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Reconsidering Central Bank Lending of Last Resort

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Abstract

Central banks serve many key roles in financial markets and economies. One of their most important tasks consists of lending of last resort. When standard sources of funding dry up, banks and increasingly other financial institutions expect central banks to replace conventional lenders. Changed realities in financial markets, however, challenge central banks to reconsider the terms traditionally applied to their emergency lending facilities. The Bagehot dictum, providing the elementary criteria for last resort lending, must be reassessed in light of today’s large, interconnected financial markets in which banks pose enormous threats to financial stability and transposition of monetary policy has become more complicated for central banks. This article analyses these issues from the perspective of lending of last resort by the US Federal Reserve System (‘Fed’), the central banks of the Eurozone (‘Eurosystem’) and the Bank of England. It argues in favour of robust and reliable lending criteria and consequently the elimination of the principle of constructive ambiguity and a flexible application of all other traditional lending requirements. Central banks do not operate in a legal vacuum, but the legal provisions on which such lending relies have been given little attention. The article breaks with this tradition, focusing on the Eurosystem whose legal framework leaves important issues unaddressed. It calls for an explicit mandate of financial stability for the Eurosystem that prescribes the circumstances under which financial stability takes priority over the price stability objective.

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Notes

  1. Domanski et al. (2014), p 2.

  2. See Sect. 3.1.1 below for exceptions in the US.

  3. See the numerous references to Anson et al. (2017) and to Goodhart (1999) throughout this article.

  4. For a discussion about the exact definition of ultimate creditors, see International Monetary Fund (IMF), ‘Shadow Banking around the Globe: how large, and how risky? Global Financial Stability Report: Risk Taking, Liquidity, and Shadow Banking—Curbing Excess while Promoting Growth’ (International Monetary Fund, October 2014), pp 68, 92, available at http://www.imf.org/external/pubs/ft/gfsr/2014/02/pdf/text.pdf (last accessed 14 August 2017) (Global Financial Stability Report).

  5. See the definition in Federal Reserve Act of 1913, s. 19(a) (codified as amended at 12 USC ch. 3 (2012)) (Federal Reserve Act).

  6. Defined in Art. 4 no. 1(1) of Council Regulation 2013/575, of the European Parliament and of the Council of 21 June 2013 on the Prudential Requirements for Credit Institutions and Investment Firms [2013] OJ L176/1, as an institution ‘undertaking the business of which is to take deposits or other repayable funds from the public and to grant credits for its own account’. On the ever more complicated (in light of financial intermediaries mimicking parts of the banking model) definition of bank deposits, see Armour et al. (2016), pp 281–284.

  7. Central banks set the terms of their schemes by which they provide liquidity in a way that provides incentives for banks to manage their liquidity needs primarily by drawing on private markets. Compare Bank of England, ‘The Bank of England’s Sterling Monetary Framework’ of June 2015 (the ‘Red Book’), paras. 13–15, http://www.bankofengland.co.uk/markets/Documents/money/publications/redbook.pdf (last accessed 14 August 2017). On interbank lending, see Dalhuisen (2016), para. 1.1.5; Judge (2016), p 853.

  8. Gabilondo (2015), pp 24–26.

  9. See the Bank for International Settlements, ‘Basel Committee on Banking Supervision [BCBS] Consultative Document Basel III: The Net Stable Funding Ratio’ (October 2014), available at http://www.bis.org/publ/bcbs271.pdf (last accessed 21 November 2017); Davies (2013), p 293.

  10. This is, for instance, reflected in the current operations executed by the Bank of England. See Red Book, n. 7 above, paras. 69–88 (for a list of the Bank of England’s liquidity insurance facilities) and paras. 4, 18, 19 and 60 (explaining that reserves can be used freely and that the Bank provides enough liquidity to meet the demands of banks by abstaining from enforcing any minimum reserve requirements and by operating standing facilities).

  11. Red Book, n. 7 above, para. 12.

  12. Bank for International Settlements, ‘Basel Committee on Banking Supervision: Basel III: A Global Regulatory Framework for more Resilient Banks and Banking Systems’ (December 2010, rev. June 2011), available at http://www.bis.org/publ/bcbs189.pdf (last accessed 29 March 2017) (‘BCBS Global Framework’). In detail on the Basel liquidity requirements see Hartlage (2012), p 453. On the typical maturity mismatch in banking business and reserve requirements, see Gabilondo (2015), pp 24–26.

  13. See the definition of reserves in s. 19(b) of the Federal Reserve Act (codified at 12 USC s. 461(b)) that emphasizes the existence of such requirements ‘solely for the purpose of implementing monetary policy’. For the European Central Banks, see Art. 19 of the Statute of the ESCB and ECB [2012] OJ C326/230 (ESCB/ECB Statute). On the principle, see Gabilondo (2015), p 39; Friedman (1999), p 325.

  14. On the credited amounts in the banks’ accounts with central banks, see Hellwig (2014), p 10; Gabilondo (2015), p 28. The process is very similar to the creation of money by banks as explained by McLeay et al. (2014), pp 1–14; Bluhm et al. (2016), p 18.

  15. For the ordinary tender procedure of the Eurosystem, see European Central Bank (ECB), ‘The Implementation of Monetary Policy in the Eurozone’ (February 2011), pp 31–41, available at https://www.ecb.europa.eu/ecb/legal/pdf/gendoc201102en.pdf (last accessed 14 August 2017).

  16. For details, see Gianviti (2010) (as discussed in Sects. 3.2.2.1 and 3.2.2.2).

  17. Humphrey (1975), p 2. The term was coined by Sir Francis Baring in 1797, see Tumpel-Gugerell (2013), pp 513–514.

  18. On the aspects that make banks special in the financial world see Gabilondo (2015), pp 24 and 26; Davies (2013), pp 293–294.

  19. It should be added, however, that some authors refer to both types of lending as ELA. See e.g. Domanski et al. (2014), throughout the entire paper; Lastra (2015), para. 4.09, defines ELA as market liquidity assistance via open market operations. Campbell and Lastra (2008–2009), pp 453–454 use these terms in the opposite way as we do here: ELA is supposed to ‘encompass a broader array of operations’.

  20. The principles established by the W. Bagehot dictum are not legal rules but rather doctrinal principles: Lastra (2015), para. 4.09.

  21. For a detailed analysis of this work’s impact on lending of last resort, see Goodhart (1999), pp 340–342.

  22. Bagehot (1873), pp 57–59. On W. Bagehot’s and H. Thornton’s contributions, see Humphrey (1975), p 3. For the Bagehot criteria, see Campbell and Lastra (2008–2009), p 465; Acharya and Backus (2009), pp 305–307.

  23. Liquidity shortages occur when the efficient distribution of liquidity breaks down. Reasons are macroeconomic shocks that result in a vast demand for liquidity by all intermediaries and the unwillingness or lack of ability of financial intermediaries to efficiently redistribute existing liquidity. See Giavazzi and Giovannini (2011), pp 4 and 13.

  24. On the Lehman collapse, see Ferrarini and Chiarella (2013), p 9; Westbrook (2014), p 345; Davies (2015), p 261.

  25. For a discussion on the unconventional monetary policy operations for the Eurosystem since 2007, see Hofmann (2013), pp 534–539.

  26. For a wide understanding, see Domanski et al. (2014), p 3. See also Carlson et al. (2015), p 9.

  27. For a similar distinction, see Campbell and Lastra (2008–2009), p 457.

  28. Humphrey (1975), p 2.

  29. Lastra (2015), para. 4.16. For a wider understanding of moral hazard stemming from lending of last resort (such lending may lead per se to reliance and lack of adequate provision against liquidity shortages by the recipients), see Domanski et al. (2014), p 4. As Hellwig (2014), p 7, points out, lending of last resort always and unavoidably causes some moral hazard, but requirements must seek to reduce its degree.

  30. Lastra (2015), paras. 4.17–4.19.

  31. An example is the EU Bank Recovery and Resolution Directive 2014/59 (‘BRRD’) of 15 May 2014, [2014] OJ L173/190 that limits instances of public aid for financial institutions. For details, see Schillig (2016).

  32. Davies (2013), p 311; Lastra (2010), p 63.

  33. Goodhart (1999), pp 343 and 346; Lastra (2010), p 63; Judge (2016), pp 903–907; Domanski et al. (2014), p 4; Davies (2013), p 311; Freixas et al. (2003), p 5; Hauser (2014), p 88; Anson et al. (2017), pp 53–54.

  34. As Goodhart (1999), p 343 explains, losses for central banks are no longer as dramatic as they were in times when central banks were entities of private law.

  35. European Central Bank (ECB), ‘The Financial Risk Management of the Eurosystem’s Monetary Policy Operations’ (July 2015), p 5; Gabilondo (2015), p 40; Hellwig (2014), p 10. As Hellwig also points out, central banks that borrow foreign currency from other central banks, e.g. the Eurosystem from the Fed, run a genuine risk of default.

  36. See ECB, n. 35 above, p 5.

  37. Goodhart (1999), pp 347–348.

  38. Goodhart (1999), p 343; Anson et al. (2017), pp 8–11.

  39. Goodhart (1999), p 343. See also Tumpel-Gugerell (2013), p 514.

  40. For such concerns see Gabilondo (2015), p 29.

  41. See Hauser (2014), pp 84–85, who emphasizes that only the combination of a lender of last resort with microprudential liquid asset requirements and a bank resolution regime can provide a satisfactory solution.

  42. Schoenmaker (2000), p 219. Some authors argue, however, that for this reason central banks should never lend to individual banks but only replace markets if the entire banking sector is affected, see the summary by Tumpel-Gugerell (2013), p 515.

  43. Goodhart (1999), p 346; Davies (2013), p 311.

  44. Goodhart (1999), p 353.

  45. However, see Lastra (2010), p 63, who suggests that central banks seek approval from or refer the matter to fiscal authorities when lending stretches over an extended period of time.

  46. The Basel principles, currently at the stage of Basel III, seek to establish a worldwide standard for risk-weighted equity requirements and crisis-resistant liquidity reserves for banks, see BCBS, n. 9 above. On stress tests and resulting liquidity requirements, see Bank for International Settlements, ‘Basel III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring Tools’ (January 2013), para. 16.

  47. See Goodhart (1999), p 341 who convincingly shows that Bagehot never supported above-market interest rates for solvent banks.

  48. On these aspects, see Avgouleas and Goodhart (2016), pp 270–271.

  49. See Lastra (2015), para. 4.10. Lending provisions in central bank acts commonly emphasize this aspect, see s. 10B(b)(4) of the Federal Reserve Act, 12 USC s. 347b(b)(4) (2012), which reads: ‘A Federal Reserve bank shall have no obligation to make, increase, renew, or extend any advance or discount under this Act to any depository institution’. For the Eurosystem, see the ECB, ‘ELA Procedures’ (the procedures underlying the Governing Council’s role pursuant to Art. 14.4 of the ESCB/ECB Statute with regard to the provision of ELA to individual credit institutions), at https://www.ecb.europa.eu/pub/pdf/other/201402_elaprocedures.en.pdf (last accessed 14 August 2017). For the Bank of England, see the discussion at Sect. 3.3.

  50. Similar Goodhart (1999), pp 341–342.

  51. See, generally, Domanski et al. (2014).

  52. For details on the Basel III liquidity coverage ratio (LCR) requirements focusing on sufficient reserves of unencumbered high-quality liquid assets (HQLA), see Bank for International Settlements, n. 46 above.

  53. Lastra (2015), para. 4.36.

  54. Hauser (2014), p 86.

  55. On these aspects, see Sect. 2.3.1.1 above and Domanski et al. (2014), p 4 (on the difficulty to assessing institution’s solvency and the need for a prompt decision); Hellwig (2014), p 22. See also at p 21 where the author points out that restrictive lending policies may prompt banks to cover up losses on their assets and engage in poor lending strategies.

  56. Dalhuisen (2016), para. 1.1.5.

  57. Anson et al. (2017), p 53.

  58. Adrian and Ashcraft (2012), p 5.

  59. Instead, see, for example, IMF, Global Financial Stability Report, n. 4 above; Gorton (2009), pp 14–15; Huang (2015), p 481.

  60. Adrian and Ashcraft (2012), p 8.

  61. For the Eurosystems’ Asset-Backed Securities Purchase Programme (ABSPP), which can be considered its version of QE, see the list of eligible counterparts in ECB Decision of 19 November 2014 on the implementation of the asset-backed securities purchase programme (ECB/2014/45), Art. 4. The list is much wider than the list of eligible counterparties for standard monetary policy operations. On the latter, see ECB, n. 35 above, pp 13–14 (at section. 2.2).

  62. However, the above-described (Sect. 2.3.1.1) caveats apply so that negative capital should always be of limited duration.

  63. For details, see Sect. 3.1.1 (for the US) and Sect. 3.3.1 (for the UK) below. In support of lending to non-bank financial institutions also Hauser (2014), p 90.

  64. The reformed legal framework for last resort lending of the Fed and the Bank of England contain such requirements, see below Sect. 3.1 (for the US) and Sect. 3.3 (for the UK) and, in comparison, Sect. 3.4.

  65. BCBS Global Framework, n. 12 above; Hartlage (2012).

  66. In the countries forming part of the Eurozone where the new SRM applies, see Regulation 806/2014 of 15 July 2014 [2014] OJ L225/1 (EU) (‘SRM Regulation’). In the remaining EU countries, substantive rules of bank resolution stem from the Bank Recovery and Resolution Directive 2014/59 (‘BRRD’) of 15 May 2014 [2014] OJ L173/190 (EU). For the US, see the new resolution mechanism for systemically important financial institutions, called ‘Orderly Liquidation Authority (OLA)’ and administered by the Federal Deposit Insurance Corporation (FDIC), Title II of the Dodd-Frank Act, 12 USC ss. 5381–5394. For details, see Schillig (2016).

  67. The Single Resolution Fund (SRF) is part of the SRM and established by the SRM Regulation, n. 66 above. Non-Euro EU countries are required to establish national sector-specific funding mechanisms, called the ‘European system of financing arrangements’ as required by Title VII (Arts. 99–107) of Directive 2014/59, n. 66 above.

  68. On the fact that UK legislation has never explicitly addressed lending of last resort, see Campbell and Lastra (2008–2009), p 486.

  69. 12 Code of Federal Regulations (CFR) s. 201.4(a) (2016).

  70. 12 CFR s. 201.4(c) (2016). The provision also sets further lending requirements such as the smaller bank’s inability to receive sufficient funding from markets and a ‘seasonal need’, i.e. a need that will persist for several weeks.

  71. On this policy and the following narrative, see Carlson et al. (2015), pp 14–20. In detail about Fed lending during the peak of the crisis, see Judge (2016), pp 873–911; Carlson and Wheelock (2013), pp 32–36; Adrian and Ashcraft (2012), pp 11–15.

  72. On the stigma associated with last resort lending (from the UK perspective), see Hauser (2014), pp 89–90.

  73. On the TAF see Campbell and Lastra (2008–2009), p 492; Judge (2016), p 855.

  74. 12 CFR s. 201.4(b) (2016).

  75. In order to help money market funds meet redemptions and improve liquidity in money markets, the Fed established three credit facilities: the Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility (AMLF), the Commercial Paper Funding Facility (CPFF) and the Money Market Investor Funding Facility (MMIFF). See Federal Reserve System, ‘Report Pursuant to Section 29 of the Emergency Economic Stabilization Act of 2008: Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility’ (September 2008). The Asset-Backed Securities Loan Facility (TALF) programme was operated by the Fed to support the asset-backed security market with funds. The Treasury backed TALF with credit protection with Troubled Asset Relief Program (TARP) funds, created by the Emergency Economic Stabilization Act (EESA; P.L. 110–343) in October 2008. See Federal Reserve System, ‘Report Pursuant to Section 129 of the Emergency Economic Stabilization Act of 2008: Securities Borrowing Facility for American International Group, Inc.’ (September 2008), available at https://www.federalreserve.gov/monetarypolicy/files/129aigsecborrowfacility.pdf (last accessed 14 August 2017).

  76. The provisions in the Federal Reserve Act are identical to those in 12 USC Subchapter IX—Powers and Duties of Federal Reserve Banks (12 USC ss. 341–362).

  77. On ‘Maiden Lane’ see Campbell and Lastra (2008–2009), p 493. On the Fed instituted ‘balance sheet cleansing’ for financial institutions Domanski et al. (2014), p 7. See also Judge (2016), p 849.

  78. Gabilondo (2015), p 32. See also Judge (2016), p 856.

  79. Gabilondo (2015), p 31.

  80. Carlson et al. (2015), p 3.

  81. Forming part of Title 12 of the Code of Federal Regulations, see at https://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR (last accessed 19 Aug 2017).

  82. Extensions of Credit by Federal Reserve Banks (Regulation A), 12 CFR s. 201.1–110 (2016).

  83. FRA ss. 10A, 10B, 11(i), 11(j), 13, 13A, 14(d), and 19, see 12 CFR s. 201.1(a) (2016).

  84. The Fed states its tasks as ‘[c]onducting the nation’s monetary policy, […] supervising and regulating banks and other important financial institutions, […] maintaining the stability of the financial system and containing systemic risk that may arise in financial markets, providing certain financial services to the U.S. government, U.S. financial institutions, and foreign official institutions, and playing a major role in operating and overseeing the nation’s payments systems’. See ‘What is the Purpose of the Federal Reserve System?’, http://www.federalreserve.gov/faqs/about_12594.htm (last accessed 8 March 2016).

  85. Executed under the authority of the Federal Reserve Act § 10B. For details see ‘The Federal Reserve Discount Window’, available at https://www.frbdiscountwindow.org/en/Pages/General-Information/The-Discount-Window.aspx (last accessed 10 March 2017).

  86. 12 CFR s. 201.3 (2016).

  87. 12 CFR s. 201.4 (2016).

  88. 12 CFR s. 201.1 (2016).

  89. S. 2A of the Federal Reserve Act reads: ‘The Board of Governors of the Federal Reserve System and the Federal Open Market Committee shall maintain long run growth of the monetary and credit aggregates commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.’ Stable prices and moderate interest rates are read conjunctively as ultimately amounting to the same results.

  90. Federal Reserve Act s. 13(3).

  91. 12 CFR s. 201.4(d)(5) (2016).

  92. Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

  93. On the reform, see Lastra (2015), para. 4.14.

  94. Both criteria stem from 12 CFR s. 201.4(d)(1) (2016).

  95. 12 CFR s. 201.4(d)(4) (2016).

  96. Federal Reserve Act s. 13(3)(B)(iv) and 12 CFR s. 201.4(d)(2) (2016).

  97. Federal Reserve Act s. 13(3)(a). All requirements are further specified in detailed provisions of Regulation A, 12 CFR s. 201.4(d) (2016).

  98. On the Dodd-Frank resolution rules, especially on the Orderly Liquidation Authority (OLA), see Title II of the Dodd-Frank Act, 12 USC ch. 53 ss. 5381–5394; Jackson and Skeel (2012), pp 439–444.

  99. Consolidated Version of the Treaty on the Functioning of the European Union Art. 282(1), October 2012 [2012] OJ C326/47 (TFEU); Protocol (No. 4) on the Statute of the European System of Central Banks and of the European Central Bank Art. 1 [2012] OJ C326/230. For details on the Eurosystem, see Louis (2014), p 103.

  100. As reflected for the Outright Monetary Transactions of the Eurosystem in Case C–62/14 Gauweiler and Others v. Deutscher Bundestag ECLI:EU:C:2015:400, para. 50. See also Louis (2014), p 111.

  101. ECB, n. 35 above, p 11.

  102. For the ordinary tender procedure of the Eurosystem see ECB, ‘The Implementation of Monetary Policy in the Eurozone—General Documentation on Eurosystem Monetary Policy Instruments and Procedures’ (February 2011), pp 31–41, available at http://www.ecb.int/pub/pdf/other/gendoc2011en.pdf (last accessed 14 August 2017).

  103. ECB, n. 35 above.

  104. See, e.g., Degenhart (2015), pp 30–36.

  105. BVerfG, ‘Urteil des Zweiten Senats’ (14 January 2014) 2 BvR 2728/13, available at www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2014/01/rs20140114_2bvr272813en.html (English translation) (last accessed 14 August 2017).

  106. The reference for a preliminary ruling is based on TFEU Art. 267 and enables national courts to question the CJEU on the interpretation or validity of European law. See http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al14552 for a summary (last accessed 14 August 2017).

  107. Case C–62/14 Gauweiler and Others v. Deutscher Bundestag ECLI:EU:C:2015:400. For an analysis of the ruling see Hofmann (2017), pp 1–30.

  108. The eligibility of counterparties is prescribed in the ‘Guideline of the European Central Bank of 20 September 2011 on monetary policy instruments and procedures of the Eurosystem’ (recast) 2011/817 [2011] OJ L331/1. For eligibility of collateral, the ECB establishes, maintains and publishes a list of eligible assets in accordance with the criteria specified in the ‘General’ and ‘Temporary’ framework Guidelines, available at https://www.ecb.europa.eu/ecb/legal/1002/1014/html/index-tabs.en.html#gf (last accessed 14 August 2017). See also Hofmann (2011).

  109. Hofmann (2011), p 460.

  110. Prior to some improvements stemming from implementation of Basel III, sovereign debt on banks’ balance sheet was commonly assigned a zero risk weightage in EU countries, leading to large holdings by Eurozone banks as no capital was required for such assets. See Hannoun (2011), pp 140–143 and 148–149.

  111. ECB, ‘ECB announces change in eligibility of debt instruments issued or guaranteed by the Greek government’, 3 May 2010; ECB, ‘ECB announces the suspension of the rating threshold for debt instruments of the Irish government’, 31 March 2011; ECB, ‘ECB announces change in eligibility of debt instruments issued or guaranteed by the Portuguese government’, 7 July 2011; ECB, ‘ECB announces change in eligibility of marketable debt instruments issued or guaranteed by the Cypriot government’, 2 May 2013.

  112. On these events, see Dalhuisen (2016), para. 1.1.5. For the ESM and EFSF, see Hofmann (2013), pp 527–529.

  113. On the related issue of often-discussed debt relief for these Eurozone Member States and the underlying legal obstacles, see Hofmann (2017), pp 10–30.

  114. The ECB Governing Council consists of the members of the ECB Executive Board and the governors of the 19 Eurozone central banks, see Art. 12.1 ESCB/ECB Statute. On the Executive Board, see Art. 11.6 and Art. 12.1. See also Krauskopf and Steven (2009), p 1143.

  115. ECB Monthly Bulletin 2/2007, p 80.

  116. Art. 282(1) TFEU [2012] OJ C329 (EU), in conjunction with Art. 1 of the ESCB/ECB Statute. On the principals of the European System of Central Banks, see generally Krauskopf and Steven (2009), pp 1143–1175; see Priego and Conlledo (2005), pp 189–190; Louis (2009), p 277; Wolf and Servais (2009), p 447 (especially for a comprehensive enumeration of its tasks); Lhonneux (2009), p 457 (especially on the legal nature of the ESCB). On the role of the Eurosystem NCBs, see Scheller (2006), p 44; see also the ECB website at https://www.ecb.europa.eu/pub/pdf/other/ecbhistoryrolefunctions2006en.pdf (last accessed 14 Aug 2017).

  117. Art. 14.3 of Protocol (No. 4) on the Statute of the European System of Central Banks and of the European Central Bank [2012] OJ C326/230 (EU) (ESCB/ECB Statute); see also ECJ Case C-62/14, Gauweiler and Others v. Deutscher Bundestag ECLI:EU:C:2015:400, para. 39. On the pursuit of a single monetary policy for the members of the monetary union see Smits (2008), p 1614.

  118. Art. 130 TFEU.

  119. Art. 123 TFEU.

  120. By virtue of Art. 127 TFEU and Art. 14.3 of the ESCB/ECB Statute.

  121. ESCB/ECB Statute, n. 117 above.

  122. The ESCB central banks execute tasks assigned to them by the ECB according to Art. 12.1 of the ESCB/ECB Statute and are subject to the decisions of the Governing Council of the ECB and the instructions of the Executive Board of the ECB by virtue of Art. 14.3. The practical relevance of these principles is dominantly limited to the Eurosystem Central Banks because such decisions are predominantly taken in terms of monetary policy.

  123. For this reason, authors have argued that the Eurosystem and not the NCBs should execute ELA, see Schoenmaker (2000), pp 218–219.

  124. Art. 33(2) of ESCB/ECB Statute.

  125. Gortsos (2015), p 7.

  126. Gortsos (2015), p 7.

  127. ECB, ELA Procedures, n. 49 above. Such decisions are taken with a majority of two-thirds of the votes cast.

  128. These guidelines bind all NCBs, see ECB, ELA Procedures, n. 49 above, p 2.

  129. The details mentioned here form part of a list of nine matters that the NCB must communicate to the ECB no later than 2 business days after the ELA operation was executed, see ECB, ELA Procedures, pp 1–2 (fn 1–9). See also Magnus and Xirou (2017), p 3 (box 2).

  130. Gortsos (2015), p 6.

  131. On the ECB ELA Procedures, see n. 49 above, p 2.

  132. See Press Release, ECB, ‘Eligibility of Greek Bonds Used as Collateral in Eurosystem Monetary Policy Operations’ (4 February 2015), available at https://www.ecb.europa.eu/press/pr/date/2015/html/pr150204.en.html (last accessed 15 August 2017). For a previous period of ineligibility of Greek sovereign debt for Eurosystem lending, see Press Release, ECB, ‘Collateral eligibility of bonds issued or guaranteed by the Greek government’ (20 July 2012), available at https://www.ecb.europa.eu/press/pr/date/2012/html/pr120720.en.html (last accessed 29 March 2017).

  133. The waiver was reinstated with effect from 29 June 2016, rendering Greek bonds eligible for Eurosystem lending. See Press Release, ECB, ‘ECB Reinstates Waiver Affecting the Eligibility of Greek Bonds Used as Collateral in Eurosystem Monetary Policy Operations’ (22 June 2016), available at https://www.ecb.europa.eu/press/pr/date/2016/html/pr160622_1.en.html (last accessed 14 August 2017).

  134. For numbers of ELA provided to Greece from 2011 to 2016, see Magnus and Xirou (2017), p 4 (Graph 1).

  135. See the discussion above at Sect. 3.2.1.2.

  136. Art. 18.1 of the ESCB/ECB Statute.

  137. These powers reflect again the outstanding role of the ECB’s Governing Council in the Eurosystem. Louis (2014), p 106, calls it the ‘principal’ or ‘captain’ of the team of central banks.

  138. By requiring that such decisions respect Art. 2 of the ESCB/ECB Statute, which contains the objectives to which the EU legislator subjects the Eurosystem.

  139. As explained above, the ESCB/ECB Statute refers to the ESCB as the monetary authority of the EU, stemming from the outdated assumption that all EU members would join the monetary union. All references to the ESCB in matters of monetary policy must currently be read as references to the Eurosystem. On the role of the Eurosystem as the monetary authority of the Eurozone, see Louis (2014), p 105.

  140. ESCB/ECB Statute Art. 3(1).

  141. Gianviti (2010), para. 22.01–02.

  142. ESCB/ECB Statute Art. 2 and identical with TFEU Art. 127(1).

  143. See the generally accepted statement of the ECB at https://www.ecb.europa.eu/mopo/intro/objective/html/index.en.html (last accessed 19 December 2016); Lastra and Louis (2013), pp 133–134 (also emphasizing that the provision’s wording had been heavily influenced by the equivalent provision in the German Central Bank Act.

  144. Goodhart and Tsomocos (2010), pp 128 and 134; similar Herrero and Río (2005), pp 12–13; Smits (1997), p 269; Giavazzi and Giovannini (2011), p 6. Compare also Hellwig (2014), p 14.

  145. But see Hellwig (2007), pp 13–14 for examples from the past when such scenarios occurred.

  146. The acts or omissions of the ECB are subject to judicial review per Art. 35(1) ESCB/ECB Statute.

  147. Case C-62/14, Gauweiler and Others v. Deutscher Bundestag ECLI:EU:C:2015:400. See also Case C-370/12 Thomas Pringle v. Government of Ireland ECLI:EU:C:2012:756 that did not challenge monetary policy, but similar high-profile decisions in exercise of sovereign powers.

  148. Case C-62/14, Gauweiler and Others v. Deutscher Bundestag ECLI:EU:C:2015:400, paras. 50–55.

  149. Again by the German Constitutional Court, see BVerfG decision of 18 July 2017, ECLI:DE:BVerfG:2017:rs20170718.2bvr085915, currently only available in German at http://www.bverfg.de/e/rs20170718_2bvr085915.html (last accessed 22 August 2017).

  150. Scepticism among German politicians and academics is running high as reflected in literature. See e.g. Degenhart (2015), p 30; Siekmann and Wieland (2014), p 6; Hofmann (2017).

  151. Council Regulation 1024/2013, Conferring Specific Tasks on The European Central Bank Concerning Policies Relating to the Prudential Supervision of Credit Institutions [2013] OJ L287, Arts. 4 and 6.

  152. On implicit objectives see Gianviti (2010), para. 22.02.

  153. Council Regulation 1024/2013, n. 151 above, recital 65, reads: ‘The ECB is responsible for carrying out monetary policy functions with a view to maintaining price stability in accordance with Article 127(1) TFEU. The exercise of supervisory tasks has the objective to protect the safety and soundness of credit institutions and the stability of the financial system. They should therefore be carried out in full separation, in order to avoid conflicts of interests and to ensure that each function is exercised in accordance with the applicable objectives. The ECB should be able to ensure that the Governing Council operates in a completely differentiated manner as regards monetary and supervisory functions. Such differentiation should at least include strictly separated meetings and agendas.’ See also Schammo (2017), pp 8 and 18 (on the objectives assigned to the ECB as prudential supervisor); Hellwig (2014), p 29.

  154. According to Lastra and Louis (2013), p 134 the provision states a ‘goal’ (i.e. an objective) and not a task. However, the authors emphasize that it should not be understood as a key objective of the ESCB and criticize this fact as ‘shortsighted’.

  155. Art. 127(5) TFEU and, with identical wording, Art. 3(3) of the ESCB/ECB Statute.

  156. Lastra and Louis (2013), p 137 refer to it as a non-basic task and refer to the legislative history that was dominated by Member States’ resistance against a larger role of the ESCB in the pursuit of financial stability and financial supervision.

  157. However, see Steinbach (2016), p 366, who implies that the financial stability objective ranks equally to the price stability objective, an assumption that would lead to different conclusions here.

  158. As required by ECB, n. 35 above, p 34.

  159. Strongly in support is Schoenmaker (2000), pp 218–219. In principle in support is Steinbach (2016), p 370, but subject to the principle of subsidiarity and therefore limited to instances in which the national banks cannot achieve the goals of ELA as effectively. Undecided are Lastra and Louis (2013), p 146: ‘[…] the LOLR role tests the limits of the mandate of the ECB in the pursuit of its objectives and hence the ambiguity that surrounds the provision of ELA’.

  160. Schoenmaker (2000), p 218.

  161. Directive 2014/59, n. 66 above.

  162. SRM Regulation, n. 66 above.

  163. Under the Single Supervisory Mechanism, see the Single Supervisory Mechanism Regulation (SSMR), Council Regulation 1024/2013, Conferring Specific Tasks on The European Central Bank Concerning Policies Relating to the Prudential Supervision of Credit Institutions [2013] OJ L287/63. See also Ferran and Babis (2013), p 255.

  164. SRM Regulation, n. 66 above.

  165. In his demands similar Siekmann (2016), but different in his analysis that identifies ELA as part of the Eurosystem’s monetary policy operations, see the transcript of the interview at http://scnem.com/a.php?sid=8u8ai.37fcbd,f=5,n=8u8ai.37fcbd,p=1,artref=5525454 (last accessed 22 August 2017).

  166. Davies (2013), pp 306–308.

  167. Market Notice (Bank of England, 3 February 2009), available at http://www.bankofengland.co.uk/markets/Documents/marketnotice090203c.pdf (last accessed 14 August 2017). See also Lastra (2015), para. 4.30.

  168. Plenderleith (2012), p 50.

  169. On all these criteria, see Plenderleith (2012), p 69. On the systemic impact assessment, see Plenderleith (2012), pp 46, 48, 54 and 56. On the applied haircuts see the Market Notice, n. 167 above. In a later dispute between a hedge fund that held shares in Northern Rock and the UK government, the English Court of Appeal held that the governing principle of lending of last resort by the Bank of England had traditionally been the deployment of assistance in the interest of the financial system as a whole, not in the interest of specific stakeholders such as the recipient banks and their shareholders. See SRM Global Master Fund LP v. The Commissioners of Her Majesty’s Treasury [2009] EWCA Civ 788. On the judgment, see Armour et al. (2016), p 325. On lending of last resort to Northern Rock, see Davies (2013), p 305.

  170. Red Book, n. 7 above, para. 33. See also Bank of England, ‘Indexed Long-term Repo’ (July 2016), available at http://www.bankofengland.co.uk/markets/Documents/money/iltrshortguide.pdf (last accessed 14 August 2017).

  171. Plenderleith (2012), p 76 (para. 281).

  172. Red Book, n. 7 above, para. 33.

  173. Red Book, n. 7 above, para. 33. Until 2014, it was called Extended Collateral Term Repo, see Sterling Monetary Framework Annual Report 2013–14, Quarterly Bulletin 2014 Q2, p 6 (chart 3).

  174. Red Book, n. 7 above, para. 33; Armour et al. (2016), p 328.

  175. Plenderleith (2012), p 76 (para. 281).

  176. Plenderleith (2012), p 76 (para. 283).

  177. The Financial Services Act 2012 c. 21 (UK) sets out that the authorities must cooperate during a crisis, and a Memorandum of Understanding (MOU) operationalizes this. See ‘MOU on Financial Crisis Management’ (1 April 2013), available at http://www.bankofengland.co.uk/about/Documents/mous/statutory/moufincrisis.pdf (last accessed 19 November 2017).

  178. See n. 7 above.

  179. Bank of England Act 1998 (UK) (as amended in 2012) (Bank of England Act), s. 11 reads: ‘In relation to monetary policy, the objectives of the Bank of England shall be (a) to maintain price stability, and (b) subject to that, to support the economic policy of Her Majesty’s Government, including its objectives for growth and employment’.

  180. Bank of England Act s. 2A (which is also reflected in Banking Act 2009 (UK) Art. 238), stipulates that ‘(1) [a]n objective of the Bank shall be to protect and enhance the stability of the financial system of the United Kingdom (the “Financial Stability Objective”). (2) In pursuing the Financial Stability Objective the Bank shall aim to work with other relevant bodies (including the Treasury, the Financial Conduct Authority and the Prudential Regulation Authority)’. The Bank of England is independent in its monetary policy decisions while required to cooperate with the UK Treasury and other parts of the UK government in matters of financial stability, as reflected in Bank of England Act ss. 2A(2), 9A(2), 10 and most strongly in 4(1): ‘The Treasury may from time to time give such directions to the Bank as, after consultation with the Governor of the Bank, they think necessary in the public interest, except in relation to monetary policy’.

  181. See Bank of England, ‘Liquidity Insurance at the Bank of England: Developments in the Sterling Monetary Framework’, (October 2013) p 1 para. 7i reads: ‘Liquidity insurance is a core function of the Bank of England. It directly supports the Bank’s second Core Purpose—to protect and enhance the stability of the financial system—and can indirectly help to ensure monetary stability, by reducing the incidence of large and unpredictable shifts in the demand for central bank money’.

  182. Plenderleith (2012), p 79 (para. 292). See also MOU on Financial Crisis Management, n. 177 above, p 6.

  183. MOU on Financial Crisis Management, n. 177 above, p 19.

  184. Plenderleith (2012), p 77 (para. 285); Anson et al. (2017), p 53.

  185. Louis (2014), p 110.

  186. Memories of the 2015 Greek and 2013 Cyprus capital controls come to mind.

  187. The central provision in this respect is Art. 63 TFEU.

  188. See Sect. 3.3.2 above.

  189. See Sect. 3.1.2 above.

  190. On the court proceedings challenging the legality of the securities-purchasing programmes of the Eurosystem, see Sect. 3.2.1.1 above. See also Lastra and Louis (2013), p 152 discussing the CJEU’s general approach, which is to take the limitations for the Eurosystem’s independence drawn by its objectives and tasks very seriously.

  191. On this aspect Hellwig (2007), p 30.

  192. Hellwig (2014), p 19. See also Lastra (2014), p 96 who argues that price stability is the core objective in normal times, but that a financial crisis requires adequate response which shifts the focus toward a financial stability objective. See also Lastra and Louis (2013), p 144 arguing in favour of a wider mandate for the Eurosystem by way of introduction of a general financial stability objective.

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Acknowledgements

The author is grateful for generous funding from the Centre for Banking and Finance Law at NUS Law and the support from his research assistants Arvind Balasubramanian (LL.B. NUS’15) and Jessica Tang Sijie (LL.B. NUS’19).

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    Christian Hofmann

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Hofmann, C. Reconsidering Central Bank Lending of Last Resort. Eur Bus Org Law Rev 19, 883–922 (2018). https://doi.org/10.1007/s40804-018-0109-3

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