Not cleared from scrutiny; further information requested; drawn to the attention of the Treasury Committee
(a) Proposed Directive on loss-absorbing and recapitalisation capacity of credit institutions and investment firms; (b) Proposed Directive as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures; (c) Proposed Regulation concerning aspects of capital requirements
(a) and (c) Article 114 TFEU, ordinary legislative procedure, QMV; (b) Article 53(1) TFEU, ordinary legislative procedure, QMV
(a) (38300), 14777/16 + ADDs 1–2, COM(16) 852; (b) (38303), 14776/16 + ADDs 1–2, COM(16) 854; (c) (38304), 14775/16 + ADDs 1–3, COM(16) 850
2.1The European Commission tabled a technically complex package of proposals in November 2016 to update the EU’s prudential framework for banks. Known collectively as the “Risk Reduction Measures” (RRM), the proposals would bring the current legal framework—the Capital Requirements Directive and Regulation, and the Bank Recovery & Resolution Directive—in line with the most recent international standards.
2.2We set out the substance of the proposals in some details in our previous Reports, most recently on 16 May 2018. In summary, the proposed new prudential requirements for banks under the RRM package would:
2.3In addition, the Commission proposals sought to amend the Bank Resolution & Recovery Directive (BRRD) to:
2.4The UK Government has been broadly supportive of the package of reforms, but it has sought to use the legislative deliberations among Member States within the Council to address concerns over the new moratorium powers to suspend a failing bank’s payment obligation, and the extent to which some Member States were seeking to water down a new international standard of “bail-inable” capital for systemically-important banks (the TLAC standard).
2.5In the context of the UK’s exit from the EU, the Government also opposed a proposed new requirement for large non-EU banks and investment firms with operations in more than one Member State to create an intermediate, independently-capitalised EU-based parent undertaking (IPU) to facilitate group supervision and resolution. This would have a direct impact on UK banks, whose operations within the Single Market would require a larger (and therefore more costly) presence in the EU after the UK loses its ‘passporting’ rights for financial services when it becomes a “third country” (either on 29 March 2019 or at the end of any subsequent post-Brexit transitional period).
2.6We last published a Report on the RRM package , after the Economic Secretary informed us that the then-Bulgarian Presidency of the Council was seeking the adoption of a general approach—the Council’s basis for negotiations with the European Parliament on the final substance of the proposed legislation—at the next meeting of EU Finance Ministers (ECOFIN). We granted a scrutiny waiver allowing the Government to support the general approach, which was at the ECOFIN Council on 25 May.
2.7The European Parliament’s Economic and Monetary Affairs Committee adopted its position on the RRM proposals in June last year, allowing ‘trilogue’ negotiations to start in September 2018. By , the Economic Secretary provided a further update on the state of play in the negotiations between the Member States—represented by the Austrian Presidency of the Council—and the European Parliament on the final legal texts of the RRM measures.
2.8Overall, the Minister noted, there was at that point a preliminary agreement on some “technical issues” but “key differences” between the two institutions remained. In particular, at that stage those included whether to fully implement the new international standards on market risk (the FRTB) at this stage or at some point in the next decade; the rules governing subordination of MREL in the event of a bank failure; the flexibility for national regulators to impose additional micro- and macro-prudential requirements on their domestic banking industry above and beyond the statutory minimum (Pillar 2); and the asset threshold for the requirement for large ‘third country’ banks—including UK ones after its withdrawal from the Single Market—to establish an IPU in the EU for supervision purposes.
2.9In a , dated 17 December 2018, the Minister informed us that the European Parliament and the Council had in the intervening period managed to reach political agreement on most of the outstanding issues in the negotiations. EU Finance Ministers—including the Chancellor of the Exchequer—also at their meeting on 4 December 2018, with formal approval to follow after the legal texts had been finalised and translated, most likely in January 2019.
2.10The substance of the RRM measures, as provisionally agreed between the Parliament and the Council, is described in the next section. Whether this new EU legislation will have force of law in the UK will depend on whether the Withdrawal Agreement is ratified (in which case EU law would continue to supersede domestic law for the duration of a transitional period), and the timing of its formal adoption. We have set out our assessment of the potential implications of the RRM package for the UK banking industry in more detail in paragraphs 19 to 25 below.
2.11With respect to the amendments to the Capital Requirements Directive and Regulation, the Minister writes that the UK has “largely achieved [its] objective on international harmonisation with outcomes broadly consistent with Basel standards or moving towards full implementation in the future”. More specifically, the Parliament and the Council have agreed on the following:
2.12With respect to recovery and resolution of failing banks, the EU negotiations focussed on the framework calibrating the new international TLAC standard into the EU’s MREL rules (both concerned with the level of “bail-inable” capital that banks should have to avoid the need for a taxpayer bail-out if they are at risk of collapse).
2.13The broad agreement on the above issues notwithstanding, the Minister’s letter of 17 December 2018 also indicated that “two important elements” of the package had not yet been resolved: the threshold for exempting smaller banks from restrictions on bankers’ pay, and the date of application of the leverage ratio (the total permitted exposure to debt a bank can take on).
2.14As regards remuneration, the original Commission proposal sought to lift some of the EU’s rules on remuneration for bankers, relating to deferral of bonuses and pay-out in instruments, for companies with less than €5 billion (£4.5 billion) in assets or for staff in any firm with relatively low bonus payments. In June 2017, the then-Economic Secretary (Stephen Barclay MP) that the thresholds in proposal to determine whether the remuneration restrictions applied were not proportionate compared to the existing legislation. In its general approach, the Council “largely retain[ed] the status quo”, given individual Member States the ability to raise or lower the asset threshold (with a maximum of €15 billion), below which banks would be exempted from the pay restrictions. The European Parliament’s position was to fix that threshold at €8 billion (£7.2 billion) in assets, with no flexibility for individual EU countries to vary it.
2.15With respect to the leverage ratio, which limits the total debt exposure which a bank can take on, the Minister previously told us there were differences between the European Parliament and the Council relating to its “technical calibration”. These appear to have been resolved, but discussions are on-going as to whether the new requirement should apply from 1 January 2020 (the Parliament’s position) or from two years after the new Capital Requirements Regulation takes effect, most likely in early 2021 (the Council’s position).
2.16The Economic Secretary has informed us he expects negotiations on these two issues to be concluded in January 2019.
2.17The Minister’s latest letter explained that the Government is broadly supportive of the elements of the agreement between the Parliament and the Council reached so far. Although the UK did not secure all the changes it had sought with respect to the other elements of the RRM package endorsed at the December 2018 ECOFIN Council meeting—especially as regards the IPU requirement for non-EU banks—the Government believed that “it was in the UK’s interest to support the general endorsement at ECOFIN to support progress towards an overall deal which reduces risk and enhances financial stability”.
2.18The UK also stressed at the meeting of EU Finance Ministers in December 2018 “that [the] outstanding areas of the package should be agreed on in line with the Council General approach” (see paragraph 0.x above). The Minister also apologised for the fact the scrutiny clearance was not sought before the Chancellor endorsed the provisional outcome of the trilogue process in December last year, noting that the Austrian Presidency of the Council had amended the agenda for the meeting “unexpectedly” and that “not supporting the compromise would likely have isolated the UK and we could have been viewed as an impediment to progressing risk reduction measures in the EU”.
2.19We thank the Economic Secretary for his recent updates on the EU-level negotiations to modernise Europe’s prudential framework for banks. As the Minister acknowledges in his latest letter, the EU’s new banking legislation remains highly relevant to the UK. We agree, for a number of reasons.
2.20First, it appears likely the new legislation will be formally adopted before the European elections in May 2019. This means the new rules will take effect in stages, mostly before the end of 2022. If the Withdrawal Agreement is ratified, the RRM measures would therefore apply directly in the UK insofar as they become applicable during the post-Brexit transitional period. As the draft Agreement provides for the option of an extension of the transition until December 2022, there is a distinct possibility that many of the elements of the package will become applicable before EU law ceases to take precedence over UK law. The Financial Conduct Authority has warned such an extension could pose a risk to the UK’s financial services industry, given that regulation affecting one of the world’s largest financial centres would be formulated without its domestic regulators’ input and without voting rights for its Government.
2.21The continued supremacy of EU law during the transition would also extend to any regulatory and implementing technical standards which the European Commission is empowered to adopt under the new legislation. Crucially however, although this tertiary legislation would be equally binding on the UK and its banking industry during transitional period, the Treasury and Bank of England would have had no formal role in their formulation (as the UK will lose its institutional representation and voting rights within the EU on 29 March next year).
2.22Secondly, the shape of the RRM package is important—beyond any transitional period—because it could also form part of the regulatory baseline in a future arrangement on financial services with the EU. Under the Political Declaration accompanying the draft Withdrawal Agreement, cross-border trade in financial services between the UK and the EU would be governed by ‘equivalence’, a legal mechanism that allows the European Commission to decide that the supervisory system of a ‘third country’ for a particular sector—like investment services or clearing of derivatives—achieves the same regulatory outcomes as its own. Where such a determination is made, firms from that non-EU country typically either gain preferential market access rights or (as is more common) become more attractive for EU-based financial services providers to do business with (from a regulatory and prudential perspective).
2.23However, equivalence as it currently exists under EU law is limited, both in the sectors that it covers and the rights that it confers on non-EU firms. Under the Capital Requirements Regulation, for example, it is possible for EU banks to obtain prudential reliefs for exposures in third countries considered ‘equivalent’. The assessments of whether the prudential regime of non-EU countries achieves the same outcomes will be affected by the amendments to the Regulation discussed in this Report. (It is also noteworthy that there is no right for non-EU banks to provide banking services, even wholesale, into the EU as a whole on a cross-border basis.) Equivalence is also applied entirely unilaterally, with no right of appeal for the Government if equivalence is not granted or withdrawn.
2.24The Government has accepted the new EU-UK relationship in financial services will be based on equivalence. However, it has insisted that the EU should reform how the mechanism works to accommodate the size of the trade flows in such services between the two sides. The Political Declaration therefore commits the EU to ‘reviewing’ its equivalence frameworks, but without specifying what changes should be made. As we have noted elsewhere, relying on equivalence to preserve UK-EU trade flows in financial services in any event carries the risk that the UK could become a de facto rule-taker in some areas, to avoid losing more market access (since any regulatory divergence could lead to the revocation of equivalence decisions by the European Commission). For this reason, the Government wants the EU’s process for decisions to withdraw equivalence to be reformed as well.
2.25Lastly, the Risk Reduction Measures matter even in a ‘no deal’ scenario because of the recent Financial Services (Implementation of Legislation) Bill. Under this legislation, the Government has proposed to give itself the power to implement a limited number of pending EU proposals on financial services—including the RRM package—into UK law. This would be done by Statutory Instrument in the event of a ‘no deal’ (that is, even if the UK is no longer under an EU legal obligation to apply this legislation, and the provisions of the European Communities Act 1972 have been repealed). The power would exist for two years after ‘exit day’ (29 March 2019), and apply to the EU legislation within its scope irrespective of whether it is adopted at EU-level before or after ‘exit day’. This means that Parliament is being asked to pre-emptively grant the Government the power to implement European legislation which currently exists only in draft form. Moreover, the proposals covered by the Bill could be implemented domestically “with any adjustments the Treasury consider appropriate”. We note in this respect that the Bill could make it considerably easier for the Government to ensure the UK’s prudential regime for banks remains aligned with the EU’s to the extent necessary to obtain equivalence decisions after Brexit, as described above.
2.26The implications for democratic scrutiny of this approach is for Members to consider as the Bill comes to the House of Commons. The question of democratic oversight when EU law is implemented in this way following withdrawal is probably less problematic for the RRM package, given that the final substance will most likely be known before ‘exit day’, and explicitly endorsed by the Government in the Council of Ministers subject to the scrutiny of this Committee throughout the legislative process. The same cannot be said for a number of other pending EU proposals covered by the Bill. Some of these, including the investment firm review, the European Markets Infrastructure Regulation revision and the European Supervisory Authorities review—are still subject to intensive negotiations at EU-level, meaning it is far from clear what the eventual substance of those laws will be. The Government’s approach, if accepted by Parliament, will therefore require a commensurate level of scrutiny, as the Treasury is effectively asking for the ability to implement EU legislation that does not yet exist by means of regulations.
2.27As regards the substance of the RRM package itself, we have decided to retain it under scrutiny until the remaining issues around the leverage ratio and the thresholds determining the application of pay restrictions in banks are resolved in the Council’s discussions with the European Parliament. We are content with his explanation for the Government’s unexpected override of scrutiny in December when endorsing the partial agreement on the Risk Reduction Measures, given the fluidity of the negotiations and the last-minute changes to the agenda for the ECOFIN Council that month.
2.28We also draw the attention of the Treasury Committee to this Report, in light of its potential impact of the new EU banking legislation during the post-Brexit transitional period and the inclusion of the Risk Reduction Measures in the scope of the Financial Services (Implementation of Legislation) Bill.
(a) Proposed Directive on loss-absorbing and recapitalisation capacity of credit institutions and investment firms: (38300), + ADDs 1–2, COM(16) 852; (b) Proposed Directive as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures: (38303), + ADDs 1–2 COM(16) 854; (c) Proposed Regulation concerning aspects of capital requirements: (38304), + ADDs 1–3, COM(16) 850.
Twenty-fifth Report HC 71–xxiii (2016–17), (22 February 2017); First Report HC 301–i (2017–19), (13 November 2017); Fifteenth Report HC 301–xv (2017–19), (27 February 2018); Seventeenth Report HC 301–xvii (2017–19) (7 March 2018); and Twenty-eighth Report HC 301–xxvii (2017–19), (16 May 2018).(11 January 2017); Thirty-second Report HC 71–xxx (2016–17),
7 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.
8 on prudential requirements for credit institutions and investment firms.
9 establishing a framework for the recovery and resolution of credit institutions and investment firms.
10 These international standards are set by the Basel Committee and the Financial Stability Board.
11 See for example our Reports of and .
12 The European Commission has that instruments that banks hold for trading, such as shares, bonds, or derivatives, “are usually subject to volatility, which has a daily impact on banks’ profits and losses”. Consequently, sudden drops in the value of these instruments may damage the solvency position of banks. This justifies a specific prudential regime for these instruments (the so-called ‘trading book’), which is different from that applicable to other instruments, such as loans (the so-called ‘banking book’).
13 In this context, ‘own funds’ refers to funds available to a bank that allows it to absorb losses in a going or in a gone concern situation. The Capital Requirements Regulation (CRR) sets out the characteristics and conditions for own funds, backed up by further regulatory technical standards developed by the European Banking Authority.
14 Under the current Capital Requirements Directive, the Pillar 2 framework is a set of provisions that give competent authorities the discretion to impose additional capital requirements and other precautionary measures where, in the authorities’ assessment, statutory prudential requirements fail to capture (in full or in part) certain risks of a bank or the sector as a whole. The Commission had proposed to remove the ability of regulators to impose macro-prudential pillar 2 requirements, limiting their competences only to micro-prudential (i.e. firm-specific) pillar 2 interventions. The UK uses macro-prudential interventions, like the cap on loan-to-income ratios for mortgages. The Commission had wanted to remove the ability for Member States to use the Pillar 2 capital add-ons for macroprudential reasons, arguing that they are meant to be “institution-specific measures that should be used to address risks to which an institution is exposed”.
15 The so-called “bonus cap”, which limits bankers’ bonuses to 200 per cent of their fixed salary, would not be affected by this new exemption.
16 The based in the EU as of November 2017 are BNP Paribas, Crédit Agricole and Société Générale (France); Deutsche Bank (Germany); Unicredit (Italy); ING (the Netherlands); Santander (Spain); and Barclays, HSBC and Standard Chartered (UK).
17 The BRRD established the “Minimum Requirement for own funds and Eligible Liabilities” (MREL). This requires national resolution authorities to fix a firm-specific level of liabilities that can be readily “bailed-in”, such as deposits, to absorb losses based on their firm-specific risk profile, while also remaining compliant with the prudential requirements that underpin their authorisation. MREL applies to any bank authorised by an EU financial regulator, but there is no minimum “floor” that must be used for all institutions. Separately however, the Financial Stability Board (FSB) developed the international Total Loss-Absorption Capacity (TLAC). This sets an 18 per cent minimum proportion of the risk-weighted assets of global systemically-important banks (“G-SIIs”) that must be readily bail-inable in the event of bank failure. As TLAC and MERL have the same regulatory objective, the Commission proposed to incorporate the TLAC standard into EU law by requiring EU-based G-SIIs to hold a statutory (Pillar 1) minimum MREL equivalent to the TLAC standard. It would also allow national resolution authorities to impose firm-specific additional (Pillar 2) MREL requirements on G-SIIs. The existing MREL requirements for other (smaller) banks would remain substantially the same. The Commission proposal would make “appropriate technical amendments” to the existing MREL for non-G-SIBs, in order to “align them with the TLAC standard as regards inter alia the denominators used for measuring loss-absorbing capacity, the interaction with capital buffer requirements, disclosure of risks to investors and their application in relation to different resolution strategies”.
18 Article 55 of the BRRD requires banks to include a clause in a large number of contracts governed by non-EEA law, acknowledging that the contract may be subject to the bail-in powers of the EU resolution authority. This requirement currently has a very broad scope, leading banks to raise concerns that it was “extremely difficult and costly to implement and extends to contracts which would be unlikely to be bailed-in”. The Commission proposal amends Article 55 so that it need not apply in instances of “legal, contractual and economic impracticability”.
19 submitted by HM Treasury (20 December 2016).
20 The Commission proposed a new moratorium tool allowing resolution authorities to suspend the payment obligations of a failing bank for a short period of time during both the early intervention phase (when a bank might still recover) and during resolution (when it is no longer viable). The rationale is that such a moratorium allows the authorities to evaluate the bank’s assets and liabilities, and implement an appropriate resolution strategy. The moratorium would not apply to deposit-holders wishing to withdraw deposits covered by their national Deposit Guarantee Scheme. The UK has consistently opposed this element of the proposal, amid concerns that an extended moratorium could have a significant economic impact and “risks undoing international progress to address the risk of cross-border termination of contracts in resolution”, such as the Universal Stay Protocol elaborated by the Financial Stability Board.
21 Given the dominant position of UK banks within the EU’s financial system, the European Commission has linked this part of its proposal explicitly to the EU’s “preparedness” for Brexit.
22 An earlier attempt to secure a general approach at an ECOFIN meeting in March 2018 was unsuccessful because there was no agreement yet on several outstanding issues. See for more information our Report of 16 May 2018.
24 Market risk prudential requirements mean banks have to hold more regulatory capital to compensate for any substantial exposure to securities and derivatives. In this context, the FRTB sets an “own funds” requirement, which refers to funds that are available to a bank which allow it to absorb losses in a going or in a gone concern situation. The Capital Requirements Regulation (CRR) sets out the characteristics and conditions for own funds, backed up by further regulatory technical standards developed by the European Banking Authority.
25 , p. 9. This proposal, which is intended to be published by June 2020, would be subject to the ordinary legislative procedure between the Council and the Parliament in its own right.
26 The Government had particular concerns as regards the “design and calibration of the additional capital requirements” for banks not considered globally systemically-important but which nonetheless pose a potential financial stability risk (‘other systemically-important institutions or O-SIIs). O-SII banks are institutions that are not considered systemically important at international level, but are systemically important within the banking system of an individual EU country. They are subject to specific additional capital requirements, which is capped under EU law. The Council wanted to increase this cap so that Member States have more flexibility to impose higher prudential requirements where considered necessary.
27 The ‘supporting factor’ in Article 501 CRR allows banks to hold less regulatory capital against exposures related to SMEs or infrastructure projects. The amendments to the Capital Requirements Regulation now agreed would increase the total loan size to an individual SME for which this applies to €2.5 million (up from €1.5 million), and expand the list of eligible infrastructure projects.
28 Although the UK opposed this in view of its impact on British banks after Brexit, both the remaining Member States and European Parliament agreed there should be such a requirement. However, they had different views on its scope and the date it should take effect. The Parliament had wanted it to apply to banking groups with €30 billion or more in assets held in the EU, versus €40 billion for the Council. The Parliament also wanted the IPU requirement to apply to any G-SIIs with two or more subsidiaries in the EU, irrespective of their total assets. The Council called for a four year transitional period for the IPU requirement after the amended Capital Requirements Directive has begun to apply, which itself would be 18 months after it is formally adopted by the Parliament and Council.
29 The European Parliament had wanted to cap the amount of MREL—that is to say, bail-inable liabilities that must be issued by an institution to meet the statutory safety net—at 18 per cent of risk-weighted assets. This was opposed by the UK, which has argued that it “does not give resolution authorities the flexibility to require a higher level of subordination to deliver the preferred resolution strategy”.
30 Under Article 92(2) of the Capital Requirements Directive, the remuneration restrictions can be applied by Member States to banks ‘in a manner and to the extent that is appropriate to their size, internal organisation and the nature, scope and complexity of their activities’. In practice, this has meant that most Member States in their territory with a balance sheet below a certain threshold (which varies country-by-country). The Commission proposal was aimed at eliminating divergent practices and setting a common threshold for the waiver.
31 from Stephen Barclay MP to Sir William Cash MP (23 January 2018).
32 Under the Council’s version of Article 94 of the Capital Requirements Regulation, Member States could vary the threshold in terms of total assets of a bank which determines whether the remuneration restrictions would apply. Whereas the Commission proposal set this at €5 billion (£4.5 billion), the Council text would allow each EU country to set a threshold up to €15 billion (£13.5 billion) or anywhere below it.
33 The so-called “bonus cap”, which limits bankers’ bonuses to 200 per cent of their fixed salary, would not be affected by this new exemption.
34 from John Glen MP to Sir William Cash MP (8 November 2018).
35 See Article 3 of the on amendments to the Capital Requirements Regulation, which would set the entry into force of the leverage ratio—which is contained in point 39—to 1 January 2020.
36 Initially, Finance Ministers had been due to take note of a progress report on the negotiations with the European Parliament, rather than offering a political endorsement for the outline of the deal reached on the new legislation.
37 The transposition date for the new Capital Requirements Directive would be 18 months after formal adoption of the Directive, which is likely to be in early 2019. That puts the deadline for transposition into domestic law in late 2020.
38 (29 November 2018).
39 Decisions taken by the European Commission relating to equivalence need to be approved by a qualified majority of Member States. Once it ceases to be an EU Member State and the transitional period is finished, the UK will be able to take its own ‘equivalence’ decisions to govern access to the UK market for financial services.
40 For example, EU banks can generally hold less capital against exposures to other banks in ‘equivalent’ jurisdictions. See for more information ““ by UK Finance (accessed 20 December 2018).
41 See Articles 107(4), 114(7), 115(4), 116(5) and 142(2) of the .
42 In absence of such changes, cross-border market access into for credit institutions is on a country-by-country “host state rules” basis. Other sectoral EU financial services legislation can theoretically grant ‘passport-like’ rights to non-EU firms on the basis of equivalence, notably for investment services (MiFIR) and hedge funds (AIFMD).
43 At some point in 2018, the Government abandoned its earlier proposals for default mutual recognition of regulatory standards by both the UK and Europe, which would have lead to automatic market access for most, if not all, financial services regulated at EU-level.
45 This Bill is effectively analogous to section 2 of the European Communities Act 1972, which empowers the Government to implement EU law by means of Statutory Instruments even where it would otherwise require primary legislation. However, the Financial Services Bill is limited in both time and scope.
46 We discussed the Investment Firm Review in our .
47 See our for more information on the proposed amendments to EMIR.
48 See our for more information on the European System of Financial Supervision.
Published: 15 January 2019