Je souhaiterais, comme nous y invite M. Mersch, élargir le propos et identifier ce qui est important, en termes de coopération entre superviseurs. Travaillant depuis plusieurs années avec des collèges de superviseurs prudentiels, j’ai participé, en 2009, aux travaux du Comité de Bâle pour améliorer le fonctionnement des collèges de supervision. Depuis 2011, j’ai été responsable, pour l’Autorité bancaire européenne, de la partie relative aux collèges de supervision et je suis tout à fait d’accord pour dire que nous devons continuer les efforts de coopération entre les autorités prudentielles. Il est désormais également clair que les autorités de surveillance prudentielles doivent coopérer avec d’autres autorités pour instaurer un contrôle efficace des groupes bancaires transfrontaliers. L’exemple le plus pertinent est la coopération avec le superviseur en charge de la lutte contre le blanchiment de capitaux. Aujourd’hui, j’aimerais vous expliquer ce que nous faisons pour promouvoir la coopération entre le superviseur en charge de la LCB-FT et le superviseur prudentiel.
Vous m’autoriserez à poursuivre mon propos en anglais.
As we think about how to ensure appropriate cooperation and information flows amongst all relevant authorities, we can take some inspiration from the work that we have done to promote cooperation amongst prudential supervisors. Colleges of prudential supervisors have worked well but have changed a lot in the last decade. When we established the EBA in 2011 we had experienced Supervisory Colleges which were very nice, with good relations and discussions, but what we found in terms of taking decisions and making sure that there was an effective oversight of cross border banks, is that we needed more. This is why today, the tasks of prudential supervisors within Colleges go beyond just sharing information; they go, within the European Union, to planning and coordination of supervisory activities is group work. Those colleges are also taking supervisory joint decisions on capital and liquidity.
Strengthening the colleges framework has really been fundamental to ensuring effective oversight within the single market. Whilst today the existence of the SSM has changed the landscape and the need for colleges within the Euro Area, we still work with EU28 and spend a lot of time trying to make sure cooperation works well. And I really think that we should learn a lessons from the transformation we saw in a very short period of time in how effective prudential supervision of Groups can work. The lessons are probably applicable in two ways we can explore today. The first is how Anti Money Laundering / Countering the Financing of Terrorism (AML/CFT) supervisors can better cooperate between themselves, and the second is that we can probably extrapolate broader lessons for how different supervisors/public authorities can exchange information.
In that regard I note that our consideration about the linkage between different supervisors looks set to continue. Going forward we will need to draw together a variety of supervisors, respecting their various and respective roles and information needs as well as the need for efficiency. Nonetheless, increasingly we see the need to consider not just prudential supervisors but also payments, conduct and also data protection authorities. But for now let us concentrate on AML/CFT supervisors, and their links with prudential supervisors as perhaps the most pertinent issue at the moment. As Mr Mersch pointed out, prudential supervisors may at times need information from AML/CFT supervisors, and vice versa, but for information flows to really work we firstly need to ensure that information between AML/CFT supervisors is being shared correctly.
To that end we have been doing a lot of work on the AML/CFT front within a reasonably loose existing framework (the AML Directive) to try to strengthen the way the AML supervisors cooperate with each-other and the to consider how they cooperate with the prudential supervisors.
I draw your attention to two particular items: the agreement signed by the ECB and the other AML authorities that the EBA facilitated earlier this year. There were some interesting surprises, primarily just how many AML authorities there are in the EU. Secondly, I note the near completion of the ESAs guidelines on cooperation between AML/CFT authorities, which will be the crucial step in establishing AML/CFT colleges of supervisors for cross border institutions, which I would like to explain a bit further today.
The Cooperation Guidelines are own initiative guidelines, i. e. without a formal legislative request, because there was an appetite to bring together AML authorities for the oversight of specific institutions. We know from recent money laundering cases that have received significant public attention, that lack of flows of information between AML authorities or lack of flows of information between AML and prudential authorities and a lack of understanding of respective responsibilities has been a challenge. The new Cooperation Guidelines and the establishment of AML colleges should address challenges in information flows by formalising the structures to facilitate flows between AML/CFT authorities and providing clear counter parties for prudential authorities.
We have consulted on these Cooperation Guidelines and now it is our responsibility to have these Guidelines completed this year. When they are published, the first action for the EBA as an authority will be to map cross border groups where colleges are needed. Some may say “you know where the passported groups are” because the EBA has already identified them and now the SSM is supervising some of them inside the Euro Area. This is partly correct but only partly. There are two particular aspects that go beyond what’s we have done before. The first is that the AML/CFT colleges will go beyond banks, so they may look after other cross-border financial institutions more generally. But also, we will have to check that we got the right authorities that are experienced in designing for the ECB and AML authorities, as there are different authorities with different roles and we need to make sure which are the relevant authorities. So first we will do a mapping both within the EU but also in third countries.
When the mapping process is complete, colleges will need to be established with all relevant members. I know that in some cases, this is going to be challenging, but it is also important that we have the right authorities. And of course the Guidelines explain how the new AML/CFT colleges can interact with prudential supervisors to ensure appropriate information flows. The challenge for the EBA will be monitoring and supporting the fledgling colleges to ensure they work in practice.
The tricky point for us is to find the right balance between ensuring the efficient presence of relevant authorities and avoiding excessive bureaucracy. So I am not suggesting that all prudential supervisors will always be attending an additional layer of colleges for all institutions. But they will know about these Colleges and they will be invited. And of course we may need to consider other authorities which have a “say” on this and in particular to have a link between the AML-CFT authorities and as needed FIUs.
So when the AML Colleges start, we will have structures around the EU – Prudential Colleges and AML Colleges – so the relevant authorities can speak to each-other. There should be clarity on responsibilities and clarity about where information should be flowing and that the right people are informed. The guidelines that we have produced are a very important step forward. I really look forward to having these finalised and published and then it will be urgent to make sure that all these things work.
Nonetheless, the AML-CFT colleges will be different from the prudential colleges. Supervision in AML is located firmly at the national level and thus under a Directive and transposed into national law. I refer back to my first slide where we have a clear legal structure for Prudential Colleges with joint work, joint decision making. We won’t have that with AML-CFT Colleges.
These guidelines are own initiative and there is no clear legal mandate on AMLD 4 or on AMLD 5. These piece of legislation push for cooperation but there is no specific mandate.
We will be relying on good will and of course with resource constraints.
And even when colleges are working, this is not the end of the process and indeed questions about information flows are likely to continue and go beyond AML-CFT supervision. It is important for the effective oversight of any financial institution that risks are not isolated and siloed. Risks come together and we know, for example, that fines related to conduct have been significant for a number of years, scandals in relation to AML and CFT have had a significant and detrimental impact on prudential standards of a number of banking groups.
We need to ensure that the structures and incentives are in place to create the links and the right setting between AML and prudential Colleges, institutions, to make sure that information flows whilst recognizing and respecting the relevant competencies. As I noted at the start, we will also have to think of other authorities, whether it be conduct authorities, FIUs, data protection authorities or third-country authorities. And we need to consider all the tools available. We don’t necessarily need new colleges to cater for every type of information flow with different authorities but we do need to reflect on how we can make information flows generally better based on the respective responsibilities and needs of the various authorities.
We have a chance I think to make the AML Colleges work well. But success is not guaranteed totally as we have this looser framework to have those colleges work. So we will have to work hard to ensure they are effective. In that context, I note that the EBA will have next year a new mandate in relation to AML-CFT, we will receive some additional resources and additional powers to lead coordinate and monitor AML/CFT supervision across the EU. There are also discussions around more fundamental change and I think that if we can have some of these preliminary steps right (like the AML Colleges for coordinating and monitoring), that will help the discussions around the more centralisation of AML/CFT supervision and vice versa. To that end we hope that the Cooperation Guidelines and the formation of new Colleges on AML-CFT will enable and facilitate the exchange of information both by AML-CFT supervisors and for other authorities as observers in the College.[i] In turn, we can reflect on this as part of a broader set of efforts to encourage information flows as needed between a variety of different supervisors, recognising their respective roles and responsibilities and avoiding excessive bureaucracy but still addressing the key information needs of each.
[i] NDLR: Ces lignes directrices ont été publiées le 16 décembre 2019: Joint guidelines on cooperation and information exchange for the purpose of Directive (EU) 2015/849 between competent authorities supervising credit and financial institutions - AML/CFT Colleges Guidelines, 16 déc. 2019 (JC 2019 81).
