2014年-EBA欧洲银行管理局_3L3-Report-Delegation-Responsibilities-2009_29页_682kb

报告摘要

Ecofin Council's Request: The Ecofin Council has repeatedly urged the L3 Committees to examine the delegation of tasks/competences between competent authorities and to assist the European Commission in reviewing financial services Directives to include provisions on voluntary delegation.
Creation of Task Force: In response, the 3L3 Committees established a specific task force to analyze the legal and technical aspects of delegation of responsibilities.
Chairs' Request: The task force initially focused on delegation of tasks, but the Chairs requested further work on delegation of responsibilities.
Fact Finding Exercise: The 3L3 Committees conducted a mapping exercise across Member States to assess current legal frameworks, legal obstacles, and areas for delegation.
G20's Input: At its November 2008 meeting, the G20 emphasized the need for enhanced international cooperation, including the establishment of supervisory colleges for cross-border cases.

The term "delegation of responsibilities" is preferred over "delegation of tasks" or "competences" to better capture the transfer of decision-making authority.
The concept includes all preparatory and follow-up activities related to a supervisory matter, not just the final decision.
The decision of the delegatee is binding in the jurisdiction of the delegator and must be reviewable under the delegatee's legal procedures.

Delegation of responsibilities involves a transfer of decision-making power, whereas delegation of tasks refers to the assignment of specific tasks without transferring decision authority.
Mutual recognition is a mandatory process under EU law, while delegation of responsibilities is voluntary, based on a contractual agreement.
In mutual recognition, the home state's law applies to decisions, and the host state has limited rights. In delegation, the legal basis and jurisdiction are determined by the agreement, not EU law.
Delegation is time-limited or revocable, unlike mutual recognition which is indefinite and irrevocable.

Efficiency and Effectiveness: Delegation allows for the allocation of supervisory competence to the most suitable authority, improving coordination and reducing redundancy.
Flexibility: It avoids the rigidity of mutual recognition and enables better alignment with market needs.
Expertise Utilization: Supervisors can delegate to those with greater technical knowledge, leading to more optimal outcomes.
Coherence of Decisions: A single supervisor can make consistent decisions across a group or market, enhancing supervisory coherence.
Mitigation of Agency Problems: Delegation ensures that the responsible supervisor is more likely to act diligently due to reputation and liability concerns.

Limited Use in Practice: Delegation of responsibilities is rarely used despite being permitted by some Directives.
Legal Uncertainty: There is lack of clarity on the legal basis and modalities of delegation, which hinders its adoption.
Differences in Rules and Procedures: Supervisors are reluctant to delegate due to differences in applicable rules and supervisory practices across Member States.
Harmonization Needs: The task force stresses the importance of harmonizing substantive criteria and converging practices to prevent forum shopping.
Language and Communication: The use of different languages in delegation agreements may lead to translation issues and communication challenges.
Resource and Risk Considerations: Delegation depends on priorities, resources, cost-sharing, and risk appetite of the competent authorities.
Public Accountability: Delegators must consider political liability and the potential for investor harm if delegation fails.

Voluntary Nature: Delegation agreements should be voluntary for both parties and based on a proportionality assessment.
Agreement Types: Delegation agreements can be multilateral, bilateral, sectoral, or cross-sectoral, and can be case-specific or general.
Legal Framework: The agreement's legal nature is public law, but it should be regulated in a detailed, sui generis framework to avoid ambiguity and potential legal challenges.
EU-Level Regulation: The EU should provide a clear legal basis for delegation, including the definition of fields, conditions, reporting rules, and sanctioning mechanisms.
Equivalence of Powers: Delegation is only effective if the powers of the delegator and delegatee are equivalent in outcome. National laws may allow for general delegation powers even in the absence of full equivalence.

A comprehensive EU legal framework is essential to facilitate the delegation of responsibilities, ensuring clarity, harmonization, and convergence.
The task force recommends that future EU Directives provide detailed guidance and sui generis rules to address the legal and practical challenges associated with delegation.
The use of delegation agreements should be encouraged, provided they are transparent, proportionate, and mutually beneficial to all stakeholders involved.