EBA欧洲银行-Advice_crisismanagement_13页_235kb

CEBS's Advice on the EU Framework for Cross-Border Crisis Management in the Banking Sector

Introduction

On 20 October 2009, the European Commission launched a public consultation on an EU framework for cross-border crisis management in the banking sector. CEBS responded on 19 January 2010 and later provided additional advice, focusing on specific issues. This report outlines CEBS's recommendations on general principles, tools for crisis management, financing, and recovery/resolution plans.

Core Content

CEBS emphasizes the importance of a minimum common toolbox that can be applied across the EU to ensure consistency and effective cross-border crisis management. The toolbox includes a range of tools, each with its own conditions for use, and should be guided by the principle of proportionality, legality, predictability, and harmonization.

Main Points and Key Recommendations

General Principles

1. Proportionality: Measures must be proportionate to the identified risks or breaches. The severity of the intervention should match the seriousness of the issue.
2. Temporary Nature: Most tools are temporary and should be lifted once the situation is resolved.
3. Legality: Authorities must provide clear legal justification for their decisions, enabling judicial review.
4. Predictability: The framework should ensure stakeholders can anticipate the actions of authorities.
5. Statutory Override of Contractual Clauses: Contractual provisions that hinder early intervention should be addressed, possibly through statutory override or prudential requirements.
6. Applicability to All Credit Institutions: The tools should apply to all credit institutions, regardless of their corporate form, including mutual organizations.

Tools and Conditions for Use

• Restoration Plan: Authorities should be able to require a credit institution to submit a plan to restore compliance with legal obligations or to address serious distress.
• Cease Harmful Practices: Authorities have the power to stop harmful activities, even if not explicitly stated in the CRD.
• Restructure Activities: Authorities can require the restriction or limitation of unprofitable activities.
• Limit Intra-Group and External Asset Transfers: This tool is used when a credit institution is in breach of license requirements or in serious distress.
• Oppose or Replace Board Members: Authorities should be empowered to oppose or replace board members or managing directors, especially in crisis situations.
• Appoint a Special Administrator: This is a key tool in crisis management, allowing authorities to appoint a special administrator with varying levels of authority. The mandate should be clear and subject to revocation.
• Suspension of Shareholders' Voting Rights: In cases of severe distress, authorities may suspend shareholders' rights to ensure rapid capital restoration and avoid taxpayer burden.
• Transfer of Assets and Liabilities: Authorities can transfer assets and liabilities to a bridge bank or other institution without shareholder consent.
• Transfer of Shares: Shareholders may be left with claims against the authorities or acquirer if shares are transferred.
• Prohibit Distribution of Profits: This tool is used to prevent further financial deterioration.
• Limit Major Capital Expenditure: Authorities can restrict capital spending that threatens solvency or liquidity.
• Pre-Insolvency and Insolvency Tools: These include the suspension of activities, initiation of reorganisation or winding-up procedures, withdrawal of license, and imposition of a moratorium. They are used in conjunction with restructuring tools.

Conditions for Intrusive Tools

• Qualitative Conditions: These should be based on the credit institution's compliance with license requirements, viability, and risk to financial stability.
• No Suitable Alternatives: The use of intrusive tools should only be considered if no other solutions are viable.
• Forward-Looking Judgement: Authorities should be allowed to take a forward-looking approach to assess the likelihood of the institution meeting the conditions in the future.

Financing the Implementation of the Tools

1. Clear Funding Sources: Financial resources for interventions must be clearly identified and available in each Member State.
2. Private Sector Financing: Preventative actions should be based on private sector financing to avoid moral hazard.
3. Prioritization of Stakeholders: Shareholders and creditors should be the primary sources of financing.
4. Coordination in Cross-Border Context: Financing mechanisms should support coordinated cross-border actions.

Recovery and Resolution Plans

CEBS highlights the importance of Recovery and Resolution Plans as a central component of the EU framework. These plans should be comprehensive and include measures to restore the institution's health and ensure financial stability. The report also notes that further work is needed, particularly on the imposition of losses on creditors, to ensure the effectiveness of crisis resolution tools.

Conclusion

CEBS advocates for a harmonized, predictable, and legally sound EU framework for cross-border crisis management in the banking sector. The proposed minimum common toolbox includes a variety of tools, each with specific conditions for use, and emphasizes the need for flexibility, proportionality, and the protection of property rights. The report also calls for further work on the legal aspects of these tools, particularly in relation to company and insolvency law.