布鲁盖尔-Study-on-the-differences-between-bank-insolvency-laws-and-on-their-potential-harmonisation_10页_254kb

Summary of "Study on the Differences Between Bank Insolvency Laws and Their Potential Harmonisation"

Core Content

This study examines the differences in national bank insolvency laws across EU Member States and the United States, and evaluates the potential for harmonisation. It is part of the European Parliament Pilot Project on the Banking Union and aims to inform the European Commission on possible reforms to improve the handling of bank failures.

Authors and Acknowledgments

• Authors:

  • Sophie Buckingham (VVA)
  • Svetlana Atanasova (VVA)
  • Simona Frazzani (Grimaldi)
  • Nicolas Véron (Bruegel)

• Acknowledgments:

  • Input from Franziska Hoene-Gibbs, Susana Santos Valente, Rita Dinis, and other experts.
  • Country-specific input and assistance from stakeholders.

Disclaimer

• The report reflects the authors' views and does not represent the official position of the European Commission.
• The Commission does not guarantee the accuracy of the data or take responsibility for its use.

Abstract

• The BRRD and SRMR provide a harmonised resolution framework for the EU and the euro area, respectively.
• Resolution is not a substitute for national insolvency proceedings under EU law, unlike in the US.
• The study compares national insolvency procedures, focusing on triggers, liability rankings, and crisis management tools.
• It identifies the disadvantages of lack of harmonisation and outlines policy options for reform.
• The goal is to enhance clarity, predictability, and coherence in bank insolvency regimes, especially for medium-sized banks, while considering related policies such as state aid and deposit insurance.

Methodological Approach

• The study is based on desk research, legal analysis, and interviews with practitioners.
• It includes 28 EU Member States, the US, and Switzerland in its geographical scope.
• Main sources:
  • National official journals and websites of banking authorities.
  • Law journals, academic publications, and case law databases.
  • Previous studies and stakeholder consultations.
• A written questionnaire was sent to 12 national respondents, and two industry associations were interviewed.
• A meeting with the European Banking Federation (EBF) was also held, attended by its representatives and members.

Key Analysis Areas

1. Triggers for Insolvency Proceedings

   • Most countries base triggers on balance sheet or cash-flow insolvency.
   • Some include forward-looking assessments.
   • In certain Member States, insolvency may be triggered by a public interest assessment.
   • The triggers for resolution (as per Article 32(1) BRRD) often differ from those for insolvency.

2. Ranking of Liabilities

   • The BRRD and BCHD have sought to harmonise the ranking of claims in bank insolvency.
   • However, national laws still differ, particularly regarding the ranking of depositors.
   • The study suggests there is room for further harmonisation in this area.

3. Crisis Management Tools

   • Some national insolvency regimes offer tools comparable to resolution, in terms of scope and effectiveness.
   • The study explores the possibility of introducing such tools in a harmonised way across all Member States.

Policy Considerations

• The study identifies policy shortcomings in the current EU framework for FOLF (Failing or Likely to Fail) banks.
• It reflects on the need for a true single market for banking and to break the sovereign-bank vicious circle.
• The authors propose reform options that could lead to a more consistent and predictable regime, drawing inspiration from US practices (e.g., FDIC procedures).

Conclusion and Recommendations

• The current national insolvency regimes are diverse and complex, leading to potential inefficiencies in managing bank crises.
• A holistic approach to reform is recommended, considering related policies such as state aid and deposit insurance.
• The study highlights the importance of harmonisation in improving the coherence and effectiveness of the Banking Union.
• Further discussion and reform should focus on trigger conditions, liability rankings, and crisis management tools to align national practices with the EU resolution framework.