Legal working papers published in 2011

In-depth studies for experts

Our Legal Working Paper Series (LWPS) disseminates legal research and doctrine on issues relevant to the tasks and functions of the ECB and the ESCB. Legal Working Papers (LWPs) constitute “work in progress”. They are published to stimulate discussion and contribute to the development of community, monetary and financial law. They are addressed to experts, so readers should be knowledgeable in the legal field.

Availability: ECB Legal Working Papers are available online only.

No. 13
21 December 2011
Crisis management and bank resolution: Quo vadis, Europe?

Abstract

JEL Classification

K : Law and Economics

Abstract

Crisis management in the financial sector is currently at the top of the reform agenda at national, European and international level. Well-designed bank resolution regimes are essential not only to meet the acute need of a credit institution in crisis but also to ensure that proper incentive structures operate in the market prior to any crisis. Existing regimes are inadequate and incentive structures have proven to be fundamentally destructive. The lack of workable crisis resolution tools has had an adverse effect on crisis prevention and imposed enormous costs on the taxpayer. Effective crisis management demands the ability to manage. In the aftermath of the financial crisis, two leading EU Member States (the United Kingdom and Germany) adopted special resolution regimes, providing for tools and powers to manage the resolution of banks. The paper assesses and compares these two approaches. In addition, the paper analyses the emerging response at European and international level, focusing in particular on bail-ins, the suspension of netting and other rights, treatment of groups and systemically important financial institutions. At the international level, the Financial Stability Board's recently published

No. 12
18 August 2011
Financial sector supervisors' accountability: a european perspective

Abstract

JEL Classification

K : Law and Economics

Abstract

Financial sector supervisors' accountability is widely accepted as a sine qua non condition of good governance and as a guarantor of supervisory independence. An arsenal of accountability inspired control instruments aims to ensure that supervisors are accountable to the legislature, the executive, stakeholders and, last but not least, the judiciary. While the general right to damages for losses arising from civil wrongs is well established, liability for faulty supervisory acts or omissions is, in many respects, limited in scope. This paper examines the conceptual underpinnings of financial sector supervisors' liability and the current legal situation on supervisory liability in the European Union, under both national and Union law. It also inquires into an aspect of the debate that has attracted less attention than it deserves, but which is likely to take on greater importance as the structure of financial supervision undergoes reforms, both at the European Union level and in the Member States: the specificity of the Member States' national central banks as banking supervisors and, in particular, the tension between their independence and their potential third party liability for damages for supervisory faults.

Disclaimer: Please keep in mind that the papers are published in the name of the author(s). Their views do not necessarily reflect those of the ECB.