ESBG responds to EC consultation on CMDI

While the proposed regulations for the restructuring and resolution of banks have proven their worth, ESBG highlights the need of a holistic and not a “silo-thinking” approach. Cooperation and coordination between authorities are essential to avoid the risk of duplication, double reporting, unclear requirements and additional administrative burdens. ESBG also sees potential for regulatory cost reduction and simplification.

A clear distinction between resolution and liquidation should be made on Level 1 text

At present, it does not seem clear which banks fall under which regime. Both the resolution and deposit insurance regimes are currently building up funds. It should become clear in which cases which funds may be used. There should be a level-playing field and “gold plating” should be prevented.

More level playing field is needed in the context of the application of the EU resolution framework

The goal of a level playing field was only partially achieved. It should be noted that not all member states seem to be willing to consistently implement the rules for the resolution of banks agreed at European level in practice. Instead, the impression arises that (unchanged) national special solutions are being sought.

Harmonisation of insolvency proceedings at EU level should not damage well-functioning national insolvency proceedings

Should insolvency proceedings for banks show weaknesses in individual countries, this can hardly justify the damage to functioning insolvency proceedings in other countries through uniform requirements. Differences in consumer protection and rights to appeal of insolvency administrators can have an impact on DGSs and payments to DGSs in insolvency proceedings. It should be considered how to address these differences for bank insolvency procedures.

Preventive measures are essential to the CMDI framework

Preventive measures, in particular through institutional protection schemes, are cost-efficient and successful private instruments (see detailed answer to Question 9).

For IPS recognized as DGS and for measures according to Article 11(3) DGSD, no further clarification is needed

From the perspective of an Institutional Protection Scheme (IPS) successfully executing for decades preventive measures as defined in Art. 11(3) DGSD, there is no need of any clarification of these measures. If questions are raised about the assessment of the cost of such kind of DGS intervention, this is neither caused by IPSs nor should the current conditions be amended for​ IPSs.​

A solution for liquidity in resolution would help to ensure that banks meant to be resolved are resolved smoothly

The crisis management framework foresees a bail-in of shareholders and creditors and has led to the build-up of loss absorption buffers. For a crisis at individual bank level, this should minimize the recourse to public financial and taxpayer’s money. Nevertheless, a public backstop to liquidity for banks in resolution and for banks coming out of resolution .is still necessary also to ensure market confidence and to bring a bank resolution to a successful conclusion.

The State Aid regime (2013 Banking Communication) and the resolution framework need to be aligned

It must also be ensured that not only idiosyncratic crises can be effectively handled. Considering that, in a systemic crisis, recourse to state aid may still be necessary, it should be ensured that the EU state aid rules (2013 Banking Communication) for the banking sector are brought in line with the crisis management framework. The 2013 Banking Communication and the crisis management framework are based on different rationales and the experience shows inconsistencies in the interpretation of financial stability and public interest by the EU Commission and by the SRB. Misalignments between the state aid regime and the BRRD/SRMR on public intervention have increased legal uncertainty and can lead to inefficient and ineffective solutions.

A targeted harmonisation of national bank insolvency law could help

The coexistence of the EU resolution framework with a plurality of national regimes could generate dysfunctionalities and may give rise to inefficient, costly and heterogeneous outcomes. A change in the legal framework is therefore needed. This could lead to a targeted harmonisation focused on bank insolvency law.

Simplified requirements are appropriate in the scope of the bank crisis management framework

It should be noted that the resolution requirements apply already to all institutions. However, simplified requirements are relevant for certain institutions. Even if simplified requirements are applied, the power of the SRB/NRAs to take resolution measures is not affected, see Art. 11 (5) SRMR. The gradation expressed in the simplified requirements is also objectively justified and legally required in terms of the different risks faced by institutions and their systemic relevance.

The CMDI framework should go for an evolution, not a revolution. An EU orderly liquidation tool for medium-sized banks does not seem appropriate

No need for a fundamental reorientation of the CMDI is seen. We also see no need for new instruments such as the unspecified – Orderly Liquidation Tool for small and medium-sized banks. Before the introduction of new instruments, the existing framework should be applied fully and coherently. New instruments may only be introduced if the objectives pursued with them cannot be achieved by optimizing the CMDI and the national insolvency rules, given the small number of institutes that would fall under the tool.​

Recovery planning needs to be improved and small banks should not be obliged to submit recovery plans

Besides, in reviewing the CMDI framework, it should not be overlooked that the “first line of defence” is recovery planning. It is a little bit surprising that this issue is not the subject of the consultation. However, there is also a need for improvement in this area. Small banks should not be obliged to submit recovery plans. There is little added value for both banks and supervisors. Instead, the supervisory authority should be given the possibility to oblige small banks to carry out recovery plans in individual cases.

Criteria linked to the Public Interest Assessment (PIA) should be more transparent and predictable​

This would limit national crisis management cases that effectively involve public intervention to circumvent the founding principle of the resolution, (the bail in) maintaining alive zombie banks crippling the potential for economic growth and jeopardizing financial stability.

The solution to access to funding is not to increase the size of resolution funds (including DGSs), but to allocate resources more efficiently

Recent experiences seem to signal a need for appropriate funding in case of liquidation. Most banks that have failed the PIA assessment received public funds in their liquidation procedures. It is important to note that contributions from institutions to DGSs and SRF are already very substantial. Any attempt to improve access to funding in case of a banking crisis should come from a more efficient allocations of resources and not from increasing contributions from banks. This should be a clear red line in the review process or the CMDI.