EBA欧洲银行-2008-17-10-Final-Advice-on-options-and-national-discretions_133页_1mb

CEBS Technical Advice on Options and National Discretions in the CRD

Core Content

CEBS (Committee of European Banking Supervisors) provided technical advice to the European Commission regarding the options and national discretions in the Capital Requirements Directive (CRD). The advice aimed to enhance supervisory convergence, reduce administrative burdens, and improve the level playing field across institutions operating in the EU.

Main Views and Key Information

1. Scope of Work

• CEBS analyzed 101 options and national discretions from its supervisory disclosure framework (SD), along with mutual recognition clauses and their corresponding national discretions.
• Additional provisions identified by the industry in response to a 2007 questionnaire were also included in the analysis.
• The total number of provisions under review was 152.

2. Public Consultation

• A consultation paper (CP 18) was published in May 2008, inviting public feedback.
• Twenty responses were received, mostly from trade associations.
• Respondents generally supported CEBS's approach, acknowledging the benefits of reducing discretions for harmonization and competitiveness.
• Some respondents called for further reduction, while others emphasized the need to retain certain discretions due to local market conditions or legislative specificities.

3. Proposed Solutions

• CEBS proposed to keep as a national discretion approximately 28% of the 152 provisions.
• For the remaining 72%, CEBS suggested real solutions that would lead to further harmonization.
• These solutions included transforming some discretions into supervisory decisions or general rules, or applying mutual recognition (binding or non-binding) mechanisms.

4. Rationale for Keeping Some Discretions

• Provisions that require future overhaul: These are kept pending a broader regulatory reform.
• Provisions set to expire: Some discretions are temporary and will be removed automatically.
• Local market specificities: Certain discretions reflect national laws outside banking supervision and are justified.
• Lack of experience or common criteria: Some provisions require more time to implement or are not yet suitable for harmonization.

5. Proposed Solutions Overview

6. Key Principles Guiding the Advice

• Convergence: The goal is to reduce differences in supervisory practices across the EU.
• Balance: CEBS seeks to balance prudential concerns, regulatory flexibility, and the interests of both domestic and cross-border institutions.
• Impact Assessment: A qualitative cost/benefit analysis was conducted to guide decisions.
• Legal Continuity: Consideration was given to transitional periods and grandfathering clauses where necessary.
• Industry Engagement: CEBS worked closely with industry experts to ensure practical relevance and clarity.

7. Glossary of Terms

• Keep as national discretion: Retain for specific reasons such as future overhaul, expiry, local market features, or lack of common criteria.
• Mutual recognition: Includes both binding and non-binding recognition of supervisory decisions.
• Supervisory decision: Decisions made on a case-by-case basis by competent authorities.
• Transform into a general rule: Convert discretion into a mandatory rule for all institutions.
• Delete or remove: Convert into mandatory provisions or eliminate entirely.
• Grandfathering: Allow existing rules to apply to current situations while new rules apply to future ones.
• Transitional provision: Facilitate a smooth transition from old to new legal regimes.

8. Confidence in Outcomes

• CEBS is confident that around 80% of the provisions analyzed will be removed from the CRD in the near future.
• The remaining 28% will be retained with measures to mitigate any negative impacts, such as introducing binding mutual recognition clauses.

9. Conclusion

CEBS believes its proposals strike the right balance between prudential concerns, regulatory flexibility, and the interests of both domestic and cross-border institutions. The advice is structured to support the European Commission's objective of harmonizing supervisory practices across the EU while ensuring that necessary flexibility is retained where it is justified.