by Jan von Hein
Harmonizing the supervision of banking and securities trading constitutes the core of the European law on financial services, as stability and efficiency in this sector are closely connected with the exercise of the fundamental economic freedoms of EU citizens. This is all the more true since the introduction of the euro. Furthermore, harmonizing banking supervision reduces costs of market entrance for foreign market participants, thus enhancing clients’ freedom to choose between various service providers at the same time. As far as private banking law is concerned, only a few areas have been harmonized, namely the law of consumer credit and cross-border payments (bank transfers (cross-border)). However, the effects of duties imposed by supervisory law on civil liability have been discussed extensively (see 6. below).
The traditional approach to financial supervision in the EU has been characterized by a dominant position of the domestic authorities and only a peripheral involvement of EU institutions in prudential regulation. The competent national authority was and still is determined in accordance with the principle of home country control (see 2. b), below). The financial crisis of 2008 has, however, led to vocal calls for a thorough reform of the established system. The crisis was initially triggered by the widespread securitization of US subprime mortgages, which led to a contamination of the world financial system when it became apparent that many banks had acquired a significant amount of toxic financial instruments whose true value could not be estimated properly by market participants. This uncertainty, in turn, led to spectacular failures and dissolutions of banks both in the United States and the European Economic Area, particularly in Iceland. The near meltdown of the world financial system caused many observers to question the status quo, in particular whether the traditional decentralized system of banking supervision in the EU and the EEA could still adequately deal with the challenges posed by the globalization of financial markets. The current state of the efforts at reform will be presented in 4. below.
2. Law-making bodies, fundamental principles and sources of law
a) Law-making bodies
The development towards a European law on banking supervision has been and is still predetermined to a large extent by the—in strict legal terms, non-binding—decisions of the Basel Committee on Banking Supervision, which concern the minimum standards of prudential regulation in the financial services sector. The Basel Committee was established in 1974 at the Bank for International Settlements by the central banks and supervisory authorities of the 10 major western industrial nations at that time (the so-called G10). Today, the Committee’s members come from Argentina, Australia, Belgium, Brazil, Canada, China, France, Germany, Hong Kong, India, Indonesia, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, Russia, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States. Member States are represented by their central bank and also by the authority with formal responsibility for the prudential supervision of banking business where this is not the central bank. The Basel Committee’s work aims at a reciprocal approximation of national supervisory laws. One of the goals is reducing the costs that may arise for credit institutions operating across borders when they are subject to the supervision of more than one regulatory authority. In addition, the financial system shall be further stabilized through the global establishment of standards for good supervisory practice. In April 2009, the Financial Stability Board (FSB) was established as the successor to the Financial Stability Forum (FSF) at Basel to address vulnerabilities and to develop and implement strong regulatory, supervisory and other policies in the interests of financial stability. Finally, by harmonizing the legal framework, international cooperation between the authorities shall be facilitated. In particular, the Basel guidelines on the capital requirements for banks are of enormous practical significance. Their current version is contained in the Basel II Accord of 26 June 2004, which was incorporated into EU law in the revised version of the Directive on Capital Requirements (Dir 2006/49). The Basel Committee’s work shows that non-governmental regulations do not only gain importance in those areas where the parties enjoy private autonomy, but also, although being of a non-binding nature, increasingly predetermine the content of the Member States’ public supervisory law. This development may be questionable from a constitutional and democratic point of view, but is acceptable due to the filter set up by the European legislative process; moreover, it is, given the highly technical character of the subject matter, probably not possibly by any other means.
In the light of the recent financial crisis (see 1. above), the Basel II accord has been frequently criticized as suffering from a pro-cyclical nature, which tends to reinforce symptoms of a beginning crisis to the detriment of financial stability. The Basel Committee completed a number of critical reforms to the Basel II framework in 2009, which enhanced the risk coverage of banks. The EU reacted by amending the Capital Requirements Directive in 2009. The main aims of this reform consist of establishing colleges of supervisors to facilitate cooperation between national authorities dealing with cross-border financial institutions and in reinforcing the existing rules on large exposures of banks, including inter-bank exposures. In December 2010, the Basel Committee agreed on new capital, leverage and liquidity standards to reinforce the regulation, supervision and risk management of the banking sector (‘Basel III’, revised in June 2011). The new capital standards will require banks not only to hold more capital than under current Basel II rules, but will also force banks to ensure a better quality of capital. Apart from that, Basel III introduces a new leverage ratio which is rooted in a non-risk based measure in order to supplement risk-based minimum capital requirements. A strengthening of the liquidity ratios is meant to ensure that adequate funding is available in times of a financial crisis. On the whole, the new regulations are expected to significantly reduce the procyclical nature of the current Basel II framework.
b) Fundamental principles
The harmonization of European laws on banking supervision is traditionally based on three established principles: minimum harmonization of the supervisory rules, mutual recognition concerning the admission of credit institutions (European passport) and supervision by the home Member State. The ambitious attempt made at the beginning of the 1970s to create a genuine European banking law failed. With regard to the existing national differences (universal and specialized banks; supervision by the national central bank, a separate banking supervisory authority or a unitary supervisory authority for financial services) a comprehensive unification of supervisory law by means of regulations has so far been considered not practically feasible. However, at the same time, the Member States have to be prevented from competing against each other in lowering supervisory standards (a so-called race to the bottom). This is why minimum harmonization by means of directives is needed. As for the European passport, it enables credit institutions to offer their services across Europe without having to apply in each country for admission. Finally, the supervision by the home Member State ensures that the authority granting admission is generally in charge of supervising the ongoing business operations as well. The authorities of the host Member State have only limited powers to act in exhaustively enumerated cases of emergency and for statistical purposes. After the recent financial crisis, the principle of home country control has come under attack as being outdated and incapable of coping with the transnational activities of those banks that have a systemic relevance that far exceeds the domestic sector. The EU has reacted swiftly to this criticism with a package of reform proposals outlined in 4. below. Moreover, Dir 2006/48 was amended in 2009 in order to strengthen the powers of the host state authorities.
The home country control principle does not apply in conflict of law situations. As in other areas, contractual transactions in the banking sector are also governed by the conflict of law provisions of the Rome I Regulation (Reg 593/2008 banking law (international)). The European harmonization of supervisory law is supplemented by the alignment of deposit protection and investor compensation, which are to ensure the protection of creditors in times of crisis. Apart from that, there are supervisory and criminal provisions to prevent money laundering.
The traditional approach to banking supervision both in Germany and at the EU level was mainly institution-based. Thus, it focused on the creditworthiness (solvency and liquidity) of banks and sought to guarantee it. However, due to the extension of supervision to investment service providers and other financial institutions that are not covered by a narrow understanding of credit institutions, the institution-based approach could not be maintained. In some Member States—especially in the United Kingdom—certain transactions and services are traditionally not provided by universal banks but by other financial institutions. This is why the Capital Requirements Directive and Dir 2004/39 on Markets in Financial Instruments (MiFID) (markets for financial instruments) as well as the Market Abuse Directive (Dir 2003/9) follow a functional approach and focus on the relevant activities. Additionally, in European banking law there are also regulations on some ‘products’ of credit institutions, especially in the area of consumer credit and in investment law (UCITS Directive). The investment business is no longer considered a special bank business, so nowadays investment companies are no longer subject to the KWG (German Banking Act) but to the InvG (German Investment Act) alone. The recent financial crisis has led to increasing efforts not only to improve supervision at the level of micro-prudential regulation, but to strengthen the involvement of EU institutions in the supervision of systemic financial stability as well (see 4. below).
c) Sources of law
Most of the numerous directives on banking supervision law that had been adopted since 1977—and revised frequently in essential points —were on several occasions compiled into a single consolidated piece of legislation for purposes of clarity. The most recent version is Dir 2006/48 relating to the taking up and pursuit of the business of credit institutions (Credit Institution Directive II), which has again been revised in 2009 in light of the financial crisis of 2008. At its beginning, this codification specifies the substantive scope and definitions of the European law of banking supervision (Title I). Then, it states the general requirements for the taking up and pursuit of the business of credit institutions (Title II). The third title contains provisions on the credit institutions’ and financial institutions’ freedom of establishment and freedom to provide services. It is followed by rules on the relationship with third countries (Title IV). In Title V, the principles of banking supervision and the technical instruments are regulated in detail. The first chapter (‘Principles’) defines the home and the host Member State’s competence. Next come provisions on the exchange of information and on professional secrecy. The ‘Principles’ also regulate the annual auditor’s duties as well as the power of sanction and the right to apply to the courts. The second chapter contains details of the technical instruments of banking supervision, namely own funds, risk provisioning and minimum own funds requirements for hedging credit risks or operational risks. It also includes provisions on large exposures and on certain shareholdings outside of the financial sector. The third chapter specifies the credit institutions’ assessment process concerning internal capital. It is followed by detailed regulations on issues such as disclosure by the authorities and the credit institutions as well as on the powers of execution. Many questions concerning conceptual and technical matters which cannot be examined in this overview are regulated in Annex I-XII of the directive.
This codification of the institution-related law on banking supervision is complemented in functional terms by the Directive on Markets in Financial Instruments (MiFID) (markets for financial instruments), its main features being explained elsewhere. It applies to investment firms in the sense of MiFID Art 4(1)(1), regulated markets as understood in MiFID Art 4(1)(14) as well as to those credit institutions that are mentioned in the Credit Institution Directive as set out in MiFID Art 1(2).
a) Convergence to a single regulator?
It has long been controversially discussed whether the supervisory structures of the Member States are converging towards a unitary model. The supervision of financial services in Germany has for a long time been—and partly still is—split up both by sector and geographically. The Bundesaufsichtsamt für das Kreditwesen (BAKred) in Bonn was responsible for monitoring the solvency of banks and investment service providers. Market supervision of securities trading, however, was in the hands of the Bundesaufsichtsamt für den Wertpapierhandel (BAWe) in Frankfurt, which had to be established because of the transposition of the European Insider Directive and the Investment Services Directive into German law in 1995. Furthermore, although the Börsengesetz (German Stock Exchange Act) is a federal law, Germany has a comparatively unusual system of regional stock exchanges in eight different states operating under the supervision of the respective state authority. In 2002, the BAKred, the BAWe and the Bundesaufsichtsamt für das Versicherungswesen (Federal Supervisory Office for the Insurance Industry) were merged into a single regulator, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin). In so doing, the legislature wanted to improve the supervision of financial conglomerates and to increase efficiency by using synergy effects. The creation of the German single regulator was also based on foreign models such as the Financial Services Authority (FSA) in the United Kingdom and the authorities in the Nordic countries and Japan. However, significant practical differences remain. The reform did not abolish the fragmentation of the German stock exchange supervisory law. For instance, while the FSA as the central stock exchange supervisory authority also decides on the admission of participants to exchange trading and on the listing of companies, in Germany these tasks do not fall within BaFin’s area of responsibility but have to be carried out by the respective state authorities (or under their legal supervision by the stock exchanges themselves). Then again, takeovers are supervised by BaFin in Germany, while in the United Kingdom this task is fulfilled by the Takeover Panel, a self-regulating body of the City of London.
Even in the field of banking supervision where the creation of a German single regulator was most hotly debated, BaFin corresponds rather to the traditional German model of a dual-structured model of supervisory authority (‘twin peaks’) than to the notion of a fully integrated single regulator. The most recent version of § 7 KWG has in essence upheld the distribution of responsibilities between the Bundesbank (German Central Bank) with regard to supervision at the macro-level (financial stability) and BaFin with regard to prudential regulation at the micro-level. As in other European countries, such as the United Kingdom in particular, the financial crisis has however triggered demands for the strengthening of the Central Bank’s role in financial supervision. The newly elected German government agreed in 2009 to confer further powers related to banking supervision on the central bank in the near future. Similar moves are to be expected in other Member States, eg the United Kingdom.
b) The role of the European Central Bank and the Eurosystem
While monetary policy in ‘Euroland’ is pursued on a supranational level, banking supervision has so far remained the domain of the national authorities of the Member States. The Protocol on the Statute of the European System of Central Banks (ESCB) and of the European Central Bank (ECB) restricts the ECB’s function to a consultative one. Pursuant to Art 127(5) of the Treaty on the Functioning of the European Union (TFEU) (ex 105(5) EC), the ESCB plays the role of supporting national authorities. However, Art 127(6) TFEU allows for the assignment of specific banking supervision tasks to the ESCB. As a response to the financial crisis of 2008, representatives of the ECB have signalled their willingness to assume a more active role in the supervision of financial institutions. These demands echo calls for a stronger involvement of central banks heard at the Member State level.
Although a ‘functional’ or ‘horizontal’ distinction between banking supervision and monetary policy is not uncommon (eg in Germany or the United Kingdom, see 3. a), above), a ‘geographical’ or ‘vertical’ separation of powers is unique. In the United States, to which a comparison seems appropriate, both responsibilities are assigned to the federal rather than the state level, in particular to the Federal Reserve Bank (Fed) and the Office of the Comptroller of the Currency (OCC). The European experiment of combining a supranationally centralized monetary policy with a decentralized system of banking supervision at the Member State level has sparked criticism from the very beginning of the European Monetary Union. The criticism is based essentially on the following three arguments: (1) banking supervision is the original task of a central bank; (2) national supervisory authorities tend to be more lenient towards their ‘clients’ than a central authority (regulatory capture); (3) the present structure of the ESCB is too cumbersome and lacks transparency for overcoming liquidity crises effectively because it is not clear who will be the lender of last resort in the case of an emergency. In order to improve the exchange of information at the international level, the Commission established the Committee of European Banking Supervisors (CEBS) by Decision 2004/5. In 2011, CEBS was replaced by the European Banking Authority (EBA) (see 4. c), below).
4. Plans to reform the system
a) The de Larosière Report
Although the worst-case scenarios (see 3. b), above) that have occasionally been discussed since the introduction of the euro have fortunately not materialized so far, the financial crisis of 2008 led to widespread demands for a reform of the status quo. In October 2008 the European Commission convened an expert group chaired by de Larosière, a former managing director of the IMF (see <http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf>). The reform proposals made by this High Level Group on 25 February 2009 still did not provide for a truly centralized European supervisory authority. They rather called for major amendments as to detail. Financial supervision in Europe should be improved by strengthening the links between macroeconomic analysis and the supervision of individual banks. Moreover, two new EU bodies should be created: the ‘European Systemic Risk Board’ (ESRB), to be set up under the auspices of the ECB, and a ‘European System of Financial Supervision’ (ESFS). The ESRB should be composed of members of the central banks in the EU, members of the Commission plus representatives of the European and national financial supervision authorities. National supervisors will, however, have no voting rights in the General Board. The aim is rather to achieve a substantial improvement in the flow of information between those authorities and to establish an effective early warning mechanism concerning risks to the financial market. The High Level Group also suggested establishing a decentralized European system of financial supervision by 2012 in order to control cross-border institutes.
In June 2009, the European Council supported the creation of both the ESRB and the ESFS, calling for an upgrading of the quality and consistency of national supervision, a strengthening of the oversight of cross-border financial groups through the setting up of supervisory colleges, and the establishment of a single rule book applicable to all financial institutions in the EU. On 23 September 2009, the European Commission presented a comprehensive package of reform measures modelled on the proposals made by the de Larosière group. On 2 December 2009, the European Council approved the reform package with some modifications, which will be detailed at 4. b) and c) below.
b) The European Systemic Risk Board
The ESRB has the task of improving macro-prudential supervision, ie it is supposed to monitor the soundness of the whole financial system. It has to identify potential risks, prioritize them and issue warnings when it regards the risks as significant. The ESRB follows a ‘comply-or-explain’ approach. If the ESRB identifies a significant risk to financial stability, it shall issue a recommendation to the country concerned. If the recipient agrees with the recommendation, it must communicate the measures undertaken to deal with the potential problem. If it does not agree and chooses to refrain from any or certain recommended steps, the reasons for such a decision must be explained as well. If the ESRB considers the arguments given as not convincing, it shall inform the Council of Ministers. In sum, the ESRB’s powers are rather limited to a kind of moral persuasion (‘name and shame’). In this regard, the ESRB enjoys a certain discretion: The decision whether or not to publish a warning or a recommendation shall depend on a careful assessment of the potential consequences in the individual case.
c) The European System of Financial Supervision
The ESFS is composed of three European Supervisory Authorities (ESAs): the European Banking Authority (EBA), the European Insurance and Occupational Pensions Authority (EIOPA, insurance regulation) and the European Securities and Markets Authority (ESMA), which has replaced the Committee of European Securities Regulators (CESR; capital markets law (international)). The work of the ESAs is coordinated by a steering committee. The ESFS has not established a truly integrated supranational regulatory body. It is rather characterized as a decentralized and evolutionary refinement of the existing system that is focused on establishing a uniform implementation of supervisory rules and improving the exchange of information. Day-to-day micro-prudential supervision of financial institutions remains in the hands of national authorities. This rather conservative attitude is motivated by the assumption that a single EU-level supervisor would not be sufficiently close to the business activities of financial institutions. Moreover, the creation of a truly supranational supervisory authority faces the obstacle that at present there is no EU-level financing mechanism available when intervention is needed to ‘bail out’ an institution in difficulty. In particular, the EBA is not endowed with the power to issue binding rulings or decisions on national supervisors. In sum, the ESFS is a welcome step forward but falls short of more ambitious proposals for reform made both by academics and practitioners in the course of the preceding discussion.
5. Market entrance
a) Market participants from the EU/EEA
Due to the country of origin principle mentioned at 2. above (European passport), certain banking activities carried out by companies (credit institutions or investment firms), having their registered office in the EU or the EEA, do not require approval for another admission. According to Art 25 Credit Institution Dir II and Art 31 MiFID, only a notification to the host Member State by the competent authority of the home Member State is needed. Annex I of the Credit Institution Dir II has a very extensive list of all types of activities that are subject to recognition. The principle of mutual recognition applies, inter alia, to the acceptance of deposits, lending, financial leasing, issuing and administering means of payment (cards and cheques), granting of guarantees, securities transactions, securities issues, portfolio management and the custody and administration of securities.
b) Market operators from third states
Providers of financial services or banking transactions from third countries (ie neither the EU nor the EEA) need approval from a national authority such as BaFin if these activities are to be carried out in a Member State, eg Germany (§ 32 KWG). This requirement is not related to the company’s country of registered office (the institution-related approach that was often argued for in the past) but to whether the activities are aimed at the affected Member State, eg Germany (the marketing-related approach that prevails today). Due to this requirement, providers from third states can be prevented from undermining the legal supervisory standards of the affected Member State’s market. The market-related approach does not violate Art 63 TFEU/56 EC, which guarantees the free movement of capital even to providers from third states, because such cases mainly affect the freedom to provide services (Arts 56 ff TFEU/49 ff EC) and the latter does not apply to third country providers (ECJ Case C-452/04 – Fidium Finanz AG  ECR I-9562).
6. State liability for the breach of supervisory duties
BaFin performs its tasks solely for the public benefit (§ 4(4) FinDAG). Similar provisions exist in many other Member States. This means that, in general, investors cannot claim compensation from the state for losses caused by insufficient supervision. The ECJ raised no objections to such a restriction, despite academic criticism, because the Court did not consider a harmonization of liability to be necessary in order to reach the goal of a harmonized supervisory law (ECJ Case C-222/02 – Peter Paul and Others  ECR I-9460) Additionally, the ECJ recognizes that the supervisory authorities must have broad discretionary powers to weigh up the competing interests due to the complexity of banking supervision and the importance of protecting the financial system’s stability. The supervisory rules of the KWG generally do not grant protection to third parties in the sense of § 823(2) Bürgerliches Gesetzbuch (BGB), either. Therefore, one cannot expect the law of state liability or even tort law in general to be the subject of significant impulses for harmonization in this regard.
7. Influence of the rules of conduct for securities trading on private law
Many writers agree that the rules of conduct for securities trading (§§ 31 ff WpHG) should influence private law in order to avoid frictions and contradictions between the rules of conduct in supervisory law and in private law. Accordingly, many authors characterize the relevant rules as protective rules in the sense of § 823(2) BGB. However, this approach is partly criticized because it would lower the threshold of liability to simple negligence, independent from any contractual relations, which is inappropriate. The German Federal Supreme Court (BGH) has left this question open for a long time (BGH 5 October 1999, BGHZ 142, 345, 356). Recently, the BGH rejected the argument that §§ 31 ff WpHG are of a protective nature as a whole although it recognized at the same time that the protection of investors was at least partly the purpose of the law. The reason for this decision is that lawmakers did not intend to extend the protection of assets in the total system of liability to the detriment of ordinary employees (BGH 19 February 2008, BGHZ 175, 276; BGH 22 July 2010, NJW 2010, 3651, 3652 f). Moreover, the BGH does not characterize the German Money Laundering Act as a protective law because its purpose is only to prevent the subsequent use of money received through criminal offences (BGH 6 May 2008, BGHZ 176, 281). The alternative solution, which is also preferred by the courts, is interpreting pre-contractual requirements of due care, especially the pre-contractual duty of disclosure and the duty to advise, in light of the rules of conduct for securities trading (BGH loc cit; further BGH 8 May 2001, BGHZ 147, 343, 348). With regard to the different liability systems in the Member States, it is not likely that a European consensus on these questions will be found easily.
The harmonization of the law on financial supervision may not have a direct impact on European private banking law. However, one should not underestimate the fact that, due to the country of origin principle found in supervisory law and the principle of party autonomy in conflict of laws (Arts 3 and 6 Rome I; banking law (international)), the range of financial services and products available on the domestic market from which consumers can choose has increased considerably. In this respect, the harmonization of the law on financial supervision constitutes the foundation on which a regulatory competition in private law terms may unfold (competition between legal systems). The reform steps initiated in 2009 aim at improving the existing decentralized system rather than at introducing a paradigm shift towards an integrated system of financial supervision at the EU level. It remains to be seen whether this cautious approach will be sufficient to deal with financial crises in the future.
Eilís Ferran, ‘Examining the UK’s Experience in Adopting the Single Financial Regulator Model’ (2003) 28 Brooklyn Journal of International Law 257; Eddy Wymeersch, ‘The Structure of Financial Supervision in Europe: About Single Financial Supervisors, Twin Peaks and Multiple Financial Supervisors’ (2007) 8 EBOR 237; Iain Begg, ‘Regulation and Supervision of Financial Intermediaries in the EU: The Aftermath of the Financial Crisis’ (2009) 47 Journal of Common Market Studies 1107; Fabian L Christoph, ‘Zulässigkeit grenzüberschreitender Bankenaufsicht nach dem Marktortprinzip’  Zeitschrift für Bankrecht und Bankwirtschaft 117; Guido Ferrarini and Filippo Chiudini, ‘Regulating Cross-border Banks in Europe: A Comment on the de Larosière Report and a Modest Proposal’ (2009) 51 Capital Markets Law Journal 123; Klaus J Hopt, ‘Auf dem Weg zu einer neuen europäischen und internationalen Finanzmarktarchitektur’  Neue Zeitschrift für Gesellschaftsrecht 1401; Marco Lamandini, ‘When More is Needed: The European Financial Supervisory Reform and Its Legal Basis’ (2009) 6 European Company Law 197; Donato Masciandaro and Marc Quintyn, ‘Regulating the Regulators: The Changing Face of Financial Supervision Architectures Before and After the Crisis’ (2009) 6 European Company Law 187; Gérard Hertig, Ruben Lee and Joseph A. McCahery, ‘Empowering the ECB to Supervise Banks: A Choice-Based Approach’  ECFR 171; Eddy Wymeersch, ‘The reforms of the European Financial Supervisory System—An Overview’  ECFR 240.