Extract
[...] The European Systemic Risk Board I. The European Systemic Risk Board (ESRB) The The European Systemic Risk Board (ESRB) is a an essentially advisory body, charged with the macroprudential supervision of the banking and financial sectors. Created in 2010, the precedes the establishment of the Single Surveillance Mechanism (SSM) and is an integral part of European System of Financial Supervision (ESFS). Its main role is to evaluate the risks that weigh on the markets, both in their own activities and in their interactions with the banking sector. [...]
[...] Therefore, the European Banking Authority issues a number of important decisions, which raises questions of democratic legitimacy. Although the EBA is an administrative body, deprived of legislative or regulatory power, one observes a a tendency among regulatory authorities to fill in the gaps in the law through recommendations, advice or frequently asked questions (FAQs). This phenomenon could be legitimized as an effective policy of interpreting the rule of law. However, it is in reality an interpolation, where new rules are created under the pretext of flexible law. [...]
[...] In France, the ABE has formulated a recommendation on the governance of retail banking products. Although these regulations are limited, the Council of State to control, via a recourse for abuse of power, the lines of conduct imposed if they are of a nature to produce 'notable effects', notably in economic and financial matters, on the behavior of their recipientsv. Conseil d'État March 2016, Fairvesta and Numéricable). It should indeed be recalled that these recommendations, although they are not hard law prescriptions, may nevertheless produce significant effects. [...]
[...] The question of the binding force of the recommendations of the CERS remain complex. These recommendations are not not of legislative or regulatory acts, they fall under soft law. However, although they do not have formal legal force, they produce, in a way, the « effects notable that the Conseil d'État considers justify the exercise of an appeal for abuse of power. In practice, the recommendations of the CERS are relayéd by institutions like the BCE and other national supervisory authorities, this which confers to these recommendations a considerable weight. [...]
[...] When the European Central Bank (ECB) puts in place a direct supervision, the question does not arise. On the other hand, when national authorities intervene, this this subject becomes more delicate. The ABE supports both the authorities national and the BCE in developing technical regulatory rules, known as « level three rules, which are below the directives and regulations. These sectoral rules aim to clarify existing legal standards, acting as a equivalent of a implementing regulation. These technical rules do not constitute not new principles, but they implement clarify in a useful way. [...]
