EBA欧洲银行-3L3-Report-Delegation-Responsibilities-2009_29页_685kb

报告摘要

The Ecofin Council has repeatedly called for the L3 Committees to examine the delegation of tasks and competences between competent authorities.
The 3L3 Committees agreed to establish a specific task force to analyze the legal and technical aspects of delegation.
In June 2008, the European Commission requested a report on delegation, focusing on common principles and legal/practical obstacles.
The task force finalized its advice in September 2008, and the Chairs requested further work on delegation of responsibilities.
In November 2008, the G20 emphasized the need for international cooperation through supervisory colleges and information exchange.

The term "delegation of responsibilities" was selected as the most appropriate for describing the transfer of supervisory powers.
It encompasses both preparatory activities and final decisions, reflecting the ongoing nature of the process.
The delegation agreement is essential, as it transfers responsibility from the delegator to the delegatee.

Delegation of responsibilities involves a transfer of decision-making power, whereas delegation of tasks refers to assigning specific tasks without transferring authority.
Mutual recognition is a mandatory process under EU law, while delegation of responsibilities is voluntary and based on agreements.
The legal effect of delegation is similar to mutual recognition: the delegatee's decisions are binding and enforceable in the delegator's jurisdiction.
Duration differs: mutual recognition is indefinite, while delegation is time-limited and revocable.

Delegation enhances efficiency and effectiveness in the European supervisory system.
It allows competence to be allocated to the most suitable supervisor, avoiding overlaps and improving coherence of decisions.
It enables economies of scale and scope in supervisory work, especially in group contexts.
It helps avoid agency problems by aligning responsibility with diligence.
It can be more flexible than mutual recognition, especially in complex cases.

Lack of clarity in legal basis and modalities of delegation remains a significant barrier.
National hesitation is due to constitutional concerns and unfamiliarity with the concept.
Cross-border delegation raises issues of sovereignty and jurisdictional differences.
Differences in applicable rules and supervisory practices may lead to inequitable treatment of entities.
Harmonization of substantive criteria and procedures is crucial to prevent forum shopping.
Technical issues include language differences, translation requirements, and communication standards.
Risk appetite, resource availability, and public accountability are important factors influencing delegation decisions.

The task force emphasized the voluntary nature of delegation agreements and the need for mutual evaluation of benefits and risks.
Delegation agreements can be multilateral, bilateral, sectoral, or cross-sectoral.
They can cover specific cases, general approaches, or particular subjects (e.g., "fit and proper").
The legal nature of delegation agreements is governed by public law, but the task force suggests a sui generis framework to avoid unnecessary legal disputes.
Equivalence of powers is essential for effective delegation, though national legislations may allow delegation even in the absence of full equivalence.

The task force identified the need for clear legal rules and detailed guidance at the EU level to facilitate delegation.
A harmonized framework would reduce uncertainty and practical obstacles, making delegation more acceptable and effective.
Level 2 measures and Level 3 guidance could provide necessary clarity and support for the implementation of delegation.
Delegation offers a more flexible and efficient alternative to mutual recognition and delegation of tasks, especially in the context of cross-border supervision and group entities.