Giuseppe PennisiDraft June 15 2014
MUDDLING THROUGH, ON-THE-BRINK
The Single Resolution Mechanism
1. The common framework toward national rules and procedures on banking resolution
Repeated bailouts of banks have created a situation of deep unfairness, increased public debt and imposed a heavy burden on taxpayers. In short, to ensure that the taxpayer will not have to bail out banks repeatedly, in June 2012 the EC proposed a common framework of rules and powers to help EU countries intervene to manage banks in difficulty. The European Parliament (EP) and the Member States reached an agreement on this framework on 11 December 2013, subject to technical finalization and formal approval by both institutions. The Directive of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms, generally called the BRRD Directive, is a 333 pages document which set uniform rules expected to enter into force on 1st January 2015. These rules have the objective to provide authorities with the means to intervene decisively both before problems occur (for instance by ensuring that all banks have recovery and resolution plans in place) and early on in the process if they do happen (for instance the power to appoint a temporary administrator in a bank to deal with problems). Briefly, to create a culture of early interventions
The recovery and resolution plans are to be reviewed and assessed not only by the national authorities but also by the EU authorities, namely at each important stage by the European Banking Authority (EBA) If, despite these preventive measures, the financial situation does deteriorate beyond repair, the new rules ought to ensure that shareholders and creditors of the banks will have to pay their shares of the costs through a bail-in mechanism. If additional resources are needed, these will be taken from the national, prefunded resolution fund that each CP has to establish and build up so it reaches, within ten years, a level of 1% of covered deposits. All the banks have to pay into these national funds; contributions are higher for banks that take more risks.
The mechanism is expected to stabilize an institution about to call for bankruptcy so that it can continue to provide essential services, without the need for bail-out by public funds. Recapitalization through the write-down of liabilities and/or their conversion to equity will allow the institution to continue as a going concern. This will avoid the disruption to the financial system that would be caused by stopping or interrupting its critical services, and will give the authorities time to reorganize it or wind down parts of its business in an orderly manner. This is what is, colloquially, called bail-in.
If a bank needs to resort to bail-in, authorities will first bail-in all shareholders and will then follow a pre-determined order. Shareholders and other creditors who invest in bank capital (such as holders of convertible bonds and junior bonds) will bear losses first. Deposits under € 100 000 will never be touched: they are entirely protected at all times. Deposits of individual persons and of small and medium size enterprises (SMEs) above € 100 000 a) will benefit from preferential treatment (depositor preference) ensuring that they do not suffer any loss before other unsecured creditors (so they are at the very bottom of the bail-in hierarchy) and b) CPs can use a certain flexibility to exclude them fully. In order to preserve the recovery prospects of a bank and general economic stability, bailing-in will apply up to eight percent of a bank's total assets. In most cases this will see shareholders and many bondholders wiped out. After this threshold is reached, the resolution authority might grant the bank use of the resolution fund; the fund may be accessed up to a maximum of five per cent of that bank's assets. r Thus, the rules support an approach which places the responsibility of covering bank losses on private investors in banks and the banking sector as a whole, to the furthest extent possible, with the view of avoiding, or at least minimizing, moral hazard. In events, such as a systemic crisis, it may be necessary to allow for the use of public funds to finance bank resolution, recourse to government stabilization tools will be possible after the eight per cent bail-in and subject to prior assessment by the EC
. The EC
will evaluate if the economic disturbances and potential threat to the
functioning of the Single Market justify it. Even in these instances, the use
of the resolution fund remains subject to EU State Aid control.
The BRRD Directive is not a single one-for-all operation but the most recent and most significant step to set a single ‘rulebook’ for banking and finance in the EMU, a ‘rulebook’ open to other EU States that intend to become CPs to the banking union. There are stricter rules on hedge funds, short selling and credit default swaps, a comprehensive set of rules for derivatives, a framework for reliable high quality credit rating, reform of the framework for market abuse, and reform of the audit sector.
This is, of course, only a summary of a set of a highly legalistic and highly technical documents intended to harmonize national rules, procedures and practices. It is difficult to say whether the 1ST January 2015 deadline for adoption by all CPs will be met. An assessment of its effectiveness as well as of possible fine tuning and/or revisions can be made only after a few years of operations.
The BRRD provides for realistic timing when successive steps are called for an action or a decision. However, on the assumption that the EMU initial aim were to eventually become an Optimum Currency Area ( OCA) , it is a further departure from this concept.
The main issue is whether and when the ‘book rule’ will mold the actual practices of countries with drastically different deep rooted cultures, especially in finance and banking as shown by a recent quantitative research
( Guiso, Herrera, Morelli, 2013) ,
focusing on the two extreme cases , Germany and Greece. This, of course,
applies to other elements of the banking union, more specifically to the
molding of the cultures of the newly recruited staff by the ECB to handle the
2. The Single Resolution Mechanism (SRM)
As approved on 14 April 2014 by a very large majority, the SRM will have three central elements: the ECB, a distinct Single Resolution Board (SRB) and a Single Resolution Fund (SRF) with resources gradually reaching 55 billion euro .The SRM is to be governed by two texts: a SRM regulation covering the main aspects of the mechanism and an intergovernmental agreement (IGA) related to some specific aspects of the SRF. Centralized decision-making is hoped to be built around a strong SRB (in most document named the 'Board'), made up by permanent members of the ECB, as well as the EC, the Council, and the national resolution authorities. In most cases, when a bank needs to be resolved in the euro area (not merely within the relevant national resolution mechanism) or established in a EU Member State participating in the Banking Union, the ECB will notify the case to the SRB, the EC, and the relevant national resolution authorities. The SRB can meet in two configurations. In its plenary session, the SRB will take all decisions of a general nature and in its executive session, it will take decisions in respect to individual entities or banking groups as long as the use of the SRF remains below a €5 billion threshold.
The ECB supervisors will trigger the whole process, being responsible for deciding whether a bank is on the brink of failing with contagion implications for the entire euro zone not only for a national banking system. The SRB may ask that the ECB takes such a decision . If the ECB declines to do so, then the SRB itself may take the decision. The ECB is therefore the main triggering authority but the SRB may also play a role if the ECB is reluctant to act or hesitates to do so. The EC will adopt draft resolution schemes, action plans drawn up to address a specific case of a failing bank. The Council is to be involved only at the EC’s express request. This is expected to avoid pervasive political interference in individual resolution cases.
It is hoped that the time for taking a decision on a resolution scheme will be short. The EP estimates that following the inter-institutional compromise reached at the end of March 2014
the decision-making process will be streamlined and as consequence, a resolution
scheme could therefore be approved within a weekend, from the closing of the US
markets to their opening in Asia. A system will be established, before the
regulation enters into force, which ought to enable the bank-financed SRF to
borrow on the market. This ought to allow the SRF to increase its firepower (in the EU jargon), an ability
which would be particularly crucial in the first years when the European
resolution fund will only have a small capitalization. There will be a rapid mutualization
of the ‘national compartment’ setup of the fund. Forty percent is to be mutualized
in first year, twenty percent in the second year, the rest equally over a
further six years. The national funds would pool sixty percent of all their
resources by year two.
According to a brief by the Secretariat of the EP, these preventive and curative mechanisms should ensure that taxpayers shoulder negligible bank risk and that banks, like any other business, may make profits but are also first in line to bear their losses; in the worst case scenario, they can be wound up without risking a general financial meltdown.
Would it work speedily and efficiently?
In rough terms, the process can be represented as
such (The Cato Institute, 2013)
As a matter of fact, about a hundred individuals form nearly ten different institutions are involved in the decision process . A paper by Washington-based the Cato Institute depicts the decision making process as labyrinth , more specifically as an Elizabethan times garden maze, a game for the pleasure and enjoyment of aristocrats and high officials with plenty of time to spare, whilst very speedy , indeed, quick decisions are required to help resolve any banking crisis. No doubt, the Cato Institute is an extremist free market think tank, but also other commentators have qualifies as ‘baroque’ the key aspects of the decision making procedure.
In my opinion, the decision making process as now agreed upon by the European authorities is quite unlikely to be handled within the short time span of a weekend when markets are closed. More significantly, together with the bail-in clause, the SRB and its procedure are more likely to act as a deterrent, as a force de frappe, to persuade major banks that there is no free lunch and that rescue, if required, will be mostly at their own cost.
3. The BRRD and the SRM
The BRRD and the SRM ought to be seen as an integrated whole whereby the latter is called upon only if and when the national resolution mechanisms have been , discreetly, tried, but without yielding the expected results and there is the risk of contagion from a national banking crisis to the European banking system. As indicated above in para. 1is to be seen as a the most recent chapter of a ‘rulebook’ aimed at making uniform the national mechanisms and providing for a basic crisis prevention culture in European banking and finance in general.
On its own account, this crisis prevention culture ought to be constructed on a number of pillars: a) when banks get in trouble, private sector should be generally expected to step-in with recapitalization and bail-in by stockholders and bondholders and, if need be, taken over by another private financial institution without State support; b) the least cost principle should guide the resolution authority in deciding on the specific methods and procedures (when the national mechanism provide for a plurality of methodological and procedural approaches); c) private funds for the resolution should be escrowed in advanced by the national private banking system so that, in case of need, they should be made available swiftly ; d) if , as it often the case, crisis affecting banks are macroeconomic in nature and follow asset market downturn, ultimately Government support may be required to support the resolution escrow fund and priority ought be given to helping resolution the most ‘contagious’ financial institutions. Some authors do emphasize the appropriateness of a’ sufficient geographical reach’ in order to ‘foster stability of banks’. Within the euro zone, the ‘appropriate geographical reach’ is the euro zone itself due to the very tight interplay of banking in the euro area. All authors do emphasize that swift decision making is the crucial ingredient of financial crisis management both at the national and the European level.
Two main issues emerge. On the one hand, the BRRD ‘ rule of book ‘ will require time to mould a uniform prevention culture in the euro zone national resolution systems; this is inevitable and is one of the reasons for the long transitional period foreseen before the SRF and the SRB are fully operational. On the other hand, decision making in the SRM (as presently provided) is far from the swift action – oriented method considered required for the individual national mechanisms.
This overview of the SRM is a further indication that the EMU is an on-the-brink union muddling current problems and issues as they come. This raises a broader question: after almost a quarter of a century from the Maastricht Treaty negotiations and after several piece meal adjustments, is it not high time to carry out a comprehensive review of the Treaty to update it to circumstances (such as banking crisis) not foreseen when it was prepared?