Abstract
Institutional reforms carried out at the EU level in the aftermath of the global financial crisis were purposed towards preserving the stability and well-functioning of financial markets in the EU. The European System of Financial Supervision was first created, followed by the Single Supervisory Mechanism supported by the Single Resolution Mechanism. The proliferation of European level regulatory and supervisory authorities has recalibrated the exercise of public authority over financial markets, and significant power has shifted from national to European level agencies.
The creation of EU level agencies is supported by avenues of formal accountability in political, stakeholder and judicial accountability, resulting in some complex designs in power structures. The chapter argues that such complex designs may affect the autonomy and technocratic efficacy of institutions. However, there is potential in leveraging upon one aspect the complexity offers- inter-agency coordination, in order to promote learning for technocratic effectiveness as well as to cultivate a form of accountability that ameliorates the perception of excessive power.
The chapter will focus on the inter-relationships between the three European sectoral agencies, especially in the Joint Committee and Board of Appeal to illustrate the achievements of inter-agency coordination and accountability. The chapter will go on to explore new challenges that arise with the introduction of the SSM and SRM into the EU financial regulatory architecture. We will argue that promoting inter-agency coordination in specific areas may have the potential to address some of these challenges. The broader notion of inter-agency accountability can also spawn future lines of discourse and research into improving the credibility and legitimacy of the exercise of power by EU level agencies.
I.H.-Y. Chiu is Reader in Laws at University College London. This chapter is based on a journal article published in the European Journal of Legal Studies (Florence: EUI, 2015).
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Notes
- 1.
de Larosière et al. (2009).
- 2.
See the EBA, ESMA, EIOPA and ESRB Regulations, infra.
- 3.
See the 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 (‘SSM Regulation’).
- 4.
Moloney (2010).
- 5.
See discussion in Andenas and Chiu (2013).
- 6.
Iglesias-Rodriguez (2014).
- 7.
Commission, ‘Financial Services Action Plan: Implementing the Framework for Financial Markets’ (Communication) COM (1999) 232; Alexandre Lamfalussy and others, ‘Final Report of the Committee of Wise Men on the Regulation of European Securities Markets’ (Brussels, 15 February 2001). http://ec.europa.eu/internal_market/securities/docs/lamfalussy/wisemen/final-report-wise-men_en.pdf.
- 8.
Chiu (2008).
- 9.
See account and analysis by Wymeersch (2011).
- 10.
Andenas and Chiu (2013).
- 11.
European Parliament and Council Regulation (EU) 1093/2010 of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC [2010] OJ L331/12 (EBA Regulation 2010).
- 12.
European Parliament and Council Regulation (EU) 1095/2010 of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC [2010] OJ L331/84 (ESMA Regulation 2010).
- 13.
European Parliament and Council Regulation (EU) 1094/2010 of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC [2010] OJ L331/48 (EIOPA Regulation 2010).
- 14.
European Parliament and Council Regulation (EU) 1092/2010 of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board [2010] OJ L331/1 (ESRB Regulation 2010).
- 15.
“Eurozone Agrees Common Bank Supervisor”, Financial Times (13 Dec 2012). Alexander (2013).
- 16.
SSM Regulation, above.
- 17.
SRM Regulation, infra.
- 18.
See discussion in Ferranini and Chiarella (2013).
- 19.
Schammo (2012).
- 20.
Koop (2011).
- 21.
United Kingdom v Parliament and Council, Case 270/12, supported in Jacques Pelkmans and Mara Simoncini, ‘Mellowing Meroni: How ESMA Can Help Build the Single Market’ CEPS Commentary, 18 February 2014.
- 22.
For example, see CESR, ‘Which supervisory tools for the EU securities markets?’ (25 October 2004) Preliminary Progress Report No 04-333f. http://www.esma.europa.eu/system/files/04_333f.pdf. Accessed 18 December 2012 (‘Himalaya Report’), 5.
- 23.
Chiu (2008), chs 2–5.
- 24.
- 25.
See analysis in Moloney (2011).
- 26.
EBA, ESMA and EIOPA Regulations, arts 8, 10, 15–16. However, the power to make such delegated legislation is revocable by the European Council and Parliament (see arts 12 and 13) and is subject to review by the Commission (art 11). The substantive technical standards may also be vetted and objected to by the Commission (art 14), providing layers of checks and balances to the exercise of such legislative power. The status of successfully passed standards and guidelines are however binding on Member States and non-compliance would amount to a breach of Union law (art 17).
- 27.
EBA, ESMA and EIOPA Regulations, art 16.
- 28.
EBA, ESMA and EIOPA Regulations, arts 18, 19.
- 29.
EBA, ESMA and EIOPA Regulations, art 21.
- 30.
EBA, ESMA and EIOPA Regulations, art 29.
- 31.
EBA, ESMA and EIOPA Regulations, art 30.
- 32.
EBA, ESMA and EIOPA Regulations, art 9.
- 33.
EBA, ESMA and EIOPA Regulations, art 26.
- 34.
EBA, ESMA and EIOPA Regulations, arts 22, 23, 32.
- 35.
For example, the German and British unilateral actions in freezing Icelandic banks’ assets in their jurisdictions upon failure of those banks; the unilateral unlimited deposit guarantee offered by Ireland to save its banks, the national lines taken in the resolution of Fortis bank. Post-crisis pan-European solutions in the resolution of Dexia, Cyprus banks, Bankia and Banco Espirito Santo of Portugal have however been dovetailed into coordinated European resolutions. See Pisani-Ferry and Sapir (2010).
- 36.
ESRB Regulation, art 3.
- 37.
ESRB Regulation, art 6.
- 38.
ESRB Regulation, art 15.
- 39.
ESRB Regulation, art 16.
- 40.
Ferran and Alexander (2010).
- 41.
Wymeersch (2010).
- 42.
Meroni v High Authority [1957–58] ECR 133 (Case9/56) which provides that EU institutions can only delegate well-defined executive powers but not broad discretionary powers. This has lasting implications for the creation of EU agencies, and the Commission’s White Paper on European Governance (2001) arguably reinforces the need for technocratic expert-led independent European agencies with specific powers to implement policies made by the Commission and take individual decisions pursuant to those policies but not to have broad regulatory powers.
- 43.
- 44.
- 45.
Noted in DG for Internal Policies, Parliament’s Review of the ESFS (2013) as many stakeholders’ views.
- 46.
Although the agencies are tasked to act independently, EBA, ESMA and EIOPA Regulations, Art 1, and national regulator representatives, the Chairperson of the governing body, the Board of Supervisors and the Executive Director of the administrative organ, the Management Board, are tasked to exercise their judgment independently of political and national interests, Arts 42, 46, 49 and 51, the Regulations feature overwhelmingly substantive provisions on control and accountability that may affect independence.
- 47.
DG for Internal Policies, Parliament’s Review of the ESFS (2013); Iglesias-Rodriguez (2014).
- 48.
- 49.
One notes Everson’s critique of this position as technocratisation could be a way to evade addressing the political nature of some issues and hence mute the voices concerned with political implications, see Michelle Everson, ‘A Technology of Expertise: EU Financial Services Agencies’ (June 2012, LSE Research Paper).
- 50.
It is noted that Everson warns against de-politicisation of issues in the EU by technocratisation of these as regulatory areas. She is sceptical of the effectiveness of such an approach and is concerned for the marginalisation of democratic voice in policy-making, see Michelle Everson, ‘A Technology of Expertise: EU Financial Services Agencies’ (June 2012, LSE Research Paper).
- 51.
EBA, ESMA and EIOPA Regulations, art 10.
- 52.
Above, art 15.
- 53.
Above, art 38.
- 54.
Above, art 18.
- 55.
Above, arts 63–65.
- 56.
Above, art 68.
- 57.
Above, art 11, 12.
- 58.
Above, art 34.
- 59.
Above, art 17.
- 60.
Above, art 36. The agencies are tasked with the general role of developing systemic risk indicators and stress testing regimes in order to assist the ESRB in its systemic risk oversight, see arts 22–23.
- 61.
Above, art 40.
- 62.
Above, art 48.
- 63.
Above, art 51.
- 64.
Above, art 9.
- 65.
Above, art 16.
- 66.
Above, arts 23 and 33.
- 67.
Above, art 43.
- 68.
Above, art 44.
- 69.
Above, art 50.
- 70.
Above, arts 21, 29–31.
- 71.
Above, arts 19–20. Even then such needs to be reported to Parliament in annual reports, but annual reporting is routinely received by the Parliament in relation to so many agencies in the EU that Curtin argues that such a form of accountability does not particularly attract scrutiny, see Curtin (2005).
- 72.
Above, arts 54–56.
- 73.
Iglesias-Rodriguez (2014), Chapter 6.
- 74.
Above at p. 241.
- 75.
Busuioc and Groenleer (2014).
- 76.
EBA, ESMA and EIOPA Regulations, art 60.
- 77.
Above, art 58.
- 78.
Above, art 58, 59.
- 79.
Within 2 months of lodging an appeal.
- 80.
EBA, ESMA and EIOPA Regulations, art 60.
- 81.
Above, art 61.
- 82.
However, Pieter Van Cleynenbreugel, ‘Judicial Protection against EU Financial Supervisory Authorities in the Wake of Regulatory Reform’ (2012) at http://ssrn.com/abstract=2194172 criticises that the judicial accountability is too narrow as being confined to persons directly affected by agency decisions and that the grounds in Art 263 may not encompass all possible grievances against the agencies.
- 83.
EBA, ESMA and EIOPA Regulations, art 37.
- 84.
Iglesias-Rodriguez (2014), Chapter 7.
- 85.
DG for Internal Policies, Parliament’s Review of the ESFS (2013).
- 86.
ESRB Regulation, art 11.
- 87.
ESRB Regulation, art 12.
- 88.
ESRB Regulation, art 13.
- 89.
As commended by the European Commission’s review of the ESFS, see European Commission, Report from the Commission to the European Parliament and the Council on the operation of the European Supervisory Authorities (ESAs) and the European System of Financial Supervision (ESFS) (7 Aug 2014).
- 90.
Observed by stakeholders in DG for Internal Policies, Parliament’s Review of the ESFS (2013), and also commended in European Commission, Report from the Commission to the European Parliament and the Council on the operation of the European Supervisory Authorities (ESAs) and the European System of Financial Supervision (ESFS) (7 Aug 2014).
- 91.
EBA, ESMA and EIOPA Regulations, art 55.
- 92.
Above, art 54.
- 93.
Above, art 57.
- 94.
Above, art 56.
- 95.
Decision of the Joint Committee of the European Banking Authority, European Insurance and Occupational Pensions Authority, and European Securities and Markets Authority adopting the Rules of Procedure of the Joint Committee of the European Supervisory Authorities (21 June 2011).
- 96.
Joint Committee Work Programme 2013, 2014, infra.
- 97.
See Joint Committee, Joint Committee Consultation Paper on Guidelines for Cross-Selling Practices (22 Dec 2014) at http://www.esma.europa.eu/system/files/jc_cp_2014_05_consultation_paper_on_cross_selling.pdf.
- 98.
Joint Committee Work Programme 2013, at http://www.esma.europa.eu/sk/system/files/jc-2013-002.pdf.
- 99.
EBA, EIOPA and ESMA’s Response to the European Commission’s Call for Advice on the Fundamental Review of the Financial Conglomerates Directive (2012) at http://www.esma.europa.eu/sk/system/files/jc_2012_88.pdf.
- 100.
Joint Committee, Joint Guidelines on the Convergence of Supervisory Practices Relating to the Consistency of Supervisory Coordination Arrangements for Financial Conglomerates (22 Dec 2014) at http://www.esma.europa.eu/system/files/jc_gl_2014_01_joint_guidelines_on_coordination_arrangements_for_financial_conglomerates.pdf.
- 101.
Joint Committee Work Programme 2014, at http://www.esma.europa.eu/sk/system/files/jc-2014-051_2014_work_programme_of_the_joint_committee_of_the_esas.pdf.
- 102.
DG for Internal Policies, Parliament’s Review of the ESFS (2013).
- 103.
Joint ESAs consumer protection day 4 June 2014.
- 104.
Discussed in relation to consumer protection day, above.
- 105.
ESMA Annual Report 2013, EIOPA Annual Report 2013.
- 106.
Joint Committee, Final Report on Guidelines for Complaints-handling for the Securities (ESMA) and Banking (EBA) sectors, and CP (Nov 2013).
- 107.
Joint Consultation Paper on Mechanistic References to Credit Ratings (Nov 2013), Final Report (Feb 2014).
- 108.
Joint Committee, Letter on Possible Framework for the Regulation of the Production and Use of Indices Serving as Benchmarks in Financial and other Contracts (Nov 2013).
- 109.
Joint Consultation Paper on Mechanistic References to Credit Ratings Final Report (Feb 2014).
- 110.
Inter-agency learning is still nevertheless in an early stage as the Parliamentary review notes that the EBA and EIOPA are inundated with their respective draft technical standards work in micro-prudential regulation and Solvency II respectively and EBA’s stress testing developments have also pre-occupied the EBA significantly. See DG for Internal Policies, Parliament’s Review of the ESFS (2013).
- 111.
Decision of the Board of Appeal in SV Capital Oü v EBA (Frankfurt, 24 June 2013).
- 112.
Decision of the Board of Appeal in SV Capital Oü v EBA (Frankfurt, 14 July 2014).
- 113.
Decision of the Board of Appeal in Global Private Rating Company ‘Standard Rating’ Ltd v ESMA (Frankfurt, 10 January 2014).
- 114.
Para 188, above.
- 115.
Siedman and Gilmour (1986), pp. 219ff.
- 116.
- 117.
Li and Chan (2009).
- 118.
Freeman and Rossi (2012).
- 119.
Kapucu and Garayev (2011).
- 120.
Freeman and Rossi (2012).
- 121.
Iglesias-Rodriguez (2013).
- 122.
Erkkilä (2007).
- 123.
Wonka and Rittberger (2011).
- 124.
Dubnick and Frederickson (2010).
- 125.
Ferranini and Chiarella (2013).
- 126.
Troeger (2013).
- 127.
Ie banks with assets totalling 30 billion euros or more, or ratio of total assets over the GDP of the relevant Member State exceeds 20 %, unless the total value of its assets is below 5 billion euros, an institution regarded by the national regulator as significant, an institution regarded by the ECB on its own initiative as significant, any institution receiving public financial assistance, and at least the three key banks in every euro area jurisdiction or member state in close cooperation. SSM Regulation, art 6.
- 128.
SSM Regulation, art 7.
- 129.
SSM Regulation, art 4.
- 130.
This seems to be a balanced form of necessary centralisation according to what may be most efficient and proportionate, see Colliard (2014); SSM Regulation, art 6.
- 131.
SSM Regulation, arts 19 and 25.
- 132.
SSM Regulation, art 26.
- 133.
SSM Regulation, art 26. Ferran and Babis argues that this is adverse to non-euro area Member States in close cooperation as those Member States would not have a representative in the Governing Council, see Ferran and Babis (2013).
- 134.
Some queries have been raised in Wolfers and Voland (2014).
- 135.
Masciandaro et al. (2009) suggests that central bank leadership in microprudential supervision generally fragments regulatory architecture in financial regulation.
- 136.
Ferran and Babis (2013).
- 137.
SSM Regulation, art 20.
- 138.
SSM Regulation, art 21.
- 139.
SSM Regulation, art 24.
- 140.
SSM Regulation, art 3.
- 141.
SSM Regulation, art 6.
- 142.
SSM Regulation, art 3. It is uncertain yet how such coordination would work out but the European Commission is decisively of the view that ‘The establishment of a Banking Union, and notably of the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM) as its key components, will impact the functioning of the ESFS, but does not call into question its existence and necessity.’ See p. 4, European Commission, Report from the Commission to the European Parliament and the Council on the operation of the European Supervisory Authorities (ESAs) and the European System of Financial Supervision (ESFS) (7 Aug 2014).
- 143.
Above.
- 144.
Regulation (EU) No 1022/2013 of the European Parliament and of the Council of 22 October 2013 amending Regulation (EU) No 1093/2010 establishing a 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, amendment to art 44 of the EBA Regulation.
- 145.
Guarracino (2014).
- 146.
SSM Regulation, art 5.
- 147.
CRD IV Directive, arts 125–126.
- 148.
Masciandaro and Nieto (2013).
- 149.
‘Cyprus plans capital controls and bank restructuring as ECB sets ultimatum - as it happened’, The Guardian (21 March 2013).
- 150.
Alexander (2013).
- 151.
Ferran (2014).
- 152.
Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure 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 (“SRM Regulation”).
- 153.
SRM Regulation, art 42.
- 154.
SRM Regulation, art 7.
- 155.
SRM Regulation, arts 43, 53.
- 156.
The plenary sessions are annual in nature and deal with important issues such as adoption of work programme and budget, SRM Regulation, arts 46–48. The executive sessions are relevant to the Chair, Vice-Chair and four full-time members only and deal with the executive management of the Board’s tasks including preparatory work for the plenary sessions, SRM Regulation, arts 51–52.
- 157.
SRM Regulation, art 43.
- 158.
SRM Regulation, art 8.
- 159.
SRM Regulation, art 10.
- 160.
SRM Regulation, art 13.
- 161.
Remarks by Rosa Lastra on Charles Goodhart and M Sevagiano, ‘The Determination of Bank Recovery’ at the ‘Law and Monetary Policy’ Conference, University of Sheffield, 10 Sep 2014.
- 162.
SRM Regulation, art 18(1)(a).
- 163.
SRM Regulation, arts 14, 15.
- 164.
SRM Regulation, art 18.
- 165.
Above.
- 166.
SRM Regulation, art 19.
- 167.
SRM Regulation, art 10.
- 168.
DG for Internal Policies, Parliament’s Review of the ESFS (2013).
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Acknowledgment
The author thanks Professor Gudula Deipenbrock and Professor Mads Andenas for their invitation to present this paper at the Roundtable on Financial Markets Regulation, HTW Berlin, 5 Dec 2014. The author also thanks two anonymous reviewers at the European Journal of Legal Studies. All errors and omissions are mine.
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Chiu, I.HY. (2016). Power and Accountability in the EU Financial Regulatory Architecture: Examining Inter-Agency Relations, Agency Independence and Accountability. In: Andenas, M., Deipenbrock, G. (eds) Regulating and Supervising European Financial Markets. Springer, Cham. https://doi.org/10.1007/978-3-319-32174-5_4
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