk of financial crisis if, in one major case, she made a mistake. I confess not to understand that the Germans have accepted this "thing", while fully accepting the new European monetary policy.

So I rekon that the EUB is a complex and heavy construction able to generate a financial confiance crisis.

I fear that we have added to the risk of a systemic financial crisis a risk of systemic administrative crisis. Obviously, it is not politically correct to say this: reform is perfect, the Union is perfect, the policies are perfect. But last week the banks have fallen on the financial markets.

What is a financial confiance crisis ?

The new and more dangerous type of financial crisis !

May be we are wrong... We will see...


Official presentation / book

The creation of the European Banking Union and the transfer of supervisory and resolution powers from the Member States to the European level has drastically changed the institutional setting for banking supervision within the Eurozone. Against this backdrop, the book combines a collection of the legal instruments pertaining to the Banking Union with introductory chapters on the policy background and relevant institutional and substantive issues, including procedural matters and questions of legal redress. It thus offers a straightforward access to the relevant policy and substantive issues, which will be of help for practitioners, academics and students. Both editors have published on the relevant aspects before and combine the perspectives of different jurisdictions.

Authors

Jens-Hinrich Binder, LL.M. (London) is Professor of Law at Eberhard-Karls-Universitaet Tuebingen, where he holds a Chair in Private Law, Commercial and Corporate Law.
Christos Gortsos is Professor of International Economic Law at the Panteion University of Athens, as well as visiting Professor at the Law School of the Kapodistrian University of Athens and the European Institute of the University of Saarland.

Table of contents

The European Banking Union - Rationale and Key Policy Issues (Binder)

I. Introduction 1

II. The Banking Union as a political concept

1. The origins and developments since 2010
2. The political process 2012-2013

III. Relevant policy objectives 5
1. Enhanced effectiveness and efficiency of regulatory and
supervisory arrangements 5
a) Prudential regulation and supervision 5
b) Insolvency and crisis management 7
c) Consequences and implications 8
2. The Banking Union as a fiinctional corollary of the Monetary
Union? 11
a) Breaking the link between financial stability and State
finances 11
b) Banking Union as a Substitute Lender of Last Resort for the
Eurozone? 12
3. The Banking Union and the Single Market 13
IV. Conclusions 15

The two main pillars of the European Banking Union: the legal framework in a 'nutshell' (Gortsos)

I. The Single Supervisory Mechanism (SSM) 17

1. The legal framework of the Single Supervisory Mechanism .... 17
a) The SSM Regulation 17
aa) Scope 17
bb) General aspects 18
cc) Legal basis 18
dd) Timetable of Implementation 18
b) The other legal acts 19
aa) Regulation (EU) No 1022/2013 amending the 'EBA
Regulation' 19
bb) Legal acts of the ECB 19
cc) The Interinstitutional Agreement between the European
Parliament and the ECB 20
dd) The Memorandum of Understanding between the
Council and the ECB 20
2. The main elements of the Single Supervisory Mechanism 20
a) General overview 20
b) The structure of the SSM 21
aa) The two components of the SSM 21
bb) The ECB as the main actor 21
cc) The national competent authorities 22
c) The regulatory perimeter 22
aa) The perimeter in respect of different types of financial
firms 22
bb) The perimeter in respect of Member States 22
cc) The perimeter in respect of credit institutions and other
supervised entities 23
d) The SSM as part of the European System of Financial
Supervision (ESFS) 24
e) Creation of'Chinese walls' 25
3. The specific supervisory tasks conferred on the ECB 25
a) Specific supervisory tasks in relation to credit institutions
and other supervised entities incorporated in participating
Member States 25
b) Specific supervisory tasks concerning branches in
participating Member States by credit institutions
incorporated in non-participating Member States 27
c) Regulatory powers 27
4. Cooperation arrangements 28
a) Cooperation within the SSM 28
aa) General principles and obligations applying to the
operation of the SSM 28
bb) Micro-prudential supervision of significant supervised
entities 28
cc) Micro-prudential supervision of less significant
supervised entities 29
b) 'Close Cooperation' between the ECB and the competent
authorities of Member States with a derogation 30
aa) Legal basis, provedure and effects 30
bb) Suspension or termination of a 'close Cooperation'
procedure 30
c) Cooperation outside the SSM and the ESFS 30
aa) Cooperation with competent authorities of nonparticipating Member States 30
bb) Cooperation with national resolution authorities 31
cc) Cooperation with public financial assistance facilities .. 31
d) International Cooperation 31
5. The investigatory and specific supervisory powers of the ECB .. 32
a) The general principles 32
b) Investigatory powers 32
aa) Requests for the provision of Information 32
bb) Conduct of investigations and of on-site inspections .... 33
c) Supervisory powers under Article 16 of the SSMR 33
d) Administrative penalties 34
6. Organisational principles 35
a) General overview 35
b) The new governance structure 35
aa) The Supervisory Board 35
bb) Internal structure of the ECB with regard to its
supervisory tasks and new composition of Eurosystem/
ESCB Committees 36
cc) The Administrative Board of Review 37
c) Aspects of independence 38
aa) Introductory remarks 38
bb) Institutional independence 38
cc) Financial independence 38
d) Accountability of the ECB vis-ä-vis EU institutions and
national parliaments 39
aa) Accountability vis-ä-vis EU institutions 39
bb) Accountability vis-ä-vis national parliaments 40
e) Due process for adopting supervisory Decisions 40
aa) The framework 40
bb) ECB supervisory procedures 40
cc) ECB supervisory Decisions 41
f) Other provisions 41

II. The Single Resolution Mechanism (SRM) and the Single Resolution Fund (SRF) 45

1. A general overview of the framework 45
a) The legal acts 45
b) The basic provisions of the SRMR 46
aa) Scope of application 46
bb) Participating Member States 46
cc) Relation to the BRRD and applicable national law 47
dd) General principles 47
ee) Division of tasks within the SRM 48
c) Institutional arrangements: the Single Resolution Board .... 49
aa) General provisions 49
bb) Independence 50
cc) Accountability 51
d) Power to impose penalties 52
aa) Eines 52
bb) Periodic penalty payments 53
e) Selected other provisions of the SRMR 53
f) The SRF Agreement 54
aa) Purpose and scope 54
bb) Consistency and relationship with EU law 54
cc) Application 54
2. Resolution planning and early Intervention 55
a) Resolution planning 55
aa) General provisions 55
bb) Content of resolution plans 55
cc) Assessment of resolvability 56
dd) Simplified obligations for certain institutions 57
b) In particular: the minimum requirement for own funds and
eligible liabilities (MREL) 57
aa) Entities and groups subject to the MREL 57
bb) Definition of the MREL 57
cc) Conditions applying to the determinations made by the
Board 58
c) Early Intervention 58
3. Resolution 58
a) General provisions 58
aa) Resolution objectives 58
bb) General principles governing resolution 59
cc) Order of priority of claims 60
dd) Resolution procedure 60
b) Write-down and conversion of capital Instruments 62
c) Resolution tools 62
aa) General principles of resolution tools 62
bb) Resolution scheme 64
4. The Single Resolution Fund (SRF) 64
a) Constitution of the SRF 64
aa) General provisions 64
bb) Target level 65
cc) Ex-ante contributions 65
dd) Ex-post contributions 66
b) Administration of the SRF — Investments 66
c) Use of the SRF 67
aa) Mission of the SRF 67
bb) Use of the SRF 67
cc) Use of deposit guarantee schemes (DGSs) in the
context of resolution 67
d) The provisions of SRF Agreement
aa) Transfer of contributions
bb) Compartments

Bibliography

A. Legal acts on the SSM

I. Council Regulations

1. Council Regulation (EU) No 1024/2013 of 15 October 2013 "conferring
specific tasks on the European Central Bank concerning policies relating to
the prudential supervision of credit institutions" (OJ L 287, 29.10.2013, pp.
63-89)
2. Council Regulation (EU) 2015/159 of 27 January 2015 "amending
Council Regulation (EC) No 2532/98 concerning the powers of the European
Central Bank to impose sanctions" (OJ L 27, 3.2.2015, pp. 1-6)

II. Regulation of the European Parliament and of the Council
3. Regulation (EU) No 1022/2013 of the European Parliament and of the
Council of 22 October 2013 "amending Regulation (EU) No 1093/2010
establishing the European Supervisory Authority (European Banking
Authority) as regards the conferral of specific tasks on the European Central
Bank pursuant to Council Regulation (EU) No 1024/2013" (OJ C 287,29.10.2013, pp. 5-14)

III. Legal acts of the ECB

Regulations

4. Regulation (EU) No 468/2014 of the European Central Bank of 16 April
2014 "establishing the framework for Cooperation within the SSM between
the European Central Bank and national competent authorities and with
national designated authorities ('SSM Framework Regulation')"
(ECB/2014/17) (OJ L 141, 14.5.2014, pp. 1-50)
5. Regulation (EU) No 469/2014 of the European Central Bank of 16 April
2014 "amending Regulation (EC) No 2157/1999 on the powers of the European
Central Bank to impose sanctions (ECB/1999/4)" (ECB/2014/18) (OJ
L 141, 14.5.2014, pp. 51-53)
6. Regulation (EU) No 673/2014 of the European Central Bank of 2 June
2014 "concerning the establishment of a Mediation Panel and its Rules of
Procedure" (ECB/2014/26) (OJ L 179, 19.6.2014, pp. 72-76)
7. Regulation (EU) No 1163/2014 of the European Central Bank of 22
October 2014 "on supervisory fees" (ECB/2014/41) (OJ L 311, 31.10.2014,
pp. 23-31)
8. Decision 2014/179/EU of the European Central Bank of 22 January 2014
"amending Decision ECB/2004/2 of 19 February 2004 adopting the Rules of
Procedure of the ECB" (ECB/2014/1) (OJ L 95, 29.3.2014, pp. 56-63)
9. Decision 2014/434/EU of the European Central Bank of 31 January 2014
"on the close Cooperation with the national competent authorities of participating
Member States whose currency is not the euro" (ECB/2014/5)
(OJ L 198, 5.7.2014, pp. 7-13)
10. Decision 2014/123/EU of the European Central Bank of 4 February
2014 "identifying the credit institutions that are subject to the comprehensive
assessment" (ECB/2014/3) (OJ L 69, 8.3.2014, pp. 107-111) 203
11. Decision 2014/427/EU of the European Central Bank of 6 February
2014 "on the appointment of representatives of the ECB to the Supervisory
Board" (ECB/2014/4) (OJ L 196, 3.7.2014, pp. 38-39) 209
12. Decision 2014/360/EU of the European Central Bank of 14 April 2014
"concerning the establishment of the Administrative Board of Review and
its Operating Rules" (ECB/2014/16) (OJ L 175, 14.6.2014, pp. 47-53) 211
13. Decision 2014/477/EU ofthe European Central Bank of 2 July 2014 "on
the provision to the ECB of supervisory data reported to the national competent
authorities by the supervised entities pursuant to Commission Implementing
Regulation (EU) No 680/2014" (ECB/2014/29) (OJ L 214,
19.7.2014, pp. 34-37) 217
14. Decision 2014/723/EU of the European Central Bank of 17 September
2014 "on the Implementation of Separation between the monetary policy and
supervision functions of the ECB" (ECB/2014/39) (OJ L 300, 18.10.2014,
pp. 57-62) 221
15. Decision (EU) 2015/433 of the European Central Bank of 17 December
2014 "concerning the establishment of an Ethics Committee and its Rules of
Procedure" (ECB/2014/59) (OJ L 70, 14.3.2015, pp. 58-60) 227
16. Decision (EU) 2015/529 of the European Central Bank of 21 January
2015 "amending Decision ECB/2004/3 on public access to European Central
Bank documents" (ECB/2015/1) (OJ L 84, 28.3.2015, pp. 64-66) 231
17. Decision (EU) 2015/530 of the European Central Bank of 11 February 2015 "on the methodology and procedures for the determination and collection of data regarding fee factors used to calculate annual supervisory fees"
(ECB/2015/7) (OJ L 84, 28.3.2015, pp. 67-72) 235

Other

18. Interinstitutional Agreement 2013/694/EU between the European Parliament and the ECB
of 6 November 2013 "on the practical modalities of the exercise of democratic accountability and oversight over the exercise of the tasks conferred on the ECB within the framework of the Single Supervisory
Mechanism" (OJ L 320, 30.11.2013, pp. 1-6) 241
19. Memorandum of Understanding between the Council of the European
Union and the Central Bank "on the Cooperation on procedures
related to the S Mechanism (SSM)" (11.12.2013) (available
at: https:// eu/ecb/legal/pdf/mou_between_eucouncil_
ecb.pdf) 249
20. Rules of Procedure of the Supervisory Board of the European Central
Bank (1.4.2014) (OJ L 182, 21.6.2014, pp. 56-60) 253
21. Code of Conduct for the members of the Supervisory Board of the
European Central Bank (2015/C 93/02) (OJ C 93, 20.3.2015, pp. 2-7) 257
22. Recommendation ofthe European Central Bank of 16 April 2014 "for a
Council Regulation amending Council Regulation (EC) No 2532/98 concerning
the powers of the European Central Bank to impose sanctions"
(ECB/2014/19) (OJC 144, 14.5.2014, pp. 2-10) 263

B. Legal acts on the SRM

23. Intergovernmental Agreement (8457/14) of 14 May 2014 "on the transfer
and mutualisation of contributions to the Single resolution fund" (available at:
http://register.consilium.europa.eu/content/out?lang=EN&typ=ENTRY&i=SMPL
&DOC_ID =ST%208457%202014%20COR%201) 273
24. Regulation (EU) No 806/2014 of the European Parliament and of the Council
of 15 July 2014 "establishing uniform rules and a uniform procedura for the resolution
of credit institutions and certain Investment firms in the framework of a
Single Resolution Mechanism and a Single Resolution Fund and amending Regulation
(EU) No 1093/2010" (OJ L 225, 30.7.2014, pp. 1-90) 287
25. Council Implementing Decision (2014/943/EU) of 19 December 2014 "on
the appointment of the Chair, the Vice-Chair and the further full-time members of
the Single Resolution Board" (OJ L 367, 23.12.2014, pp. 97-98)


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