ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

Erhvervsudvalget 2020-21
ERU Alm.del Bilag 331
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EUROPEAN COMMISSION

DIRECTORATE-GENERAL FOR FINANCIAL STABILITY, FINANCIAL SERVICES AND CAPITAL

MARKETS UNION

CONSULTATION DOCUMENT

TARGETED CONSULTATION

ON THE SUPERVISORY CONVERGENCE AND THE SINGLE RULE BOOK

Taking stock of the framework for supervising European capital markets, banks, insurers

and pension funds

Disclaimer

This document is a working document of the Commission services for consultation and

does not prejudge the final decision that the Commission may take.

The views reflected on this consultation paper provide an indication on the approach the

Commission services may take but do not constitute a final policy position or a formal

proposal by the European Commission.

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

https://ec.europa.eu/info/business-economy-euro_en

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

You are invited to reply

by 21 May 2021

at the latest to the

online questionnaire

available on the following webpage:

https://ec.europa.eu/info/publications/finance-consultations-2021-esas-review_en

Please note that in order to ensure a fair and transparent consultation process

only

responses received through the online questionnaire will be taken into account and

included in the report summarising the responses.

This consultation follows the normal rules of the European Commission for public

consultations. Responses will be published unless respondents indicate otherwise in the

online questionnaire.

Responses authorised for publication will be published on the following webpage:

https://ec.europa.eu/info/publications/finance-consultations-2021-esas-review_en

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

NTRODUCTION

There has been considerable progress on both supervisory convergence and the single

rulebook since the three

European Supervisory Authorities (ESAs)s

were created in 2011.

Nevertheless, both require continued and appropriately targeted efforts to make further

progress. In this context,

the Commission’s capital markets union (CMU)

action plan

published on 24 September 2020 includes the following action:

CMU action plan

- Action 16:

The Commission will work towards an enhanced single

rulebook for capital markets by assessing the need for further harmonisation of EU rules

and monitoring progress towards supervisory convergence. It will take stock of what has

been achieved in Q4 2021 and consider proposing measures for stronger supervisory

coordination or direct supervision by the European Supervisory Authorities.

The Commission will also carefully assess the implications of the Wirecard case for the

regulation and supervision of EU capital markets and act to address any shortcomings

that are identified in the EU legal framework.

The

CMU

is the EU's plan to create a truly single market for capital across the EU. It

aims to get investment and savings flowing to the companies and projects that need them

across all Member States, benefitting citizens, investors and companies, regardless of

where they are located. The CMU provides new sources of funding for businesses, helps

increase options for savers and makes the economy more resilient.

Without well-developed and integrated capital markets, there can be no economic

prosperity. And without supervision, capital markets could not contribute to economic

prosperity. Supervision is an essential condition for a well-functioning CMU. This will be

particularly relevant in a post-Brexit world with multiple financial centres across the EU.

Gradual progress towards more integrated capital markets supervision will be

indispensable.

It is essential for people and firms to have confidence in the financial system and also for

the providers of financial services to operate in a stable and fair environment. Supervision

should ensure that divergences in outcomes of supervisory practices in Member States do

not undermine confidence, stability, investor protection and fairness in the Single Market.

The three European Supervisory Authorities (ESAs) are mandated to ensure

the

convergence of supervisory practices among the national competent

authorities

. In addition, the

European Securities Markets Authority,

is responsible for

direct supervision of some market activities and market operators. However, supervisory

convergence reaches its limits where the national rules that supervisors have to apply and

enforce differ between Member States or where the common European rules leave room

for interpretation or too much discretion to Member States for its transposition, application

and enforcement. The ambition for a European single rulebook therefore seeks to reduce

differences between national laws and to provide more detailed rules where it is important

for stability and fairness in the single market. Taken together,

The EP adopted an own initiative report on further development of the CMU on 8 October and the Council

adopted its conclusions on the Commission’s CMU AP on 3 December

2020.

Within the

banking union,

the

single supervisory mechanism

ensures uniform supervision of banks. For

banking resolution, the

single resolution board

is directly responsible for resolution planning and decisions

for all significant banks and cross-border ones.

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

supervisory convergence and the single rulebook provide the framework for effective and

efficient supervision.

The input to this consultation, which seeks to take stock of what has been achieved so far,

will feed into the preparation of the report required by the CMU action plan which will

cover the review

required under the ESAs founding Regulations as well. This consultation

seeks targeted views on certain aspects related to the 2019 ESAs review

and contributes

to a wider debate on supervisory convergence and the single rulebook.

Please note that not all questions are relevant for all stakeholders and that you are not

expected to reply to each question. Please indicate the ESA for which the reply is intended.

Article 81 of the

ESAs founding Regulations

requires the Commission to review the functioning of the

ESAs every 3 years, and next time by end 2021.

The ESAs founding Regulations were amended in 2019. These recent legislative changes entered into force

in January 2020 (Regulation

(EU) 2019/2175, which reviews the powers, governance and funding of the

ESAs.)



EBA Regulation consolidated version 01/01/2020

EIOPA Regulation consolidated version 01/01/2020

ESMA Regulation consolidated version 01/01/2020

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

ONSULTATION QUESTIONS

UESTIONS FOR THE ASSESSMENT OF THE

UROPEAN

UPERVISORY

UTHORITIES

(ESA

)

AND THE RECENT CHANGES IN THEIR FOUNDING

EGULATIONS

How do you assess the impact of each ESA’s activities on the aspects below? Please

rate the ESAs impact on each aspect from 1 to 5, 1 standing for "less significant

impact” and 5 for "most significant impact”:

The financial system as a whole

opinion

Financial stability

The functioning of the internal market

The quality and consistency of supervision

The enforcement of EU rules on supervision

Strengthening

coordination

international

supervisory

Consumer and investor protection

Financial innovation

Sustainable finance

Please explain your answer

II.

In your view, do the ESA(s)’ mandate(s) cover all necessary

tasks and powers to

contribute to the stability and to the well-functioning of the financial system? If you

think that there are elements which should be added or removed from the mandate,

please provide a substantiated answer.

□

YES

□

III.

In your view, do the ESAs face any obstacles in delivering on their mandates? If the

answer is yes, please explain what you consider to be the main obstacles.

□

YES

□

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

Firstly, the continuous amount of regulatory work stemming from reviews of existing

legislation as well as new regulation carrying new tasks puts a strain on the existing

resources as new resource allocation or funding seldom accompanies the tasks.

Moreover, it persistently requires reallocation of the existing resources from the essential

work on supervisory convergence while the call for greater focus of this latter work

steadily grows.

Secondly, unrealistic or overly ambitious timing of delivery of products (particularly

technical standards) set out in the Level 1 regulation combined with the amount of work

expected to be delivered strains the limited resources available at the ESAs and the

National Competent Authorities (NCAs). This will and does affect the quality of

material, as it results in a process with too short turnarounds for scrutiny of material as

well as difficulty in maintaining reasonable consultation periods with stakeholders.

Thirdly, the trend of inserting mandatory convergence activity within the level 1 texts

(such as mandatory peer reviews) or forced areas of focus potentially in isolation of

market developments, will increasingly take away the ability of the ESAs and in

particular the NCAs to plan their supervisory work taking into account relevant risk

based assessments with a view to acting where the highest risk would be or emerge and

without regard to the degree of added value. Planning of supervisory activity must be

done in view of the circumstances at hand, which is in the hands of the relevant

supervisors, not the legislators.

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

1. The supervisory convergence tasks of the ESAs

1.1. Common supervisory culture/supervisory convergence:

1.1.1. To what extent the ESAs do contribute to promoting a common

supervisory culture and consistent supervisory practices? Please rate

in a scale from 1 to 5 (“5” being the most significant contribution

and “1” the less significant contribution). Please explain your answer

and indicate if there are any areas for improvement.

Generally, we believe the ESAs actively contribute to this mandate and we also believe

it is one of the most important aspects of their work.

However, there is room for further improvement and we have focused on a few essential

issues that admittedly should and could not be tackled through legislation but rather the

nature of cooperation.

The fundamentals for reaching a common approach are that all parties of a process have

a good understanding of the premises for the results and decisions made during the legal

assessments and reports. This is only achieved by a strong culture of information

sharing also within the ESAs themselves. The role of coordination is key for the ESAs.

This requires the ESAs to facilitate constructive discussions with transparent feedback

on the different steps of developments of products, including how approaches have been

decided upon and provide legal clarifications on such where relevant and beneficial for

the understanding. This can still be improved upon. We also believe that this would

naturally carry over on further consistency in supervisory practices.

We believe the ESAs must act as honest brokers taking into account all relevant

information and views to evidence the work. This includes not only the views of ESA

staff but naturally also suggestions from NCAs all of which is based on experience and

expertise as well as their views on what may be of importance in an area to facilitate

better supervisory convergence.

An example for illustration purposes is that since 2013 NCA members have suggested

that the EBA develop and publish guidance on intraday liquidity management, just like

Basel published its guidance in 2013 on monitoring tools for intraday liquidity

management. However, this has not been undertaken primarily with the argument that

there is no mandate in the Capital Requirements Regulation (CRR) to assess the topic of

intraday liquidity. However, the same argument has not been invoked when developing

the LCR implementation reports which have been carried out.

Promote a common supervisory culture and

consistent supervisory practices

opinion

1.1.2. To what extent the following tasks undertaken by the ESA(s) have

effectively contributed to building a common supervisory culture

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

and consistent supervisory practices in the EU. Please rate each task

from 1 to 5, 1 standing for "less significant contribution" and 5 for

"most significant

contribution”:

Providing opinions to competent authorities

Promoting

bilateral

and

multilateral

exchanges of information between competent

authorities

Contributing to developing high quality and

uniform supervisory standards

Contributing to developing high quality and

uniform reporting standards

Developing and reviewing the application of

technical standards

Contributing to the development of sectoral

legislation by providing advice to the

Commission

Establishing

(cross)sectoral

training

programmes

Producing reports relating to their field of

activities

Conducting peer reviews between competent

authorities

opinion

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

Determining

new

supervisory priorities

Union

strategic

Establishing coordination groups

Developing Union supervisory handbooks

Monitoring and assessing environmental,

social and governance-related risks

Adopting measures using emergency powers

Investigating breaches of Union law

Coordinating actions of competent authorities

in emergency situations (e.g. Covid-19 crisis)

Mediating between competent authorities

Monitoring the work of supervisory and

resolution colleges

Publishing on their website information

relating to their field of activities

Monitoring market developments

(Only for the EBA) Monitoring liquidity risks

in financial institutions

(Only the EBA) Monitoring of own funds and

eligible liabilities instruments issued by

institutions

Initiating and coordinating Union-wide stress

tests of financial institutions

Developing guidelines and recommendations

Developing Q&As

Contributing to the establishment of a

common Union financial data strategy

Providing supervisory statements

Other instruments and tools to promote

supervisory convergence, please indicate

Please add any qualitative comments you may wish to explain your

reasoning.

Below we have included comments on elements that are not covered in other

areas of this document.

On the issue of

exchange of information,

we believe that promoting bilateral

and multilateral exchanges of information between NCAs can be improved and

should be encouraged by the ESAs at all working levels. To this effect a more

consistent and transparent approach in sharing comments received and providing

feedback on the handling thereof, whether from stakeholders or NCA members is

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

required. We are aware that this may be time consuming but also believe it is the

backbone of high quality work, which will translate into constructive discussions,

multilateral exchanges of views and information and a fully evidenced product.

We wish to highlight that the ESAs have a large amount of IT-related tasks

stemming from primary and secondary legislation. However, the amount of tasks

allocated to them also results in there being too many projects to address within a

given period of time. This results in delays in establishing the relevant IT-basis

which in turn results in

non-compliance with reporting obligations,

as such

were dependant on the IT-basis being in place. This in turn results in reporting

challenges for the financial institutions whereby these entitites would be in

breach of legal reporting requirements. An example is LCR that came into force 1

October 2015. However, the institutions first reported LCR in relation to the

legislation in September 2016 due to lack of an IT-reporting tool, partly due to

large burdens in the IT-area overall, partly due to delay because of lack of

sufficient prioritisation in finalizing the IT setup for the new LCR reporting.

We find the ESAs play an important role of providing

advice to the Commission

in order to inform an area prior to legislative action. Early consultation of the

ESAs/NCAs in the legislative process contributes to legislation that can be more

easily be implemented in practice in a more harmonsied manner from the

beginning where there is less need of

“translation” of abstract concepts into

practically applicable provisions.

We note that the ESAs have received stronger mandates to develop

supervisory

handbooks

in their remits. This concept is not new, but is also not defined and

may comprise many elements, such as supervisory statements that in turn are also

not further clarified anywhere. While these tools are now explicitly mentioned we

do not believe there is need of any further inclusion of rigid definitions, nor on-

going inclusion and thus mention of all supervisory convergence tools in

legislation. This would be too cumbersome and counterproductive to on-going

development and adjustment to the needs of the NCAs and ESAs. We note that

the handbooks should reflect an actual and practical need stemming from the

supervisory activity, both from the level of the ESAs as well as the NCAs.

We do not have extensive firsthand experience with official

mediation processes

facilitated by the ESAs. However, a range of new requirements and deadlines

where introduced with the recent review of 2019 and changes to the internal rules

of procedures. In this context is it important to ensure that mediation processes

are applied when there is an actual important point of contention between the

NCAs. The focus of the ESA in a mediation process is that of facilitating fluid,

open communication and cooperation between the NCAs, not rigid compliance

with deadlines. We would therefore urge not to constrain these processes by

excessive formal requirements.

We have a couple of general comments with regard to

guidelines and Q&As.

Overall these two tools are useful in providing answers to challenges raised by

NCAs as well as stakeholders with regard to the common understanding and

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

application of the rules as well as communication on such conclusions and

approaches.

However, the Danish FSA experiences that the ESAs have a tendency

particularly in this work to see the market only as one market and thus steer the

work towards a “one size fits all” approach. However,

the EU internal market

continues to comprise many different

Member States’ markets

at different levels

of maturity which is also acknowledged by the regulation, ESAs and the

Commission. We believe that the more explicit references to these aspects in

regulation as well as communication by the ESAs has yet to fully be integrated in

the development of the products. Time should be allowed for this to take effect as

well as support the ESAs in facilitation of open and constructive discussions.

1.1.3. One of the roles of the ESAs is to promote and facilitate the

functioning of supervisory colleges, where established by sector

legislation, and foster the consistency of the application of Union

law among them. Please rate the ESAs’ contribution to the objectives

below from 1 to 5, 1 standing for "less significant contribution" and

5 for "most significant

contribution”.

Please explain your reasoning.

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

Promote the effective and efficient

functioning of colleges of supervisors

Foster consistency in the application of

Union law among colleges

Promote converging supervisory practices

among colleges.

opinion

We believe the description of the role of the ESAs is correct and the ESAs do to a

certain extent meet the expectations of facilitation and coordination of the functioning of

the colleges and consistency across relevant colleges and sectoral areas. In this regard, it

is important that the colleges remain fora for open communication between supervisors

with respect for the participants’ experiences.

The Danish FSA notes that issues relating

to potential lack of application of Union law may surface during the work in colleges.

Often they will be addressed through the course of exchanges of views, experiences and

adaptation to the new knowledge in the college. However, if it is not resolved, the issue

of lack of application of Union law should be addressed through the specific remedies

designed for such purpose. If investigated and followed through in the college itself, it

could taint the goal of these fora regarding openness in communication and consistency

in cooperation and application.

1.1.4. In the framework of the 2019 ESAs review. How do you assess the

new process for questions and answers (Article 16b)?

Generally, the Danish FSA has not experienced major changes to the process in practice

aside from the delay in providing timely responses when questions are referred to and

dealt with by the Commission. We recognize the

Commission’s role of interpreting the

Union law. However, we do not believe it is possible to make this full split between the

application of law from the interpretation of Union law. They are intertwined with each

other. Furthermore, we note that the raison

d’etre of the ESAs is

exactly to ensure the

expertise in reading and applying rules in financial regulation is fully taken into account

when applying the EU rules.

1.1.5. In your view, does the new process for questions and answers allow

for an efficient process for answering questions and for promoting

supervisory convergence?

□

YES Please identify areas for improvement, please explain

□

NO Please give reasons.

We find the Q&A to be an efficient and useful tool to address issues as they arise

whether from regulators or stakeholders and facilitate convergent approaches as well as

making them public so the stakeholders can adapt their approaches accordingly. Several

of the new elements are positive. However, it is too early to have a full evaluation of all

the aspects, including the use of public consultation and the web-based tool. We do have

a couple of remarks based on experiences thus far by the Danish FSA.

Firstly, the Danish FSA has seen a prolongation of the response time when questions are

submitted to the Commission for a response. The turn-around time at the Commission

must be shortened in order for this tool to be effective.

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Secondly, we find that public consultation for selected Q&As could be relevant as

answers sometimes carry significant consequences for the market. However, initial

identification of the need to apply this tool is also dependent on the initial description of

the issue at hand provided by the submitter. This may on the one hand mean that some

issues are not identified as needing broader consultation until potentially at a much later

stage. On the other hand extensive public consultation of all Q&As is not desirable as

this would not be viable from a resource nor efficiency perspective and would

significantly change the nature of the tool towards other tools such as guidelines in art.

16 of the ESA regulations.

Thirdly, we believe it is important to have a transparent follow-up system after the

answers are provided, not only to also assess whether any further steps need to be taken

but also to ensure the content is up-to-date. We believe this could be accommodated

through a more firm obligation to review published Q&As.

Fourthly, the web-based tool is still under development also in light of the added general

obligation for the ESAs to have a rulebook available on the website following from

changes to article 8 in the 2019 ESA-revision. It is important to ensure that it is

sufficiently interactive with good search functions to allow for easy access and use by

the users.

1.2. No action letters

1.2.1. In the framework of the 2019 ESAs review. In your view, is the new

mechanism of no action letters (Article 9a of the ESMA/EIOPA

Regulations and Article 9c EBA Regulation) fit for its intended

purpose? Please justify your answer.

□

YES

□

The intended purpose of the no-action letters mechanism was, according to the review,

to create an: “alert and convergence system" which will ensure that the ESAs in

exceptional circumstances and when there are significant issues raised by legal acts

(e.g., rules that conflict with each other; absence of a delegated or implementing act

that raises legitimate doubts about the legal con-sequences of the level 1 act; absence of

guidelines that makes application of the act difficult) alert the Commission and

Competent Authorities about what those issues are and where necessary issue an

opinion to ensure convergent enforcement practices in relation to the issues raised.

It is important that the ESAs and the NCAs have the necessary powers to express

themselves about severe challenges in complying with legislation. However, it is

unclear at this time whether this mechanism is fit for purpose.

The Danish FSA experiences that there seems to be an increase in use of the tool among

the ESAs with a view to resolving situations of implementation deadlines where the

Commission has not yet adopted delegated acts. However, we do not believe no-action

letters is the appropriate tool to address such issues as this is a challenge to be addressed

by the co-legislators and the Commission when setting and complying with deadlines.

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Considering the wording limits the use of no-action letters, we believe that this specific

tool should be used with the utmost restraint and only in significant situations.

1.2.2. In the framework of the 2019 ESAs review. How does the new

mechanism, in your view, compare with “no action letters” in other

jurisdictions?

We have not conducted a full analysis of this tool with other jurisdictions. As it is

formulated today it looks to ensure that the ESAs do not set aside implementation or

application dates of legislative acts by de facto delaying their application. This is not

within the competences of an authority or agency as their competences are strictly

limited by the delegation and the legal acts themselves. These are matters for the co-

legislators, not the ESAs.

1.2.3. In the framework of the 2019 ESAs review. Could you provide

examples where the use of no action letters would have been useful

or could be useful in the future?

No-action letters can be a useful mechanism for establishing a common approach to

legislation in instances where delegated acts are absent and there are doubts about

implementation of the level 1 text. However, we would not encourage the use of no

action letters to dis-apply legislation and only use them when absolutely necessary. The

Danish FSA experiences that the mechanism can also have a conflict-escalating effect

on the cooperation and relationship with the Commission. This should be avoided.

1.3. Peer reviews

1.3.1. Please specify to what extent peer reviews organised by the ESAs

have contributed to the convergence outcomes listed below.

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

Please distinguish between the situation before the 2019 review and

afterwards. Please rate each outcome from 1 to 5, 1 standing for "less

significant contribution” and 5 for "most significant contribution”:

Situation before the 2019 ESAs review

Convergence in the application of Union law

Convergence in supervisory practices

More wide spread application of best practices

developed by other competent authorities

Convergence in the enforcement of provisions

adopted in the implementation of Union law

Further harmonization of Union rules

Other, please indicate

opinion

Situation after the 2019 ESAs review

Convergence in the application of Union law

Convergence in supervisory practices

More wide spread application of best practices

developed by other competent authorities

Convergence in the enforcement of provisions

adopted in the implementation of Union law

Further harmonization of Union rules

Other, please indicate

opinion

Please explain your reasoning/give examples.

Overall, we believe it is premature to provide a full view of the extent of changes

following from the 2019 review and several aspects have yet to be put to use. Thus, the

full effect on the convergence outcomes will only be available in two years.

We believe it is also important to distinguish between the peer review and its outcomes

on the one hand and enforcement of Union law on the other hand.

Generally, peer reviews have since the beginning been an effective tool to facilitate

convergence in application of Union law and supervisory practices through the exercise

of comparing approaches across the EU and learning from the identified good practices.

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

It has been used as a true convergence tool facilitating information and knowledge

sharing as well as increased cooperation at a high level. The tool has also evolved from

being more desk-based analysis of how rules are incorporated into national procedures

to include analyses of the actual processes, on-site visits, etc. This also means that peer

reviews have become quite resource-intensive for the ESAs and NCAs alike. Therefore,

it is not feasible nor useful to conduct a huge amount of peer reviews annually and it is

important that they are conducted in areas where there is benefit in identifying the level

of convergence and practices. We also note that the increasing amount of legislative

mandated peer reviews in level 1 legislation hamper the ability of the ESAs to conduct

such targeted and relevant peer reviews as resources will have to be allocated to ensure

compliance with the legislative mandates.

Secondly, peer reviews may provide insight as to the manner of use of provisions,

including enforcement provisions. If divergences in approaches are identified such can

be subject for follow-up action with the aim to seek convergent approaches. Follow-up

action is also catered for in the legal provision. However, we strongly believe that peer

reviews are not in and of themselves tools to enforce the Union rules. Other remedies

address such action. Ultimately, enforcement action of non-application of Union law is

for the Commission to act upon and the co-legislators to address through legislation if

and where appropriate.

1.3.2. How do you assess the impact of each of the changes below

introduced by 2019 ESAs review in the peer review process? Please

rate each

change from 1 to 5, 1 standing for "less effective” and 5 for

"most

effective”

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Ad-hoc Peer Review Committees (PRC)

composed of ESAs’ and NCAs’ staff and

chaired by the ESA are responsible for

preparing peer review reports and follow-ups.

The peer review report is now adopted by

written procedure on non-objection basis by

the Board of Supervisors.

Transparency provisions: if the PRC main

findings differ from those published in the

report, dissenting views should be transmitted

to the three European Institutions.

PRC findings may result in recommendations

to NCAs under Article 16 of the ESAs

Regulations that are now distinguished from

guidelines, addressed to all NCAs. The use of

this type of individual recommendations

entails the application of the “comply or

explain” mechanism and allows a close

follow-up.

Mandatory follow-up to peer reviews within

two years after the adoption of the peer review

report.

The possibility to carry out additional peer

reviews in case of urgency or unforeseen

events (fast track peer reviews).

The Management Board is consulted in order

to maintain consistency with other peer

reviews reports and to ensure a level playing

field.

opinion

Please explain your reasoning

Generally, the structure and organisation of the Peer Review Committees seems to have

functioned well.

Below we have focused our comments on elements where we believe the 2019 ESA-

review has unnecessarily complicated the peer review tool.

We find the provision indicated as a

“transparency provision”

above

concerning

transmitting of dissenting views to the three European Institutions highly problematic

both form a political point of view but also in ensuring the ESAs are not unduely

influenced by institutions when acting in their supervisory capacity. Firstly, peer

reviews concern matters of hands-on supervisory convergence work, a task by nature

independent of political influence. This provision has the ability to directly impair or

give cause for concern of potential impropriety in the ESAs and their members’ ability

to comply with the obligations to act independently and without taking instructions from

iter alia the Union institutions or bodies.

Secondly, the presence of such reporting requirements is in stark contrast to the

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expectation that NCAs themselves act independently and thus is at odds with the

mandate for the ESAs to foster and monitor supervisory independence of NCAs.

Thirdly, the Peer Review Committee is established to conduct the peer review and

submit draft reports, conclusions etc. As such the PRC is in effect a preparatory body

for the BoS. The relevant outcome of a concrete peer review for the public and for the

three European Institutions is that which has been approved by the BoS and published.

We find it is critical that the BoS as the highest decision-making body of the ESAs is

effectively bypassed by this submission of dissenting views directly to the political

establishment.

In relation to the

adoption procedure

by written procedure on non-objection basis the

Danish FSA experiences that it does not facilitate and actually prevents a good exchange

of views and experiences at the BoS. Past experience shows that discussions at the BoS

level of peer review outcomes has been a core part of ensuring knowledge of the

outcomes, processes during a peer review and facilitate good follow-up activity. This

interaction is much less feasible in written procedures. Moreover, the reverse voting

requirement (simple majority to object) in a written procedure in effect makes it

impossible for Member States to achieve enough votes to object to the outcomes of the

review even where there may be good reason for doing so. This would not seem to be

conducive to good decision-making. In addition, it is a very different approach to

handling reports, etc. than in other similar institutions such as the ECB.

It is too early to assess the element of the

recommendations to NCAs

versus general

guidelines as none have been set out yet. It will be imperative that the “comply or

explain” mechanism under Article 16 of the ESAs Regulations actually is a dual

recourse with the opportunity to explain actions. We will monitor this to see the

approach taken by the ESAs.

The 2019 ESA review provided a strict regime for

follow-up

with set deadlines. We

recognize benefits of conducting follow-ups to ensure on-going evolvement among the

NCAs, particularly on topics of large or substantial reviews. However, the fixed timing

requirement on all conducted peer reviews introduced by the 2019-revision (together

with mandated topics in level 1) de facto significantly constrain the ESAs ability to plan

their activities. For example if a peer review is introduced too quickly after the launch of

the regulation or just as a substantial review has been undertaken it will have no added

value. Furthermore, even where peer reviews are scheduled and approved by the BoS, it

must be possible to re-address and adapt the planning to take into account resources

needed, new trends or supervisory areas requiring attention, even tasks set out by the

Commission with short deadlines as well ensuring that a peer review should be run for

the added value of the results and not because it is on a work programme.

Generally we believe that peer reviews in order to be an effective supervisory tool must

be well planned in order to create value. Moreover, it is in their nature to look at several

NCAs with a view to compare approaches and identify areas that are well functioning or

need improving. The

urgent cases or unforeseen events

would arise of specific issues

being assessed from the point of view of potentially flawed application of Union law.

Therefore, we do not consider the peer reviews as the right tool use to assess issues that

have arisen as a matter of urgency or without warning.

1.3.3. Do you think mandatory recurring peer reviews, covering also

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enforcement aspects, could be introduced in some sectoral

legislation? If the answer is yes, please specify the piece of

legislation and concrete provision under which mandatory peer

reviews could be introduced.

□

YES

□

1.3.4. Are there improvements that could be made to the peer review

process? Please specify which ones.

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□

As commented on in response to question 1.3.2 we believe the approval procedure

should revert to the regular procedure of discussion at the BoS preferably at a physical

meeting followed by majority approval requirement as in Article 44 of the ESAs

Regulations. Furthermore, the reporting of dissenting views to the political system

should be removed to ensure the independence and integrity of the supervisory role of

the ESAs and the NCAs.

The follow-up requirement could be maintained but the timing be removed or at

minimum extended to allow for efficient work programme planning. If the timing is

maintained it should be supplemented with an option to re-address the planning as a

whole or leave options for NCAs to opt out of a review based on reasonable grounds.

□

YES

1.4. Other tasks and powers

1.4.1. In your view, is the collection of information regime (Art 35 ESAs

Regulations) effective? If you identify areas for improvement, please

explain.

□

YES

□

Generally, we believe the ESAs have the necessary competencies to collect information

required to fulfill their tasks. The Danish FSA experiences that increased use of IT-tools

to facilitate this information collection is beneficial. We believe focus should be on

ensuring user friendliness and efficient data extraction, also in existing systems. A

concrete example is that the Danish FSA experiences that the IT in relation to the eGate

setup is not ideal as it has limited or rigid user options and lacks follow up on requests

made.

1.4.2. In the framework of the 2019 ESAs review, in you view, are the new

Union strategic supervisory priorities an effective tool to ensure

more focused convergence priorities and more coherent coordination

(Article 29a ESAs Regulations)? If you identify any areas for

improvement, please explain.

□

Overall, we support the added focus in the ESA work that the Union strategic

supervisory priorities provide. Furthermore, we believe it is relevant for NCAs to take

such priorities into account when considering their own strategies and activities. The

tool is still in the implementation phase and it is too early to assess the full effect.

However, we recall that the Union strategic supervisory priorities are not intended to be

□

YES

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nor are they an effective supervisory tool for the detailed planning of NCA activity.

Planning must naturally allow also for national prioritisation based on their risk

assessments to ensure prudent supervision. We therefore consider it important to ensure

an inclusive approach with constructive discussions when setting the priorities and

similarly with regard to the approach to targeted and proportionate reporting on them.

1.4.3.

Do you think there is the need to amend or add a tool to the toolkit

of the ESAs for achieving supervisory convergence? If yes, which

ones.

□

YES

□

1.4.4.

Please assess in a scale from 1 to 5 the significance of the new ESAs’

task of fostering and monitoring the supervisory independence of

national competent authorities (“5” being the highest rate and “1” the

lowest rate). Please explain.

fostering and

independence

monitoring

supervisory

opinion

1.4.5. What criteria would be the most relevant, in you view, for the

ESAs to perform effectively their new task of fostering and

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monitoring supervisory independence of national competent

authorities? Please rate the relevance of each criteria in a scale from

1 to 5 (“5” being the most relevant criteria rate and “1” less relevant

criteria).

operational independence

financial independence

appointment and dismissal of governing body

accountability and transparency

adequacy of powers and ability to apply them

other, please specify

opinion

1.4.6. What are, in your view, the main remaining obstacle(s) to allow for

a more effective supervisory convergence?

Firstly, when considering potential obstacles to effective supervisory

convergence, one of the main challenges is changing legislation even before new

acts are applied and the effects can be taken into account.

Secondly, while we aim for a common EU internal market it is still comprised of

national markets and even local markets which means that

“one size fits all”

not an automatic fit on all issues. Efficiency in supervisory convergence is

measured on the similar outcomes that must not come about at the expense of due

national assessments and adjustments to cater for their specificities.

Thirdly, efficiency is impeded where an act is passed without taking into account

the practicalities and experiences in an area. Efficiency therefore requires new

acts and changes to acts are evidence based, add value and take into account that

burdens and costs are proportionate.

1.4.7. Do you consider that the ESAs ensure that enough information on

their activities and on financial institutions is available? If not, what

changes should be made in this area?

□

YES

□

We believe the ESAs publish a wide range of reports, analysis, etc. on their work and

there is adequate access to information.

Danish stakeholders continue to ask for more transparency on process and feedback

regarding the content. The 2019-ESA review introduced a number of such requirements.

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However, it is too soon to assess if this fulfills the wishes of the stakeholders.

1.4.8. Do you consider that the purpose and outcome of inquiries under

Article 22.4 is clear? If the answer is no, please indicate what role

such inquiries should play.

□

YES

□

The provision was a flexible provision that allowed the ESAs to conduct either targeted

or broader inquiries into areas of particular interest with the aim of collecting evidence

of the current situation and thus also to contribute to impact assessments for coming

work or focus areas. Such work was often organized within the preparatory bodies to the

BoS but always with the consent of the BoS. However, the recent amendments to the

system has added more procedural steps that may make this more difficult to

operationalize and more resource intensive. At this time we are unsure of the added

value of the new structure.

1.4.9. In your view, is there the need to add any tools or tasks in order to

enhance supervisory convergence towards digital finance? If your

answer is yes, please explain.

□

YES

□

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1.4.10. Please assess the effectiveness of supervisory convergence tools

developed by the ESAs (e.g. common supervisory actions, real case

discussions, etc.) for achieving supervisory convergence:

There is a wide scope for the ESAs to develop supervisory convergence tools to meet

their needs. Currently, we would urge to focus on refining existing tools and align

them across the ESAs in order to simplify the range of tools and increase transparency

and comparability of the tools. This would in turn also support increased convergence.

1.5. Breach of Union law and dispute settlement

1.5.1.

Do you think that the ESAs’ powers in relation to breaches of Union

law (Article 17 ESAs’ Regulations) and binding mediation (Article

19 ESAs’ Regulations) are effective? Please explain your answer.

□

The tools in relation to breaches of Union law and binding mediation are effective,

however they shouldn’t be used lightly.

Particularly, we believe the Breach of Union

Law-tool should be applied in limited and concrete situations, not with regard to

general compliance assessments in an area as this is a matter for the Commission to

investigate. Use of the Breach of Union Law-tool should always be used as a last

resort. We wish to recall that the mere reputational impact of a pending Breach of

Union Law case as well as the outcome has a severe impact on the subject of such an

investigation merely due to the ESAs’ position as European Supervisory Authorities.

It is therefore imperative that the integrity of investigations or procedures are

safeguarded.

1.5.2. Do you think that the use of the breach of Union law procedure by

the ESAs is adequate? Please consider both before and after the 2019

ESAs’ review and explain your

answer.

□

YES

Before 2019 ESAs’ review

□

YES

□

We refer to our response immediately above and elaborate that we believe the use of

breach of Union law procedure by the ESAs should not be used in historical cases

where no breach of Union law exists today. Rather we find that it should be used as a

final solution for continued, ongoing and present breaches of Union law in order to

achieve a future consistent application of Union law. We believe the Commission

should address issues of historical nature.

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We also believe that the information the ESAs use to inform of the process and results

of a Breach of Union law procedure should reflect the report adopted by the BoS as

the highest decision-making body.

After 2019 ESAs’ review

□

YES

□

Please refer to our response above on the situation before 2019 as it has not

significantly changed with the review and it is too early to assess the specificities.

1.5.3. Should there be other instruments available to the ESAs to address

instances of non-application or incorrect application of Union law

amounting to a breach ex-post? If the answer is yes, what would be

those instruments?

□

YES

□

1.5.4. Do you think that the new written non-objection procedure by the

BoS and the new independent panels for the decisions on

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breaches of Union law and dispute settlements introduced in the

2019 ESAs’ review have improved these decision

making

processes? Please explain your answer.

□

YES

□

Generally, we believe that issues should be discussed at physical meetings with the

opportunity to respond to questions and statements made, particularly the subject being

assessed and ensure full information is tabled prior to a decision is made. The use of

written procedures is generally used following a discussion to confirm a position or to

take into account changes following the discussion. Without the prior discussion it is

very difficult to have secured full disclosure of the issues at hand. Finally, we find the

reverse no-objection criterion in effect removes the possibility of NCAs to question the

decision at hand or reject the adoption of an issue when warranted. This seems to be

unnecessarily constraining on the decision-making. However, the Danish FSA often

experiences that other issues are tabled several times for BoS discussion in order to

resolve an issue wherever possible. This fosters a cooperative basis for the work.

1.5.5. Do you think that the ESAs have always acted, where needed, under

Article 17 and Article 19 of the ESAs’ Regulations?

If the answer is

no, please give concrete examples where you consider that the ESAs

should have taken relevant action under these Articles.

□

YES

□

We believe that the ESAs have opened cases where there were no added value for

achieving a consistent application of the Union law as it pertained to historic

circumstances. However we have not experienced that they have failed to open a BuL

investigation where needed.

1.5.6. Could you provide concrete examples where the introduction of

further binding mediation provisions in sectoral legislation would be

useful?

No. We do not believe binding mediation should be a specific sectoral tool allocated to

specific situations or cases. We find the competence of the relevant ESA to enter into

mediation when and where disputes arise is sufficient.

1.5.7.

Why do you think the use of these ESAs’ powers has been limited?

Please explain how these processes could be improved.

We do not believe the powers have been limited but reflect that the NCAs seek to

resolve issues and disputes between themselves or with the assistance of the ESAs

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without resorting to actual mediation. We do not believe this is a negative process but

evidence of the cooperative nature of relationships between NCAs.

1.6. Emergency situations and response to COVID-19 crisis

1.6.1.

Please rate the impact of the ESAs’ response in the context of the

COVID-19 crisis from 1 to 5, 1

standing for "less significant impact”

and 5 for "very significant impact”. Please explain your answer.

ESAs’ response to the Covid-19

crisis

opinion

The question is difficult to answer as an overall response for all three ESAs as they had

very difficult roles and responses. Generally, we believe that the ESAs successfully

facilitated coordinated responses on a range of issues also following from changes in

legislation.

For example in the market risk area, the EBA had a quick response on implementing

regulatory guidance and changes following form the challenges from the crisis and

addressed in the CRR quick fix.

However, there could be room for improvement. In some areas it is important that the

view of the ESA is published in sufficient time for the market to take them into account

in connection with their coming activities, e.g. a view on dividend payouts should be

made public prior to the financial entities making their decisions in lieu of finalizing

their accounts and preparing general assemblies. In other areas action must be taken

swiftly in order to adequately address the issues as the situation otherwise ends up

stabilizing itself without input from the ESA. Finally, it is important to ensure that a

course of action addresses an issue at hand. For example in the summer and autumn

2020, the EBA looked into why institutions did not use their liquidity buffer in spring

2020 during COVID-19. However, most of the countries in the EU experienced an

increase in liquidity and there was no a liquidity crisis nor a situation of stress.

Therefore, it did stood to reason that that the institutions had not used their liquidity

buffer and for instance breached the LCR in that situation.

1.6.2.

Please rate in a scale from 1 to 5, the effectiveness of the ESAs’

follow-up actions on the European Systemic Risk Board (ESRB)

recommendations below in the context of the COVID-19 crisis.

Please explain.

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opinion

Market illiquidity and implications for asset

managers and insurers

Impact of large scale downgrades of corporate

bonds on markets and entities across the

financial system

System-wide

restraints

dividend

payments, share buybacks and other pay-outs

Liquidity risks arising from margin calls

Generally, the ESAs followed up in a reasonable manner.

On the issue of dividend payments etc. we believe that this was and still is a matter for

the NCAs in their jurisdictions to assess based on their current situation as this also

depends on the state of affairs influenced by many other aspects such as public recovery

initiatives, etc. in the respective jurisdictions. Thus we believe it was limited what the

ESA should have done.

1.6.3. Do you think the coordinating activities carried out by the ESAs have

successfully contributed to address the challenges posed by the

COVID-19 crisis? If the answer is yes, please explain. If the answer

is no, please give examples.

□

YES

□

We believe activities were successful in the midst of the crisis.

1.6.4. Do you think that the ESAs have always acted effectively, where

needed, in the context of the COVID-19 crisis? If the answer is no,

please give concrete examples where you consider that the ESAs

should have taken relevant action.

□

YES

□

1.6.5. Do you think Article 18.2 of the ESAs Regulation (declaration of an

emergency situation) is fit for its intended purpose? Please explain

your answer. If the answer is no please suggest potential changes.

□

YES

□

1.6.6. In case you identified areas for improvement in the ESAs’

powers in

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emergency situations, do you have any suggestions on how to

address them?

N/A

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1.7.

Coordination function (Art 31 ESAs’

Regulations)

1.7.1. Do you think the coordination role of the ESAs is effective? If you

identify areas for improvement, please explain.

□

YES

□

Overall, the ESAs are fulfilling their coordination role and continuously expand on the

means for coordination. When carrying out their work the ESAs should continue to

facilitate constructive dialogue and discussions between the NCAs and with the ESAs in

order to achieve high quality and transparent solutions catering for all relevant aspects

of an issues at hand.

We also note that the amount of reporting obligations on the industry has increased

significantly over the years in the sectoral legislation. Therefore, any requests for further

data or adjustments to reporting tools should be well founded taking into account the

costs and resources in producing the data or adjustments to systems compared to the

intended use of the data received.

1.7.2. Do you see a need for greater coordination between the ESAs and/or

with other EU and national authorities as regards developing data

requirements, data collection and data sharing? If yes, please explain

your answer and indicate what changes you propose.

□

YES

□

In principle we believe that coordination efforts and between NCAs can always be

enhanced. However, we would urge that focus is dedicated to implementing changes

following the 2019 ESA review as well as in recent sectoral legislation. This includes

areas such as anti-money laundering in the EBA where there is a big task to coordinate

and establish the central AML/CFT database.

Given the amount of sectoral legislation we believe that greater coordination efforts

could be well spent in the work with the Commission ensuring consistency of upcoming

regulation with existing regulation.

1.7.3.

2019 ESAs’ review. Please rate the effectiveness, in your view, of

the tools below in order to fulfil the new coordination role of the

ESAs facilitating the entry into the market of actors or products

relying on technological innovation. (“5” being the most effective

and “1” the least effective

tool)

exchange of information and best practices

opinion

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adopt guidelines

adopt recommendations

2019 ESAs review. [specific for ESMA]. Do you think ESMA’s new

coordination function (Article 31b ESMA Regulation) in relation to

orders, transactions and activities that give rise to suspicions of

market abuses and have cross-border implications for the integrity of

financial markets or financial stability in the EU is an effective tool?

If the answer is yes, please provide examples where this new

function has been or could be useful. If the answer is no, please

explain the reasons.

□

YES

□

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1.7.4. 2019 ESAs review. Do you think the new coordination groups

(Article 45b of the ESAs Regulations) are effective tools to

coordinate competent authorities regarding specific market

developments? If the answer is yes, please provide examples where

the new provision could be useful. If you identify room for

improvement in this new provision, please explain.

□

YES

□

This provision is in practice a codification of the existing culture in the ESAs to

establish coordination groups where deemed necessary. Aside from this work is

coordinated through working groups. It is too early to provide an assessment as to where

this tool could be even more useful in this specific area.

1.7.5. In your view, does the coordination function of the ESAs, ensuring

that the competent authorities effectively supervise outsourcing,

delegation and risk transfer arrangements in third countries, work in

a satisfactory way? Please explain your answer. If your answer is no,

please indicate how the coordination function of the ESAs should be

adjusted.

□

YES

□

In our view, it is not the coordinating function of the ESA’s that enables

effective

supervision of outsourcing, but rather the underlying legislation. The Danish FSA is of

the view that the coordination function does not in any way hinder the supervision of

outsourcing, and as such, works in a satisfactory way. From a broader perspective, the

coordination function of the ESA’s ensures

that all competent authorities correctly have

implemented relevant guidelines on outsourcing, making cooperation between national

authorities easier in regards to outsourcing arrangements between these Member States.

1.8. Tasks related to consumer protection and financial activities.

1.8.1.

What are, in your view, the ESAs’ main achievements in the

consumer and investor protection area?

The Danish FSA is of the view that the second EBA report on the application of the

guidelines on product oversight and governance (POG) arrangements,

(EBA/REP/2020/28) has been informative both with regard to the survey, that it

included and the examples of good practice that is included in the report.

Another good example is the guidelines on complaints handling for the securities and

banking sectors (JC 2018 35), that obliges financial institutions to try to solve disputes

in house and provide NCAs with valuable information on the number of complaints

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received by the financial institutions.

1.8.2. Please assess the impact of

the ESAs’ work on analysis of consumer

trends, reviewing market conduct, developing indicators,

contributing to level playing field, financial literacy and follow up to

work in this area. Please rate the ESAs impact on each item from 1

to 5, 1 standing for

"less significant impact” and 5 for "most

significant impact”. Please

explain:

analysis of consumer trends

reviewing market conduct

developing indicators

contributing to a level playing field

opinion

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financial literacy

follow up to work in this area

1.8.3. 2019 ESAs review. The ESAs can now, where sectoral legislation

enables them, use their product intervention powers for practices and

products that cause consumer harm and after two prolongations of

six months, an automatic one-year prolongation of the prohibition is

possible (Article 9.5). In your view, are these powers effective for

their intended purpose? Please explain your answer.

□

YES

□

The idea behind the product intervention powers is that identified practices or products

can be taken out of circulation for a period where it can be assessed whether adjustments

can be made to ensure compliance with the rules or a permanent ban should be put in

place. The idea of potential on-going prolongation of a prohibition would be

counterintuitive from an investor- or consumer protection point of view and it is better

protection to make a decision within the scheduled timeframe. At this point the rules

with this extended ESA intervention has just come in and should only be assessed after

they have had time to be applied.

1.8.4. Would you consider it useful if the ESAs could adopt acts of general

application in cases other than those referred to in Article 9(5) of the

ESAs Regulations?

□

YES Please specify which ones

□

NO Please give reasons

The premise would result in a change the dynamics of legislative power in the EU

thereby fundamentally changing the inter-institutional balance of the EU. The

competence to adopt acts of general application in Article 9(5) of the ESAs Regulations

presupposes a clear delimitation of the scope of competence being set out in the level 1

legislation and that their actions is that of execution of the will of the co-legislator. Any

competence without such a delimitation would provide the ESAs with an arbitrary

competence unbefit the role of executive arm of Commission. Moreover, it is uncertain

that this would be in compliance with Danish regulatory tradition where we must

indicate with relatively great precision what a provision is to be used for.

1.8.5. Could you provide concrete examples where enabling the use of the

product intervention powers in sectoral legislation would be useful?

No.

2019 ESAs’ review. [specific for EBA]. Under the expanded scope

of the competences as regards the consumer credit directive and the

payment account directive, EBA will also be able to look at

consumer issues across a range of activities, for example lending

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practices. How do you assess this change?

We believe that further convergence work in the area of the Consumer Credit Directive

could be beneficial. The Danish FSA has in recent years had a special focus on

creditworthiness assessments in connection with consumer loans. In the future EBA

could e.g. carry out a cross-cutting study of how creditworthiness assessments are

carried out when granting consumer loans, e.g. when these are granted in connection

with the purchase of goods.

1.8.6. 2019 ESAs review.

Please rate the new ESAs’ task to coordinate

mystery shopping activities of competent authorities, if applicable,

according to its relevance to promote consumer protection at EU

level (1 standing for "less relevant” and 5 for "most relevant”).

Please explain your answer and indicate whether you consider

enhancing national competencies for conduct supervision may be

beneficial for the overall coordination of mystery shopping

activities.

opinion

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EU-level coordination of mystery shopping

Mystery shopping activities is an area that is not similarly regulated across the EU. For

example in Denmark we have no legal basis to enter into such activities. We also see

some challenges with regard to identification requirements of a mystery shopper when

entering into a purchase agreement such as applying a national identification number in

the process. Any enhanced activity in this area would still need to respect the presence

or not of national legal basis and therefore whether or not an NCA could participate.

1.8.7. What are, in your view, the main strengths and weaknesses of the

current framework on consumer protection (Article 9 ESAs

Regulations) and what would you suggest to address any possible

shortcomings?

The consumer protection area is extremely broad even if this is divided between the

three ESAs regarding the three financial sectors. It is therefore essential that the ESAs

have a thorough knowledge of trends in the market so that they can focus on

problematic areas with regard to consumer protection. In order to fulfill this purpose the

continued publication of a consumer trend report will serve as a tool for focusing its

work. However, it is important to take into account that products, markets as well as the

maturity of financial consumers can and do differ from Member State to Member State.

We believe that the ESAs should address consumer issues that have a significant cross-

border nature in a majority of Member States as other issues are adequately dealt with

by the Member State due to proximity to the challenges.

1.8.8. Are there areas for improvement in the toolkit of the ESAs when it

comes to coordinating supervisors in the area of consumer

protection? Please explain your answer.

□

YES

□

1.9. International relations.

1.9.1. How do you assess the role and competences of each ESA in the field

of international relations? Are there additional international fora in

which the ESAs should be active? Please specify.

Generally, there is potential for the ESAs to add value by coordinating Member States’

participation in international fora. However, the specific participation in the fora should

be left at Member State level.

EBA coordination on Basel issues is very useful as it also provides non-Basel Member

States valuable insights in ongoing Basel work. ESMA coordination was very useful

when setting out “Draft

Administrative Arrangement for the transfer of personal data”

between securities regulators, where ESMA facilitated the contact, cooperation with and

decision of the European Data Protection Supervisor (EDPS) as well as the cooperation

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with IOSCO in establishing an Oversight Mechanism to monitor the application of the

signed arrangements.

1.9.2.

2019 ESAs’ review.

How do you

assess the new ESAs’ role in

monitoring the regulatory and supervisory developments,

enforcement practices and market developments in third countries

for which equivalence decisions have been adopted by the

Commission?

It is still too soon to

evaluate properly on how the ESA’s role in monitoring regulatory

and supervisory developments in third countries. The ESA work on this is still being

framed. We should allow the ESAs time to have concrete experience in this regard.

1.9.3. Are the powers and competences in the field of international

relations as set out in Article 33 of the ESAs’ Regulations adequate

in light of the tasks conferred on each of the ESAs? If you identify

areas for improvement, please specify.

□

YES

□

As stated above, experience is still limited. We need more experience before suggesting

changes to the framework.

1.9.4. How do you assess the role of each ESA in the development of model

administrative arrangements between national competent authorities

and third-country authorities? Should this role be further specified?

Aside from the positive experience with ESMAs work in relation to GDPR requirements

in connection with the transfer of personal data to third countries as well as setting out

model draft memorandums of understanding under the AIMFD, there is not much

experience in ESAs developing model administrative arrangements between NCAs and

third country authorities.

The EEA and UK aside, we do not see a need for the ESAs to generally engage in

developing model agreements since there is great difference in the necessity and

operational requirements for NCAs and other third country authorities. However, if a

more general need should arise in accordance to a sectoral piece of regulation or on a

horizontal EU piece of regulation a role for the relevant ESA should be considered.

1.10.

The role of the ESAs as enforcement actors/enforcers.

1.10.1.

Under Articles 17 (breach

of Union law),

18 (action

in emergency

situations)

and 19 (settlement

of disagreements between

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NCAs in cross-border situations/binding mediation),

in case a

competent authority fails to ensure that a market participant or

financial institution complies with requirements directly applicable

to it, the ESAs have the power to investigate the alleged breach or

non-application of Union law and, following a specified procedure

and under certain conditions, adopt an individual decision towards

the market participant or financial institution requiring it to comply

with EU law. How do you assess the role of each ESA under these

articles of the founding Regulations?

We believe the ESA’s roles are adequate at this time.

1.10.2. Do you see room for improvement in the way each ESA could ensure

that competent authorities enforce more effectively EU rules towards

market participants/financial institutions? Please explain your

answer.

□

YES

□

Generally, we believe the current actions are sufficient.

The basis for supervisory compliance in the financial regulation is that the NCA is

responsible for and ensures that EU rules towards market participants/financial

institutions are complied by. In addition to select, targeted theme reviews or similar,

compliance is mainly achieved and checked through the course of on-going

supervisory activity based on the activity planning in the specific jurisdiction and

taking into account the premises of risk-based activity. The notion of efficiency is

therefore always in development and dependent on the risk appetite in a sector.

1.10.3. In your view, are the powers of the ESAs to enforce EU rules

towards market participants/financial institutions under Articles 17,

18 and 19 ESAs Regulations well balanced, adequate and

effective? Please substantiate your answer.

□

YES

□

We believe it is appropriate to retain the current system of the NCAs enforcing the

rules towards its market participants/financial institutions and only if the NCA fails

this obligation, the ESA may act.

1.10.4. Do you think the respective roles of the ESAs and of the Commission

are clearly defined in Article 17, 18 and 19 ESAs Regulations?

Please substantiate your answer.

□

YES

□

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1.10.5. Do you think the use of sanctions laid down in the EU acquis by

competent authorities in case of non-compliance of market

participants/financial institutions with EU rules is, in practice,

sufficiently dissuasive or disproportionate? If not, what role could

sectoral legislation and each ESA play in improving the situation?

Please substantiate your answer and give examples.

□

Sufficiently dissuasive

□

Disproportionate

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□

Other, please explain

The general use of sanctions by the NCAs in case of non-compliance is a matter of

assessing adequacy of the sectoral legislation and as a first measure it is the

responsibility of the NCA and its Member State. Further assessment of an NCAs lack to

ensure compliance with EU-rules is a matter for the Commission in assessing the status

of adequate implementation of regulation and finally a matter for the European Court of

Justice to render an opinion on. We do not believe the ESA should have a further role in

this regard.

2. Governance of the ESAs.

2.1. General governance issues

2.1.1.

Does the ESAs’ governance allow them to ensure objectivity,

independence and efficiency in their work/decision making? Please

explain. If you consider that there should be differences in

governance between different types of tasks, please indicate.

□

YES

□

We do not believe that the governance structure should be subject to vast differences

dependent on tasks. All tasks follow the same structure with regard to development, i.e.

through working groups with input from ESA and NCA staff with final BoS approval.

The overall structure ensures the elements of objectivity, independence an efficiency.

Moreover, in order to support and foster the necessary cooperative nature enshrined in

the ESAs the BoS should as far as possible aim to progress through consensus and

sharing of best practices among NCAs and with the ESAs.

2.1.2.

2019 ESAs’ review. In your view, has the new provision in Article

42 of the ESAs’ Regulations according to which the Board of

Supervisors members must abstain from participating in the

discussion and voting in relation to any items of the agenda for which

they have an interest that might be considered prejudicial to their

independence, improved the decision making process? Please

explain your answer.

□

YES

□

It is necessary to ensure the decision making process is not influenced by undue

interests. However, this basic principle is neither new nor has it changed in content with

the addition to the provision However, we recall the fact that BoS and MB members are

also representatives of their respective NCAs. They are obliged to bring their national

experience both personal and from the NCA to the table which is also a fundamental

element of the ESFS-system. Similar is also true for the Chairman of the ESAs,

particularly with the new voting rights and roles in a number of areas. This does not

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constitute a conflict of interest in and of itself.

2.1.3.

2019 ESAs’ review. Do you think the requirements in Articles 3 and

43a of the ESAs’ Regulations are sufficient to ensure accountability

and transparency? If you identify areas for improvement, please

explain.

□

YES

□

We believe that the provisions are sufficient. Considering the ESAs are supervisory

authorities we also believe that the 2019 ESA-review introduced certain undesirable

actions, including an unfortunate mix of roles for particularly the European Parliament

as it facilitates a deeper role in relation to the on-going supervisory work of the ESAs.

In this regard we refer to the reporting of dissenting views from the Peer Review

Committee in Article 30 without involving the BoS in such reporting and without

indicating why the European Parliament needs this information or how it should react to

it. There is also the introduction of confidential discussions between the ESA and the

European Parliament behind closed doors in Article 8(8). These provisions should not

lead to interference with the supervisory actions of the ESAs.

We believe transparency and accountability is important in the ESA system. Publication

of summaries of BoS meetings contributes to this. However, we find it odd that the

European Parliament should have further information than the Council or that available

to the public as Article 43a would facilitate.

2.1.4.

2019 ESAs’ review. To what extent the recent enhancements in the

role of Chairperson improve the decision making process? Please

rate each change from 1 to 5, 1 standing for "less significant

improvement" and 5 for "most significant improvement”. Please

explain your answer.

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opinion

Request to the Board to establish internal

committees for specific tasks

Set the agenda to be adopted by the Board

and table items for decision

Call a vote at any time

Propose the composition of independent

panels for breach of Union law investigations

and dispute settlements.

Propose the composition of peer review

committees for peer reviews

Propose a decision to launch an inquiry and

convene an independent panel for the purposes

of Article 22 (4) ESAs Regulation

Vote in the Board of Supervisors (except on

matters that are decided on the basis of

qualified majority voting)

Other, please indicate

The Danish FSA is of the view that generally, the Chairmen have administered their

new competences in a professional and cooperative manner. The elements regarding the

preparation and conduct of the BoS are to a large extent codification of existing

processes.

It is still an adaptation phase to ensure full implementation of all the new processes with

regard to the proposal competences but the Danish FSA experiences that it seems to

function in a satisfactory manner. Generally, the Danish FSA sees little use in the

changes to the process for initiating the inquiry-function given the nature of these is to

investigate an issue on a more general capacity.

2.1.5. Should the role of the Chairperson be strengthened in other areas? If

so, in which areas (please substantiate).

□

YES

□

2.2. Decision-making bodies and preparatory bodies

2.2.1. Does the current composition of the Board of Supervisors (BoS) and

of the Management Board (MB) ensure that decisions are taken

efficiently and independently? If you identify areas for

improvement, please explain.

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□

We are of the view that the current composition and system does ensure independent

decision-making. It is also our impression from the Danish FSA that efficiency has not

significantly deteriorated with the increased role of the Management Board. However, it

is still early days as many of the processes with natural relevance for the Management

Board are being carried out in accordance with the full effect of the new procedures for

the first time in 2021.

2.2.2. Do the current voting modalities (e.g. simple majority, qualified

majority…) of the BoS ensure efficient decision making? Please

explain. If the answer is no please indicate how voting modalities

could be streamlined.

□

YES

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□

As far as possible the BoS should aim to progress through consensus and sharing of best

practices among NCAs.

[Only for EBA]. Does the current voting system that, for some

decisions, requires additional simple majorities from competent

authorities participating and not participating in the Banking Union

ensure efficient and balanced decision making? Please explain.

□

YES

□

YES

□

We believe this mechanism continues to be important to ensure protection of NCAs

from non-participating Member States of the Banking Union so they are not without

influence on the work of the EBA compared to that of the SSM. Moreover, the Danish

FSA has not experienced that the mechanism has negatively influenced decision-making

in the EBA.

2.2.3. Does the current allocation of tasks between the BoS and the MB

ensure that the ESAs are run effectively and perform the tasks

conferred on them? If you identify areas for improvement, please

explain.

□

YES

□

2.2.4.

2019 ESAs’ review. To what extent the enhanced role of the

Management Board has improved the decision making process.

Please rate each change from 1 to 5, 1 standing for "less significant

improvement" and 5 for "most significant improvement”. Please

explain your answer.

The MB can give opinions on all matters to be

decided by the Board of Supervisors.

The MB ensures the consistent use of a

methodology for all peer reviews conducted

The MB proposes a peer review work plan every

two years.

The MB can set up coordination groups on its

own initiative

opinion

The Danish FSA is of the view that this has not influenced the efficiency of the ESAs

and the work done. However, it is premature to assess the full effect as many processes

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are only fully implemented with processes in 2021.

2.2.5. Should the role of the Management Board be strengthened in other

areas? If so, in which areas (please substantiate).

□

YES

□

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2.2.6.

2019 ESAs’ review. Do you think the written non-objection

procedure for core convergence tools (breaches of Union law,

dispute settlements and peer reviews) is effective for achieving its

objective? Please substantiate your answer. If your answer is yes,

please indicate if there should be more decisions taken under this

procedure and in which areas.

□

YES

□

More decisions in this manner

□

No further decisions in this manner

□

The Danish FSA experiences that the extensive use of written procedures with reverse

non-objection procedures on issues that have not been discussed at the BoS does not

facilitate constructive and fruitful discussions. Moreover, the Danish FSA finds that the

reverse no-objection requirement may prevent relevant views to be included during the

decision-making process and would therefore advise against further expanding the use

of them.

2.2.7. Do you think ad hoc committees composed of staff of the ESAs and

members from the competent authorities (e.g. peer review

committees) are effective tools to improve the decision making

process? If your answer is yes, please indicate if there should be

more decisions taken under this procedure and in which areas.

□

YES

□

The composition comprising a mix of ESA and NCA staff is not a new element as most

committees were also established in this manner prior to the 2019-ESA review,

particularly with a view to include their experience but also support the written

outcomes of the work conducted. While a mix is beneficial, the primary objective

should be to ensure transparent and constructive discussions with inclusion of all

relevant views on equal footing.

2.2.8. Do you think the functioning of preparatory/supporting bodies of the

ESAs (e.g. technical working groups, standing committees, task

forces etc.) is effective and efficient? If you identify any

shortcomings please specify how these could be addressed.

□

YES

□

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Tekst:

How can shortcomings be addressed?

The information below is based on experiences from the Danish FSA as a member of

the ESAs and their bodies. Generally, we believe the supporting bodies are efficient

means for the work and we recognize the benefits of ESA staff forming an integral part

of the preparatory and supporting bodies as well as undertaking the majority of the

drafting. However, the Danish FSA experience some hick-ups in the working

procedures and approaches that we wish to mention.

Firstly, as the ESAs have matured the Danish FSA experience that ESA staff is taking

on a stronger role with a voice as a “supervisor of supervisors” which is not envisaged

as their role in the EFSF nor is it always conducive to being an honest broker in a

process.

Secondly, we appreciate the vast amount of documents

–

both final and draft

documents- underpinning the high quality work being undertaken. However, the Danish

FSA find it increasingly challenging to review all the material as it is often distributed to

the NCA members very close to the actual meeting, allowing very little time for

preparation. It also influences on the approval processes and optimal results as NCA

members will be pressed to secure mandates for the work where needed. We would wish

that this was to a higher degree factored into preparations and timetables.

Thirdly, given the amount of issues to be addressed not all issues can be dealt with

extensively at physical meetings. This makes it even more important with due inclusion

of all relevant arguments in a process and transparency in how comments are handled.

This is equally relevant for the internal process with NCAs as it is towards stakeholders

where the 2019 ESA-review provided increased transparency to the latter.

Finally, the Danish FSA wishes to continue the good and important work in the ESAs in

a constructive and inclusive manner for all parties based on cooperation and exchange of

views to achieve the highest quality possible on the outcomes.

2.2.9. Please assess the impact of the work undertaken by

preparatory/supporting bodies of the ESAs (e.g. technical working

groups, standing committees, task forces etc.) on the ESAs’ overall

work and achievements. Please rate the impact from 1 to 5, 1

standing for "less significant impact” and 5 for "most significant

impact”: If you identify

any shortcomings please specify how these

could be addressed.

Standing committees and other permanent

committees

Other preparatory bodies (e.g. technical working

groups

Committee on consumer protection and financial

innovation

Proportionality Committee

opinion

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The included information is based on experiences from the Danish FSA as a member of

the ESAs and their bodies.

Generally, the Danish FSA believe the work undertaken in these fora is of vital

importance to ensure material has undergone thorough analyses and discussions prior to

submission for approval by the BoS (or other decision-making forum) in order to

provide high quality information for an informed decision.

Therefore, it is important that processes allow for thorough discussions and preparation

of documents facilitated by ESA staff as honest brokers in the process.

It is too early to fully assess the impact of the new Proportionality Committees in the

ESAs.

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(only for ESMA) Should there be a different governance in case of direct

supervisory decisions in ESMA (for example, similar to the new

governance for CCPs)? If the answer is yes, please indicate your

suggestions for improvements and the expected benefits.

□

YES

□

2.3. Financing and resources.

2.3.1. Do you consider the provisions on financing and resources for the

general activities of the ESAs appropriate to ensure sufficiently

funded and well-staffed ESAs taking into account budgetary

constraints at both EU level and the level of Member States? Please

explain your answer. If the answer is no, please indicate what other

sources of finance could be considered.

□

YES

□

2.3.2. Do you think that the ESAs have sufficient resources to perform their

tasks? Please explain.

□

YES

□

Generally, we believe that the increase in tasks from recent legislation has not

sufficiently been accompanied by funding. We do acknowledge the difficulties in

delivering a large contribution to the single rulebook, extensive supervisory

convergence work, IT projects combined with a wide range of other tasks in the ESA

Regulations. However, given these conditions and the necessity of adequate

preparation of material we believe that it may be more an issue of the ESAs focusing

even more on a tougher prioritisation according the budget available and the tasks at

hand and lower expectations of deliverables.

We see a significant challenge in the continuously growing IT-costs due to a

multitude of IT-projects at the ESAs, some of which have been set out as level 1

demands but without funding to accompany it.

2.3.3. Do you think there are enough checks and balances for how the

ESAs spend their budget? Please explain.

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□

YES

□

2.4. Involvement and role of relevant stakeholders

2.4.1. In your view, are stakeholders sufficiently consulted or, on the

contrary, are there too many consultations? Please explain your

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answer.

□

YES

□

Too many consultations

It is important to involve stakeholders in order to ensure fully informed basis for

decision-making. While there may be cause for targeted roundtables on narrow or very

specific issues, it is necessary to ensure that all relevant parties are invited to such to

ensure relevant expertise on the issues on the table is present. However, the Danish FSA

have experienced that particularly the EBA could in some instances have invited all

impacted stakeholders. An example is the EBA's guidance on article 26 in the LCR

Delegated Regulation in the second EBA report on LCR implementation. The guidance

has a considerable impact on the LCR requirement for the specialized mortgage credit

institutions. However, EBA did not include specialized mortgage credit institutions in

the consultation, despite suggestions to do so..

2.4.2. Please assess in a scale from 1 to 5 the quality, in your view, of the

consultations launched by the ESAs (5 standing for the highest

quality). Please explain your answer.

General consultations launched by the ESAs

Specific consultations when developing data

collection requirements

□

opinion

2.4.3. Are the ESAs sufficiently transparent and accessible for stakeholders

to ensure effective and efficient interaction? Please explain your

answer.

□

YES

□

The new requirement of providing feedback on the handling of responses to

consultations has not yet fully reached its potential. Aside from this Danish stakeholders

still ask for better information on how the ESA deals with crossborder issues, subject of

course to what information may be divulged taking into account obligations of

professional secrecy.

2.4.4. Please rate in a scale from 1 to 5 the impact of stakeholders groups

within the ESAs on the overall work and achievements of the ESAs

(1 standing for "less

significant impact” and 5 for "very significant

impact”). Please explain your

answer.

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EIOPA Insurance & Reinsurance Stakeholder

Group

EIOPA Occupational Pensions Stakeholder

Group

ESMA Securities and Markets Stakeholder Group

EBA Banking Stakeholder Group

opinion

2019

ESAs’ review. Please assess the significance of the recent

changes in the composition, selection, term of office and advice of

the stakeholders groups (Article 37 ESAs Regulations)? Please rate

each change from 1 to 5, 1 standing for "less significant" and 5 for

"most significant”. Please explain your answer.

Composition of stakeholders groups

Selection of members

Term of office

A third of its members can issue a separate advice

opinion

It is too early to effectively assess the changes as the terms of current members have not

completed full cycles yet. However, the main challenge is to attract candidates to cover

all segments as well as attracting sufficiently high level candidates that are available and

willing to contribute to the work.

2.4.5. Does the composition of stakeholders groups ensure a sufficiently

balanced representation of stakeholders in the relevant sectors?

Please explain your answer.

□

YES

□

2.4.6.

In your experience, are the ESAs’ stakeholders groups sufficiently

accessible and transparent in their work? If the answer is no, please

indicate the areas where the transparency could be improved.

□

YES

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□

2.5. Joint bodies of the ESAs

2.5.1. Please assess the aspects described below regarding the Board of

Appeal (BoA) of the ESAs. Please rate the effectiveness of each

aspect from 1 to 5 (1 least effective, 5 most effective). If you identify

areas for improvement, please explain.

Organisation

Functioning and time limits

opinion

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One joint Board of Appeal for the 3 ESAs

The composition of the BoA

2.5.2. Please assess the aspects described below regarding the Joint

Committee of the ESAs. Please rate the effectiveness of each aspect

from 1 to 5 (1 least effective, 5 most effective). If you identify areas

for improvement, please explain.

Functioning

Working methods

Ensuring cross-sectoral cooperation

Ensuring consistent approaches

Decision making process

The legal structure (no legal personality)

opinion

2.5.3. Please assess the work of the Joint Committee of the ESAs in the

areas below. Please rate each area from 1 to 5 (1 least significant

contribution, 5 most significant contribution). If you identify areas

for improvement, please explain.

Consumer Protection and Financial Innovation

Coordination and cooperation for bi-annual Joint

Risk Reports, published in spring and autumn

Financial Conglomerates

Securitisation

European Forum of Financial Innovators

opinion

3. Direct supervisory powers.

3.1.

How do you assess ESMA’s direct supervisory powers in the field

of:

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

Credit Rating Agencies



Trade Repositories under EMIR



Trade Repositories under SFTR



Securitisation Repositories (STS)

Satisfactory.

3.2.

Please assess ESMA’s performance as a direct supervisor of the entities

referred to in question 3.1 in a scale of 1 to 5 (1 lowest rate, 5 highest

rate). If you identify areas for improvement please explain.

Credit Rating Agencies

Trade Repositories under EMIR

Trade Repositories under SFTR

Securitisation Repositories

opinion

3.3. How do you envisage the future scope of direct supervisory powers of

ESMA or any other ESA? What principles should govern the decision to

grant direct supervision to the ESAs? If you see room for improvement,

please provide evidence where you see weaknesses of the current set-up.

The ESAs have been established with the primary focus of promoting and facilitating

supervisory convergence in their remit and contributing to the single rulebook, also

within their remit. From an organisational point of view, direct supervisory powers were

not envisaged and put a strain on not only relevant governance structures but also on

funding structures. Moreover, the EU financial regulation is based on national

competences and national supervisory responsibility with international cooperation

which should remain the basis also in the future.

Any consideration of further allocation of direct supervisory competencies with the

ESAs should be based on a clear, evidence-based rationale. Relevant criteria would be a

thorough analysis, including evidence of significant cross-border activity that cannot be

adequately addressed by National Competent Authorities, existence of significant

divergent approaches among NCAs and consideration of the ESA's resources to

undertake the task.

We do not support creating a “supervisor of supervisors” regime.

The Danish FSA notes that with regard to EIOPA there has been reference to a criteria

based on the systemic importance of insurance and pension companies. However, there

does not seem to be sufficient evidence to support such a criterion at this time. The

reasons being

there is no common definition of “systemic importance”

It is not possible

to equate banking and insurance businesses to facilitate this classification due to the

diversity in business forms, lack of indication of which companies would be subject to

this classification and lack of data on the effect of bankruptcies of the relevant entities.

3.4. Have you identified any areas where supervision at EU level should be

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

considered? If your answer is yes, please explain.

□

YES

□

4. The role of the ESAs as regards systemic risk.

4.1. Please assess the aspects described below regarding the role of each ESA

as regards systemic risk in a scale of 1 to 5 (1 lowest rate, 5 highest rate).

If you identify room for improvement, please specify how this could be

addressed.

The quality of the analysis of market

developments

The quality of the stress test and transparency

exercises that were initiated and coordinated by the

ESAs

opinion

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The interaction between the ESRB and ESAs on

the development of a common set of quantitative

and qualitative indicators to identify and measure

systemic risk

The cooperation within the European System of

Financial Supervision (ESFS) to monitor the

interconnectedness of the various subsectors of

the financial system they are overseeing

The broader cooperation between the ESRB and

the ESAs within the ESFS

The contribution of the ESAs to facilitating the

dialogue between micro- and macro-supervisors

The main objective for the ESAs is to ensure that the EU financial sectors are

significantly better at withstanding a financial crisis than it was during the last financial

crisis. To the extent that it does not conflict with financial stability, the ESAs should

also aim to enhance efficiency, e.g. through harmonising rules and practices and thereby

ease cross border financial activity. However, when the two goals conflict promoting

financial stability should be the main objective of the ESA.

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QUESTIONS ON THE SINGLE RULEBOOK

5. The ESAs work towards achieving a rulebook

5.1. Do

you

consider

that

the

technical

standards

and

guidelines/recommendations developed by each ESA have contributed

sufficiently to further harmonise a core set of standards (the single

rulebook)?

□

YES If you have identified areas for improvement, please explain

□

Other

We believe the ESA's work have contributed to further harmonise the Single Rulebook.

In general, it is important to ensure sufficient time for preparation and review of the

documents accompanying the processes throughout the development phase thus

facilitating harmonized approaches and consistent application. This is particularly

important when addressing highly technical issues or issues of a significant horizontal

nature.

We also see an increased level of detail in these products leaving less room for

supervisory discretion and national optional discretions. In general, standards and

guidelines should respect of such elements.

The Danish FSA experiences that

the ESA’s expect full compliance with

general

application guidelines or recommendations. However, considering the level of

granularity of such instruments and the

“comply or explain” function,

we believe it is

important to recognize that partial or non-compliance may be appropriate in some

circumstances and legally possible.

□

NO Please give reasons.

5.2. Do you assess the procedure for the development of draft technical

standards as foreseen in the ESAs Regulations effective and efficient in

view of the objective to ensure high quality and timely deliverables?

Please explain your answer. If you identify areas for improvement, please

indicate.

□

YES

□

Other

There is still an on-going and crucial challenge in delivering the draft technical

standards within the specified legal timeframe in level 1. This is of course not

something to be addressed by the ESA’s Regulations, but does have a severe impact on

the ability to achieve the goal of high quality and timely deliverables at the level of the

ESAs. We therefore strongly urge the Commission to consider this from the beginning

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in the Commission proposals but also as an honest broker during the political

negotiations. Also, we as co-legislators should ensure that timeliness is reviewed during

the negotiation process following changes to the tasks and the period of negotiations.

While there are variations across the ESAs, we generally are of the view that the draft

technical standards being delivered are of high quality and are for the vast majority

delivered within the set timeframe. However, it is always possible to improve. Firstly,

more feasible deadlines for delivering in the level 1 text as mentioned. Secondly, on

grounds of the huge number of mandates to be fulfilled combined with ever growing

granularity of content, it is a very large task for the ESAs to fulfill all the mandates

within the set deadlines while still fulfilling their other objectives on e.g. coordination

and supervisory convergence at an equally high standard and maintaining high quality

deliverables

The changes in the procedures in Articles 10-15

of the ESA’s Regulation

from the 2019-

ESA review have had little time to show their true merit due to the short time of

application. We particularly appreciated the obligation for the Commission to provide

explanations on proposed amendments when resubmitting a draft technical standard to

the ESA for re-evaluation.

5.3. When several ESAs need to amend joint technical standards (e.g. PRIIPs

RTS) and there is a blocking minority at the Board of Supervisors of one

of the ESAs, what would you propose as solution to ensure that the

amendment process runs smoothly?

The question presupposes that there should not be differences in opinion between the

BoS of the three ESAs. We believe that is a flawed assumption. The reason for requiring

the approval of two or three of the BoS of the ESAs would be to ensure that the product

reflects the interests of all parties concerned. Should that not be the case thus resulting

in a blocking minority, it is the task of the ESAs to re-examine the issues and find

solutions agreeable to all parties.

5.4. In particular, are stakeholders sufficiently consulted and any potential

impacts sufficiently assessed? Please explain your answer. If you identify

areas for improvement, please indicate.

□

YES X

–

by organizing round tables and consultation procedures.

□

Other

The processes vary between the ESAs. Generally, the ESAs consult where mandatory

and on select issues they supplement stakeholder inclusion through round tables and

additional consultation procedures.

However, we do believe that there is room for improvement for broader inclusion of

stakeholders, particularly at the EBA, but also more generally, on the assessments of

impacts in relation to proposals. This ever so more on areas where a high level of

granularity will result in burdens for the stakeholders when they must comply with the

rules. However, this also presumes contributions from the stakeholders without which

the ESAs cannot adjust the content.

□

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5.5. Can you provide examples where guidelines and recommendations

issued by the ESAs have particularly contributed to the establishment of

consistent, converging, efficient and effective supervisory practices and

to ensuring the common, uniform and consistent application of Union

law?

The included information is based experiences from the Danish FSA.

Given the vast amount of issued guidelines and recommendations by the ESAs, the Danish

FSA stress that the below mentioned are merely a small sample of examples and there are

many more of equally good value contributing to the common understanding and

convergence in the on-going supervisory work.

The first example is ESMA guidelines on enforcement of financial and non-financial

information in annual and interim financial reports (ref. ESMA32-50-218). The Danish

FSA experience that these guidelines have together with the ongoing coordination from

ESMA to a high degree ensured consistent, converging, efficient and effective

supervisory practices on this financial information. The enforcement has contributed to

common, uniform and consistent application of the International Financial Reporting

Standards (IFRS) in Europe.

The second and third examples are the guidelines on AML/CFT colleges (ref. JC 2019

81) and the guidelines on ML/TF risk factors (ref. EBA/BL/2021/02). The Danish FSA

find they are useful tools that contribute to the establishment of consistent supervisory

practices. However, in some instance the Danish FSA would wish more convergence

with similar workstreams under the FATF, as to ensure that those different tools

complement each other, and that we keep some added value.

A fourth example is the EBA Guidelines on the treatment of structural FX under Article

352(2) of the CRR (ref. EBA/GL/2020/09).

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5.6. Would you consider it useful if the ESAs could adopt guidelines in areas

that do not fall under the scope of legislation listed in Article 1 (2) of the

ESAs founding Regulations and are not necessary to ensure the effective

and consistent application of that legislation?

□

YES Please specify which ones

□

NO Please give reasons.

We would not consider this useful nor legal. Firstly and generally, we do not believe it

is feasible on legal grounds to issue guidelines in areas where the ESA has not been

allocated competence, i.e. the legal act is not included in Article 1(2) of the ESAs

Regulations. The ESA would be exceeding its competences.

Secondly, guidelines are often considered as a tool to supplement the single rulebook

and have an authoritative effect once published. However, they remain a non-binding,

convergence tool with a “comply-or-explain” function attached to them and thus

do not

have any status as legislative acts.

Thirdly, issuance of guidelines must satisfy the test of establishing consistent, efficient

and effective supervisory practices and ensure common, uniform and consistent

application of the Union law as stated in Article 16(1) of the ESAs Regulations. The

reference to Union law is a reference to the legal acts as stated in Article 1(2) of the

ESAs Regulations.

Moreover, according to the principle of subsidiarity and proportionality the ESAs can

only issue guidelines where it is necessary to ensure an effective and consistent

application of the legislation. Therefore, issuance without the necessity to ensure

effective and consistent application of that legislation makes the guideline nul and void.

Fourthly, we are aware that the issuance of guidelines in areas (such as accounting in

ESMA) that affect undertakings which are not within the scope of the ESA competence

is a continuous subject of debate. However, this poses many challenges of ensuring that

all of the relevant goals and interests of the rules the guidelines are supplementing are

catered for and all the relevant authorities are include in the process. Below we provide

you with an example of this based on the accounting area. Listed entities must focus on

significant transparency, as they have issued securities that are traded by investors with

no direct involvement in the undertakings under the listing rules. This transparency has

a direct cost when preparing information. However, the undertakings competitors etc.

may also take advantage of this information. For undertakings that are not listed, there

is also a vital focus on the costs relating to requiring undertakings to disclose

information, and in particular whether these costs are reasonable compared to the

benefits.

The NCAs represented in ESMA have a strong focus on investor protection. However,

in the Member States different authorities will often regulate and supervise non-listed

entities, with a different focus including

on the undertaking’s

general situations. These

other authorities are today not represented in ESMA, but must be in the process of

issuing regulation and guidelines covering non-listed undertakings.

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[exclusively for ESMA] If you think of the Wirecard case as an example,

how could supervision be improved in the field of auditing and financial

reporting? Yes, supervision could be improved further by ESMA having

a mandate to draft RTS on enforcement of financial reporting.

□

Including Regulation (EC) No 1606/2002 [IAS Regulation] and

Directive 2013/34/EU [Accounting Directive] in Article 1(2) of the

ESMA Regulation

□

Other, please explain

We believe that regulation and the procedures for supervision should not be based on

singular cases in individual Member States. The experience from recent cases is useful

but should be used together with other factors when developing or adjusting regulation

and procedures for supervision.

Therefore, it is necessary to evaluate individual cases, compare it with similar cases and

then consider whether the weaknesses in the regulation and supervision that are detected

are general or related to the specific cases. If any changes are to be made, it should be

carefully evaluated whether the benefits will outweigh the costs and other burdens that

will follow from a change.

Audit Committees are playing an important role in the PIE entities corporate reporting

and the audit of the financial report. Consequently, it could be considered whether the

supervision of audit committees needs to be improved.

We also believe that it has merit to consider whether supervision could be improved

further by further rules on the enforcement of financial reporting.

□

5.7. Do you think that the role of ESMA with regard to Directive

2004/109/EC (Transparency Directive) could be strengthened? For

example, by including a mandate for ESMA to draft RTS in order to

further harmonize enforcement of financial (and non-financial)

information.

□

YES Please explain and specify how.

We believe it could be relevant and useful to change the nature of the current

guidelines on enforcement of financial and non-financial information in annual

and interim financial reports. Taking into account the non-binding nature of

guidelines as is set out in the legislative acts these could be transferred into a

mandate for a draft RTS thus requiring full compliance in all Member States and

strengthening as well as facilitating direct enforceability.

□

No improvements are needed.

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□

NO Please give reasons.

5.8. Do you think that Directive 2004/109/EC (Transparency Directive)

should require ESMA to annually report on the supervision and

enforcement of financial and non-financial information in the EU on the

basis of data provided by the national competent authorities regarding

their supervisory and enforcement activities? Please explain your answer.

□

YES

Transparency is key in ensuring a well-functioning supervision and

enforcement of financial and non-financial information. We therefore support

continued and enhanced transparency of reporting of data provided by the

NCAs regarding their supervisory and enforcement activities.

Moreover, we believe that such reporting from ESMA not only with regard

to the enforcement activities on European level but also on national level may

be necessary in order to ensure transparency of the enforcement activity in

Europe and focus on one single marked with harmonized enforcement both

on regulation and in practice.

□

5.9. Do you think that ESMA could have a role with regard to Directive

2006/43/EC (Audit Directive) and Regulation 537/2014/EU (Audit

Regulation)?

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□

YES Please explain and specify how.

□

NO Please give reasons.

Recent cases have highlighted that high-quality financial reporting is essential for

maintaining investor trust in capital markets, and the need to have consistent and effective

enforcement of that reporting across the European Union. Continuous focus on ESMAs

contribution to the Audit regulation would enhance quality and uniformity of practice in

the European audit and assurance profession, enhancing investor protection and

improving listed entities’ auditors’ report.

However, the Committee of European Auditing Oversight Bodies (CEAOB) has been

established in accordance with Article 30 of Regulation 537/2014/EU and comprises the

National Supervisory Authorities for auditors and audit firms. The members of CEAOB

are experts in the audit area, including audit of non-PIE entities, and thereby ensure the

necessary expertise in this area. Accordingly, CEAOB should continue have the main

role with regard to the Audit Directive and the Audit Regulation. Furthermore, ESMA

already appoints a member of CEAOB and both EBA and EIOPA are invited to attend

meetings of CEAOB as observers. Therefore, we do not see a need to extend the role of

ESMA with regard to the Audit Directive and the Audit Regulation.

5.10.

What is your assessment of the work undertaken by each ESA

regarding opinions and technical advice?

No comment.

6. General questions on the single rulebook

6.1. Which are the areas where you would consider maximum harmonisation

desirable or a higher degree of harmonisation than presently (rather than

minimum harmonisation)?

Please give your reasons for each

As a matter of principle, we believe that maximum harmonisation is not a goal in itself

and can be of lesser importance faced with other important objectives such as financial

stability. The quest for harmonisation cannot lead to a lower level or less strict

regulation in Member States, and it should not remove flexibility where this is needed to

address specific circumstances and ensure financial stability or other substantive

objectives.

Any consideration of further or maximum harmonisation in any field must take into

account the reasons for establishing minimum harmonization, the principles of

subsidiarity and proportionality as well as the main objectives of the rules in question.

Thereafter, it will be the consistent application across the jurisdictions that will be the

real proof of whether the harmonisation has been a success or not.

As an example the main objective for the EBA is to ensure that the EU banking sector is

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significantly better at withstanding a financial crisis than it was during the last financial

crisis. The EBA should also aim to enhance efficiency, e.g. through harmonising rules

by contributing to the single rulebook and practices and thereby ease cross border

financial activity. However, should these two goals conflict, we are of the view that

promoting financial stability should be the main objective of the EBA.

Considering all of the above we do not believe that an assessment of the level of

harmonisation of specific sectoral legislation is appropriate within the context of this

public hearing.

6.2. Which are the areas where you consider that national rules going beyond

the minimum requirements of a Directive (known as “gold- plating”) are

particularly detrimental to a Single Market? Please identify the relevant

sectoral legislation, examples of gold plating and give reasons for each.

Sector:

Specific

piece of

legislation

N/A

Example

of gold-

plating

Please

explain

Banking

Insurance

Asset

management

Market

infrastructure

(CCPs,

CSDs)

Market

organisation

(MiFID,

MIFIR,

MAR)

Other

N/A

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6.3. Do you consider that the single rulebook needs to be further enhanced to

reach the uniform application of Union law or rules implementing Union

law and efficient convergent supervisory outcomes? Please explain your

choice. Where appropriate, please support your response with examples.

□

YES

□

The single rulebook is vast and comprises many different aspects and contributions

from many sources. We find it challenging to assess it as one product. We will

consider all the forthcoming proposals from the Commission in light of strategies,

action plans, etc. and assess them on their own merits.

6.4. Questions regarding the appropriate level of regulation.

6.4.1. In your view, are there circumstances in existing EU legislation

where level 1 is too granular, or for other reasons, would rather be

preferable to have a mandate for level 2, or guidance at level 3?

Please specify the area (and if possible, specific piece of legislation)

and explain why (e.g. in order to have appropriate flexibility to adapt

the specifics of the regulation in case of change of circumstances)?

□

YES

□

In general, it is preferable to have as much certainty in the level 1 text as possible,

including setting out granular content where necessary to ensure the politically

important issues are adequately addressed. Unfortunately, there are many examples of

politically important issues that are delegated to regulators in level 2, thereby pushing

the responsibility of the legislators is displaced to the regulators in the EU. We

strongly favor clear rules in level 1 and when delegating to level 2 and 3, there should

be a clear and well-framed mandate for the ESAs and/or Commission.

It is also important to stress that highly detailed level 1 text can also present

challenges as this high degree of granularity is not the same as ensuringcommon

understanding or actually conveying precise rules for application. This is true for all

levels of EU rules.

An example is the in the area of consumer protection where directives generally

contain very detailed rules on consumer protection requirements. In combination with

the Commission’s

approach of national implementation being an almost word by

word implementation, this leaves no room for adaptions to national practices in the

market. It also leads to national legislation being difficult to understand and apply. We

would therefore prefer a solution, where directives are to a larger extent than today

based on more general or principal based rules that can be supplemented with level 3

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guidance. This would leave room for national adaptations without waiving the

objective of a more uniform legislation.

Moreover, the consumer area is subject to a combination of directives and regulations

regulating the same issue, which is far from appropriate and creates an overly

complex regime without providing a clear picture of rights and obligations with

respect to a specific area. As an example the suitability test in MiFID is regulated in

MIFID directive as well as in a delegated regulation. It would have been more

appropriate if these rules were place in only one piece of legislation.

A second example is it would be useful for the EBA to develop and publish a

guidance on intraday liquidity management in EU, similar to Basel’s published

guidance in 2013 on monitoring tools for intraday liquidity management.

6.4.2. On the other hand, in your view, could

reducing divergences in

rules

at level 1 (legislation agreed by the co-legislators), as well as

rules regarding delegated acts (regulatory technical standards) or

implementation at level 2, (implementing acts and implementing

technical standards) and/or level 3 (‘comply or explain guidance’ by

ESAs) further enhance the single rulebook?

□

YES

□

A successful single rulebook is that which regulates where it is necessary and leaves

discretion to the relevant authorities to conduct its activity with respect of the

circumstances at hand as well as maintaining a holistic view of regulation in order to

avoid unnecessary duplication and divergences between different sources of rules,

thus mitigating the risk of inconsistencies in dealing with the same issue. Therefore,

the answer to this question

is “yes”.

6.4.3. Which of the three levels and/or a combination thereof are more

effective in building the single rulebook? (multiple choices allowed)

In our view it is an effective combination of all levels that will ensure an

effective and consistent single rulebook.

6.5. Generally speaking, which level of regulation should be

enhanced/tightened in order to ensure

uniform application

of the single

rulebook? (multiple choices allowed). Please explain and substantiate

with examples, where possible.

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□

Level 1(legislation agreed by the co-legislators)

□

Level 3 (‘comply or explain guidance’ by

ESAs)

In our view it is an effective combination of all levels that will ensure an effective and

consistent and uniform application starting with as clear rules and principles at level 1.

6.6. In your view, what, if anything and considering legal limitations, should

be improved in terms of determining application dates and sequencing of

level 1, level 2 and level 3?

Please explain

We have been faced with a number of situations where application dates in the level 1

text have been misaligned with dates for mandates in the level 2 and level 3 resulting in

periods where the principle based level 1 text would apply without the necessary content

to ensure the right information is available to ensure compliance. This creates confusion

and adds to the costs of regulators and the stakeholders as they will have to frequently

adapt their methods of compliance without necessarily knowing if they are doing it

correctly.

We believe it should be one of the primary tasks of the co-legislators as a final element

of the negotiation phase combined with checks by the lawyer-linguists to have final

checks ensuring there is consistency in the application dates and sequencing of the

coming rules.

6.7. Please indicate whether the following factors should be considered when

deciding on the need for further harmonisation in rules (attribute 1 to 5

to each factor, 1 being the least important and 5 being the most

important):

Strong interlinkages with areas of law which x

remain non-harmonised (e.g. CRIM-MAD and

national criminal law)

□

Level 2 (e.g. delegated acts and technical standards)

opinion

Broad discretion left to national authorities

and frequent use of that discretion by these

national authorities

High level of gold plating by national rules

High degree to which supervision of the same

type of actors and/or activities render

divergent outcomes across Member States

All of the above

None of the above

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Other aspects, if so which ones:

provide concrete examples

Please

Regarding AML/CFT, we would also mention the cooperation with regard to

information sharing, as well as the level of supervisory cooperation. However, this

could also be a more general aspect to take into consideration.

6.8.

As part of the Commission’s work on enhancing the single rulebook

under the Capital Markets Union project, do you consider that certain EU

legislative acts (level 1) should, in the course of a review, become more

detailed and contain a higher degree of harmonisation? Would any of

those legal frameworks currently contained in Directives, or any part

therein, benefit from being directly applicable in Member States instead

of requiring national transposition?

□

YES Please specify which one

Sector:

Specific

piece of

legislation

Example

Please

explain

Banking

Insurance

Asset

management

Market

infrastructure

(CCPs,

CSDs)

Market

organisation

(MiFID,

MIFIR,

MAR)

Other

□

NO Please specify which Directives you have in mind and explain

your answers

Sector:

Specific

piece of

legislation

N/A

Example

Please

explain

Banking

Insurance

ERU, Alm.del - 2020-21 - Bilag 331: EMs høringssvar vedr. finansiel tilsynsmæssig konvergens og Single Rule book, fra erhvervsministeren

Asset

management

Market

infrastructure

(CCPs,

CSDs)

Market

organisation

(MiFID,

MIFIR,

MAR)

Other

N/A

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6.9. Do you consider that on the basis of existing mandates, additional/more

detailed rules at level 2 should be introduced to provide the supervised

entities and their supervisors with more detailed and clearer guidance?

□

YES Please specify legislation and what these rules at level 2 should

regulate

□

6.10.

Against the objective of establishing the single rulebook for

financial services, how would you increase the degree of harmonisation

of EU financial legislation?

□

Across the board (e.g., via an Omnibus act which amends multiple

sectoral acts at the same time)

Sector:

Specific

piece of

legislatio

Legislativ

approach

(omnibus

targeted

reviews)

Please

explai

Banking

Insurance

Asset

management

Market

infrastructur

(CCPs,

CSDs)

Market

organisation

(MiFID,

MIFIR,

MAR)

Other

□

In a targeted manner through individual sectoral reviews