Deposit Guarantee Schemes

Transcription

1 To the European Commission via Federal Division of Banking and Insurance Wiedner Hauptstrasse 63 PO Box Vienna T +43 (0) EXT F +43 (0) E bsbv@wko.at W Your reference, your message of Our reference, person in charge Extension Date BSBV 70/ July 2009 Mr. Rudorfer/Na Deposit Guarantee Schemes 1. Context Question 1: Do you agree in general that the current framework of DGS in the EU needs to be revised? Are the areas identified for review the right ones, or are there other priorities? We understand that the European Commission will examine the issues mentioned in Art 12 of Directive 2009/14/EC (by which the Deposit Guarantee Schemes Directive was amended) and submit a relevant report to the European Parliament by the end of For this reason we do not which to dwell further on the relevance of these issues. What is important in this context is to pay attention to the particular sensitivity and the implications for the stability of the financial centre. Generally, utmost attention should be given to the protective purpose of the directive namely protecting creditors, i.e. customers, against a (partial) loss of assets when implementing any change at all. In our view, this consideration is a key element in the amending efforts presently underway, since an adequate and well-grounded level of protection contributes to greater consumer protection and, as a consequence, to more financial market stability, preventing a possible bank run. As we have seen in the past, this objective has for the most part been achieved thanks to the existing legal framework, making a complete review of the provisions under the directive appear unnecessary. 2. Appropriateness of Coverage Levels The following options could be considered: (a) Revert to a coverage of (b) Coverage of (current approach from end 2010 onwards) (c) Coverage of a higher amount - 1 -

2 (d) Coverage depending on the actual size of deposits or economic indicators such as the Gross Domestic Product per capita (thus different in each Member State) (e) Unlimited coverage Question 2: Which of the above options would you prefer? Would you prefer another option? Please explain your choice. We favour option (b) coverage of 100, Minimum or Maximum Coverage Level Question 3: Should the coverage level you prefer (Question 2) be a minimum or a fixed level? Or do you think a different solution would be more suitable, e.g. a range with a minimum and maximum level? If so, please describe. Please give reasons for your choice. For the sake of a level playing field and for other reasons (e.g. topping-up issue) we would prefer the present solution with maximum harmonisation at 100,000. Any departure from this should only be possible in exceptional situations and in a harmonised manner. 4. Splitting Up of Deposits Question 4: Do you have background information or evidence whether depositors have split up their deposits when the financial crisis aggravated in autumn 2008? Should depositors be actively encouraged to split up their deposits between different banks or is this inappropriate? Please give reasons. In view of the unlimited guarantee for natural persons, this issue has not been of particular relevance in Austria to date. Ever since the crisis, deposit guarantees have tended to play a bigger role, including issues regarding splitting. Depositors should not be actively encouraged to split up their deposits between different banks. Customers are informed by many sources and via many channels about the DGS (e.g. bank employees and the media). They receive information in writing as provided for in the directive and are also informed orally. We believe this to be sufficient. 5. Calculation of the Coverage Level Question 5: Do you think this problem could be solved with a mere information obligation towards depositors (see Questions 22-25)? Or do you think banks should have the option to ask for coverage per brand name to avoid aggregation of accounts in case of failure? If so, and how, should this be taken into account when the contributions of such banks to DGS are calculated? Issuing a separate guarantee for each brand name would constitute a departure from the current concept by which guarantees are provided per credit institution and would thus represent a radical structural change in terms of deposit guarantee schemes and would require in-depth analysis, particularly with regard to the provision of funds/bearing of costs in the event that deposits actually need to be reimbursed. We do not consider this conceptual shift to be a high-priority issue

3 6. Exemptions from a Fixed Coverage Level: Social Considerations Question 6: If the coverage level is fixed, should there be exemptions that allow a higher coverage of certain products for social considerations? If so, for which products should there be exemptions and up to which amount? Should this be harmonised or should Member States have the discretion to decide on this? In the latter case, which elements should be within the discretion of Member States (e.g. amount and duration of coverage)? In addition to raising numerous practical handling problems, we believe that a coverage level of 100,000 should include cases of social hardship and all product categories. It would more important to inform customers specifically about how deposit guarantees work and what amounts are covered. 7. Exemptions from a Fixed Coverage Level: Temporary High Account Balances Question 7: Should temporary high account balances be covered? If so, up to which amount and for how much time? In which situations should these balances be covered? Should this be harmonised or should Member States have the discretion to decide on this? In the latter case, which elements should be within the discretion of Member States (e.g. situation, amount and duration of coverage). Should, in order to facilitate payout, such balances be transferred to special accounts that are tagged? Do you see other solutions to protect temporary high balances? We believe that any temporary higher level of protection, which would also be in contradiction to maximum harmonisation, would require a major legislative and administrative effort. It is for the customer to decide whether to deposit funds above the maximum guaranteed amount with an institution or split the deposit. We would not support such systems, also in order to prevent misuse. 8. Mutual Guarantee Schemes and Voluntary DGS Question 8: Should mutual guarantee schemes and voluntary schemes be integrated into the Directive so that the same rules would apply for them as for 'classical' DGS? If so, how? Should there be restrictions on advertising for these schemes? Please provide reasons. The Austrian Banking Association on the one hand is in favour of the following position, "Irrespective whether mutual and voluntary schemes will be integrated in the Directive restrictions on advertising should apply to them as harmonisation in this area is absolutely essential to prevent competitive distortions." whereas the Austrian Savings Banks and cooperative Banks Association are of the following opinion: "Mutual guarantee schemes and voluntary schemes should under no circumstances be integrated into the directive on DGS

4 These voluntary schemes are based on a private contract/agreement either irrespective of or as a supplement to the directive. It's main purpose is the detection of and the early warning on business risks to affiliated institutions to prevent a banks's failure. In doing so, these schemes contribute greatly to a stable financial market and to well protected customer's deposits. Any advertising restrictions should be limited to a prohibition of misleading advertisments." 9. Scope of Eligible Deposits: Structured Deposits The scope of eligible deposits could be in the discretion of Member States or harmonised. If it is harmonised, it could be considered to fully cover certain deposits, to cover them only up to a certain percentage of the normal coverage level, or not to cover them at all. Question 9: Which solution(s) would you prefer as regards structured deposits? Please provide reasons. Would you prefer Structured products should not be included in the deposit guarantee schemes since the main objective of deposit guarantee schemes is to protect deposits and not investors. Investors are usually in a better position to recognise risk and therefore do not required the protection afforded to savers. Harmonisation appears necessary here in order to warrant a level playing field and to prevent competition from being distorted. 10. Scope of Eligible Deposits: Debt Certificates Question 10: Which solution(s) would you prefer as regards debt certificates? Please provide reasons. Would you prefer To the extent possible, deposit guarantee schemes should be restricted to savings deposits and deposits on accounts. Securities in the form of debt certificates should only be covered by investor compensation scheme. 11. Scope of Eligible Deposits: Accounts in Non-EU Currencies Question 11: Which solution would you prefer as regards accounts in non-eu currencies? Please provide reasons. Would you prefer Given that the total volumes are sometimes extremely high when funds actually need to be reimbursed in the event of bank insolvencies, guarantees should remain restricted to the core area, i.e. in the present case to deposits denominated in EU and EEA currencies. Deposits in non-eu currencies are primarily reserved for investment products. However, the protection provided by a deposit guarantee should not be extended to include investors. They are usually in a better position and therefore do not merit just as much protection as the simple savers. Therefore, no extension of coverage would be required in this respect either

5 12. Harmonisation of Eligibility of Depositors Question 12: Should the eligibility criteria as regards depositors (provided for in Annex 1 no of the Directive) be fully harmonised or should Member States retain some discretion to decide about eligibility of depositors? The eligibility criteria for covered deposits should be harmonised, particularly with a view to establishing a level playing field. To this end, a harmonised and transparent list would be an advantage. But Member States should retain some discretion to decide about the eligibility of depositors to exclude enterprises in the financial sector and authorities on central and local level. One could consider making exclusions the general rule when applied by a large majority of Member States and vice versa. 13. Eligibility of Enterprises in the Financial Sector (Annex 1 no. 1, 2, 5, 6) If the eligibility criteria in Annex 1 no are harmonised, it could be considered to fully cover all depositors, to cover them only up to a certain percentage of the normal coverage level, or not to cover them at all. Question 13: Do you have background information or evidence whether a covered amount of is relevant for these enterprises? Which solution would you prefer? Please provide reasons. Would you prefer The covered amount is of no relevance to institutional investors. Deposit guarantee schemes therefore do not cater to them and they should therefore be mandatorily excluded (harmonisation) from the directive. 14. Eligibility of Authorities on Central and Local Level (Annex 1 no. 3, 4) Question 14: Do you have background information or evidence whether a covered amount of is relevant for authorities? Which solution would you prefer? Please provide reasons. Would you prefer A covered amount of 100,000 is hardly relevant for central and local authorities. Deposit guarantee schemes therefore do not cater to them and they should therefore be mandatorily excluded (harmonisation) from the directive. 15. Eligibility of depositors having a relationship with the failed bank (Annex 1 no. 7, 8, 9, 11) Question 15: Do you have background information or evidence on how many depositors are actually concerned by this? Which solution would you prefer? Please provide reasons. Would you prefer Depositors with close contacts to a bank should also be included in the guarantee scheme by way of harmonisation. Appropriate provisions against misuse (incl. collusion) are in place anyway, which would subject such cases to other exclusion grounds and bar them from the guarantee

6 16. Eligibility of depositors who opened their account anonymously (Annex 1 no. 10) Question 16: Do you have background information or evidence on how many depositors are actually concerned by this? Which solution would you prefer? Please provide reasons. Would you prefer We do not quite understand why this question is being discussed in the context of deposit guarantee schemes. All depositors should be given appropriate guarantees for the sake of fostering trust. This questions appears to be a question concerning money laundering and would be relevant in that field. 17. Coverage of Companies/Enterprises The following categories could be used: Companies that cannot draw up abridged balance sheets; micro-, small, medium-sized enterprises or all enterprises) The following options could be considered: (a) No coverage for any company or enterprise (i.e. no coverage of accounts used for professional purposes) (b) Include certain categories of companies or enterprises but exclude others in a harmonised way (c) Include certain categories and leave exclusion of other categories to the discretion of Member States (similar to current approach) (d) Coverage for all enterprises and companies regardless of their size (e) Limited coverage according to the category Question 17: Do you have background information or evidence whether a covered amount of is relevant for companies or enterprises above a certain size? Would you prefer to keep the current approach (companies that cannot draw up abridged balance sheets may be excluded by Member States)? If not, which solution would you prefer? Please specify which category/ies should be used to distinguish and if so, to which amount you would limit the coverage. Please provide reasons. Would you prefer another option? Please describe. Option b). For companies or enterprises above a certain size, deposit guarantees are only of little relevance due to the max. coverage of 100,000. SMEs should be covered in any case. 18. Establishment of a pan-european DGS Question 18: Would you be generally in favour of a pan-eu DGS? If so, should there be a transition period until a pan-eu DGS should be operational? If so, how long? Please provide reasons

7 Before such a question can be discussed, the following aspects would need to be considered at political level: consistent bank supervision at EU level, clearly set rules for lender of last resort and clear agreements for the assumption of charges resulting from this (burden-sharing agreements). A pan-european deposit guarantee scheme would only be expedient if bank law were completely harmonised and a single European supervisor who would be in charge of lenders of last resort and thus have access to national tax money could build on this. Particularly the last requirement was rejected across the board at the last European Council meeting. 19. Structure of a potential pan-eu DGS There seem to be at least the following options concerning the possible structure of a potential pan-eu DGS: (a) Single entity replacing the existing DGS (b) A DGS that is complementary to existing DGS that would support the existing DGS if needed ("28th regime") (c) "European system of DGS" (i.e. a network of schemes in the Member States that provide each other mutual assistance if needed, e.g. by borrowing from each other) Question 19: Which solution would you prefer? Please provide reasons. Would you prefer If you support option (c), please indicate how in your view, such mutual assistance should be provided. Should mutual guarantee schemes and voluntary schemes (see question 8) be integrated into a pan-eu DGS? If so, how? See Q Scope of a Potential pan-eu DGS With regard to the scope of a potential pan-eu DGS, there are at least the following options: (a) All banks should contribute to a potential pan-eu DGS (b) Only large cross-border banking groups (i.e. banks with a certain systemic relevance that have subsidiaries in other Member States) (c) All cross-border banks (i.e. those who operate directly or by means of branches in other Member States than in the one where they are licensed) Question 20: Which solution would you prefer? Please provide reasons. Would you prefer The scope of a potential pan-eu DGS would depend on its structure and its mandate (see questions 18, 19 and 21). 21. Mandate of DGS The following options could be considered: (a) Retain current approach (other DGS functions than paying out depositors within discretion of Member States) (b) DGS provide liquidity assistance to banks in need - 7 -

8 (c) DGS participate in the reorganisation of banks (d) DGS play an active role in the winding up of banks Question 21: Which solution would you prefer? Should this solution be recommended or mandatory? Please provide reasons. Would you prefer Would a broader mandate fro DGS require a different funding mechanism or a higher level of funding? If you prefer a pan-eu DGS (Question 18), please precise which options you would prefer in that case. Option a), retain current approach. 22. Harmonisation of Information for Depositors In order to ensure that all depositors throughout the EU get the same information, it could be considered to recommend or prescribe a template for standardised information. This template could be annexed to the Directive or be developed by stakeholders. Question 22: Which solution would you prefer? Please provide reasons. Would you prefer Because the DGS is not fully harmonised, the content in the national handouts and product information varies. Furthermore, national handouts refer to the national legal regulations and national organisations. Therefore, any harmonisation of the standardised information would only contain the general principles of the DGS. We don t think this would improve the situation of the depositors. In Austria, all sectors agreed on a harmonised handout that takes into account the national specifics. The content of this harmonised handout is used as product information. We do not support harmonisation of this information at EU level. 23. Advice to split up deposits between banks Currently, depositors do not have to be informed that it is safer to split up deposits if the coverage limit is exceeded. Question 23: Should such information be required or recommended? Please provide reasons. Would you prefer We object to any obligation to provide information on deposit splitting and any such recommendation, if only because of liability reasons. We believe it to be sufficient for depositors to be informed of the maximum covered amount per depositor and per credit institution and for them to decide themselves based on this information whether they wish to concentrate or split their deposits. 24. When and how depositors should be informed The following options could be considered: (a) Retain current approach (details left to the discretion of Member States) (b) Mandatory reference to information on DGS in advertisements (c) Mandatory reference to information on DGS on account statements (d) Require depositors to countersign information on DGS before entering into a contractual relationship and to receive a copy

9 Question 24: Which solution(s) would you prefer? Please provide reasons. Would you prefer We prefer option a). 25. Information in Case of a Bank Failure With regard to the question, from which DGS depositors should receive information when their bank fails, the following options could be considered: (a) Retain current approach (Home country scheme must inform) (b) Host country DGS must inform depositors at branches in another Member State (c) Individual agreement between DGS about who informs depositors Question 25: Which solution would you prefer? Please provide reasons. Would you prefer Which approach would you prefer in case of a pan-eu scheme not being a single entity (see question 19)? Please explain. 26. Set-Off Arrangements The following options could be considered (please note that the options below are not mutually exclusive): (a) Retain current approach (unlimited set-off; within discretion of Member States) (b) Discontinue or limit set-off for the payout of depositors (c) Discontinue or limit set-off in the insolvency procedure (when the DGS has subrogated into the depositors' claims against the bank) (d) Limit set-off to claims that have fallen due or are delinquent (e) Limit set-off to a certain amount or percentage of covered deposits but leave it optional (f) Encourage depositors to split deposits and liabilities between different banks (rendering set-off obsolete if this encouragement is effective) Question 26: Which solution would you prefer? Please provide reasons. Would you prefer Option a: The present approach should be retained. Waiving or restricting set-off is incompatible with Austrian insolvency law, which may not be interfered with in this way. 27. Payout Delays In order to reduce payout delays as such, the following options could be considered (Please note that the options below are not mutually exclusive): (a) Retain current approach (4-6 weeks from end 2010 onwards) (b) Reduce payout delay to one week after a certain transition period (c) Differentiate payout delay, i.e. a longer payout delay only for depositors where set-off has to be calculated or whose eligibility has to be thoroughly examined Question 27: Which solution would you prefer? Please provide reasons. Would you prefer Option a: In view of the necessary organisational prerequisites, we consider a further reduction of payout delays unrealistic

10 28. Alternative Solutions As an alternative (or supplementary) to a mere reduction of the payout delay, it could be considered to transfer deposits to another bank or to have an emergency payout procedure in place (e.g within 3 days). Question 28: Would you prefer such solutions? If so, on a voluntary or mandatory basis? Please provide reasons. Would you prefer any other option? Please describe. The emergency payout should be restricted to hardship cases. The amount is too high, EUR 3,000 could be an appropriate amount. We already have such a regulation in Austria. This solution should be optional to Member States and on a voluntary basis. The reasons are the same as described above. 29. Payout Modalities In order to achieve clear and fair payout modalities, the following options could be considered (please note that the options below are not mutually exclusive): (a) As regards the calculation of payout delay, it could be considered to calculate the payout delay and the delay to determine a payout situation in calendar days (b) As regards the currency of payment, it could be considered to leave this within discretion of Member States (current approach) or in the same currency as the deposits were paid in. (c) As regards interest payment, it could be considered to leave this within the discretion of Member States (current regime) or to pay interest that has not been credited at the time of failure. Question 29: Which solution(s) would you prefer? Please provide reasons. Would you prefer any other option? Please describe. In view of options (a), (b) and (c), we are in favour of retaining the currently applicable regime. 30. Verification of Claims In order to facilitate the verification of claims, the following options could be considered (please note that the options below are not mutually exclusive): (d) 'Tag' eligible depositors when account is opened and then regularly keep up to date this information on account statements. (e) Payout under reserve of later reclamation verification only after payout (f) Simplify eligibility criteria (see Questions 13-16) (g) Harmonise eligibility criteria (see Question 12) (h) Introduce a de-minimis rule (i.e. deposits below a certain size, e.g. 10 would not have to be paid out) (i) Limit or abandon set-off (see above) Question 30: Which solution would you prefer? Please provide reasons. Would you prefer

11 Option (d) is not administrable: See question 31. We object to option (e). The reclaim of funds could turn out to be complicated. As we are against the harmonisation of the eligibility criteria, we oppose option (f) Option (h): We do not think that would really help to facilitate the verification of claims. We object to option (i): See response to question Application for Reimbursement In order to facilitate the application for claims, the following options could be considered: (a) Retain current approach (depositors may have to take initiative, to fill in application forms and send them electronic processing and own initiative payment within discretion of Member States) (b) Payments by DGS on their own initiative without need for applications only electronic request to depositors asking them to indicate new account or payment to the same account whenever feasible Question 31: Would you prefer one of these solutions? If so, on a voluntary or mandatory basis? Please provide reasons. Would you prefer We favour option (a). Option (b) is not practicable. As in most cases the banks do not have the electronic contact data, requests cannot be sent without application to the depositor. 32. Involving DGS at an Early Stage In order to involve DGS at an early stage, it could be considered to require competent authorities to inform DGS either if appropriate (current approach) or by default when triggering of DGS becomes likely. Question 32: Which solution would you prefer? Please provide reasons. Would you prefer Competent authorities are obliged to provide all the information on member banks of a DGS to the DGS as soon as possible, at least at periodic regular meetings. Under article 61 (1) Banking Act, Austrian law stipulates the duties associated with the early warning system: The bank auditors of credit institutions must cooperate with the relevant protection scheme for the purposes of the early warning system. The Austrian national bank is authorised to forward data reports from credit institutions to the relevant protection schemes for the purposes of the early warning system. 33. Information Exchange between Banks and Schemes In order to improve information exchange between banks and schemes it could be considered to recommend or require that DGS have access to relevant banks' records when DGS are informed by competent authorities and that DGS and their member banks have a common interface to quickly exchange information. Question 33: Which solution would you prefer? Please provide reasons. Would you prefer

12 For the exchange of information between member banks and the DGS a common interface for data transfer would be preferable, but it could also suffice to receive the regular reporting data banks provide the authorities with via these authorities. 34. Proven capability of DGS to handle payout situations effectively In order to ensure that DGS are capable to deal with payout situations, the following options could be considered: (a) Retain current approach (stress testing required in general) (b) Require DGS to regularly disclose the amount of ex-ante funds, their workforce and the result of regular stress testing exercises (c) Make such disclosure (as referred to under point b) a precondition for cross-border services or establishment of branches (d) Regular peer review among DGS Question 34: Which solution would you prefer? Please provide reasons. Would you prefer Option a) is sufficient. Disclosing such technical DGS details to customers does not lead to greater clarity but much rather to uncertainty and confusion. 35. Topping-up Arrangements The following options could be considered: (c) Retain current approach (topping up within discretion of Member States; host country topping up regulated in some detail by the Directive (Annex 2) but home country topping up permitted) (d) Make topping up mandatory in whatever form (e) Recommend home country topping up (f) Making home country topping up mandatory (g) Making host country topping up mandatory (h) Discontinue topping up Question 35: Do you consider topping up a problem? If so, which solution would you prefer? Please provide reasons. Would you prefer Topping-up involves major problem issues. These could be resolved for the most part by ensuring harmonisation at a standard level of coverage. Option h should then be applied. 36. Cross-border Cooperation between DGS It could be considered that a DGS in a host country acts as a single point of contact for depositors at a branch in the host country. This could encompass features such as post box services, advice in the host country s language or being a paying agent for the home country DGS. Question 36: Which solution would you prefer? Please provide reasons. Would you prefer

13 Appropriate cooperation between DGS is a major step toward a pan-eu network of deposit guarantee schemes. 37. Level of Funding of DGS On top of improving the financing mechanism (Question 39) and a possible introduction of a pan-eu DGS (Questions 17-19), it could be considered to recommend or require a target level (certain percentage of deposits) for ex-ante funds, ex-post contributions and alternative means of financing (e.g. borrowing). A maximum level for the contribution of banks could also be considered. Question 37: Which solution would you prefer? Please provide reasons. Would you prefer As it is irrelevant for customers to know how the deposit guarantee is financed, whether ex ante, ex post or a combination of both, we favour retaining the current regime, leaving it for the Member States (MS) to decide whether to regulate the financing structure of deposit guarantee schemes. Should a standardised financing form be introduced in Europe all the same (e.g. switch from ex-post to ex-ante), the necessary transition periods would of course have to be envisaged in order not to expose institutions to additional financial burdens liable to develop pro-cyclical repercussions. What is more, an impact study would have to be submitted to the European Commission. Over and beyond this, the Member States must be given flexibility in recognising the financing mechanisms. We also consider the maintenance of a ceiling for contributions essential. We not consider applying a target level in ex-post-financed systems expedient. 38. Risk-Adjustment of Contributions to DGS It could be considered to introduce risk-based contributions on a voluntary or mandatory basis. Particular models could be recommended or required. Question 38: Would you prefer introducing risk-based contributions? Which models would you envisage? Please provide reasons. Please describe. We think that, for the time being, no easily manageable key for risk-based contributions has been found. Further discussion on that issue would be helpful. 39. Funding Mechanisms It could be considered to make ex-ante funding mandatory and to require alternative shortterm (interim) financing or long term borrowing in case of need. Question 39: Which solution would you prefer? Please provide reasons. Would you prefer If you prefer interim financing, please describe how and by whom such financing should be provided. We refer to our statements in reply to Q 37 where we argued against ex-ante financing

14 This decision should be left to the local legislation of the Member States. We see no need for ex-ante funding in Austria as we really have few cases here. Apart from the decision on exante or ex-post or mixed funding, it seems necessary to have the possibilities for quick borrowing established on a legal or contractual basis. The contributions of the member banks of a DGS need to be limited. 40. Any Other Issues Question 40: Are there any other issues that have not been mentioned above but should be dealt with in the context of the review of the DGS Directive? If so, please describe th e problem and its different impacts as precisely as possible. We are of the opinion that the trust in statutory deposit guarantees is best maintained by having the state as lender of last resort providing the required funds for the settlement of claims by the depositor, as is the case in Austria. This essential aspect is not addressed in the questionnaire. Furthermore, I would like to point out that the discretion Member States have in directing claims related to securities transactions as granted by Article 2 par 3 of directive 97/9/EC (investor compensation directive) is an impediment to the harmonisation of the deposit guarantee and should therefore be reconsidered in connection with an amendment to the deposit guarantee directive. Please give our statements due consideration. Yours sincerely, Dr. Herbert Pichler Division Bank & Insurance