ESBG provides input on technical negotiations of the Artificial Intelligence Act
In Q4 of 2022, ESBG staff was invited to three stakeholder info sessions on the technical negotiations on the Artificial Intelligence Act, organized by the offices of MEP Voss (EPP, LIBE Shadow/JURI Opinion), MEP Clune (EPP, LIBE Shadow), and MEP Maydell (EPP, ITRE Opinion). During these info sessions, stakeholders were updated about the articles discussed during the technical meetings that took place in the Parliament and invited to provide concrete input on concrete issues.
The definition of AI remains a highly debated issue. According to ESBG members, the proposed definition is currently too broad. ESBG members argued for a narrow scope, since a scope that is too broad could potentially include more traditional software systems that should not fall under the scope of the proposal The definition of AI needs to take into account the different levels of autonomy and explainability of the system, as well as the level of control and human participation. Furthermore, it must contain the ability to learn and reason as central element.
Stakeholders were also asked for concrete examples of overlap with other pieces of legislation, also of sector-specific legislation. ESBG pointed out a number of articles where overlap with other legislation, notably the GDPR exists. There has also been discussion on the high-risk classification, extraterritorial applications, cooperation mechanisms, and access to data. Therefore, ESBG provided input on those matters as well.
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Crypto-asset Activities: WSBI-ESBG calls for a more consistent regulatory approach
The Financial Stability Board (FSB) which is an international body that monitors and makes recommendations about the global financial system published a proposed framework for International Regulation of Crypto-asset Activities on 11 October 2022. The said framework sets out a) the key issues and challenges in developing a comprehensive and consistent regulatory approach that captures all types of crypto-asset activities that could rise to financial stability risks; b) policy initiatives at the jurisdictional and international levels; c) the FSB’s proposed approach for establishing a comprehensive framework.
The FSB reports that crypto-assets and markets must be subject to effective regulation and oversight commensurate with the risks they pose. Crypto-asset markets are fast evolving and could reach a point where they represent a threat to global financial stability due to their scale, structural vulnerabilities and increasing interconnectedness with the traditional financial system.
WSBI-ESBG, for its part, welcomed the initiative of addressing the above-mentioned crucial issues and replied to the call for feedback on this consultative document on a proposed framework for International Regulation of Crypto-asset Activities, in particular calling for a more measured regulatory approach between the several players (i.e.; financial institutions, issuers, and providers of crypto assets) and for consistency between regulations and requirements applicable to traditional finance and crypto-based finance.
Finally, members underlined the importance of having a clear and dynamic regulatory approach to avoid confusion on the categorization of crypto-assets (i.e.; stablecoins, global stablecoins, digital assets), and the need for a higher consistency between local and international regulations.
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Call for clarification on the Artificial Intelligence Liability Directive
On 28 September, the European Commission published its proposal for the Artificial Intelligence Liability Directive which complements and modernises the EU civil liability framework by introducing for the first time rules specific to damages caused by AI systems.
The purpose is to lay down uniform rules in case of damages caused by AI systems and to establish broader protection for victims. The Directive is applicable to both individuals and businesses. The new rules will, for instance, make it easier to obtain compensation if someone has been discriminated against in a recruitment process involving AI technology.
It is proposed that five years after the entry into force of the AI Liability Directive, the Commission will assess the need for no-fault liability rules for AI-related claims if necessary.
Consequently, on 3 October, the Commission enabled relevant stakeholders to provide feedback on the proposed AI Liability Directive. All feedback to be received will be summarised by the Commission and presented to the Parliament and Council with the aim of feeding into the legislative debate.
As part of its mandate, ESBG replied to the Commission’s call for feedback on 2 December. In its response, ESBG supports the protection of consumers as well as adapting liability rules to the digital age, thereby setting out a framework for excellence and trust in AI.
However, ESBG understands from the proposed Directive that the presumption of a causal link in the case of fault is mainly a matter of “non-compliance of due diligence duties”. In this context, ESBG calls for clarification on what could be considered as non-compliance of due diligence duties. In particular, ESBG questions whether the presence of bias or discrimination could be considered a noncompliance of due diligence duties. Furthermore, clarification is necessary on what tools are available to providers and users of AI systems to refute the causal link.
Finally, as the AILD is a directive, members stress the importance to take the cultural and legal differences between member states into account when implementing. Different application across member states can lead to regulatory arbitrage where firms choose where to be domiciled according to the member states legislative application. Therefore, the directive should be aligned with the Rome I Regulation and the Rome II Regulation regarding the conflict of laws on the law applicable to non-contractual obligations.
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Call for clear scope of applicability of the Cyber Resilience Act
On 14 November, ESBG submitted its input to the European Commission’s call for feedback on the proposed Cyber Resilience Act, which was published in September. All feedback received will be summarised by the Commission and presented to the European Parliament and Council with the aim of feeding into the legislative debate.
On 15 September, the Commission published a proposal for a Cyber Resilience Act, which aims to protect consumers and businesses from products with inadequate security features. The Cyber Resilience Act introduces mandatory cybersecurity requirements for products with digital elements. It will ensure that digital products, such as wireless and wired products and software, are more secure for consumers across the EU. In addition to increasing the responsibility of manufacturers by obliging them to provide security support and software updates to address identified vulnerabilities, it will enable consumers to have sufficient information about the cybersecurity of the products they buy and use.
In the position paper, ESBG members welcome the Commission proposal and support the goal of only having secure software on the internal market. However, members believe that the Cyber Resilience Act leaves too much room for interpretation regarding its scope of applicability and therefore proposes that the Commission should make a clear scope-statement that would dissolve any uncertainty whether the software developed, operated, or marketed by financial institutions is in scope of this Act.
In addition, there are vertical initiatives that already regulate the cyber-resilience of hardware and software products used by certain sectors. This is the case of the Digital Operational Resilience Act (DORA) for the financial sector, a regulatory framework specifically designed and developed to ensure the digital operational resilience of the financial sector. Extending the scope of the Cyber Resilience Act to products manufactured by credit institutions may place additional burdens onto banks, on top of the already existing tight regulatory corset.
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ESBG responds to the EBA consultation on the supervisory handbook for IRB systems validation
On 28 October, ESBG responded to the European Banking Authority (EBA) consultation on the supervisory handbook for Internal Rating Based (IRB) systems validation. The handbook aims to clarify the role of the validation function as part of corporate governance, in particular in terms of scope of work and interaction with the credit risk control unit.
As a general comment, we stressed that organizational suspension of the validation function should be independent of the size of the bank. In addition, it should be ensured that the validation manual is free of inconsistencies with existing supervisory regulations such as the ECB Guide on Internal Models.
ESBG stressed that it would be helpful to consider the aspect of proportionality more closely. The validation approach proposed by the EBA hardly differentiates between the materiality of models/portfolios and model changes. On the contrary, the intensity and scope of validation activities must always be based on the expected data situation, the importance of the rating procedure, and the scope and complexity of the changes made.
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TOPIC: Prudential regulation
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Financial Education: A high priority
ESBG organises regular events promoting financial education, including the global World Savings Day on 31 October each year, as well as sponsor the European Stock Market Learning initiative for youths to simulate investing in the Frankfurt Stock Exchange and learn how to invest wisely.
ESBG works to ensure that financial education is discussed at the EU level and included in EU legislative texts to ensure credit providers are required to ensure their customers understand the product which they are buying, and any associated risks.
World Savings Day 2022
Financial education is another high priority topic in ESBG. Members have long-running mandates to provide financial education not just to our members, but also to the communities in which they serve.
ESBG keeps a close eye on prudential treatment of crypto assets
On 30 September 2022, ESBG responded to the second public consultation of the Basel Committee on Banking Supervision (BCBS) on the prudential treatment of banks' crypto asset exposures, which is built on the proposals in the first consultation issued in June 2021.
The basic structure of the proposal in the first consultation is maintained, with crypto assets divided into two broad groups: Group 1 includes those that are eligible for treatment under the existing Basel Framework with some modifications. Group 2, on the other hand, includes unbacked crypto asset and stable coins with ineffective stabilisation mechanisms, which are subject to a new conservative prudential treatment.
In the response to the second consultation in 2022, we advocated for the removal of the technological risk add-on from the proposed prudential framework.
The first reason for this would be the principle of technological neutrality. The regulation should focus on regulating the services but not the applicable technology in order not to prevent the adoption of a specific technology and to neither prefer nor prejudice a specific business model or service provider. Secondly, technological risk already exists in all asset classes. If persistent technological risks are detected, the supervisor could require actions for their mitigation or apply a Pillar 2 Requirement (P2R) surcharge. Finally, a common surcharge of capital would reduce institutions’ incentives to mitigate inherent risk.
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OCTOBER 2022 | TOPICS: Prudential, Supervision and Resolution | Public Consultation | Crypto Assests | Basel Framework | Technology Neutrality
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Joint letter to Commissioner McGuinness on the EFRAG consultation regarding its first set of draft ESRSs
On 27 September, the ESBG, together with the European Banking Federation (EBF), the European Association of Co-operative Banks (EACB), Insurance Europe, Accountancy Europe, Business Europe and European Issuers, has submitted a joint industry letter to Commissioner Mairead McGuinness regarding the European Financial Reporting Advisory Group (EFRAG) public consultation on its first set of draft European Sustainability Reporting Standards (ESRS).
In the letter, ESBG strongly emphasized the necessity to phase-in the submission of the disclosure requirements from EFRAG to the Commission. In this respect, it is considered that EFRAG should deliver a limited set of crucial ESRS by November 2022. After this, EFRAG and the Commission should agree on a detailed plan to deliver the rest of the first set of standards and all the other deliverables required by the Corporate Sustainability Reporting Directive (CSRD). All these will constitute the minimum requirements to be delivered within the pre-set deadlines by the Commission.
Download the Joint Letter
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