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BRUSSELS, 21 April – ESBG submitted its response to the European Commission public consultation on the review of the bank crisis management and deposit insurance (CMDI) framework. ESBG and its members stressed that the CMDI framework should go for an evolution, not a revolution, and that it must take into account the principle of subsidiarity and proportionality.
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.
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.
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.
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, in particular through institutional protection schemes, are cost-efficient and successful private instruments (see detailed answer to Question 9).
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.
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.
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.
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.
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.
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.
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.
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