The FT is reporting this morning that the latest draft of the Liikanen proposals, which implement bank structural reform within the EU, will be significantly watered down. According to the article, separation will no longer be mandatory and will be less restrictive than previously thought. Wider discretion is also to be given to national competent authorities – not always a good thing – to decide whether certain trading activity constitute a “systemic risk”, based on metrics provided by the European Banking Authority. However, there may be a sting in the tail, with the EU Commission apparently proposing an ‘EU Volcker-Lite’ ban on proprietary trading – but only for the EU’s 30 largest banks.
On 12 December 2013, the European Banking Authority (EBA) published a consultation paper on draft regulatory technical standards (RTS) on the methodology for the identification of global systemically important institutions (G-SIIs) and draft implementing technical standards (ITS) on uniform formats and dates for the disclose of the values of the indicators used for determining the score of G-SIIS. Continue reading
On 12 September 2013, the European Parliament published a press release announcing the adoption of a package of legislative acts to set up a Single Supervisory Mechanism (SSM) for the Eurozone. The SSM legislation was adopted with very large majorities and will bring the EU’s largest banks under the direct oversight of the European Central Bank (ECB) from September 2014.
The SSM legislation consists of a proposed regulation conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions and a proposed regulation amending Regulation 1093/2010 (see this blog post for more details). The European Parliament has also published a document containing the provisional texts adopted which can be found on pages 105 and 50 respectively.
The Regulations will come into force following approval by the EU Council and publication in the Official Journal of the EU. The ECB will assume its supervisory role 12 months later.
On 20 May 2013, the EBA published two consultation papers regarding draft Regulatory Technical Standards (“RTS”) regarding the:
The consultations follow the previous consultation published by the EBA on 11 March 2013 regarding draft RTS on the content of Recovery Plans (see this blog post for more detail) and remain open for comment until 20 August 2013. Final versions of both RTS will be submitted to the European Commission within 12 months of the date on which the “Directive establishing a framework for the recovery and resolution of credit institutions and investment firms (the “RRD”) enters force, but may be amended after the consultation to take into account possible changes to the final RRD.
RTS on the Assessment of Recovery Plans
The draft RTS have been developed pursuant to Article 6(5) of the RRD. Their main objective is to promote harmonisation across the EU regarding the assessment of recovery plans and to facilitate joint assessments of group recovery plans by different supervisory authorities. They outline the three criteria that competent supervisors must take into account when reviewing individual and group recovery plans:
- quality; and
- overall credibility.
The degree of completeness of a recovery plan is to be assessed against the following (non-exhaustive) list of factors:
- whether it covers all the information listed in Section A of the Annex of the RRD (“Information to be Included in Recovery Plans”);
- whether it provides information that is up to date with respect to any material changes to the institution or group to which the recovery plan relates;
- where applicable, an analysis of:
- how and when an institution may apply for the use of central bank facilities; and
- available collateral; and
- whether the recovery plan has been tested against a range of scenarios.
In addition to the information set out above as it applies in a group context, the completeness of group recovery plans is assessed against the following matters:
- the establishment of arrangements for intra-group financial support;
- the identification of obstacles, if any, to the implementation of recovery measures within the group; and
- the identification of substantial practical or legal impediments to:
- the prompt transfer of own funds or
- the repayment of liabilities or assets within the group.
The quality of a recovery plan is assessed against the following (non-exhaustive) list of factors:
- relevance of information;
- comprehensiveness; and
- internal consistency.
Individual Recovery Plans
Overall credibility in the context of individual recovery plans is essentially an assessment of the extent to which:
the implementation of a recovery plan would be likely to restore the viability and financial soundness of the institution in question; and
- the plan or specific options could be implemented effectively in situations of financial stress and without causing any significant adverse effect on the financial system.
‘Restoration of viability and financial soundness’ is assessed against the following (non-exhaustive) factors:
- the level of integration and consistency of the recovery plan with the general corporate governance and risk management framework of the group;
- whether the recovery plan contains a sufficient number of plausible and viable recovery options;
- whether the recovery options included in the recovery plan address the scenarios identified;
- whether the timescale to implement the options is realistic and has been taken into account in the procedures designed to ensure timely implementation of recovery actions;
- the level of the institution`s or group`s preparedness;
- the adequacy of the range of scenarios of financial distress against which the recovery plan has been tested;
- the adequacy of the testing carried out using the scenarios of financial distress;
- the extent to which the recovery options and indicators are verified by the testing carried out using scenarios of financial distress;
- whether the assumptions and valuations made within the recovery plan are realistic and plausible.
‘Effective implementation’ is assessed against the following (non-exhaustive) factors:
- whether the range of recovery options sufficiently reduces the risk that obstacles to the implementation of the recovery options or adverse systemic effects arise due to the recovery actions of other institutions or groups being taken at the same time;
- the extent to which the recovery options may conflict with the recovery options of institutions or groups which have similar vulnerabilities and which might implement options at the same time;
- the extent to which implementation of recovery options by several institutions or groups at the same time could negatively affect the impact and feasibility of recovery options.
Group Recovery Plans
Overall credibility in the context of group recovery plans is essentially an assessment of the extent to which:
- the implementation of a recovery plan would achieve the stabilisation of the group as a whole, or any institution of the group; and
- the plan identifies whether, within the group, there are:
- obstacles to the implementation of recovery measures; and
- substantial practical or legal impediments to the prompt transfer of own funds or the repayment of liabilities or assets.
‘Stabilisation’ is assessed against the following (non-exhaustive) factors:
the extent to which the group recovery plan can achieve stabilisation of the group as a whole and any institution of the group;
- the extent to which arrangements included into the group recovery plan ensure coordination and consistency of measures between institutions within the group; and
- the extent to which the group recovery plan provides solutions to overcome:
- obstacles to the implementation of recovery measures; and
- substantial practical or legal impediments to a prompt transfer of own funds or the repayment of liabilities or assets.
RTS specifying the range of scenarios to be used in recovery plans
These draft RTS have been developed pursuant to Articles 5(5) and 5(6) of the RRD. They specify the range of scenarios to be designed by financial institutions when testing their recovery plans. The overriding principle is that scenarios should be based on the events that are the most relevant to the institution or group in terms of activity, size, interconnectedness, business, funding model, etc. Institutions are responsible for selecting an appropriate number of relevant scenarios (taking account of the principle of proportionality within the RRD) and national supervisors are responsible for assessing the adequacy of the chosen scenarios. Each distress scenario should be based on events that are exceptional but plausible and would threaten to cause the failure of the institution or group if recovery measures were not implemented in a timely manner and should cover:
a system wide event;
- an idiosyncratic event; and
- a combination of system wide and idiosyncratic events.
Each distress scenario should also include an assessment of the impact of the events on at least each of the following aspects of the institution or group:
- available capital;
- available liquidity;
- business model;
- payment and settlement operations; and
On 25 April 2013, the Council of the EU published the final compromise texts of a regulation conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions and the proposed regulation amending Regulation 1093/2010 (which established the European Banking Authority). Together these texts establish the EU single supervisory mechanism (SSM).
Broadly, under the new regime, the European Central Bank (ECB) will assume responsibility for the supervision of “significant” credit institutions, with “less significant” credit institutions to remain subject to regulation by national supervisors. “Significance” is to be based on the following criteria:
- importance for the economy of the EU or any participating Member State; and
- significance of cross-border activities.
In addition, any credit institution will be regarded as “significant” if:
- it has total assets of EUR 30 billion or more; or
- the ratio of its total assets to the GDP of the participating Member State of establishment exceeds 20% (unless the total value of its assets is below EUR 5 billion); or
- the ECB considers it to be of significant relevance; or
- it has requested or received public assistance directly from the European Financial Stability Facility or the European Stability Mechanism;
- it ranks amongst the three most significant credit institutions in a participating Member State.
The ECB will assume responsibility for, inter alia:
- authorisations and withdrawal of authorisations;
- the administration of certain activities currently carried out by home state regulators, such as the establishment of branches in non-participating Member States;
- the assessment of applications for the acquisition and disposal of “qualifying holdings” (i.e. involving 10% or more of capital or voting rights);
- the regulation of own funds requirements, securitisations, large exposure limits, liquidity, leverage, and reporting and public disclosure of information on those matters;
- the enforcement of governance arrangements, risk management processes, internal control mechanisms, remuneration policies and internal capital adequacy assessment processes;
- conducting supervisory reviews and stress testing;
- consolidated supervision where parent companies are established in participating Member States; and
- supervisory tasks in relation to recovery plans, early intervention and structural changes required to prevent financial stress or failure (but excluding any resolution powers).
For those involved in the preparation of RRPs, here is a link to an article on our sister site regarding an EBA consultation paper on asset encumbrance. Given the potential effect asset encumbrance arrangements can have on a firm’s resolvability, this is the type of thing that may well come across your desk in the future.
On 11 March 2013, the European Banking Authority (EBA) published a consultation paper concerning “Draft Regulatory Technical Standards (RTS) on the content of recovery plans under the draft directive establishing a framework for the recovery and resolution of credit institutions and investment firms” (RRD).
The draft RTS have been developed pursuant to Articles 5(7) and 7(4) of the proposed RRD and relate to the information to be contained in recovery plans that are not subject to simplified obligations under Article 4 of the RRD. The consultation itself runs until 11 June 2013. Thereafter, the EBA will submit the final draft RTS to the Commission within twelve months from the date of entry into force of the RRD (expected to be early in 2015), although the EBA acknowledges that the RTS may have to be amended, depending on the final form of the RRD. The regulation will enter into force on the 20th day following that of its publication in the Official Journal of the European Union.
A summary of the requirements is provided below. However, as currently drafted, the requirements of the draft RTS should not be a cause of concern, particularly not for FSA regulated firms already used to complying with FS12/1.
Draft RTS on Recovery Plans
Recovery plans are expected to contain a discussion of at least the following five items (but not necessarily in the following order):
- a summary of the recovery plan;
- a discussion of governance issues;
- a strategic analysis;
- a communication and disclosure plan; and
- an analysis of preparatory measures.
As the name suggests, this section takes the form of a summary of the key elements of the recovery plan, taken from the other sections.
The governance section of a recovery plan should provide a detailed description of:
- how and by whom the recovery plan was developed, the way in which it is integrated into the risk management framework of the firm and processes in place to ensure that it is kept up-to-date;
- the policies and procedures governing plan approval;
- the conditions and procedures necessary to ensure timely implementation of recovery options, including:
- escalation and decision-making processes; and
- indicators which may require plan activation; and
- management information systems.
The strategic analysis section of a recovery plan should provide:
- a description of the institution/group (as applicable), including:
- a mapping of core business lines and critical functions to legal entities and material branches;
- a detailed description of the group’s legal and financial structures, including:
- intra-group legal, operational and financial interconnectedness; and
- external interconnectedness with respect to material branches/legal entities;
- recovery options dealing with a number of stress scenarios and providing the following information with respect to each recovery option:
- a description of the option;
- an impact and feasibility assessment;
- an operational contingency plan, dealing at the very least with the maintenance of:
- operational processes (both for any separated and remaining entities); and
- access to financial market infrastructure; and
- an assessment of the effectiveness of recovery options and adequacy of indicators in a range of scenarios of financial distress so as to facilitate an overall assessment of recovery capacity.
Communication and disclosure plan
A recovery plan should include a detailed communication and disclosure plan which:
- addresses both internal and external communication;
- describes, for each recovery option, how the communication and disclosure plan would be implemented; and
- provides an assessment of the potential impact on the business and on general financial stability.
A recovery plan must include an analysis of any preparatory measures:
- to facilitate the sale of assets/business lines in a timeframe conducive to the restoration of financial soundness; and
- that the institution/group has taken or plans to take in order to facilitate implementation of the recovery plan or improve its effectiveness.
 A “material branch or legal entity‟ is one that:
- substantially contributes to profits/funding or holds an important share of assets, liabilities or capital;
- performs key commercial activities;
- performs key operational, risk or administrative functions centrally;
- bears substantial risks;
- could not be disposed of or liquidated without being likely to trigger a major risk;
- has importance for the financial stability of at least one of the Member States in which it is incorporated or operates.