REPORT on the draft Council regulation amending Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions
12.11.2014 - (10896/2014 – C8‑0090/2014 – 2014/0807(CNS)) - *
Committee on Economic and Monetary Affairs
Rapporteur: Kay Swinburne
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the draft Council regulation amending Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions
(10896/2014 – C8‑0090/2014 – 2014/0807(CNS))
(Consultation)
The European Parliament,
– having regard to the recommendation of the European Central Bank (10896/2014 –ECB/2014/19),
– having regard to Article 129(4) of the Treaty on the Functioning of the European Union, and Articles 5.4 and 41 of the Statute of the European System of Central Banks and of the European Central Bank, pursuant to which the Council consulted Parliament (C8-0090/2014),
– having regard to Rule 59 of its Rules of Procedure,
– having regard to the report of the Committee on Economic and Monetary Affairs (A8-0028/2014),
1. Approves the draft proposed in the recommendation of the European Central Bank as amended;
2. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
3. Asks the Council to consult Parliament again if it intends to substantially amend the draft proposed in the recommendation of the European Central Bank;
4. Instructs its President to forward its position to the Council, the European Central Bank and the Commission.
Amendment 1 Draft regulation Recital 6 | ||||||||||||||||||||||
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Draft of the European Central Bank |
Amendment | |||||||||||||||||||||
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(6) The ECB should publish decisions imposing administrative pecuniary penalties for breaches of directly applicable Union law and sanctions for breaches of ECB regulations or decisions, both in the supervisory and non-supervisory fields, unless such publication would be disproportionate, considering the degree of severity of the administrative pecuniary penalty or sanction imposed on an undertaking, or jeopardise the stability of financial markets. |
(6) The ECB should as a general rule publish without undue delay decisions imposing administrative pecuniary penalties for breaches of directly applicable Union law and sanctions for breaches of ECB regulations or decisions, both in the supervisory and non-supervisory fields. Where the ECB deems that immediate publication of a decision would jeopardise the stability of financial markets or be disproportionate, considering the degree of severity of the administrative pecuniary penalty or sanction imposed on an undertaking, it should have the discretion to delay the publication of the decision until three years after the date on which the decision was taken, or until all legal means of appeal have been exhausted. Upon request the ECB should hold confidential oral discussions behind closed doors with the Chair and Vice-Chairs of the competent committee of the European Parliament concerning such cases. The ECB should provide a justification for the delay in an annex to the published decision. | |||||||||||||||||||||
Amendment 2 Draft regulation Recital 6 a (new) | ||||||||||||||||||||||
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Draft of the European Central Bank |
Amendment | |||||||||||||||||||||
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(6a) Article 1 of Regulation (EU) No 1024/2013 states that the ECB shall act with full regard and duty of care for the unity and integrity of the internal market based on equal treatment of credit institutions with a view to preventing regulatory arbitrage and that no action, proposal or policy of the ECB shall, directly or indirectly, discriminate against any Member State or group of Members States as a venue for the provision of banking or financial services in any currency. In this regard, the ECB should act with a view to preventing a comparative advantage that promotes unfair competition. | |||||||||||||||||||||
Amendment 3 Draft regulation Recital 9 | ||||||||||||||||||||||
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Draft of the European Central Bank |
Amendment | |||||||||||||||||||||
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(9) Article 25 of Regulation (EU) No 1024/2013 lays down the principle of separation, whereby the ECB carries out the tasks conferred on it by Regulation (EU) No 1024/2013 without prejudice to and separately from its tasks relating to monetary policy and any other tasks. In order to bolster this principle of separation, a Supervisory Board has been established pursuant to Article 26, which, inter alia, is responsible for preparing draft decisions for the Governing Council of the ECB in the supervisory field. In addition, the decisions taken by the Governing Council of the ECB are, under the conditions laid down in Article 24 thereof, subject to review by the Administrative Board of Review. Taking account of the principle of separation and the establishment of the Supervisory Board and the Administrative Board of Review, two distinct procedures should apply: (a) where the ECB contemplates the imposition of administrative penalties in the exercise of its supervisory tasks, decisions to this effect are taken by the Governing Council of the ECB based on a complete draft decision from the Supervisory Board and subject to review by the Administrative Board of Review; and (b) where the ECB contemplates the imposition of sanctions in the exercise of its non-supervisory tasks, decisions to this effect are taken by the Executive Board of the ECB and subject to review by the Governing Council of the ECB. |
(9) Article 25 of Regulation (EU) No 1024/2013 lays down the principle of separation, whereby the ECB carries out the tasks conferred on it by Regulation (EU) No 1024/2013 without prejudice to and separately from its tasks relating to monetary policy and any other tasks. In order to avoid conflicts of interest, this principle is to be followed without restriction in all tasks carried out by the ECB. In order to bolster this principle of separation, a Supervisory Board has been established pursuant to Article 26, which, inter alia, is responsible for preparing draft decisions for the Governing Council of the ECB in the supervisory field. In addition, the decisions taken by the Governing Council of the ECB are, under the conditions laid down in Article 24 thereof, subject to review by the Administrative Board of Review. Taking account of the principle of separation and the establishment of the Supervisory Board and the Administrative Board of Review, two distinct procedures should apply: (a) where the ECB contemplates the imposition of administrative penalties in the exercise of its supervisory tasks, decisions to this effect are taken by the Governing Council of the ECB based on a complete draft decision from the Supervisory Board and subject to review by the Administrative Board of Review; and (b) where the ECB contemplates the imposition of sanctions in the exercise of its non-supervisory tasks, decisions to this effect are taken by the Executive Board of the ECB and subject to review by the Governing Council of the ECB. | |||||||||||||||||||||
Amendment 4 Draft regulation Recital 10 a (new) | ||||||||||||||||||||||
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Draft of the European Central Bank |
Amendment | |||||||||||||||||||||
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(10a) In light of the globalisation of banking services and the increased importance of international standards, the ECB should, in association with the competent authorities of participating Member States, establish a regular dialogue with supervisors outside the Union to foster international coordination and to agree on shared principles in the imposition and enforcement of sanctions. The dialogue should include a common understanding on the implications of diverging sanctions policies on market access and competition, and should aim to improve the international level playing field. | |||||||||||||||||||||
Amendment 5 Draft regulation Article 1 – point 1 – point a Regulation (EC) No 2532/98 Article 1 – point 6 | ||||||||||||||||||||||
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Justification | ||||||||||||||||||||||
This amendment clarifies that periodic penalty payments shall be calculated for each complete day (24 hours period) of continued infringement. | ||||||||||||||||||||||
Amendment 6 Draft regulation Article 1 – point 2 Regulation (EC) No 2532/98 Article 1a – paragraph 3 | ||||||||||||||||||||||
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Amendment 7 Draft regulation Article 1 – point 2 Regulation (EC) No 2532/98 Article 1a – paragraph 3 a (new) | ||||||||||||||||||||||
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Justification | ||||||||||||||||||||||
The past has shown that deficient supervision came often about from lack of clarity on who is finally competent to take infringement initiatives. This amendment aims at avoiding conflicts between authorities which is of utmost importance. | ||||||||||||||||||||||
Amendment 8 Draft regulation Article 1 – point 4 – point b Regulation (EC) No 2532/98 Article 3 – paragraph 10 | ||||||||||||||||||||||
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Amendment 9 Draft regulation Article 1 – point 4 a (new) Regulation (EC) No 2532/98 Article 4 – paragraph 1 | ||||||||||||||||||||||
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Justification | ||||||||||||||||||||||
In the current wording, the right to take a decision to initiate an infringement procedure expires in any case five years after the infringement occurred. This may be troublesome as in certain complex cases it can take years before an infringement is known. Your rapporteur suggests reducing the five years period to a three years period which starts to run from the date on which the decision was taken to initiate infringement procedures, rather than the date on which the infringement occurred. | ||||||||||||||||||||||
Amendment 10 Draft regulation Article 1 – point 5 Regulation (EC) No 2532/98 Article 4c – paragraph 1 | ||||||||||||||||||||||
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Amendment 11 Draft regulation Article 1 – point 5 Regulation (EC) No 2532/98 Article 4c – paragraph 2 | ||||||||||||||||||||||
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Justification | ||||||||||||||||||||||
The ECB recommends that the time limit shall not exceed a period of ten years after the infringement occurred. This may be troublesome as in certain complex cases it can take years before an infringement is known. Your rapporteur suggests reducing the ten years period to a seven years period which starts to run from the date on which the decision was taken to initiate infringement procedures, rather than the date on which the infringement occurred. | ||||||||||||||||||||||
Amendment 12 Draft regulation Article 1 – point 5 Regulation (EC) No 2532/98 Article 4c – paragraph 4 a (new) | ||||||||||||||||||||||
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Justification | ||||||||||||||||||||||
This amendment aims at providing guidance with regard to the type of actions that should allow an interruption of the limitation period. It is loosely based on Article 25 paragraph 3 of Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. | ||||||||||||||||||||||
Amendment 13 Draft regulation Article 1 – point 5 a (new) Regulation (EC) No 2532/98 Article 5 | ||||||||||||||||||||||
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Justification | ||||||||||||||||||||||
The current reading quotes an outdated Treaty numbering. Also, the current article 5 is written in a way that gives the impression that judicial review is granted by the Regulation when in fact derives from the Treaty on the Functioning of the European Union itself. | ||||||||||||||||||||||
Amendment 14 Draft regulation Article 1 – point 5 b (new) Regulation (EC) No 2532/98 Article 6 a (new) | ||||||||||||||||||||||
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EXPLANATORY STATEMENT
1. Background
On 23 November 1998, the Council of the European Union adopted Council Regulation (EC) No 2532/98 concerning the powers of the European Central Bank (ECB) to impose sanctions[1]. Following several years of application of Council Regulation (EC) No 2532/98 and taking into account the fact that the scope of the ECB's powers was extended by Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions[2], on 16 April 2014 the ECB submitted to Council a Recommendation for a Council Regulation amending Council Regulation (EC) No 2532/98[3].
The ECB Recommendation covers amendments to the definition of periodic penalty payments (Article 1), the general principles and scope (Article 1a), sanctions in case of a failure to perform a duty (Article 2), procedural rules with regard to the initiation of an infringement procedure and the relationship with national competence (Article 3), specific rules regarding the upper limits of sanctions imposed by the ECB in the exercise of its supervisory tasks (new Article 4a), specific procedural rules for the imposition of such sanctions including the review procedure (new Article 4b), and specific time limits for administrative penalties imposed by the ECB in the exercise of its supervisory tasks (new Article 4c).
2. Procedure in the European Parliament
The European Parliament is consulted by the Council on the basis of Article 129(4) TFEU. The ECON committee is lead Committee for the file.
3. General considerations
The financial crisis highlighted the need for better regulation and supervision of the financial sector in the EU. New rules to ensure that all financial actors, products and markets are appropriately regulated and efficiently supervised have been adopted. These rules create a basic framework for all 28 Member States of the EU and underpin a properly functioning single market for financial services.
The ensuing euro area crisis added an extra dimension. It highlighted the potentially vicious circle of risk contagion between banks and sovereigns. It became clear that, if the single currency was to survive and thrive in the long run, a better governed and more deeply integrated economic and monetary union was required. For the vicious circle to be broken, a more robust financial sector is not enough. In particular for countries that share a currency, there was a wide consensus on the necessity of a deeper and more integrated approach – in effect by ensuring uniform delivery of the rules for all 28 Member States. This is why EU Heads of State and Government have committed to a banking union in June 2012. The banking union is specifically set up for countries that share the euro currency, although it is also open to all non-euro EU Member States who want to join in (opt-in countries).
The Council Regulation amending Regulation (EC) No 2532/98 should constitute a further step in the implementation of a more coherent and integrated regulatory framework.
3.1. Role of the ECB: better supervision of the financial system
For regulation to be fully efficient, it needs to be accompanied by thorough supervision and enforcement. That is why the aim is to upgrade the supervision of the financial sector at EU level, improving coordination between national supervisors on the one hand and enhancing EU-wide supervision to deal with risks and issues with cross-border effects on the other hand, under the ultimate guidance of the ECB. Both supervision levels are complementary and essential to safeguard financial stability in Europe.
On 4 November 2013, about one year after the Commission had proposed to set up a single banking supervision mechanism in the euro area, the Single Supervisory Mechanism (SSM) entered into force. This mechanism will be fully operational in November 2014.
The SSM confers new supervision powers on the ECB for the banks of the euro area, including the authorisation of all banks in the EU and the coherent and consistent application of the single rulebook in the euro area, the direct supervision of significant banks, including all banks having assets of more than €30 billion or constituting at least 20% of their home country's GDP (around 130 banks) and, finally, the monitoring of the supervision exerted by national supervisors on less significant banks. The ECB, as the ultimate supervisor, may at any moment decide to directly supervise one or more of these credit institutions to ensure consistent application of high supervisory standards. The ECB is tasked with ensuring the coherent and consistent application of the Single rulebook in the euro area.
3.2. Sanctions in the SSM
There is a wide consensus that a lack of credibility of regulation contributed to the crisis, since implementation appeared to be severely deficient. Traditionally in financial matters a lot of faith is placed in “market discipline”, but to have the system of market monitoring functioning well, transparency is very important as well. This means that not only the necessary information must be available but also that this information is effectively reaching the market, and, moreover, is adequately interpreted by the market participants and also used in their decisions.
Hence, building the SSM’s credibility requires more than just transparency on banks’ asset quality. Financial markets and all their users involved also need to be confident that, in the future, the supervisor can “pull the trigger” on banks that are not complying with the rules. This means that the ECB needs clear and unequivocal authority to impose sanctions.
4. Draft report: specific considerations
As a preliminary remark, your Rapporteur notes the absence of a qualitative impact assessment. He understands the urgency of amending Regulation (EC) No 2532/98 in view of the establishment of the Single Supervisory Mechanism (SSM) in November 2014, but nevertheless believes that several shortcomings could have been efficiently addressed by making use of the impact assessment methodology.
That being said, your Rapporteur welcomes the Recommendation of the ECB and supports its objective. He suggests improving some of the elements of the Recommendation with the following main modifications.
4.1. Publication of administrative penalties
In line with Council Regulation (EU) No 1024/2013 and in particular Article 18 paragraph 6 thereof, as well as in view of repeated calls made by the European Parliament to increase the transparency of ECB decision-making procedures, your Rapporteur suggests to oblige the ECB as a general rule to publish without undue delay its decisions to impose on an undertaking administrative pecuniary penalties for breaches of directly applicable Union law and sanctions for breaches of ECB regulations or decisions, both in the supervisory and non-supervisory fields, and whether such decision has been appealed or not.
There might however be instances where immediate publication of decisions is not appropriate, e.g. when a decision would jeopardise the stability of financial markets or be disproportionate considering the degree of severity of the administrative penalty or sanction imposed on an undertaking. Your Rapporteur therefore agrees to give the ECB the discretion to delay the publication of such decisions. In line with Council Regulation (EU) No 1024/2013 and in particular Article 20 paragraph 8 thereof, he believes however that there should be a possibility for the Chair and Vice-Chairs of the competent committee of the European Parliament to request a confidential oral discussion with the ECB on such decisions. To maximise transparency, your Rapporteur further suggests a procedure of full disclosure and hence automatic declassification and release of information after a certain period, e.g. 3 years, as well as an ex-post obligation for the ECB to justify any deviation from the general rule of immediate publication.
4.2. Division of competences between the ECB and the national competent authorities
The past has shown that deficient supervision often came about from a lack of clarity on who is finally competent to take infringement initiatives. Your Rapporteur therefore proposes a modification of the new Article 1a as recommended by the ECB. In particular, he recommends adding to this article, which lays down the general principles, an explicit overall delineation of responsibilities: without prejudice to their other specific competences derived from national law, the national competent authorities remain competent to impose administrative penalties but are to only impose such penalties on credit institutions directly supervised by the ECB if the ECB requires them to initiate proceedings for this purpose.
4.3 Time limits for administrative penalties
In its Recommendation, the ECB proposes that the right to take a decision to impose an administrative penalty on the infringement case expires five years after the infringement occurred. This may be troublesome as in certain complex cases it can take years before an infringement is known. Hence your Rapporteur suggests that the five year period starts to run from the date on which the decision was taken to initiate infringement procedures, rather than the date on which the infringement occurred.
To counterbalance the de facto (potentially much) longer time limits as a consequence of the later starting point, your Rapporteur suggests reducing the limitation period itself from five years to three years. Furthermore, he provides guidance as to which types of actions by the ECB should cause the limitation periods to be interrupted.
PROCEDURE
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Title |
The powers of the European Central Bank to impose sanctions |
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References |
10896/2014 – C8-0090/2014 – 2014/0807(CNS) |
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Date of consulting Parliament |
2.7.2014 |
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Committee responsible Date announced in plenary |
ECON 14.7.2014 |
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Rapporteurs Date appointed |
Kay Swinburne 22.7.2014 |
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Discussed in committee |
13.10.2014 |
3.11.2014 |
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Date adopted |
11.11.2014 |
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Result of final vote |
+: –: 0: |
32 22 2 |
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Members present for the final vote |
Gerolf Annemans, Burkhard Balz, Hugues Bayet, Pervenche Berès, Udo Bullmann, Esther de Lange, Fabio De Masi, Anneliese Dodds, Markus Ferber, Jonás Fernández, Elisa Ferreira, Sven Giegold, Neena Gill, Roberto Gualtieri, Gunnar Hökmark, Danuta Maria Hübner, Petr Ježek, Othmar Karas, Georgios Kyrtsos, Alain Lamassoure, Philippe Lamberts, Werner Langen, Sander Loones, Bernd Lucke, Olle Ludvigsson, Notis Marias, Fulvio Martusciello, Costas Mavrides, Luděk Niedermayer, Stanisław Ożóg, Dariusz Rosati, Alfred Sant, Molly Scott Cato, Peter Simon, Theodor Dumitru Stolojan, Paul Tang, Sampo Terho, Michael Theurer, Ernest Urtasun, Marco Valli, Cora van Nieuwenhuizen, Miguel Viegas, Jakob von Weizsäcker, Steven Woolfe, Pablo Zalba Bidegain, Marco Zanni, Sotirios Zarianopoulos |
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Substitutes present for the final vote |
Matt Carthy, Frank Engel, Ildikó Gáll-Pelcz, Danuta Jazłowiecka, Jeppe Kofod, Thomas Mann, Alessia Maria Mosca, Norica Nicolai, Nils Torvalds |
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Date tabled |
12.11.2014 |
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