The financial crisis which emerged in 2007 made it clear that the regulation and supervision of bank activities needed to be harmonised across the EU and especially in the euro area. The crisis revealed in particular that the misjudgement of risks by the banking sector can undermine the financial stability of entire Member States. In June 2012, the European Council therefore agreed to ‘break the vicious circle between banks and sovereigns’. One of the EU’s responses to correct previous shortcomings was to establish two new institutions, which are the key elements of the so-called Banking Union. The first key element is the Single Supervisory Mechanism (SSM), which assigns the role of direct banking supervisor to the European Central Bank in order to ensure that the largest banks in Europe are independently supervised under common rules. The second key element is the Single Resolution Mechanism (SRM), which is responsible for planning for the worst-case scenario, namely the failure of a bank, to ensure that the situation can be resolved in an orderly manner with minimal costs for taxpayers. The will to spare taxpayers from the cost of future bank resolutions led to a change in underlying rules, namely the provisions of the Bank Recovery and Resolution Directive (BRRD), according to which resolutions shall mainly be financed by banks’ shareholders and creditors. Where necessary, financing can also be provided, on a complementary basis, by the newly established Single Resolution Fund (SRF), which is financed by the banking industry. The SSM has been fully operational since November 2014, the SRM since January 2016. The SRF, however, will only reach its target funding level in 2023. Members of the euro area are automatically part of the Banking Union, while other Member States may opt in.
On 24 November 2015, the European Commission presented a legislative proposal that aims to add another element to the Banking Union, namely the European Deposit Insurance Scheme (EDIS), which is to be built on the basis of existing national deposit guarantee schemes.
Articles 114 and 127(6) of the Treaty on the Functioning of the European Union (TFEU).
The Banking Union is an essential complement to the Economic and Monetary Union (EMU) and the internal market, which aligns responsibility for supervision, resolution and funding at EU level and forces banks across the euro area to abide by the same rules. In particular, these rules ensure that banks take measured risks, and that a bank that errs pays for its losses and faces the possibility of closure while minimising the cost to the taxpayer.
In December 2012, the President of the European Council, in close collaboration with the Presidents of the European Commission, the European Central Bank (ECB) and the Eurogroup, drew up a specific and time-bound roadmap for the achievement of a genuine EMU. One of the vital parts of this roadmap was the creation of a more integrated financial framework, i.e. the Banking Union.
In March 2013, a political agreement was reached between Parliament and the Council on establishing the first pillar of the Banking Union, the Single Supervisory Mechanism (SSM), covering all banks in the euro area. Non-euro area Member States may opt in if they so wish. The SSM, operational since 4 November 2014, has been placed within the ECB and is responsible for the direct supervision of the largest and most significant banking groups (129 entities as per January 2016), while national supervisors continue to supervise all other banks, under the ultimate responsibility of the ECB. The criteria for determining whether banks are considered significant — and therefore fall under the ECB’s direct supervision — are set out in the SSM Regulation and the SSM Framework Regulation, and relate to a bank’s size, economic importance, cross-border activities and need for direct public support. In line with the development of these criteria, the actual number of banks directly supervised by the ECB can therefore change over time; the ECB can furthermore decide at any time to classify a bank as significant to ensure that high supervisory standards are consistently applied.
In order to avoid a potential conflict of interest, clear rules govern the organisational and operational separation of the ECB’s roles in the areas of supervision and of monetary policy.
Prior to assuming its supervisory responsibilities, the SSM conducted a comprehensive assessment consisting of an asset quality review and stress tests. The aim was to achieve greater transparency of the banks’ balance sheets in order to ensure a reliable starting-point for the work of the SSM. The results, published on 27 October 2014, showed that 25 out of 130 participating banks experienced capital shortfalls. Although some shortfalls had already been covered by the time of publication, all banks had to submit capital plans to the ECB showing how they intended to plug the gaps over the course of 2015.
As mentioned, the actual number of banks directly supervised by the SSM changes over time. All banks that are added to the list of supervised entities undergo a similar kind of ‘financial health check’; in 2015, nine banks were subject to comprehensive assessments, and of these five were found to have capital shortfalls of varying size.
In March 2014, a political agreement was reached between Parliament and the Council on establishing the second pillar of the Banking Union, the Single Resolution Mechanism (SRM). The main objective of the SRM is to ensure that potential future bank failures in the banking union are managed efficiently, with minimal costs to taxpayers and the real economy. The scope of the SRM mirrors that of the SSM. This means that a central authority — the Single Resolution Board (SRB) — is ultimately in charge of the decision to initiate the resolution of a bank, while operationally the decision will be implemented in cooperation with national resolution authorities. The SRB started its work as an independent EU agency on 1 January 2015, and has been fully operational since January 2016.
While the rules governing the Banking Union aim to ensure that any resolution is financed first by a bank’s shareholders and, if necessary, also partly by a bank’s creditors, there is now another funding source available that can step in if the contributions of shareholders and creditors are insufficient, namely the Single Resolution Fund (SRF), which is administered by the SRB. Once the SRF reaches its target fund level, it will hold some EUR 55 billion, equivalent to around 1% of the covered deposits in the euro area. The contributions to the SRF will be paid in by the banks over the course of 8 years.
The new rules for burden-sharing that are applicable in a case of bank resolution are set out in the Bank Recovery and Resolution Directive (BRRD), adopted by Parliament in April 2014. The BRRD provides for ways in which ailing banks can be resolved without requiring taxpayer bailouts, implementing the principle that losses have to be borne first by shareholders and creditors, rather than through recourse to state funds.
Minimum capital requirements define how much capital a bank must hold to be considered safe to operate and able to deal with operational losses on its own. The financial crisis demonstrated that previous regulatory minimum capital requirements were actually too low in a major crisis. It was therefore agreed at international level to increase the respective minimum thresholds (Basel III principles). In April 2013, Parliament adopted two legal acts which transpose the prudential capital requirements for banks into European law, the fourth Capital Requirements Directive (CRD) and the Capital Requirements Regulation (CRR). The CRD and CRR entered into force on 1 January 2014.
The level playing field inside the single market is strengthened by a Single Rule Book applicable to all banks in the EU. In the legal acts that were adopted by Parliament, some technical details still needed be finalised. The Commission was therefore empowered to draft complementing legislative acts (so-called level 2 measures) that specify the missing technical details; those level 2 measures are an important piece of work in the present legislature (2014-2019).
On 24 November 2015, the Commission presented a legislative proposal that aims to add another element to the Banking Union, namely the European Deposit Insurance Scheme (EDIS), which shall be built based on existing national deposit guarantee schemes (which are so far not backed by a common European scheme). EDIS is to be introduced gradually, and is conceived as being cost-neutral overall for the banking sector (though riskier banks will be asked to pay higher contributions than safer banks). It will be accompanied by strict safeguards and measures to reduce banking risks.
As a response to the roadmap on a genuine EMU, Parliament adopted a resolution entitled ‘Towards a genuine Economic and Monetary Union’ on 20 November 2012, with recommendations to the Commission to establish a real Banking Union. By adopting legislative acts on the SSM, SRM, DGS, BRRD and CRD IV in 2013 and 2014, Parliament contributed significantly to establishing a real Banking Union.
These legislative acts give Parliament a role in the scrutiny of the newly established institutions. The ECB is, in its supervisory role (i.e. SSM), accountable to Parliament and to the Council. Details of its accountability towards Parliament are laid down in an Interinstitutional Agreement (IIA) between Parliament and the ECB.
So far, five regular public hearings of the Chair of the SSM have taken place in the Committee on Economic Affairs (on 18 March 2014, 3 November 2014, 31 March 2015, 19 October 2015 and 22 March 2016). The next regular hearing is scheduled for 13 June 2016.
The same approach basically applies to the Single Resolution Board, whose Chair shall participate at least once every calendar year in a hearing by the competent committee of Parliament on the execution of the resolution tasks by the Board. So far, two public hearings of the SRB have taken place in the Committee on Economic Affairs (on 16 June 2015 and 28 January 2016). The next hearing is scheduled for 13 July 2016.
Details of the SRB’s accountability towards Parliament and related practical modalities are laid down in an Interinstitutional Agreement between Parliament and the SRB that was published on 24 December 2015.
Marcel Magnus / Cairen Power