EBA欧洲银行-FeedbackstatementCP13mediation20070925_9页_208kb

Summary of Feedback Document on the Consultation Paper on Mediation (CP13)

Background

CEBS published its thirteenth consultation paper (CP13) in March 2007, proposing a mediation mechanism for resolving disputes between banking supervisors. A public hearing was held to gather early feedback from the industry. CEBS received written contributions from several key stakeholders, including the British Bankers' Association, EBF, ESBG, and others. These responses are available on CEBS' website. The feedback document outlines the key points raised and CEBS' responses, focusing on the proposed mediation mechanism.

General Comments

Respondents generally support the mediation mechanism as a tool to promote convergence and reduce supervisory burden for cross-border banking groups. However, some expressed concerns:

• Non-binding nature: Some believe the mechanism should be enforceable to ensure pressure on supervisors to reach a harmonised solution. Others support the voluntary and non-binding approach, citing the 'comply/apply or explain' method.
• Complexity of the procedure: Some respondents felt the evaluation process was overly complex, potentially hindering the mechanism's efficiency. CEBS acknowledges this and is open to further simplification.

Non-binding Nature of the Mechanism

CEBS notes that the mechanism's non-binding nature reflects the strong commitment of its members. It clarifies that the 'comply/apply or explain' approach is intended to ensure effective implementation through peer pressure. To enhance the mechanism's weight, the Mediation Protocol will be attached to CEBS' Charter. CEBS remains open to additional measures as experience is gained.

CEBS also clarifies that the Commission will only be consulted on legal interpretations, not on the merits of the case, to preserve the non-binding nature of the mechanism.

Complexity of the Procedure

CEBS believes the mechanism should be flexible and efficient to allow for quick resolution. It acknowledges that some aspects of the CESR mechanism have already been simplified for CEBS. CEBS is open to further streamlining the process based on practical experience and testing.

Scope

The mediation mechanism primarily focuses on the Capital Requirements Directive (CRD) and related CEBS Guidelines. No specific issues under the CRD have been excluded, and the paper provides examples only. This approach is seen as appropriate given the voluntary nature of the mechanism and its role in facilitating convergence.

Some respondents requested more clarity on the definition of cross-border issues, suggesting a functional rather than legalistic approach. CEBS emphasizes a case-by-case evaluation, avoiding pre-defined criteria.

Interaction with CRD Procedures

Respondents raised concerns about how mediation interacts with legal decision-making procedures under the CRD, particularly Article 129(2). CEBS clarifies that mediation is intended to support, not replace, these procedures. It stresses that mediation is a tool to facilitate and speed up the process, not to prolong or overrule it.

CEBS outlines restrictions on the use of mediation:

• Disputes cannot be used to challenge existing decisions.
• Mediation should not be used to delay decisions on model approval or in crisis situations.
• It should not replace ongoing cooperation between supervisors.

Cross Sector Application

CEBS acknowledges the need to coordinate with CESR and CEIOPS mechanisms. It highlights that the mechanism can address cross-sectoral issues, such as those in bancassurance groups and internal control, through the involvement of non-CEBS members via joinder agreements.

The Gatekeeper plays a key role in cases with cross-sector implications, consulting the 3L3 Chairs for guidance.

Parties Involved

The mediation mechanism is primarily for CEBS members. However, in cross-sector disputes, non-CEBS members may participate through a joinder agreement. Market participants are involved indirectly, and CEBS emphasizes that the mechanism is a peer-to-peer process, not a complaints mechanism.

CEBS members can initiate mediation either independently or following a market participant's request. If a member rejects a request, the Gatekeeper may report this to CEBS, though market participants may still contact CEBS directly.

Transparency of the Process

Respondents stressed the need for transparency in the mediation process, while respecting confidentiality. CEBS agrees and aims to publish key information, including the context, decision-making process, and outcomes of mediation cases.

CEBS will balance transparency with confidentiality, ensuring that any publication respects the rights of the parties involved. Articles 12(2) and (3) of the Protocol are considered to strike the right balance.

Features of the Mechanism

CEBS highlights that the mechanism is based on principles of impartiality, transparency, effectiveness, and fairness, even if not explicitly stated. It includes rules to prevent conflicts of interest in the selection of mediators and panel members.

Article 13 of the Protocol explicitly states that a supervisor from one Member State should not serve as a mediator or panellist if the case involves activities in another part of the institution's EU group, and the parties are supervisors of those businesses.

Procedures

The facilitative procedure is not detailed in the Consultation Paper or Protocol, as it is meant to be flexible and informal. Key features are outlined in Articles 9(1)(b), 9(5), and 11.

Respondents suggested strict timelines, but CEBS notes that ex-ante timelines are difficult to set without testing. A maximum of six months is proposed, with the possibility of shorter resolution times.

Selection of the Mediation Panel

Respondents suggested that a diverse and expert panel should be available from the start. CEBS agrees and proposes that the Gatekeeper consult the Chairs of CEBS Experts Groups to create a list of experts by theme. A panel on standby may be established to ensure a quick start.

The mediation panel, whether in the evaluative procedure or in exceptional cases, must consist of an odd number of members.

Review

Market participants suggested a shorter review period for the mechanism. However, CEBS does not intend to change its review clause, emphasizing that improvements will be made based on experience and effectiveness. The Consultative Panel may be involved in the review process if needed.