From supervision to resolution next steps on the road to european banking union (english)


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From supervision to resolution next steps on the road to european banking union (english)

  1. 1. BRUEGELPOLICYCONTRIBUTION ISSUE 2013/04 FEBRUARY 2013 FROM SUPERVISION TO RESOLUTION: NEXT STEPS ON THE ROAD TO EUROPEAN BANKING UNION NICOLAS VÉRON AND GUNTRAM B. WOLFF Highlights • The European Council has outlined the creation of a Single Resolution Mechanism (SRM), complementing the Single Supervisory Mechanism. The thinking on the SRM’s legal basis, design and mission is still preliminary and depends on other major initiatives, including the European Stability Mechanism’s involvement in bank recapitalisations and the Bank Recovery and Resolution (BRR) Directive. The SRM should also not be seen as the final step creating Europe’s future banking union. • Both the BRR Directive and the SRM should be designed to enable the substantial financial participation of existing creditors in future bank restructurings. To be effec- tive, the SRM should empower a central body. However, in the absence of Treaty change and of further fiscal integration, SRM decisions will need to be implemen- ted through national resolution regimes. The central body of the SRM should be either the European Commission, or a new authority. • This legislative effort should not be taken as an excuse to delay decisive action onTelephone the management and resolution of the current European banking fragility, which+32 2 227 4210 imposes a major drag on Europe’s growth and This Policy Contribution is based on a paper requested by the European Parliament’s Committee on Economic and Monetary Affairs. Copyright remains with the European Parliament at all times. Nicolas Véron ( is a Senior Fellow at Bruegel and Visiting Fellow at the Peterson Institute for International Economics (Washington DC). Guntram B. Wolff ( is Deputy Director of Bruegel. The authors are grateful to colleagues both inside and outside Bruegel, and thank Francesca Barbiero for diligent research assistance.
  2. 2. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 02 FROM SUPERVISION TO RESOLUTION: NEXT STEPS ON THE ROAD TO EUROPEAN BANKING UNION NICOLAS VÉRON AND GUNTRAM B. WOLFF, FEBRUARY 2013 1 INTRODUCTION demonstrated both the unsuitability of insolvency processes for such financial institutions, at least European Banking Union in some situations and given the delays and uncertainties associated with insolvency courts, The European Council meeting of 28-29 June and the ability of well-designed special resolution 2012 marked the starting point of an ambitious regimes for banks to enable an orderly process project to create a European banking union as part that safeguards the interests of the public. of a collective European effort to resolve the cur- rent crisis and build a more resilient policy infra- Much of this experience comes from the United structure for Europe’s financial system (European States, where a special resolution regime for Council, 2012a). The first step will be the creation banks was introduced decades ago and was of the Single Supervisory Mechanism (SSM), now reformed following the 1980s Savings and Loan being finalised following an agreement at the Eco- (S&L) crisis. In contrast, most EU countries did not nomic and Financial Affairs Council meeting of 13 introduce special resolution legislation until the December 2012 (ECOFIN, 2012). In its subse- current crisis1. The US resolution regime for banks quent meeting on 14 December 2012, the Euro- is administered by the Federal Deposit Insurance pean Council outlined a tentative vision for the Corporation (FDIC), a federal agency created in next steps towards the aim of creating a banking 1933 and headquartered in Washington DC. In the union, which will involve significant legislative recent crisis it has operated reasonably well, and work alongside other policy initiatives (European has overseen the resolution of close to 500 banks, Council, 2012b). including very large ones such as Washington Mutual (which had more than US$ 300 billion in The aim of this Policy Contribution is to help clarify assets) in late September 2008, without large- key policy options for these next steps, including scale disruption in spite of significant losses the possible objectives and timetable for the cre- imposed on creditors including senior unsecured ation of a Single Resolution Mechanism (SRM). At ones. The Dodd-Frank Act of 2010 extended the this early stage, the SRM agenda cannot be con- resolution authority of the FDIC to systemically sidered in isolation from other pieces of the leg- important non-bank financial institutions, a cate- islative jigsaw. Therefore we place particular gory that would have included firms that were emphasis on the challenges of sequencing, coor- judged ‘too-big-to-fail’ and were bailed out in 2008 dination and identification of respective responsi- (Bear Stearns, Fannie Mae, Freddie Mac, AIG and bilities among different processes and parties. GMAC) as well as Lehman Brothers. In April 2011, the FDIC published an analysis that suggests that, Bank resolution had the Dodd-Frank Act been in place in Septem- ber 2008, it would have been possible to resolve ‘Bank resolution’ refers to specific legal regimes Lehman Brothers in an orderly manner, as was the for the orderly restructuring and/or liquidation of case for depositary banks (FDIC, 2011).1. The Winding-up Directive certain financial institutions. For such institutions, (2001/24/EC) is about the general-purpose insolvency process can be A bank resolution regime should not be seen as a cross-border coordination unsuited, given their importance for the economy, magic bullet that would by itself put an end to of insolvency processes, the existence of systemic risk and the possibility moral hazard and systemic risk. There are casesbut does not introduce spe- cial resolution regimes as of contagion that is specific to financial activities of fairly effective resolution of a systemic banking alternatives to insolvency. including banking. Past crises convincingly crisis without a prior resolution regime in place,
  3. 3. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 03such as in Sweden in the early 1990s. Conversely, vided by the ‘doom loop’ that has developed in thea country might introduce a special resolution euro area between credit conditions that apply toregime in its legislation but fail to use it when vulnerable countries as sovereign issuers on theappropriate, or use it in a manner that does not one hand, and to these countries’ banks on theavoid systemic contagion. Even with well- other hand. The reality of this ‘doom loop’ ordesigned processes for imposing losses on cred- vicious circle is illustrated by the high correlationitors, a resolution regime cannot guarantee that between credit ratings and credit market indica-no use of public money will ever be necessary, tors between these sovereigns and banksespecially in very severe crisis scenarios. A (Angeloni and Wolff, 2012), and its acknowledge-number of EU member states have passed legis- ment has driven policy initiatives since at leastlation since 2007 that creates special bank reso- early 2012. Well-designed resolution regimeslution regimes, but most of these remain promise to both limit banking sector instability,essentially untested. International coordination is and to minimise the fiscal cost of bank failures.recent in this area of banking policy, and hasachieved a significant milestone with the first-time 2 THE COUNCIL DECISIONS OF MID-DECEMBERpublication by the Financial Stability Board of “key 2012: A FOUR STEP APPROACHattributes of effective resolution regimes for finan-cial institutions” (FSB, 2011). Crucial factors of The European Council Conclusions of 14 Decem-effectiveness include the speed of the process, ber 2012 include dense and somewhat complexwhich requires carefully designed decision- content which justifies a detailed analysis. In ourmaking processes and very professional man- analysis, the European Council has defined anagement, and its ability to intervene early. As approach to the build-up of a European bankingnoted by an experienced observer, “Whatever the union that includes four successive steps, the firstmechanism for resolving a bank, the sooner that three of which are explicitly framed in the Euro-is done, the less the likely burden that will have to pean Council Conclusions, and the fourth keptbe subsequently met” (Goodhart, 2012). deliberately implicit.In Europe, the difficulty of introducing an effective 2.1 Step 1: integrated supervisionframework for bank resolution is compounded bya number of specific factors: the EU is in a state of This first step, which the European Council con-systemic banking fragility and of unusual institu- clusions imply should be completed by Marchtional uncertainty; its financial system is domi- 2013, is centred on the Single Supervisory Mech-nated by banks, with a high degree of banking anism. In addition to the adoption of the Councilsector concentration in many of its member regulation establishing the SSM (SSM Regulation;states; its insolvency framework is fragmented Council, 2012), this includes the adoption of thealong national lines, and so is its fiscal framework regulation reforming the European Bankingfor most purposes in spite of recent tentative Authority (EBA Regulation)2 to adapt it to the newsteps towards fiscal integration in the euro area; situation created by the advent of the SSM, as wellits policymakers and investors have almost no as the adoption of the Capital Requirements Reg-experience of orderly bank resolution, as most ulation (CRR)3 and its complement the fourth Cap-past cases of bank failures have been handled ital Requirements Directive (CRD4)4, so that thethrough public bail-outs and/or nationalisation SSM can implement a harmonised supervisory(Goldstein and Véron, 2011). ‘rulebook’ based on the Basel III accord, instead of the currently applicable (and often divergent)Conversely, a powerful motivate to create or national regulations. The operational build-up ofstrengthen resolution regimes in Europe is pro- the SSM will follow; actually its initial phase has ‘In Europe, the difficulty of introducing an effective bank resolution framework is compounded 2. COM (2012) 512. by the systemic banking fragility; the high degree of banking sector concentration in many 3. COM (2011) 452. countries; its fragmented insolvency framework; and the lack of bank resolution experience.’ 4. COM (2011) 453.
  4. 4. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 04 already started at the ECB with the cooperation of 2.3 Step 3: Single Resolution Mechanism (SRM) national supervisors. The December 2012 European Council Conclu- One important parameter in this build-up phase is sions state that “the [European] Commission will the question of which non-euro area member submit in the course of 2013 a proposal for a states will enter “close cooperation arrangements” single resolution mechanism for Member States that would make them participating members of participating in the SSM, to be examined by the co- the SSM. While Sweden and the United Kingdom legislators as a matter of priority with the inten- have indicated they will not consider entering tion of adopting it during the current such arrangements in the foreseeable future, parliamentary cycle”. The SRM should “safeguard other non-euro area member states still have to financial stability and ensure an effective frame- decide. Another significant operational question work for resolving financial institutions while pro- is the pace of expansion of the ECB’s supervisory tecting taxpayers in the context of banking staff and the specific arrangements it will estab- crises”, and should be based on “contributions by lish with national supervisors. the financial sector itself and include appropriate and effective backstop arrangements”. The Com- 2.2 Step 2: Coordinated framework for bank mission has announced it will publish a proposal resolution “before the summer” of 2013 (Barroso, 2013), and the adoption of the final text is desired in advance Beyond supervision, the Council identified two ini- of the European elections scheduled in June tiatives that it wants completed before the end of 2014. Other documents from the Commission and June 2013: the Council suggest that the SRM proposal will be published only after the adoption of the BRR and • First, an “operational framework” for the direct DGS Directives (eg Van Rompuy, 2012b). The ref- recapitalisation of banks by the ESM, the euro erence to ‘co-legislators’ in the European Council area crisis-management fund created in 2012, conclusions is a hint that the SRM may take the which is mentioned in connection with the form of a directive and/or regulation of the Euro- “imperative to break the vicious circle between pean Parliament and the Council, but with no indi- banks and sovereigns”. In the language of the cation of the underlying Treaty base. Council conclusions, this document, which is currently under negotiation between member 2.4 Step 4: Completion of the banking union states, should “include the definition of legacy beyond the SRM assets” and “be agreed as soon as possible in the first semester 2013”; The December 2012 European Council Conclu- • Second, the adoption of two pieces of legisla- sions leave implicit the need for any further initia- tion that were proposed before the June 2012 tives beyond the SRM. However, the banking union Council decision to create a banking union: the would remain incomplete and arguably unstable proposed Bank Recovery and Resolution (BRR) without further integration, particularly in the Directive5, adopted by the European Commis- areas of insolvency, resolution and deposit insur- sion in early June 2012, which would create or ance (Pisani-Ferry et al, 2012). The need for steps reform national bank resolution regimes in a beyond the SRM has been obliquely acknowl- harmonised way in compliance with the Finan- edged by European policymakers, including the cial Stability Board’s recommendations (FSB, acknowledgement by ECB executive board mem- 2011), including a provision for the ‘bail-in’ of bers that further integration of deposit guarantee unsecured bank debt; and the proposed recast schemes beyond the DGS Directive will be needed of the Deposit Guarantee Schemes (DGS) Direc- but is not urgent (eg Constancio, 2012 and 2013). tive6, adopted by the Commission in July 2010, The European Commission has also referred to the which would further harmonise national desirability of future Treaty changes to perfect the deposit guarantee systems. The Council “urges design of the SSM (European Commission, 2012, 5. COM (2012) 280/3. the co-legislators to agree” on these proposals 4.3). For the sake of simplicity we bundle all these 6. COM (2010) 369. “before June 2013”. post-SRM steps into a single fourth step, even
  5. 5. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 05though a longer and more complex sequence disruption. Conversely, excessive focus on themight also happen, and we discuss their possible long-term challenges carries the risk of ignoringobjectives and content in the next sections. the urgency of the situation at hand, and the usu- ally high cost of delaying decisive action.2.5 Banking structure 3.1 Short-term objective: addressing Europe’sThe reform of banking structures has been given banking system fragilityhigh political prominence in Europe as well as inthe US, where the Dodd-Frank Act of 2010 intro- Europe’s banking problem is an essential elementduced the ‘Volcker Rule’ of separation of propri- of the ‘doom loop’ but is also harmful in its ownetary trading, though the implementing right, in a way that predates the sovereign debtregulations are still being discussed by federal crisis (Posen and Véron, 2009). Unaddressedagencies. At the level of individual EU member banking system fragility, often the result of thestates, there have been legislative initiatives in the bias of many policymakers towards supervisoryUK, France and Germany. At the EU level, the Euro- forbearance, results in a vicious cycle of its ownpean Commissioner for the Internal Market and in which banks keep extending credit to insolventServices has commissioned a report that also rec- borrowers to avoid the pain of recognising lossesommends a form of structural separation (Liika- on non-performing loans (ESRB, 2012). The banks’nen, 2012). The December 2012 European lending is increasingly absorbed by borrowersCouncil Conclusions include the sentence “The who will not repay, while creditworthy new bor-European Council looks forward to the Commis- rowers are starved of credit: while aggregate creditsion’s rapid follow up to the proposals of the high figures may show no evidence of credit contrac-level expert group on the structure of the EU bank- tion, in reality the allocation of credit is increas-ing sector”, but do not set a deadline. As a conse- ingly dysfunctional and results in an increasinglyquence, this issue is on the agenda and may severe drag on economic growth, and on employ-interact with the previously outlined four steps, ment as a consequence. This perverse spiral hasbut when and at what stage exactly remains been vividly described as “zombie banks lendingunspecified. to zombie borrowers”, a metaphor coined in the US S&L crisis (Kane, 1987) and often applied to the3 POLICY OBJECTIVES AND SEQUENCING Japanese crisis of the 1990s (eg Caballero et al, 2008). Sadly, the same pattern is increasinglyThe complexity of the agenda outlined in the pre- recognisable throughout Europe.vious section justifies a focus on the timeline andsequencing, and how it responds to the objectives The European banking system has requiredthat policymakers should set themselves, before increasing life support from the ECB and nationalwe move in the next section to specific (and non- central banks, including Longer-Term Refinancingexhaustive) policy recommendations for the pre- Operations (LTROs) programmes with maturitiesviously identified three steps. increased from an initial three months to six months (March 2008), one year (June 2009) andThe EU bank resolution agenda combines simul- eventually three years (December 2011), with thetaneous short-term and long-term challenges: in banking fragility then sharply made worse bya nutshell, resolve the current banking crisis doubts about the risks of euro exits or breakup,(which includes the objective of breaking the and national supervisory actions that curtailed‘doom loop’, accepted by the European Council as cross-border financial flows. Several coordinateda short-term “imperative”) in the short-term; and initiatives, such as Europe-wide stress tests inbuild a sustainable EU banking policy framework, September 2009, July 2010 and July 2011, and aor banking union, in the longer term. The combi- recapitalisation effort coordinated by the EBA innation of short- and long-term aims is both 2011-12, may have brought marginal improve-unavoidable and exceedingly difficult in a context ment but have generally failed to restore normalof systemic financial crisis. Too much focus on the conditions in the European interbank market fol-short-term challenges can sow the seeds of future lowing the initial shock of 2007-08. The European
  6. 6. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 06 Commission’s control of state aid has enabled it to The creation of the SSM holds the promise of a act to some degree as an EU-wide coordinator of genuinely consistent triage process, something member states’ responses to banking crises, but that the EBA could not achieve as it lacked direct the Commission has been generally able to inter- access to bank-level information and supervisory vene only at a late stage and in a reactive manner. authority of its own. The newfound emphasis on burden-sharing with bank creditors holds the Europe’s banking problem has been further com- promise of keeping the collective public cost of pounded by the general willingness of policy- restructuring at a politically manageable (though makers, particularly in the early years of the crisis, probably still high) level, while the prospect of to guarantee all bank creditors and avoid impos- banking union should increase the stability of the ing losses on any of them or at least to senior system as a whole, thereby reducing the financial unsecured creditors (Goldstein and Véron, 2011). stability risk emanating from the imposition of However, European policymakers have gradually losses on senior unsecured bondholders. Finally, woken up to the political and practical unsustain- the proclaimed aim to break the ‘doom loop’ ability of this approach as it entails spiralling risk- makes it possible to envisage some sharing of taking by governments and exacerbates the residual public financial burden between national ‘doom loop’ for those countries whose fiscal sus- budgets and the European level (Pisani-Ferry and tainability is called into question. This realisation Wolff 2012), with a possible role for the ESM as an has led an increasing number of EU member instrument of financial risk-sharing. states (including in chronological order, Ireland, the UK, Denmark, Spain, and most recently the For all these reasons, the prospects for address- Netherlands with SNS Reaal) to force subordi- ing banking crisis fragility are now better than at nated creditors of failing banks to incur losses. For any time at least since the start of the euro-area now, however, almost all member states have sovereign debt crisis in early 2010. The early stopped short of imposing losses on banks’ senior steps of implementation of the Spanish pro- unsecured creditors7. This can be attributed partly gramme are encouraging in this respect. It to general concerns about systemic contagion in involved an initial system-wide stress test fol- the event of ‘haircuts’, especially given the promi- lowed by speedy triage and restructuring/resolu- nent role played by unsecured senior debt in the tion of banks found to be undercapitalised, financing of European banks, and partly to each including the imposition of losses on subordi- country’s fear of putting ‘their’ banks at a financial nated creditors. This appears to have eased the disadvantage in a context of pan-European market pressure on the Spanish sovereign, and suggests integration and competition. But the sheer size of some broader lessons on how to deal with failing the potential contingent cost is increasingly banks, even though it is too early to consider the prompting European policy leaders, including at restructuring of the Spanish banking system as the ECB8, to envisage the financial participation of complete. senior unsecured bondholders in future restruc- 7. The only relevant turings, in spite of the potential destabilising 3.2 Long-term: complete banking union within exceptions appear to have effects this may entail. Europe’s ‘fourfold union’ been Denmark for a brief time in 2011, and Ireland toa limited extent in the recent The experience of earlier crises in Europe and else- The long-term aim, which gained remarkable case of Anglo Irish bank, where suggests that the objective of addressing acceptance in Europe’s policy community during according to Mary Watkins systemic banking fragility and restoring trust can 2012, is to complete Europe’s banking union asand Matt Steinglass, ‘Burden of banking losses poses only be achieved through a hands-on, centralised part of a broader agenda deemed necessary to threat to bondholders’, approach of system-wide balance sheet assess- ensure the integrity of the single financial market Financial Times, 8 February ment (triage), recapitalisation and restructuring. and the sustainability of the euro. A seminal 2013. 8. Sakari Suoninen, ‘ECBs Draghi: ‘Europe’s banking problem has been compounded by the willingness of policymakers to senior debt burden sharing guarantee all bank creditors and avoid imposing losses on them. However, European evolving’, Reuters, 17 July 2012. policymakers have woken up to the political and practical unsustainability of this approach.’
  7. 7. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 07moment in this process was the release of the • Banking union/political union: bank crisis man-European Council President’s report Towards a agement and resolution can have widespreadGenuine Economic and Monetary Union on 26 economic and social consequences and there-June 2012 (Van Rompuy, 2012a), which envis- fore must be subjected to appropriate mecha-aged four ‘building blocks’ of eventual crisis reso- nisms of political accountability (Véron, 2012).lution, now commonly referred to as bankingunion, fiscal union, economic union, and political We view further and significant progress on fiscalunion (eg Draghi, 2012). The multiple interdepen- union, economic union and political union as adencies among the ‘fourfold union’ building blocks necessary condition for Europe to eventuallyare a helpful way to analyse the unique complex- resolve its current crisis and find a sustainableity of Europe’s crisis and to understand why it may footing.take so long to be eventually resolved (Véron,2012). 3.3 Likely sequence of implementation of the December 2012 conclusions of the EuropeanAmong the four, there is greatest consensus on Councilbanking union in terms of definition (Pisani-Ferryet al, 2012; Goyal et al, 2013). By contrast, fiscal A literal reading of the December 2012 Councilunion, economic union and political union mean conclusions would suggest that all the initiativesvery different things to different people, resulting outlined, while negotiated in a clear chronologicalin a lack of consensus about how far away they sequence, could actually become effective atare (Vaisse et al, 2013). around the same time in the first half of 2014. As for Step 1, the Council’s communication of its posi-An additional source of complexity is the long- tion on bank supervision (13 December 2012)term uncertainty about the geographical perime- states that “The ECB will assume its supervisoryter of the EU, reinforced by the possibility of an tasks within the SSM on 1 March 2014 or 12in-or-out referendum in the UK by 2017 (Cameron, months after the entry into force of the legislation2013), and about whether the boundaries of the [SSM Regulation], whichever is later, subject tofour ‘unions’ will ultimately coincide with those of operational arrangements” As for Step 2, the Euro-the EU, the euro area, or somewhere in between, pean Council conclusions state that the BRR Direc-as is likely for the SSM at its launch. tive and DGS Directive “should be implemented by the Member States as a matter of priority”, which,Considered in this light, the eventual completion assuming enactment in June 2013 and a six-to-of banking union is affected by multiple linkages nine-month national transposition lag, implieswith the other components of the fourfold agenda, effectiveness in the early spring 2014; moreover,among others: the ability of the ESM to recapitalise banks directly is delayed until “an effective single supervisory• Banking union/fiscal union: even assuming mechanism is established”, ie at the same time as extensive burden-sharing by creditors, there the entry into force of Step 1. As for Step 3, the will always remain scenarios in which systemic “intention” is to adopt the legislation creating the crisis resolution requires extended access to SRM “during the current [European] parliamentary public money, and the aim to break the ‘doom cycle”, ie during the spring of 2014 at the latest. If loop’ means that at least some money must these intentions are all fulfilled, and assuming that come from the European level (Pisani-Ferry and the legislation creating the SRM (unlike the SSM Wolff, 2012; Wolff, 2012); Regulation) is immediately applicable, then Steps• Banking union/economic union: certain eco- 1, 2 and 3 would all become operational between nomic policies, including housing policy, March and June 2014, amounting to a ‘big bang’ aspects of tax policy, and personal and corpo- transformation of the European policy framework. rate insolvency legislation, can have significant impact on the accumulation and distribution of However, in the real world the implementation of risk in the banking system and justify adequate the three steps is likely to be phased and to give ‘macro-prudential’ oversight (Wolff, 2011); rise to significant transition issues.
  8. 8. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 08 • The EBA Regulation, CRR and CRD4 are all in tri- challenging as there is no direct precedent or logue phase, and the SSM Regulation is likely working model of a supranational banking policy to be enacted together with the EBA Regulation. framework. The smooth introduction of the euro in A realistic timeframe for their final adoption is 1999-2002 attests that large-scale unprece- March or April 2013, but it cannot be ruled out dented policy projects can be successfully intro- that part of this package may be delayed to duced if carefully designed and planned, but the May or even June 2013. necessities of the crisis impose a compression of • The proposed DGS and especially the BRR the planning and preparation phases, which cre- Directives raise very complex legal and finan- ates substantial risks for both design and execu- cial issues, partly but not exclusively linked to tion. Among the concerns: the untested nature of the proposed bail-in mechanism. Combined with the possible delay • The credibility of the ECB during the likely in adopting the Step 1 legislation, this would phase when the SSM is up and running and has suggest that their final version is more likely to to operate without the SRM may be endan- happen in the third or even the fourth quarter gered, if a situation arises in which the ECB has of 2013 than in the second quarter as called for to delay supervisory decisions because of the by the European Council. unwillingness or inadequacy of the national • Conversely, the wording on the possibility for resolution system to take appropriate actions. the ESM to recapitalise banks directly makes it • Another risk is related to the possibility of major conceivable that this instrument might be cross-country differences in resolution prac- mobilised earlier than the assumption by the tices. Following an ECB supervisory decision ECB of its full supervisory authority in 2014, if and in the absence of a clear SRM framework, the euro-area leaders so decide. This is unlikely the concern is that national resolution authori- to happen before the German general election ties might undertake resolution action in a way of September 2013, but may be implemented that is harmful to the single financial market. in the last quarter of 2013, especially if justi- fied by an emergency situation. 3.4 Implications for the timing of proactive • The above-mentioned idea that the legislative banking crisis management work on the SRM should only start after the BRR Directive has been adopted appears logical Given Europe’s worrying current growth prospects, from a political standpoint and, if confirmed, the above observations lead us to conclude that would introduce a clear sequence between Europe’s policymakers should not wait until the Step 2 and Step 3. The SRM itself is likely to give creation of the SRM before decisively tackling rise to unprecedented legal, financial and polit- Europe’s banking system fragility. This fragility ical questions that may lengthen the time has been with us since 2007, and each month that needed for its legislative discussion. The Euro- passes increases the economic, social and politi- pean Council’s objective of having the SRM cal cost of its implications in terms of credit adopted “during the current parliamentary scarcity and misallocation, ultimately becoming a cycle” therefore appears ambitious to say the drag on growth. Even assuming that an operational least. The European Parliament ECON Commit- framework for the ESM to recapitalise banks tee Chair was recently reported as commenting directly would be in place by mid-2013, the risk is that “It’s unrealistic to expect that we will have that bank restructuring would happen only in a 9. John O’Donnell and Eva a resolution authority or resolution fund [under reactive fire-fighting mode, as has been the case Kuehnen, ‘Cracks appear in European banking union the SRM] in time for the new ECB bank supervi- so far in most member states since 2007. scheme’, Reuters, 8 sion in March 2014”9. February 2013. As mentioned above, the entry into operation of 10. Goyal et al (2013), Transitional considerations will be crucial in this the SSM, combined with harmonised bank resolu-which was published just as context10. Given the sensitivity of banking issues tion regimes and a growing acceptance of thethis Policy Contribution was to matters of trust, reputations and expectations, need of burden-sharing with senior unsecured being finalised, presents a similar analysis of the all new arrangements must be fully effective from creditors, can mark a significant improvement in transition risks. their very first day of operation. This is inevitably the quality of Europe’s banking policy framework.
  9. 9. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 09Thus, a more proactive approach to Europe’s bank- sion is that, in spite of the relatively precise lan-ing problem could be adopted without waiting for guage of some sentences of the European Coun-the eventual implementation of the SRM. It will cil’s Conclusions in December 2012, a number ofrequire, however, a more centralised process for key questions remain undecided and even par-steering a system-wide process of triage, recapi- tially unexplored, even at the level of general prin-talisation and restructuring (Posen and Véron, ciples. Our expectation is thus that some aspects2009). It appears logical in this context to rely on of the December Conclusions will require adjust-the legal tools as well as the experience accumu- ments or modifications as their implications grad-lated by the European Commission, particularly ually become clearer, and we haveits Directorate-General for Competition (DG COMP), correspondingly assumed a degree of flexibility inin the assessment of state aid cases11. Here again, our analysis. Specifically, we are unsure if a com-the Spanish programme, in which the disburse- prehensive legal analysis has been undertakenment of ESM funds was made contingent on the and always supports the chosen wording. WeCommission’s approval of bank restructuring expect more clarity on some of these aspects,plans, appears relevant and offers lessons for legal, financial and political, to emerge in theEurope as a whole. A revision and tightening of course of the next weeks and months.state aid rules (see Appendix) including the sys-tematic ex-ante involvement of DG COMP in cases 4.1 Step 1: EBA and SSM Regulations, CRR andof individual banking fragility, could significantly CRD4improve the EU’s crisis management in thisrespect. As previously mentioned this step is now close to completion.The phase that will immediately precede theassumption of direct supervisory authority by the The EBA and SSM Regulations form a singleECB could foster such a proactive approach. Article package in practice, even though in principle the27(4) of the proposal for the SSM Regulation, as European Parliament only has a consultative voiceamended by the Council in December 2012, in the adoption of the latter. In our opinion, thestates that the ECB “shall carry out” “a compre- Parliament should not seek to disrupt the generalhensive assessment, including a balance-sheet balance of the compromise found by the Councilassessment” of all the banks that will be brought on 13 December 2012. In particular, significantunder its direct supervisory authority “in view of amendments to the EBA Regulation may endangerthe assumption of its tasks” (Council, 2012). This the whole outcome of the successfulassessment could be complemented by a stress intergovernmental negotiation in 2012, and wouldtest, possibly involving the EBA and the ECB. Pre- risk compromising the significant success that thesumably, those banks that would be found to be timely implementation of the SSM would 11. An early analysis of theunder-capitalised following this system-wide represent for the entire EU. Thus, it is important to articulation between stateassessment process would be asked to improve avoid a significant delay, and to aim to enact both aid control and resolution processes is developed intheir balance sheets and, if unable to do so, would regulations in March 2013. Moreover there will be Dewatripont et al (2010).be restructured in a process that might involve an opportunity to review EBA arrangements soon 12. It also includes thenational authorities and possibly the ESM in accor- anyway, as its review is planned for 2014, Operational Framework fordance with its Operational Framework for direct alongside those of the other European ESM direct recapitalisation,recapitalisations. This sequence, if properly Supervisory Authorities and the European which will not be aplanned and executed, could contribute deci- Systemic Risk Board. legislative text.sively to the restoration of trust in Europe’s banks. 13. This agenda is rein- However, in our view the Parliament should seek to forced by the recent frus- trating episode of Executive4 OPTIONS FOR THE FORTHCOMING LEGISLATIVE make the SSM and specifically its Supervisory Board appointment at the AGENDA Board more accountable13. We believe there is a ECB, see eg John O’Donnell strong case for granting the European Parliament and Robin Emmott, ‘MerschThis section is specifically about the legislative a right of consent (or veto) over the appointment takes ECB executive board job despite gender row’,agenda at the EU level12 and options that need to of the Chair and Vice Chair of the Supervisory Reuters, 23 Novemberbe considered in this context. Our strong impres- Board, and of two of the four members appointed 2012.
  10. 10. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 10 by the ECB (as a compromise between the con- only way to chart a path towards crisis resolution cern to preserve a degree of discretion for the ECB and the eventual restoration of trust in the Euro- while enhancing accountability). This would fur- pean banking system. As the overall stability of ther strengthen the alignment of the SSM with the the euro-area financial system will be strength- European public interest. ened by the introduction of the SSM, the adverse impact on banks’ perceived creditworthiness The CRR and CRD4 have proven more difficult to would be partly mitigated. This suggests two finalise than was initially anticipated. Among other changes from the original Directive proposal. First, issues, we are concerned by the material non- depositors should be granted clear preference compliance of the CRR with the international Basel over senior unsecured bondholders in the hierar- III Accord on the definition of capital, in particular chy of banking liabilities: the US experience in par- because the CRR waters down the requirements ticular suggests that depositor preference creates for banking groups with insurance operations and a favourable framework for adequate burden-shar- allows the counting of so-called ‘silent ing by senior creditors in bank resolutions. participations’ as common equity (BCBS, 2012). Second, the main emphasis should be on mecha- Even at the current late stage of negotiation, it nisms that enable the imposition of losses on would be worth considering corresponding existing senior creditors to be in place immedi- changes that would apply at least to large ately upon transposition of the directive, while the internationally active banks, so that the ‘single current text puts much focus on ‘bail-in’ provisions rulebook’ that the SSM will start applying in 2014 that are delayed until 201815. The empowerment is in line with an international standard-setting of authorities to impose losses on holders of exist- process that the EU has long endeavoured to ing debt should be as robust as possible16. promote and strengthen14. We also believe that the finalisation of the CRR and CRD4 in the early The proposed recast of the DGS Directive should spring of 2013 is highly desirable. be examined in a joined-up manner with the BRR Directive. Linkages between the two include the 4.2 Step 2: BRR and DGS Directives, Operational question of depositor preference; the possible Framework for ESM Direct Recapitalisations participation of deposit guarantee funds in bank resolution; and the quantitative calibration of The adoption of the proposed Bank Recovery and these funds. However, we are sceptical about the Resolution Directive is an important and logical practicality and current relevance of the idea, prior step to the establishment of the SRM. This is present in both texts’ initial versions, of national because the SRM will have to work at least partly (deposit and/or resolution) funds lending to each 14. Especially as our through national special resolution regimes, as we other. Now that Europe has decisively started to assessment is that, discuss in the next subsection. Thus, priority create a banking union, any funding for depositcontrary to the perception of attention should be devoted to the adoption of the guarantee and crisis resolution that does not many European observers, BRR Directive as soon as Step 1 is completed. come from national funds in their respective terri-the United States is on track tories should be drawn from pooled European to implement Basel III in alargely compliant manner in While the detailed discussion of this complex text funding sources, including possibly the ESM, but the course of 2013. exceeds the scope of this Policy Contribution, we not permanently limited to it. 15. See in this context Jim believe that the BRR Directive should mark a clear Brunsden and Rebecca step towards a much greater ability and readiness We see the preparation of the operational frame- Christie, ‘German Push to to impose losses on banks’ creditors, including work for direct bank recapitalisations by the ESM Accelerate Bank Bail-Ins Joined by Dutch, Finns’, senior unsecured creditors. Unless the economic as a potentially useful complement to the involve- Bloomberg, 4 February environment dramatically improves and reduces ment of the ESM in national assistance pro- 2013. credit risk across the board, this appears to be the grammes, as currently in place. In our 16. This arguably calls forbasing them to the greatest extent possible on tried- ‘The Bank Recovery and Resolution Directive should mark a clear step towards much greaterand-tested processes such readiness to impose losses on banks’ creditors. Unless the economic environment dramatically as those administered by the US FDIC. improves and reduces credit risk, this appears to be the path towards crisis resolution.’
  11. 11. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 11assessment, the discussion of this framework 4.3 Step 3: the Single Resolution Mechanismamong euro-area members has already beenuseful as a collective learning process, as we Ideally, the resolution framework for Europe’sunderstand a lot of technical work is happening banking union should involve a centralised andunder this heading. We would propose however exclusive decision-making authority for all banksthat the operational framework should leave con- covered by the SSM. Achieving a high degree ofsiderable flexibility for possible future interven- centralisation is desirable for a number of reasons.tion by the ESM, both in terms of recapitalisationinstruments (which may include voting common • Bank resolution crucially requires the ability toequity, hybrid securities such as preferred stock, take high-risk decisions very quickly and underand various forms of debt) and in terms of the intense pressure. The decisions may in partic-respective modalities and shares of financial ular include the liquidation of a bank, theintervention by the ESM on the one hand, and assumption of risky assets on a public-sectornational authorities on the other. This is because balance sheet, and mandating the immediatethe exact features of future crisis situations may sale of assets or activities to third parties. Thisbe difficult to predict with accuracy, and in such requirement, experience has shown, implies afuture situations of emergency, constraints on the high degree of centralisation of authority. In theability of the ESM to act may result in a higher col- case of large banks operating across borderslective cost for Europeans. within Europe, the current distribution of deci- sion-making power in bank restructuringMuch attention has been devoted to so-called between the national and supranational levels‘legacy assets’. In September 2012, the finance has sometimes led to considerable delays. Inministers of Germany, the Netherlands and Finland some instances (eg Fortis and Dexia) thestated that “the ESM can take direct responsibility break-up of multinational banks according toof problems that occur under the new supervision national borders could not be avoided, harming[under the SSM from 2014], but legacy assets the single market.should be under the responsibility of national • A system in which supervision is centralisedauthorities”17. Taken literally this implies that but resolution is not may harm the effective-assets that were brought onto the bank’s balance ness and credibility of the supervisor. While thesheet before the cut-off date cannot be kept in the new SSM could in principle force a resolution byentity in which the ESM would invest, which means withdrawing a banking license, national reso-the ESM is in practice prevented from recapitalising lution authorities may refuse to act. This knowl-the bank. This stance would render meaningless edge could lead the ECB to delay thesuccessive Council Conclusions that refer to ESM supervisory decision in order to avoid a disor-direct recapitalisations. derly scenario. In principle, Article 13(2a) of the SSM Regulation as amended by the CouncilHowever, we believe the ESM should be an instru- (Council, 2012) is designed to prevent a dead-ment for risk-sharing, not loss-sharing. In other lock in such circumstances, but how it will func-words, if the ESM recapitalises a bank that until tion in practice remains to be seen. Through itsthen has been under the exclusive control of current liquidity policy the ECB may lend tonational authorities, such direct recapitalisation banks that could be insolvent, but it does notshould be structured as arm’s-length transactions have the institutional responsibility for thisin which the ESM does not assume assets at a assessment. Such liquidity provisioning formsprice that it deems below their economic value. part of monetary policy and the supervisory 17. Press release responsibility lies squarely with the national 175/2012, Joint StatementThis requires that the ESM should have access to of the Ministers of Financeadequate financial assessment and evaluation authorities. Once the ECB has supervisory of Germany, theresources as a prerequisite to any recapitalisation, responsibility, it would breach its mandate by Netherlands and Finland,and that any concessional financial intervention providing liquidity to banks it deems insolvent. 25 September 2012, A decentralised resolution system’s incentive such circumstances should be performed by press_releases_and_speechthe member state itself under the European Com- structure cannot be easily aligned with a es/01_press_releases/2012mission’s state aid control. system that involves burden-sharing among 0925JointS/name.jsp.
  12. 12. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 12 member states. If resolution remains primarily An increased willingness to impose losses on a member-state responsibility, while the fiscal bank creditors can help reduce the public cost of cost of resolution is already partially mutu- future bank resolution, but not to the extent that alised, national resolution authorities will not this cost could be assumed away entirely. have the appropriate incentives to minimise the overall public costs of bank resolution. The SRM should be able to draw on ESM resources in future SRM-conducted resolutions. However, the However, a fully centralised system cannot be ESM should not necessarily finance all the public reached in Step 3, assuming, as we do, the cost and/or assume all the public risk of resolution absence of significant revision of the European processes in the context of the present crisis, and Treaties, and the absence of a dramatically more a strong reliance on national funding mechanisms integrated fiscal framework. Under these assump- and institutions will remain necessary, at least for tions, the SRM cannot be strictly parallel to the a transitional period. Because of its size limit and SSM in its design and establishment, for at least governance, the ESM is not suited as an instru- two major reasons. ment to provide the kind of fiscal guarantees that may become necessary to address a systemic First, special bank resolution regimes are estab- crisis (Pisani-Ferry and Wolff, 2012). Furthermore, lished in parallel and as an alternative to insol- the involvement of national resources may remain vency regimes18. Our assessment is that a necessary at least in some cases, for example to European bank insolvency regime is out of reach mitigate the possibility of moral hazard arising in Step 3 – even though it should be considered from national economic policy decisions that as part of what we called Step 4 in the first section shape banks’ risk but are not part of the European of this Policy Contribution. We cannot identify in banking policy framework, eg housing policy. the current treaties an adequate and sufficiently robust legal basis for a European insolvency One option would be to create an industry-funded regime. Even assuming the existence of such a European resolution fund alongside the estab- basis, the creation of an effective supranational lishment of the SRM. However, a European fund insolvency regime is bound to require a long plan- would take time to build up and would be unlikely ning and preparation period. For example, the cre- to gather significant financial firepower for a ation of a European insolvency court should not number of years, well beyond the SRM’s start of be a rushed process. We have not analysed in operations. Moreover such a fund could raise depth the option of establishing a supranational moral hazards of its own. The upshot is that the insolvency regime by a specific, ad hoc treaty (as SRM will have to operate in relationship with both was done with the ESM) within the timeframe national and European counterparties for any envisaged for the creation of the SRM, but we are public funding of resolution processes. sceptical about its feasibility. Even a harmonisa- tion of national bank insolvency regimes would The core challenge of designing the SRM is how to take more time than is available for the creation of combine the lingering relevance of national struc- the SRM. Our conclusion is that national bank res- tures for insolvency processes and resolution olution regimes must remain and continue to play funding, with the need for quick and effective deci- a core role in the operation of the SRM. sion-making on a system-wide basis. Because resolution decisions are high-risk, the bar must be Second, bank resolution regimes are linked to set high in terms of accountability, which in the fiscal or quasi-fiscal resources. Unlike insolvency SRM’s case must prominently involve accounta- processes, they can result in the public assump- bility at the European level. Thus, the SRM should 18. Even though we have not explored this issue in tion of significant financial risk and liabilities. be based neither on a broad committee structure depth, we understand that Experience suggests that some bank resolution with weak decision-making structures preventingthis is even more the case in processes eventually result in a financial gain to quick and effective decision-making, nor on the the EU than in the US, given public authorities, but others result in a financial delegation of authority to the home-country reso- the content of the Charter of Fundamental Rights of the loss and it is often impossible to predict the even- lution authority alone, which would not provide European Union. tual financial outcome at the start of the process. European-level accountability.
  13. 13. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 13We believe that the SRM can meet the objectives could be created, on either a temporary or perma-set out by the European Council only if it has at its nent basis. Doing so within the framework of EUcore a central body with a significant degree of institutions raises questions about the treatybinding decision-making authority. Whether this basis and the decision-making autonomy thatwould work by some direct empowerment of the such a new body would have (Meroni jurispru-central body by the relevant member states’ dence). If it were established by a specific treaty,national legislation, or through a form of injunction as was done with the ESM, the relationship withauthority (possibly with some safeguards) over the existing European institutions is likely to raisenational resolution authorities, remains to be even more difficult questions than was the caseexplored. with the ESM, including over accountability and judicial review.Predictably, a lot of the early debate about thefuture SRM has centred on what this central body To fulfil its aim of contributing to the breaking ofcould be. Proceeding by elimination, we believe it the ‘doom loop’, the SRM should have immediatecan be neither the ECB nor the ESM. authority over all euro-area member states and not only those that have requested an assistance• The ECB’s mandate is defined in the European programme. The December 2012 European Coun- Treaties and does not include bank resolution. cil Conclusions state that its authority should be Furthermore, the politically charged nature of extended to all non-euro area countries partici- bank resolution strikes us as difficult to square pating in the SSM, but how this is articulated con- with the ECB’s independence. We also do not sidering that the ESM currently does not cover believe that the current political institutions of those countries remains to be debated19. As for the EU are compatible with the concentration of which banks should be subject to the SRM’s powers within the ECB that such a choice would authority among those headquartered within its entail. Additional incompatibilities may arise geographical perimeter, there are three broad pos- from the fact that the geographical perimeter of sible options: (a) only those banks with significant the SRM is likely to include some member cross-border presence or systemic significance at states outside of the euro area (see below). European level; (b) all banks directly supervised• The ESM’s decision-making framework makes by the SSM; or (c) all banks, including smaller it unsuitable for the rapid-action requirement ones that escape direct SSM supervision. We have that applies to a resolution authority. The fact not yet carried out a detailed analysis of the that the ESM exists outside the EU treaty respective merits and flaws of these options. framework would raise major questions about judicial review. Furthermore, granting the ESM Among other operational concerns, the SRM’s cen- direct resolution powers would give it tral body should be able to recruit specialist staff conflicting incentives for the use of public with the financial restructuring experience needed money in case of banking and/or sovereign to steer complex bank resolution processes. It crisis emergencies. should have the financial flexibility to build up its operations quickly, as its first few years of opera-In our current (and tentative) understanding, this tion are likely to be uniquely busy given the cur-leaves two practical possibilities, each of which rent condition of the European banking system.merits further study. First, the European Commis- Over the longer-term (Step 4), the same bodysion would host the central body of the SRM, for could also be considered for a role in a future Euro-which adequate relationships should be defined pean deposit insurance system, not unlike theboth with the College of Commissioners (perhaps structure in place in the US, where the Federalusing as a partial template the existing arrange- Deposit Insurance Corporation acts as the bankments for competition policy) and with DG COMP resolution authority.(which could provide expertise and support based 19. In any case, it appearson its track record of state aid control). Crucially, a The creation of the SRM should also include a con- logical to assume that the SRM will not have authoritysufficient degree of independence in the resolu- sideration of the role that the European Banking beyond the geographicaltion task should be ensured. Second, a new body Authority and European Systemic Risk Board may scope of the SSM.
  14. 14. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 14 play in future resolution processes. This should be 5 CONCLUSION on the agenda with the planned review of both of these institutions in 2014, in application of the The work programme outlined in the December European legislation that created them. 2012 European Council conclusions, even with a limitation to the first three steps, entails a large 4.4 Banking structure number of policy questions of considerable com- plexity. It will be a challenge for European policy- In spite of its political prominence, we believe the makers to explore all these questions in due time discussion on regulating banks’ structures would and in a reasonable sequence. As the recent expe- be best delayed until the features of Europe’s rience with systemic banking crisis resolution is single resolution mechanism and banking union limited in most of Europe, it will also be advisable have been more precisely shaped. There is no to have an in-depth look at past crisis experiences, one-size-fits-all response to the challenges posed in the US, Japan and other countries, to better by banking structures, which should be different understand the nature and magnitude of the chal- in different financial systems. Thus, we feel that lenges ahead. The legislative steps needed to the EU and individual member states should achieve the timely creation of the Single Resolu- refrain from introducing significant new legislation tion Mechanism represent a marathon in which in this area until the completion of Step 3 and the Europe cannot afford to fail. establishment of the SRM. REFERENCES Angeloni, Chiara and Guntram Wolff (2012) ‘Are Banks Affected by their Holdings of Sovereign Debt?’ Working Paper 2012/07, Bruegel, detail/publication/717-are-banks-affected-by-their-holdings-of-government-debt/#.URmRBqWzjsY Barroso, Jose Manuel (2013) ‘Speech at the European Parliamentary Week on the European Semester for Economic Policy Coordination’, January 30, 73_en.htm. BCBS (2012) ‘Basel III regulatory consistency assessment (level 2) Preliminary report: European Union’, Basel Committee on Banking Supervision, Bank for International Settlements, Caballero, Ricardo, Takeo Hoshi, and Anil Kashyap (2008) ‘Zombie Lending and Depressed Restructuring in Japan’, American Economic Review 98:5, Cameron, David (2013) ‘Speech on the Future of the EU and the UK Relationship with It’, London, January, Constancio, Vitor (2012) ‘Hearing before the Select Committee on EU Economic and Financial Affairs of the House of Lords’, October, Constancio, Vitor (2013) ‘Establishment of the Single Supervisory Mechanism: The First Pillar of the Banking Union’, Council of the European Union (2012) text agreed by the Council on the Commission ‘Proposal for a Council Regulation conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions’ (SSM Regulation), Brussels, Dewatripont, Mathias, Gregory Nguyen, Peter Praet and Andre Sapir (2010) ‘The role of state aid control in improving bank resolution in Europe’, Policy Contribution 2010/04, Bruegel, improving-bank-resolution-in-europe/ Draghi, Mario (2012) ‘The monetary policy of the European Central Bank and its transmission in the euro area’, Speech at Bocconi University, Milan, November 15, ECOFIN (2012) Press Release 17598/12, 3214th Council Meeting, Economic and Financial Affairs, 13 December,
  15. 15. BRU EGE L Nicolas Véron and Guntram B. Wolff FROM SUPERVISION TO RESOLUTION POLICY CONTRIBUTION 15ESRB (2012) ‘Forbearance, resolution and deposit insurance’, First Report of the ESRB Advisory Scientific Committee, European Systemic Risk Board, July, 97European Commission (2012) Blueprint for a Deep and Genuine Economic and Monetary Union, Brussels, November, 2014/president/news/archives/2012/11/20121128_2_en.htmEuropean Council (2012a) Conclusions of the European Council 28/29 June, EUCO 76/12, Council (2012b) Conclusions of the European Council 14 December 2012, EUCO 205/12, (2011) ‘The Orderly Liquidation of Lehman Brothers Holding Inc. under the Dodd-Frank Act’, FDIC Quarterly, April, (2011) ‘Key Attributes of Effective Resolution Regimes for Financial Institutions’, Financial Stability Board, October,, Morris, and Nicolas Véron (2011) ‘Too Big To Fail: The Transatlantic Debate’, Working paper 11- 2,, Charles (2012) ‘Funding arrangements and burden sharing in banking resolution’, Vox, October,, Rishi, Petya Koeva Brooks, Mahmood Pradhan, Thierry Tressel, Giovanni Dell’Ariccia, Ross Leckow, Ceyla Pazarbasioglu and IMF Staff team (2013) ‘A Banking Union for the Euro Area’, Staff Discussion Note SDN/13/01, International Monetary Fund,, Edward (1987) ‘Dangers of Capital Forbearance: The Case of the FSLIC and “Zombie” S&Ls’, Contemporary Economic Policy 5-1:77-83, 7287.1987.tb00247.x/abstractLiikanen, Erkki (2012) Final Report of the High-level Expert Group on reforming the structure of the EU banking sector, European Commission, level_expert_group/report_en.pdfPisani-Ferry, Jean, André Sapir, Nicolas Véron, and Guntram Wolff (2012) ‘What Kind of European Banking Union?’ Policy Contribution 2012/12, Bruegel, detail/publication/731-what-kind-of-european-banking-union/Pisani-Ferry, Jean, and Guntram Wolff (2012) ‘The Fiscal implications of a Banking Union’, Policy Brief 2012/2, Bruegel, implications-of-a-banking-union/#.URbjTqWzjsYPosen, Adam, and Nicolas Véron (2009) ‘A Solution for Europe’s Banking Problem’, Policy Brief 2009/03, Bruegel, europes-banking-problem/Vaisse, Justin, Douglas Elliott, Domenico Lombardi and Thomas Wright (2012) Brookings Survey on Eurozone Progress, Brookings Institution, December, Rompuy (2012a) ‘Towards a Genuine Economic and Monetary Union’, Brussels, 26 June, Rompuy (2012b) ‘Towards a Genuine Economic and Monetary Union’, Brussels, 5 December,éron, Nicolas (2012) ‘Challenges of Europe’s Fourfold Union’, Testimony to the US Senate Committee on Foreign relations,, Guntram (2011) ‘The Euro Area’s Macroeconomic Balancing Act’, Policy Contribution 2011/05, Bruegel, macroeconomic-balancing-act/Wolff, Guntram (2012) ‘A budget for Europe’s monetary union’, Policy Contribution 2012/22, Bruegel, monetary-union/
  16. 16. BRU EGE LPOLICYCONTRIBUTION FROM SUPERVISION TO RESOLUTION Nicolas Véron and Guntram B. Wolff 16 20. European Commission APPENDIX: RULES FOR STATE AID TO THE FINANCIAL SECTOR memo: State aid: recapitali- sation of Spanish banks – Since the start of the financial crisis, EU member states have provided significant support to financialthe Commissions role under institutions. Most of this support qualifies as state aid as defined in Art. 107 of the Treaty on the Func- EU State aid control, 28 tioning of the European Union, and therefore has required the approval of the European Commission. November 20. 21. Communica-tion from the Commission – As of the collapse of Lehman Brothers, the Commission has issued several Communications to guide Community guidelines on EU member states in their support of the financial sector and to coordinate their action, providing State aid for rescuing and member states first with more precise guidance on specific instruments such as public guarantees, restructuring firms in diffi- recapitalisations and impaired asset relief, and then on bank restructuring (see below). The Europeanculty, Official Journal C 244, Commission has invoked four main principles to guide its state aid policy during the financial crisis: 1.10.2004, pp. 2-17. 22. Communica-tion from the Commission – • The granting of state aid has been subject to a principle of remuneration that reduces the cost for the The application of State aid taxpayer; The Commission has requested that banks draw up restructuring plans with a view to rules to measures taken in returning to viability. Where the prospects of a return to viability were not credible, the Commission relation to financial institu- asked for the orderly resolution of the bank; The Commission has requested that the aid be min- tions in the context of the imised and the burden of the rescue be as much as possible fairly shared between the government current global financial crisis, OJ C 270, and the bank and its main stakeholders, thereby reducing the risk of moral hazard; The Commis- 25.10.2008, p. 8. sion has sought solutions that minimised the distortions of competition between banks and across 23. Communica- member states, with the overall objective of preserving the single market. tion from the Commission –The recapitalisation of finan- Based on this framework, the Commission has already taken more than 60 decisions on bank restruc- cial institutions in the cur- turing and resolution, both in the context of programmes and outside of a programme context20. rent financial crisis: limitation of the aid to the minimum necessary and Summary of the European Commissions state aid rules for the crisis safeguards against undue distortions of competition. The Commissions ‘crisis communications’ are rooted in its rescue and restructuring (R&R) guidelines21, Adopted on 5 December2008, OJ C 10, 15.1.2009, p. introduced in 2004 and applied to all sectors. However, the R&R guidelines proved in some aspects to 2-10. be inadequate for the financial sector, as they were not designed to take into account a systemic crisis 24. The Commu- and a persistent threat to financial stability. As mentioned above, the European Commission thereforenication makes reference to introduced a temporary set of guidelines for state aid granted to financial institutions, consisting of six the methodology proposed Communications based on Art. 107(3)(b) which it published from 2008 the Recommendations ofthe Governing Council of the ECB of 20 November 2008 The first three Communications provided precise guidance for specific aid instruments, recalled some25. Communication from the of the basic principles outlined in the R&R guidelines and set out the Commissions general approach Commission on the treat- to how it would reflect the financial stability objective in its assessment. ment of impaired assets in the Community banking The Banking Communication22 reiterates general criteria for the design of state aid measures which sector, OJ C 72, 26.3.2009, “have to be well-targeted, proportionate and designed in such a way as to minimise negative spill-over p. 1. effects on competitors, other sectors or Member States”, as well as provisions for guarantees on liabil- 26. Principles to design asset relief meas- ities, recapitalisation and controlled winding-up. Moreover, the Communication introduced a distinc- ures contained in the Com- tion between fundamentally-sound financial institutions and other financial institutions characterised munication are: (i) ex ante by endogenous problems. The distinction was relevant as fundamentally-sound institutions granted transparency and disclo- state aid were required to submit a viability plan, while institutions with endogenous problems needed sure requirements; (ii) to present a – comparatively further reaching – restructuring plan. burden-sharing of the costs related to impaired assets between the State, share- The Recapitalisation Communication23 provided further guidance on the pricing of state recapitalisation holders and creditors; (iii) measures24. aligning incentives forbanks to participate in asset relief with public policy The Impaired Assets Communication25 provides guidance on the design and implementation of asset objectives; (iv) eligibility, relief measures26.