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Patterns of Networked Enforcement in the European System of Financial Supervision: What is the New Role for the National Competent Authorities?

  • Federica CACCIATORE

Abstract

Enforcement of the European System of Financial Supervision (ESFS) has undergone a three-step process over time, leading it to a current networked configuration of powers and tasks between the EU and the national competent authorities (NCAs). In light of this, this paper has a twofold aim. First, it analyses the actual configuration of enforcement mechanisms in the ESFS, arguing that different patterns emerge across the three branches (banks, securities markets and insurance): as governance becomes more complex in terms of number of actors and functions, verticalisation of enforcement increases. Second, by taking into account the three Italian competent authorities, it assesses the concrete changes occurred both in organisation and in perceived effectiveness, through quantitative data and qualitative surveys. It therefore argues that the more institutionalised and verticalised is the enforcement governance, the less reluctant will NCAs be to transfer shares of their enforcing powers to the EU level and to change their practices and organisational structures concretely, according to harmonisation requirements by the European supervisory authorities and the European Central Bank.

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Corresponding author

*Tuscia Univeristy, email: f.cacciatore@unitus.it.

References

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5 Communication from the European Commission, “EU law: Better results through better application” (2017/C 18/02), OJEU 19/01/2017.

6 Scholten, M, “Mind the Trend! Enforcement of EU law has been moving to Brussels” (2017) 24(9) Journal of European Public Policy 1348 ; Scholten, M et al, “The proliferation of EU enforcement authorities: a new development in law enforcement in the EU” in Scholten, M and Luchtman, M (eds), Law Enforcement by EU Authorities. Implications for Political and Judicial Accountability (Cheltenham, Edward Elgar 2017) p 1 .

7 Drake, S and Smith, M (eds), New Directions in the Effective Enforcement of EU Law and Policy (Cheltenham, Edward Elgar 2016); Mastenbroek and Martinsen, supra, note 4.

8 Smith, M, “The visible, the visible and the impenetrable: innovations or rebranding in centralised enforcement of EU law?” in Drake and Smith, supra, note 7, p 45 .

9 But see García Quesada, M, “The EU as an ‘enforcement patchwork’: the impact of national enforcement for compliance with EU water law in Spain and Britain” (2014) 34(2) Journal of Public Policy 331 . More evidence from the national level mostly relates to NCAs’ autonomy (Yesilkagit, supra, note 3); Danielsen, OA and Yesilkagit, K, “The effects of European regulatory networks on the bureaucratic autonomy of national regulatory authorities” (2014) 14(3) Public Organization Review 353 ; Eberlein, B and Newman, AL, “Escaping the international governance dilemma? Incorporated transgovernmental networks in the European Union” (2008) 21(1) Governance 25 ; Bach, T and Ruffing, E, “Networking for autonomy? National agencies in European networks” (2013) 91(3) Public Administration 712 .

10 Kassim, H, “The European Administration: Between Europeanization and Domestication” in Hayward, G and Menon, A (eds), Governing Europe (Oxford, Oxford University Press 2003) p 139 .

11 Scholz, JT, “Voluntary compliance and regulatory enforcement” (1984) 6 Law & Policy 385 .

12 European Commission, Monitoring the application of European Union law (European Union 2018). See also della Cananea, G, “Italy” in Kassim, H et al (eds), The National Co-ordination of EU Policy. The Domestic Level (Oxford, Oxford University Press 2000) p 99 .

13 The scope of the word enforcement is arguable: often political scientists and public officials tend to encompass more phases of the process, from monitoring to investigation to the final decision, which may not necessarily result in a sanction. Legal scholars, on the contrary, have tended so far to refer to enforcement only with regard to the final sanctioning phase (the last visible stage, according to Smith, supra, note 8).

14 Meyer, JW and Rowan, B, “Institutionalized Organizations: Formal Structure as Myth and Ceremony” (1977) 83(2) The American Journal of Sociology 340 .

15 See eg García Quesada, supra, note 9.

16 Painter, M and Peters, BG (eds), Tradition and Public Administration (Basingstoke, Palgrave 2010); Peters, BG, Comparing Public Bureaucracies: Problems of Theory and Method (Tuscaloosa, University of Alabama Press 1988); Knill, C, The Europeanisation of National Administrations: Patterns of Institutional Change and Persistence (Cambridge, Cambridge University Press 2001).

17 Simon, HA, Administrative Behaviour (2nd edn, New York, Macmillan 1957); March, JG and Olsen, JP, “The New Institutionalism: Organizational Factors in Political Life” (1984) 78(3) The American Political Science Review 734 ; Zucker, LG, “The Role of Institutionalization in Cultural Persistence” (1977) 42(5) American Sociological Review 726 .

18 Knill, supra, note 16, p 4.

19 Meyer-Sahling, J-H and Yesilkagit, K, “Differential legacy effects: three propositions on the impact of administrative traditions on public administration reform in Europe East and West” (2011) 18(2) Journal of European Public Policy 311 .

20 Levi-Faur, supra, note 2, p 811.

21 Committee of European Banking Supervisors (CEBS), Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS) and Committee of European Securities Regulators (CESR). See Coen, D and Thatcher, M, “Network governance and multi-level delegation: European networks of regulatory agencies” (2008) 28(1) Journal of Public Policy 57 .

22 The ESFS also includes the Joint Committee of the ESAs. ESAs’ founding regulations are, respectively: for EBA, Regulation (EU) no 1093/2010; for EIOPA, Regulation (EU) no 1094/2010; for ESMA, Regulation (EU) no 1095/2010 of the European Parliament and of the Council of 24 November 2010.

23 Scholten, supra, note 6; Scholten et al, supra, note 6.

24 Recital 5 of ESAs’ founding Regulations. ESMA took over supervisory competences on CRAs on 1 July 2011, and since 1 January 2013 on TRs. CESR had already established a dedicated task force in 2010: ESMA, Annual Report 2011 (Paris, European Securities and Markets Authority 2012).

25 Art 23(d) of Regulation (EU) no 513/2011 of the European Parliament and of the Council of 11 May 2011 amending Regulation (EC) no 1060/2009 on credit rating agencies.

26 Regulation (EU) no 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories.

27 EBU involves the Euro-area and the States agreeing to join it.

28 Art 127(6) TFEU, establishing the Single Supervisory Mechanism (SSM), one of EBU’s three pillars.

29 EIOPA, Discussion paper on potential harmonisation of recovery and resolution frameworks for insurers, EIOPA-CP-16/009, 02/12/2016.

30 EIOPA, Opinion to institutions of the European Union on the harmonisation of recovery and resolution frameworks for (re)insurers across the Member States, EIOPA-BoS/17-148, 05/07/2017.

31 EIOPA, Annual Report 2016 (Fankfurt: European Insurance and Occupational Pensions Authority 2017) p 81.

32 European Commission, COM(2017) 536 final, 2017/0230 (COD), Brussels, 20/09/2017.

33 European Commission, Reflection paper on the deepening of the Economic and Monetary Union, COM(2017) 291 final, Brussels, 31/05/2017, 20.

34 J Deslandes and M Magnus, Money Laundering – Recent cases from a EU banking supervisory perspective, European Parliament, Economic Governance Support Unit (EGOV), Directorate-General for Internal Policies, PE 614.496 – September 2018.

35 Regarding the role of the European Parliament, see <www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_2.6.14.html>.

36 Eg the Commission, in October 2012, integrated rules of procedure for the exercise of ESMA’s power to impose fines or periodic penalty payments to CRAs (Commission Delegated Regulation (EU) No 946/2012, of 16 October 2012).

38 The ECB was endowed with a general sanctioning power by Regulation (EC) no 2532/1998.

39 In the EU’s view, CRAs play a crucial role in financial markets, as their credit ratings are used by several market participants (investors, borrowers, issuers, governments) to form investment and financing decisions, so they impact significantly on the operation of financial markets and on the trust and confidence of investors and consumers. Therefore, it was decided to lay down specific rules for them, allowing the introduction of a common regulatory approach to ensure that CRAs are conducted EU-wide based on integrity, transparency and good governance principles: ESMA, ESMA’s Report on the Supervision of Credit Rating Agencies, ESMA/2012/207 (Paris, European Securities and Markets Authority 2012). The choice to entrust the ESAs (and, specifically, the ESMA) with direct supervisory powers towards CRAs was based on the Brussels European Council Presidency conclusions of 18/19 June 2009, 11225/2/09 Rev 2, paras 20–21: see M van Rijsbergen and J Foster, “Rating ESMA’s accountability: ‘AAA’ status” in Scholten and Luchtman, supra, note 6, p 53.

40 European Commission (2014), Report on the operation of the European Supervisory Authorities (ESAs) and the European System of Financial Supervision (ESFS), COM(2014) 509 final, Brussels, 8 August 2014, p 6; European Parliament – DG for Internal Policies, Review of the New European System of Financial Supervision (ESFS). Part 1: The work of the European Supervisory Authorities (EBA, EIOPA and ESMA), IP/A/ECON/ST/2012-23, October 2013. See also ESAs’ annual reports. The same applies to ECB, whose annual reports account for an ever-growing supervisory activity since its establishment in November 2014.

41 Banca d’Italia, Relazione sulla gestione e sulle attività della Banca d'Italia (Rome, Banca d’Italia 2017) p 25 .

42 ibid, p 24.

43 ibid, p 7.

44 Regarding significant banks, the Bank cooperates with the ECB over the whole enforcement cycle: ibid, p 85.

45 They were asked, “Do you think your office and resources are adequate to manage the workload deriving from the current European governance for the enforcement of EU regulation?” and were given the opportunity to choose one of five possible answers: “totally understaffed”; “partially understaffed”; “adequate”; “partially overstaffed”; and “totally overstaffed”.

46 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, OJ L 287, 29.10.2013, 63–89.

47 C Barbagallo, La vigilanza bancaria unica: sfide e opportunità, Intervention at the Workshop on Unione Bancaria e Basilea 3 – Risk & Supervision 2015 (Rome 23 June 2015).

48 Banca d’Italia, Relazione sulla gestione e sulle attività della Banca d'Italia (Rome, Banca d’Italia 2018) p 43 .

49 In 2015–2016 alone it had to implement over 700 guidelines under Solvency II: IVASS, Relazione sull’attività svolta dall’Istituto nell’anno 2016 (Rome, Istituto per la vigilanza sulle assicurazioni 2017).

50 IVASS, Relazione sull’attività svolta dall’Istituto nell’anno 2016 (Rome, Istituto per la vigilanza sulle assicurazioni 2017) p 163 .

51 ibid.

52 IVASS, Relazione sull’attività svolta dall’Istituto nell’anno 2015 (Rome, Istituto per la vigilanza sulle assicurazioni 2016) p 157 .

53 IVASS, Relazione sull’attività svolta dall’Istituto nell’anno 2014 (Rome, Istituto per la vigilanza sulle assicurazioni 2015) p 144 (own translation).

54 Since 2014, the Institute has also carried out onsite inspections for anti-money laundering and counter-terrorist purposes.

55 IVASS, Relazione anno 2015, supra note 52, p 200 (own translation).

56 IVASS, Relazione sull’attività svolta dall’Istituto nell’anno 2016 (Rome, Istituto per la vigilanza sulle assicurazioni 2017) p 202 (own translation).

57 ibid, p 193.

58 Amendment to Legislative decree no 209/2005 (Codice delle assicurazioni private) adding Art 325-quater.

59 IVASS, Relazione sull’attività svolta dall’Istituto nell’anno 2017 (Rome, Istituto per la vigilanza sulle assicurazioni 2018) p 148 .

60 Art 18 of Regulation no 1095/2011.

61 CONSOB, Relazione per l’anno 2011 (Rome, Commissione Nazionale per le Società e la Borsa 2012).

62 Legislative decree no 6/2015.

63 ESMA, Annual Report 2011, supra, note 24.

64 See eg International Monetary Fund, Italy – Detailed assessment of observance of IOSCO objectives and principles of securities regulation, IMF Country Report no 13/353 (2013). IMF’s recommendations to CONSOB were to increase onsite inspections and use all sanctioning tools at its disposal. Regarding anti-money laundering and counter-terrorist financing measures, a major remark was about the need to improve ex ante control and prevention measures: Financial Action Task Force, Anti-money laundering and counter-terrorist financing measures – Italy, Fourth Round Mutual Evaluation Report (Paris, FATF 2016).

65 Cf data reported in CONSOB’s annual reports (2011–2018).

66 CONSOB, Relazione per l’anno 2013 (Rome, Commissione Nazionale per le Società e la Borsa 2014) p 16 (own translation; emphasis added).

67 See eg Hofmann, supra, note 2.

68 CONSOB, Relazione per l’anno 2013, supra, note 66.

69 CONSOB, Relazione per l’anno 2014 (Rome, Commissione Nazionale per le Società e la Borsa 2015) p 12 (own translation).

70 ibid (own translation).

71 CONSOB, Relazione per l’anno 2015 (Rome, Commissione Nazionale per le Società e la Borsa 2016) p 13 . CONSOB argued that the new European approach has a strong impact on the reorganisation of tasks and roles conferred to the NCAs, which, due to the former, would no longer be based only on the national regulation but directly on EU regulations. Moreover, secondary legislation became widely used, according to which the Commission is conferred specific powers to issue regulatory technical and implementing standards. Given the variety of themes involved, ESMA is often entrusted the power to establish its contents, and it usually adopts better regulation tools to improve effectiveness. This would require a contextual update of the national legislative framework at various levels, thus causing overlaps and mutual interferences between primary and secondary norms: ibid.

72 In light of the new policy, in November 2018 ESMA published its first annual report concerning administrative and criminal sanctions issued by NCAs under the Market Abuse Regulation. See <www.esma.europa.eu/sites/default/files/library/esma70-145-1081_mar_article_33_report_sanctions.pdf>.

73 Huntington, S, Political Order in Changing Societies (New Haven, Yale University Press 1968).

74 Painter and Peters, supra, note 16; Peters, supra, note 16.

75 Due to which the standard institutional response to pressures for change is to fetch routines from the existing familiar repertoire: March, JG and Olsen, JP, Rediscovering Institutions (New York, Free Press 1989) p 34 .

76 Whatever participation in EU processes causes some change within national boundaries, although Europeanisation is not as simple as once intended: see EC Page, “Europeanization and the Persistence of Administrative Systems” in Hayward and Menon, supra, note 10, p 170.

Patterns of Networked Enforcement in the European System of Financial Supervision: What is the New Role for the National Competent Authorities?

  • Federica CACCIATORE

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