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УДК 34:[338.246.025.2:336](4) DOI 10.12737/5641
Получено 04.03.2014 Одобрено 06.03.2014 Опубликовано 17.09.2014
Моника Шаранец
д-р юрид. наук, доцент, Краковский университет экономики, Польша, Краков
e-mail: szaraniecmonika@gmail.com
Правовой статус механизмов контроля финансового рынка в Европейском Союзе - избранные ограничения
Аннотация
В статье проведен анализ характерных особенностей механизмов контроля как части общего регулирования единого финансового рынка ЕС. До конца 2010 финансовый, процедурный и организационный аспекты контроля своих финансовых рынков входили в компетенцию государств - членов ЕС. В настоящее время Европейская Система Финансовых Инспекторов (ESFS) и функционирующие в ее структурах органы ЕС имеют право на принятие решений, обладающих прямой юридической силой по отношению к контролируемым организациям, иначе говоря, являются органами контроля действующих на рынке финансовых учреждений. Европейские контролирующие органы (ESA) отныне имеют возможность разрабатывать проекты обладающих юридической силой технических стандартов (BTS), подлежащих одобрению Европейской комиссией и обязательных для непосредственного применения во всех государствах-членах ЕС.
Ключевые слова:
финансовый рынок, макропруденциальный контроль, микропруденциальный контроль, стабильность.
Monika Szaraniec
Doctor of Laws, Assistant Professor, Cracow University of Economics, Poland, Cracow
e-mail: szaraniecmonika@gmail.com
Legal Nature of Supervisory Instruments above the Financial Market in the EU — Chosen Issues
Abstract
In the article taken analysis of character of supervisory instruments was as part of uni-form financial markets the EU applied by EU organs of the supervision. To the end of 2010 the supervision of financial markets constituted the control domain of Member States in the financial, procedural and organizational aspect. At present European Sys-tem of Financial Supervisors (ESFS) and organs acting in his structures of the EU su-pervision have a right to issuing decisions of superintendents directly binding supervised entities, that is organs of the supervision and financial institutions acting on the market. A possibility of drawing up by European Supervisiory Authorities (ESA) is a special standard solution of projects binding technical standards (BTS) being subject to approving by the European Commission and having a power of direct being applicable in all Member States.
Keywords:
financial market, supervision macroprudential, supervision microprudential, security, stability.
Introduction
In market economies providing for the stability markets is a basic aim of the supervision of the financial market (bank, insurance, investment), safeties of the turnover and confidences of his participants . In the initial phase of functioning of the single market the primary importance had the EU implementing common standards for taking, acting and finishing of activities of the institutions financial and concerning the unification of norms the supervision in this respect . At present however a similarity is also gaining the more and more great significance in the process of applying the law Additionally amendments to the law in the supervision increasingly are taking the influence on the stability into account not that much of individual states, as the entire EU
Existing legal norms determining the organizational structure and legal forms of action of organs of the supervision of the financial market by virtue of directives of the European Parliament and European Council, let organs of the supervision until recently domestic to taking the dissimilarity of domestic financial markets into account and implementing statutory instruments appropriate to national needs and at the same time accomplishing purposes of these directives . However it turned out that supervision based on domestic models wasn't keeping up with the globalization on the financial market, where markets are integrated and combined Financial institutions activity because conducted in many countries, according to the principle of the uniform permission . The changing situation on financial markets appointed the need from one side of introducing the
new type of the supervision of all market segments financial i . e . of the supervision macroprudential, on the other changes of existing solutions in the current supervision of the financial market . As part of the current supervision peculiarly an issue of the tuning of instruments of the prudent, applying supervision turned out to be the sensitive element of this surveillance system above all solvencies of financial institutions . Regulations prudent, imposing an obligation of the effective risk management and caring about the safety to financial institutions along with the prudent supervision being supposed to verify warning prudent regulations and monitoring the financial stability, this preventing being aimed at instruments crises on the financial market [1, pp . 339].
The financial crisis revealed material defects in the financial control, where it was hard to anticipate negative changes about character macroprudential, and effectively to prevent the accretion of exaggerated risks within the financial system And so conducting the reform of the system being in force, being aimed at an establishment of a system of the solvency taking the risk profile into account financial institutions are exposed to which became necessary in relation to conducted activity
Changes in the structure of the supervision of
the financial market of the European Union
The stability of the banking, insurance and investment is playing the key part in ensuring the stability and safeties of the financial system of individual states, as well as the EU . additionally the financial crisis revealed material defects in the financial control which wasn't able to predict of negative changes about character supervision macroprudential and to prevent the accretion of exaggerated risks within the financial system the EU [2, pp . 258-261].
Moreover all statutory instruments as part of the current supervision concerned only a micro scale and didn't include having an influence on the entire financial system in the EU . One should insert instruments of the supervision macroprudential . In November 2008 the European Commission commissioned to the high level group under the chairmanship of Jacques (former director-general of the International Monetary Fund), drawing recommendations up for the commission on enhancing European solutions in the supervision so that better protect citizens and restore the confidence in the financial system . With effect of works of the group in order to final report presented on 25 February 2009 [3].
It contained the balanced and pragmatic conception of the new European system of the financial control, in which they found the centre oneself proposals to improve
the cooperation and the coordination between domestic organs of the supervision, in it through creating new European organs of the supervision and for the first time of subject of supervising on the European rung burdened with the task threats, to which the exposed financial system is as the whole [4, pp . 306-307]. From now on so the prudent supervision is appearing in two areas, which they have an interaction, i e
supervision macroprudential,
supervision microprudential
Microprudent supervision forms the European System of the financial control — ESNF (European System of Financial Supervisors — ESFS) consisting of networks of domestic organs of the financial control cooperating with new European organs of the supervision . European Supervisiory Authorities (ESA) are: European Authority Banking (EBA), European Securities and Markets Authority (ESMA), and European Insurance and Occupational Pensions Authority (EIOPA) . ESA comprises from others the bosses of domestic organs of the supervision of financial markets and representatives of the national central banks of Member States are creating ESA composition the EU, as well as representatives of the European Central Bank and the European Systemic Risk Board (ESRB) . ESA being on the alert above the financial stability on the level of individual entities of the financial market and the consumer protection of financial services are . ESA is relying on the division of duties and their mutual strengthening, combining the domestic supervision of financial institutions and the centralization of concrete tasks on the European level, in order to promote the harmonization of provisions, as well as cohesive supervisory practice and of accustoming them . Increasing trusting between domestic organs of the supervision, among others by seeing to it that organs of the supervision of the assuming Member State have a proper participation in defining of the policies concerning the financial stability and consumer protections are supposed to be a purpose of the supervision, enabling the more effective counteraction in the process for cross-border threats [5, pp . 136].
Supervision macroprudential was entrusted the new European entity i e the European Systemic Risk Board (ESRB), by virtue of the regulation of the European Parliament and Advice of No . 1092 / 2010 [6] which is supposed to monitor and to assess wholes threats to the stability of the financial system . ESRB takes the supervision of systemic risks in the EU, both within sectors of the market and the financial market of the EU as a whole and connects the macro-prudential oversight of micro-prudential [7, pp .138], acting on the decision-
makers and other supervisory authorities through binding legal instruments , and pursuant to authority [5, pp . 232] . ESRB consists among others of the chairman of the European Central Bank (chairmen of ESRB) and of the EBC vice-chairman, as well as domestic representatives of organs of the supervision of financial markets and depending on the model being applicable in a given Member State of the supervision — representatives of the audit
ESRB is a body monitoring market, which in the case of threat contacts with the Council, which, in turn, must assess the need to adopt a decision addressed to national supervisory authorities [1, pp . 341].
The opposite situation can be observed in relation to the representatives of the national central banks of the EU Member States and the European Central Bank, participating in the work of the ESRB and its internal bodies They have a significant impact on the decisions taken by the ESRB, which is related to the scope of their assigned tasks of the ESRB and their natural activities undertaken in the financial market within the European System of Central Banks (ESCB) [9]. They are pointing, that primary importance for the supervision macropru-dential she will have activity of the European Central Bank and the central banks, since they have an expert knowledge at their disposal and duties lie already with them in the financial stability
ESRB is a part ESNF. ESNF comprises from: ESRB, the European Office of the Supervision (European Office of the audit) established under the regulation (the EU) No . 1093/2010, European Office of the Supervision (European Office of the Supervision of Insurance and Employee pension schemes) established under the regulation (the EU) No . 1094/2010, European Office of the Supervision (European Office of the Supervision of stock exchanges and securities) established under the regulation (the EU) No . 1095/2010, Common Committee of European Offices of the Supervision (Common Committee) predicted in Art 54 regulations (the EU) No . 1093/ 2010, Art . 54 regulations (the EU) No . 1094 / 2010, and in Art. 54 regulations (The EU) No. 1095/2010, competent authorities or supervisory bodies of Member States determined in tying legally EU records which are being talked about in Art 1 sec 2 regulations (the EU) No . 1093 / 2010, Art . 1 sec . 2 regulations (the EU) No . 1094/2010 and in Art. 1 sec . 2 regulations (the EU) No . 1095/2010.
Legal nature of instruments of the
supervision macroprudential
Interference macroprudential measures based on the ESRB, because it is responsible for the supervision
macroprudential of the financial market in the EU in order to contribute to the prevention of systemic risks to financial stability in the EU, which appear in connection with the events within the financial system or reduce these risks taking into account changes in mac-roeconomic nature, so as to avoid periods of widespread financial distress This surveillance is associated with micro-supervision due to the fact that the ESRB is comprised of national supervisory authorities, although the ESRB is not making power in relation to them . Macroprudential instruments are not directly addressed to the active participants in the market, ie financial institutions and financial intermediaries Their characteristic feature is that they have an impact on a large scale, thus addressed to the national supervisory authorities, or the European Supervisory Authorities, or to a particular Member State
ESRB is contributing to the smooth functioning of the internal market and in the process a long-lasting contribution of the financial sector to the growth in the economy assures For the accomplishment of above ESRB tasks among others:
1) identifying or is collecting as well as is analysing the material and essential all information
2) for the realization of purposes mentioned above;
3) identifying system risks;
4) issuing warnings in situations, when such a system risk is being regarded important, and in appropriate cases is passing these warnings to the public message;
5) issuing orders on anticipation measures with reference to the identified risk and, in appropriate cases, is passing these recommendations to the public message;
6) issuing confidential warnings referred to the Council, in the event that ESRB acknowledges that soon an extraordinary situation determined in Art 18 can appear regulations (the EU) No . 1093 / 2010, Art. 18 regulations (the EU) No . 1094 / 2010 and Art . 18 regulations (the EU) No 1095 / 2010, and is presenting the evaluation of a situation so that Advice can determine, whether the need of the adoption of a decision is occurring referred to European Offices of the Supervision, which the appearance of the extraordinary situation is stated in;
7) monitoring consequent action in relation to warnings and recommendations;
8) cooperating with all other page ESNF as well as, in appropriate cases, is providing information for European Offices of the Supervision about system risks which are needed for them for the accomplishment of their tasks, in particular is drawing the shared set of quantitative indicators up in cooperation with European Offices the Supervision and quality in the destination of determining and measuring the system risk;
9) in appropriate cases is participating in the Common Committee;
10) coordinating his action with international financial institutions, in particular with the International Monetary Fund and Advice of the Financial Stability, and with appropriate authorities in third countries in the matters concerning the supervision macroprudential;
11) performing other similar determined tasks in the EU legislation
Suming instruments of the supervision macropru-dential are public, and the financial standing of individual market participants is a premise to taking action by ESRB . The regulation 1092/2010 is granting ESRB new legal forms of action i . e . the warning, the confidential warning or the recommendation Using these forms of action is preceded by monitoring the market, connected with the identification and analysis of threats and the expression of scale of threats of the financial market, and the result of this analysis is determining choice of the legal ESRB form of action [1, pp . 343].
A fact that warnings and ESRB opinions don't have tying character requires underlining in addition, although subjects to which they are being referred, cannot stay towards them inactive They show that such warnings, as well as recommendations should cause taking defined actions by their addressees, as well as — in case of recommendations — additionally an imposed duty of the presentation of the information can stay about all action taken in response to commissioning and presenting the adequate justification in case of the inaction [5, pp . 232]. It is possibility of public disclosure of the fact of non-recommendation under Art . Paragraph 3 and Article 17 . 18 of Regulation 1092/2010 [4, pp . 316].
Legally combining instruments of the
microprudent supervision
Competence of EBA, ESMA and EIOPA (hereinafter referred to or ESA) were determined in regulations 1093 / 2010, 1094 / 2010 and 1095 / 2010 and they are similar, with certain separatnesses resulting from features of market segments, which these bodies are acting on
To innovative assigned ESA competence he is entitled to drawing up projects of control and implementation technical standards (so-called Binding Technical Standards — BTS) . Offices are presenting control and implementation plans to the European Commission of technical standards for approving the cohesive harmonization in order to assure in fields in detail determined on file legislative (Art . 290 and 291 TFUE) [10].
They have BTS exclusively technical character, cannot settle strategic matters or of choices in the politics, but them contents are aimed at determining conditions
for the application of these acts Technical standards being delegated records in fact, are a statutory instrument of the European Commission, which the EU is authorised to give norms universally tying about technical character based on . The specificity of BTS therefore would provide: a detailed, technical and practical nature, allowing for standardization and consistency of supervisory practices in the Member States, and their role is to strict EU financial market integration This integration is expressed both in eliminating the distinction between national financial markets in the Member States, as well as seizing the delimitation between the various sectors of the financial market in the Member States due to the comprehensive approach to financial services . The removal of legal and procedural and substantive autonomy related to the conduct of the business of financial institutions in the system cross-border and cross-EU financial market is helpful ESA activities that have the greatest influence on the content of the BTS [8, pp .174].
On financial markets issuing guidelines and directed orders to competent bodies or entities of the financial market is a next instrument of the EBA interference, ESMA and EIOPA. It seems that guidelines and recommendations don't have a tying power, but the European legislator is forcing them addressees into following In regulations in addition a test procedure was established meaning, that if within two months of issuing the guideline or an order everyone is confirming competent bodies or entities, whether complies with them or is planning to do If bodies or entities aren't going to comply with the guideline or the recommendation is obliged to notify the office of it stating grounds . Publishing by the Office information is means disciplining bodies or entities (of if necessary also justifying) about the non-compliance with the given guideline or the recommendation Such a publication is reprimanding participants in the turnover to the malfunction of the domestic organ of the supervision, performing the signalling function in this respect Such a centre isn't deprived of meaning due to the greater sensitivity of financial markets to all negative information [4, pp . 312].
Fastening to the issuance administrative resolutions which can is an ESA new instrument to be directed both to domestic organs of the supervision, as well as individual decision . EBA, ESMA and EIOPA only have autonomous competence in giving decisions combining the domestic supervision and financial institutions what he is buying, that the EU supervisory system incurred has a possibility of direct disciplining of participants in the financial market the EU, constituting copying the
EU on the rung in this sense activities of domestic organs of supervision [8, pp 177]
It is possible to divide these decisions in four groups:
1) given decisions in the event that competent bodies or entities didn't apply EU acts (Art of 17 regulations 1093/2010, 1094/2010 and 1095/2010)?
2) decisions made in extraordinary situations (Art of 18 regulations 1093/2010, 1094/2010 and 1095/2010),
3) decisions made at the settlement of disputes between appropriate authorities in cross-border situations (Art . of 19 regulations 1093/2010, 1094/2010 and 1095/2010),
4) supervisory special, called decisions emergency or product (Art. of 9 sec . of 5 regulations 1093/2010, 1094/2010 and 1095/2010) [8, pp.179]/
ESA decisions constitute the instrument of individual tying determining the legal situation of subjects of the financial market (it concerns the obligation is eating for the defined action or the omission) on the base of applicable regulations of regulations and EU directives, with which the EU law is applied and so are supervisory decisions of meaning strictly [8, pp . 177 and 178]. This one decisions can directly be directed to financial institutions on the market, as well as to domestic organs of the supervision of the financial market . Decisions directed at individual entities have priority towards all decisions adopted earlier by appropriate authorities in the same matter
Consequence above connected problems can be change of administrative resolutions, with effects of definitive and valid decisions [4, pp . 313]. Also object determining the scope, in which it is reaching for replacing of the decision domestic organs of the supervision by EBA
decisions, is raising doubts ESA and EIOPA. More over the EU legislator didn't show the possible responsibility associated with the repeal of decision of the domestic organ of the supervision and replacing for her by the decision of Offices the scope [4, pp . 314].
Additionally the EU legislator didn't show legal effects of giving such decisions and directed opinions to domestic organs of the supervision in the event that indirectly such decisions or opinions are producing effects towards entities of the financial market . These issues require and so clarifying and intervention for the legislator
Reasume
Supervision macroprudential, performed by ESRB, he doesn't constitute the supervision sensu stricto, but is a crucial element of the supervisory politics in the EU .
ESA decisions are binding instruments of supervision at national supervisors and financial institutions operating in the market and are the means of supervision at the EU financial market in the strict sense Such construction supervision makes the national supervisory authorities lose in this respect certain supervisory powers, and ESA become the ultimate overseers, but only in a situation in which the national supervisory position violates EU law or there is no position of national supervisory authority to ensure the financial stability of the EU market It is also important that decisions EBA, ESMA and EIOPA are guaranteed precedence of bypassing previously issued national supervisory decisions on the financial market in the same case
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