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Summary of the Consultation Paper on the Establishment of a CEBS Mediation Mechanism

Core Content

This consultation paper outlines the proposed establishment of a mediation mechanism for CEBS (Committee of European Banking Supervisors). The mechanism is intended to improve cooperation and convergence among CEBS Members, particularly in the context of prudential banking supervision. It is structured as a peer mechanism, which is non-binding, confidential, and voluntary, with the aim of resolving cross-border supervisory disputes efficiently and fairly.

Main Viewpoints

• Non-binding and voluntary: The mediation process is not legally binding and is based on mutual agreement among CEBS Members. It cannot interfere with legal proceedings at the EU or national level.

• Peer mechanism: The mechanism is designed to be a neutral and collaborative process between supervisory authorities, not involving market participants directly, although they can raise issues through their national representatives or via CEBS operational networks.

• Focus on prudential supervision: Unlike CESR, which focuses on conduct of business issues, CEBS mediation is centered around prudential issues, particularly those arising from the Capital Requirements Directive (CRD) and related guidelines.

• Use as a preventive tool: The mechanism can be used to prevent disputes and tensions before they escalate, especially when there are persistent differences of opinion between supervisors.

• Flexible and efficient procedures: The process includes strict deadlines and is designed to be rapid and efficient, with the goal of quick decision-making without unnecessary delays.

• Gatekeeper role: A Gatekeeper, typically the CEBS Vice-Chair or a designated Member, oversees the process and ensures fairness, confidentiality, and procedural compliance.

• Public reporting: Mediated outcomes may be reported publicly on an anonymous basis, such as in the CEBS Annual Report, to encourage supervisory convergence.

• Testing and review: The mechanism is intended to be tested in 2008, with a review planned for 2010.

Key Features of the CEBS Mediation Mechanism

I.A. The Nature

• A peer mechanism aimed at improving cooperation and convergence among CEBS Members.
• Non-binding and confidential.
• Voluntary participation by CEBS Members.
• Cannot preempt legal interpretations or replace existing legal procedures.
• Cannot delay or invalidate existing decisions.

I.B. Parties Involved

• CEBS Members are the primary participants.
• EEA supervisory competent authorities that are Observers to CEBS may also participate.
• Market participants can raise issues, but not directly initiate mediation.
• Non-CEBS Members can participate via joinder agreements or through a CEBS Member.

I.C. Procedural Principles

• Rapid: The mechanism aims for quick and effective solutions.
• Efficient: Mediation is a last resort after bilateral efforts.
• Fair: Process must be unbiased and impartial.
• Confidential: All parties involved must respect professional secrecy.
• Respect for EU legal setting: The mechanism does not replace the ECJ's legal authority.

Scope of the CEBS Mediation Mechanism

II.A. General Considerations

• The mechanism is limited to cross-border issues.
• Domestic disputes are outside its scope.
• "Cross border" is defined functionally and pragmatically, not legally.

II.B. Scope

• Designed for disputes related to the CRD and related CEBS Guidelines.
• Can also be used for other EU banking legislation and CEBS Guidelines, if agreed by the parties.
• Excluded from mediation in cases where:
  • Legal proceedings are already in progress.
  • The issue is already being addressed at Level 2 or Level 3 by CEBS.
  • National legislation prevents the requested CEBS Member from accommodating the request.
  • The issue involves immediate legal or procedural obligations.

Procedural Framework

III.A. The Gatekeeper

• Acts as a neutral third party.
• Determines whether mediation is appropriate.
• Oversees the mediation process and ensures timely resolution.
• Can make decisions if the parties disagree.
• Must be experienced and independent.

III.B. Organisational Choices

• Two models are proposed: evaluative and facilitative.
• Evaluative model: A panel evaluates the issue and proposes a solution.
• Facilitative model: A mediator assists the parties in reaching a solution.
• Mediators and panellists are selected based on expertise, seniority, and representation.
• No pre-established list of mediators is used, and the Gatekeeper has discretion in the selection process.

Review and Implementation

• The mechanism is intended for testing in 2008.
• A review is planned for 2010.
• Public consultation is open for three months, ending on 19 June 2007.
• Comments will be published on the CEBS website unless otherwise requested.
• CEBS seeks feedback on:
  • Whether market participants have comments on the mechanism.
  • Whether the CESR mechanism is sufficiently adapted for the prudential focus of CEBS.