EBF comments on the ECB public consultation
on the exercise of options and discretions (PART 2)

Publication date: 23 June 2016

1. It is generally accepted that ppublic and stakeholder consultation is integral to wellinformed decision-making and to improving the quality of law making. An effective and structured consultation process which includes a genuine invitation for comments from stakeholders is a crucial component of and contributor to a transparent regulatory system.

   One key aspect of a proper consultation process is the importance of allocating sufficient time for stakeholders to respond so that stakeholders have the ability to adequately evaluate the full consequences of the proposed regulations. The present Consultation was launched on 18 May 2016, specifying that it runs until 21 June. This means that the consultation period is about one month. The Consultation paper does not make any mention of reasons which would require the consultation period to be restricted to such a short timeframe.

   In a paper which the ECB published in 2009, it was highlighted that experience of the ECB has shown that it needs between six and eight weeks to finalise an opinion1 “to take into account and reach a consensus between the views of all governors before adopting an opinion” 2 . Similar considerations apply where banking associations are concerned which are expected to adopt a pan-European view and, as a result, also need to be allocated sufficient to reach a consensus amongst their membership. We would like to highlight that a range of comments made by our members which seemed valuable could not be considered because time had been lacking to take them through due process.

   We conclude that due process requirements have not been met. We expect the ECB to meet higher consultation standards in the future

   2. The “Explanatory Memorandum on the Addendum to the ECB Guide on options and discretions available in Union law” highlights that National Options and Discretions need to be lifted, amongst others, to establish a level playing field and to reduce operational complexity. We fully concur with this view.

   We note, however, that this approach is not consistent with the AnaCredit Regulation which the European Central Bank has issued and which aims at collecting granular credit and credit risk data which will also be used for banking supervision purposes within the SSM framework. The AnaCredit Regulation does not only keep existing national options and discretions in the area of statistical reporting untouched but has, moreover, introduced a range of new national options and discretions.