EU wise guys always centralise

Former Central Banker Alexandre Lamfalussy was yesterday holding court at a debate in Brussels, looking at EU financial regulation, and in particular the creation of the three new EU authorities for 'micro-prudential' supervision and their sister organisation, the new European Systemic Risk Board, for the macro-prudential side of things.

We've looked at this issue in detail before, but let's have another go.

Lamfalussy is an EU "wise man" - belonging to an exclusive group of men (they're almost always men and have usually seen too many winters) whose services are called upon when Europe is need of a game-changing policy that will solve all its problems overnight.

Lamfalussy certainly has an impressive CV. He was the chair of the Committee of Wise Men on the Regulation of European Securities Markets (which is a ridiculous name - why not go for the Fellowship of the Ring while they're at it?), having also served as first President of the European Monetary Institute, predecessor to the ECB, and Director General of the Bank for International Settlements.

It was also Lamfalussy's committee that proposed the so-called Lamfalussy process - the EU's method for deciding and implementing financial regulation (Zzzzz).

Speaking at the debate, Lamfalussy labelled the recent makeover of the EU's financial supervisory architecture a "quantum leap", saying he was particularly pleased with the fact that "the level 2 committees [in the Lamfalussy process] have become authorities now", which in plain English means that more powers have now been given to the EU. As Lamfalussy put it, the three supervisors - charged with overseeing banks, insurance and securities - are now equipped with proper "decision-making powers" (how that is legal under the EU treaties is open to debate, but that's for another time).

He wasn't as happy about the limited mandate of the European Systemic Risk Board, which has more of an advisory role at the moment. He said that "it should get decision-making powers as soon as possible" since "the absence of a macro-prudential supervision component [which is meant to be the ESRB's area] did play a major role in the crisis."

Warming to his subject, he then went on to argue that "the problem with the people now in charge [i.e. the three EU supervisors] is that they haven't been trained or mandated" for their task, adding that "the three should instead have direct and frequent access to the bankers." In other words, the supervisors need to get closer to the people/level that they are meant to be regulating.

Right, so let's recap. Mr Lamfalussy says that 1) financial supervisors failed to spot/address the crisis and 2) the people working for the EU's new financial supervisors aren't trained properly and 3) we need to regulate closer to the ground but 4) we need to concentrate more supervisory powers at the hands of EU regulators - micro as well as macro - at the expense of experienced national authorities which, naturally, are closer to the ground.

Hmmm, something doesn't seem to add up here. Indeed, as someone once noted, "the problem with wise men is that there aren't enough of them." They tend to have an inherent bias towards whatever option they're commissioned to write about, with no one there to take a contrary view.

Judging from Lamfalussy's comments - which of course should be seen in light of his entire speech - it's not entirely clear to us whether he's making the argument for more EU supervisory powers -or less, i.e. devolving powers to a level closer to the firms that are being regulated and where the expertise also lies.

In addition, it remains unclear to us why EU supervisors would do a better job spotting bubbles and systemic risks than their national counterparts (an issue which we look at here).

Having said that, we do see potential in the European Banking Authority (on stress tests, cross-border banking wind-downs and solving host-home country conflicts) and the ESRB (to serve as a forum for exchanging information on systemic risk and keep up with new developments, such as the rise of "shadow banking" for example.)

But surely, an EU wise man must be able to put up a stronger case than this?

The new gatekeeper

For quite some time, we have tried to highlight how the EU's new financial supervisors could eventually take on too much power for comfort - not least when viewed from the City of London. The European Securities and Markets Authority, in particular, looks set to become a force to be reckoned with. As we argued in our recent report on the subject, this is a bit peculiar since most of the commentary - such as the de Larosière report or the Turner review - which precipitated the creation of the new supervisors, related to cross-border supervision of large retail banks.

Over the last couple of weeks, negotiations over the AIFM Directive seem to be moving in the direction of giving ESMA powers, possibly exclusive, to supervise hedge funds and other types of funds based outside the EU and decide whether these should be granted EU-wide market access (a so-called passport). In other words, ESMA could become the sole 'gatekeeper' deciding who has the right to enter the EU market. This is no small power.

The UK could possibly accept such far-reaching powers for ESMA in return for keeping the passport provision in the AIFM Directive - a provision which the French don't like at all but that is popular with the industry.

From the City's point of view, the problem with this arrangement is that market access for the many funds which operate in the City but are domiciled elsewhere (i.e. Cayman or the US) could be decided in a forum where the UK has the exact same voting strength as Malta or Slovakia, as most decisions within ESMA will be taken by simple majority voting, meaning one country, one vote. The lack of safeguards in this voting arrangement could lead to this issue being hijacked by narrow commercial or political interests - or protectionist forces.

A blanket solution to market access, with ESMA calling the shots, would therefore be a mistake. As a leader in today's FT argues,

"Restricting this power to ESMA alone sparks concerns about protectionism. Keeping the state-level door open would also ensure that if ESMA proves inefficient, hedge funds can go directly to national bodies."

Quite right. The negotiations are now entering the final stretch - a break-through could even come today. The UK must resist calls to give ESMA exclusive powers over market access.

Voting By Your Weight

Karl Otto Pöhl - former President of the Bundesbank - is quoted in German economic weekly Wirtschaftswoche, making an interesting observation. According to Pöhl, bigger eurozone countries (and most importantly the biggest of them all) should be given greater voting weight within the governing board of the European Central Bank.

He argues:

"It can't be the case that central banks from Malta or Cyprus have as much as a say as the Bundesbank [...] The 'one country, one vote' principle is no longer timely".

Sie sind recht, Herr Pöhl. This makes sense, especially from Germany's point of view. But then why not apply the same reasoning to the UK and the new EU financial authorities, the creation of which MEPs endorsed today in Strasbourg?

Within these supervisors, most decisions will be taken under a 'one country, one vote' arrangement, regardless of the actual size of member states' fianancial markets. As we've pointed out here and here, the UK controls 36% of the EU's wholesale finance market - but will have exactly the same voting weight within the supervisors as all other member states, such as Cyprus or Malta.

Quite irrespective of the merits or the drawbacks of the proposal, that is.

Financial supervision: a gamble or a victory?

An article in yesterday’s Telegraph celebrated the ‘victory’ of George Osborne, who, it claimed, secured an agreement at yesterday’s ECOFIN meeting that one of the new pan-European financial regulators – the European Banking Authority (EBA) – will have its seat in London. The European Parliament has demanded that all three of the new supervisors be based in Frankfurt, and working under the auspices of a 'quasi-umbrella' organisation.

But is this really a victory? There was absolutely no way that member states were going to accept the EP's proposal to make Frankfurt the sole supervisory centre - it is politically impossible and MEPs know that. Remember, Germany already has the most important financial institution of them all, the ECB, and there's at least one francophone President who has no intention of allowing another key-institution be handed over to the Germans.

That is presumably why the French press also left aside the geography of the proposal, and focussed on the vital aspect: how much power that will be transferred from member states to these new authorities. Reuters France notes that,

the UK, under the pressure of its peers and of the European Parliament, has notably accepted the principle that the new European Supervisory Authorities for banks, markets and insurances will be able to address a financial institution directly – bypassing national supervisors – in emergency situations.

This is potentially huge as it will for the first time - via the EBA, ESMA and EIOPA (the three supervisors in question) - give the EU direct supervisory powers, with their decisions taking precedence over those of national supervisors. We knew that this would be the case for Credit Rating Agencies' EU operations (which kind of makes sense), but the UK now seems to have lost the plot on extending the scope beyond CRAs.

To be fair to Osborne, he's fighting the legacy of the previous UK government and his leverage is highly limited as this will all be decided by Qualified Majority.

As a 'concession' EU finance ministers agreed that the Council (rather than the Commission, as the Commission wants, or the new EU Systemic Risk Board, which the EP insists on) will determine when an “emergency situation” occurs. But this was always the Council's position. And as was made very clear at a debate Open Europe organised on the topic on Monday - there are few safeguards in place against this mechanism being misused or hijacked by political/ideological interests in the future. Crucially, the decision on whether to call an "emergency" will be taken by simple majority, meaning that the UK has exactly the same voting strength as everyone else (despite being home to the bulk of Europe's financial sector).

The potential pitfall ought to be obvious. Only a couple of months ago EU leaders used a clause in the Treaties (Article 122), designed for natural disasters and "exceptional occurrences beyond [member states']control" to make taxpayers in one country liable for the mistakes of a government in a different country, in a decision which involved majority vote (when it should have been unanimity), and which took the EU a huge step closer to a common bond (and fiscal federalism). Using Article 122 in this way was absolutely inconceivable when the Lisbon Treaty was discussed and ratified, particularly as the Treaties clearly and unequivocally prohibit bailouts (see here and here to get a feel for just how arbitrarily EU leaders used Article 122).

Give EU leaders "emergency powers" and they could well use them to justify the most dramatic and previously unthinkable measures. The recent ban on short-selling in Germany also ought to give an indication of how such measures stand the risk of being driven by politics rather than economic reality or long-term thinking.

There could be cases where strong and decisive action at the EU-level could be beneficial, but think about this: what exactly would the new EU supervisors have prevented in the financial crisis - given that the causes of the crisis were inherently global; a credit bubble in the US, global trade imbalances and so forth.

The new EU bodies will also be in charge of drawing up a 'single rule book' in the EU's financial services market and implementing uniform technical standards across Europe, overriding national authorities. This could actually benefit the City of London by ensuring the consistent implementation of directives and standards across the bloc, i.e. uniform application of UCITS IV so that fund managers can market their funds in all member states without additional barriers.

However, here there are also possible pitfalls. All of this assumes that the UK will actually write the single rulebook - which is a heroic assumption indeed (think the AIFM Directive). And as William Underhill, Chairman of the City of London Law Society's Company Law Committee, pointed out at Open Europe's debate:

What are the boundaries of the single EU rulebook that lies behind a lot of this new architecture?...The assumption is that the single rulebook in all circumstances justifies the change, whereas I think we still need to look at each specific proposal, each technical standard that comes forward needs to be justified against more subsidiarity principles.

In other words, the risk is that the EU, incrementally and over time, resorts to more interventions, in the name of a single rulebook.

So there are possible benefits, but it could also go in the completely opposite direction. A leader in today's Wall Street Journal describes the potential consequences:

One need not be conspiracy-minded or euroskeptic to see that more harmonization of regulation and supervision means less room for the U.K. to outcompete its rivals on the Continent. The transfer of power to the EU being negotiated this week in Brussels will, of necessity even if not by design, erode the U.K.'s competitive advantages in the financial sphere.

So this amounts to a pretty serious gamble. After all, the EU needs more safeguards against arbitrary government, not fewer.