Towards Single Supervision and Resolution of Systemically Important Non-Bank Financial Institutions in the European Union

D. Busch & M. van Rijn, Towards Single Supervision and Resolution of Systemically Important Non-Bank Financial Institutions in the European Union, European Business Organization Law Review 2018/2

61 Pages Posted: 17 Jan 2017 Last revised: 10 Nov 2018

See all articles by Danny Busch

Danny Busch

Radboud University Nijmegen - Institute for Financial Law (IFR)

Mirik Rijn

Radboud University Nijmegen, Faculty of Law, Students

Date Written: August 1, 2017

Abstract

The global financial crisis proved that banks are not the sole source of systemic risk to the financial system and the wider economy. Indeed, systemic risk emanating from non-bank financial institutions proved to be a key vulnerability of the financial system. Such risks occurred, above all, when leveraged non-bank financial institutions performed bank-like activities such as maturity and/or liquidity transformation. However, the increasingly blurred distinction between markets, financial institutions, services and products is not matched in the European Union by an integrated regulatory and supervisory approach.

Instead, regulation was and remains largely organised along sectoral lines, with an emphasis on the banking sector. As the global financial crisis shows, this creates a risk of gaps in the coverage of regulation and supervision, leading to inconsistent regulatory treatment of equivalent products and/or services. This in turn causes an unlevel playing field and increases the potential for regulatory arbitrage. In consequence, risky activities migrate to less regulated or unregulated parts of the financial system, leading to a largely unchecked build-up of systemic risk.

Drawing inspiration from the reforms in the United States, we propose that the EU’s system of financial regulation be complemented by a robust body charged with identifying and monitoring non-bank financial institutions that are systemically important. This EU authority should have the discretion to designate a non-bank financial institution as a Non-Bank Systemically Important Financial Institution (non-bank SIFI). A logical choice would be to confer such powers on the European Systemic Risk Board. Designated non-bank SIFIs should be placed under direct prudential supervision by an EU body. This EU supervisor would have to establish, on an individual or categorical basis, appropriate enhanced prudential requirements tailored to the nature, risks and activities of the relevant non-bank SIFI. Additionally, a single European resolution regime should be in place to ensure that non-bank SIFIs can fail without destabilising the financial system. This would avoid a possible ‘Too-Big-To-Fail’ status, remove implicit government guarantees and subject the institution to market discipline.

Our proposal aims to ensure that non-bank SIFIs are brought within a regulatory perimeter and supervisory scrutiny consistent with the risk they pose to financial stability. Such a regime would (i) help to eliminate (national) supervisory and regulatory gaps, (ii) reduce regulatory arbitrage activities, and (iii) contribute to the stability of the financial system and a level playing field.

Keywords: non-bank SIFI, Systemically Important Financial Institutions, EU, Supervision, Resolution, Systemic Risk, Monitoring, ESRB, Banking Union

Suggested Citation

Busch, Danny and Rijn, Mirik, Towards Single Supervision and Resolution of Systemically Important Non-Bank Financial Institutions in the European Union (August 1, 2017). D. Busch & M. van Rijn, Towards Single Supervision and Resolution of Systemically Important Non-Bank Financial Institutions in the European Union, European Business Organization Law Review 2018/2, Available at SSRN: https://ssrn.com/abstract=2899753 or http://dx.doi.org/10.2139/ssrn.2899753

Danny Busch (Contact Author)

Radboud University Nijmegen - Institute for Financial Law (IFR) ( email )

Nijmegen
Netherlands

Mirik Rijn

Radboud University Nijmegen, Faculty of Law, Students ( email )

Nijmegen
Netherlands

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