Showing posts with label financial supervision. Show all posts
Showing posts with label financial supervision. Show all posts

Wednesday, 26 May 2010

Tracking eurozone crisis measures: Financial supervision and better governance in motion

Even if the Greek aid package and eurozone stabilisation are the main focus of our tracking exercise, financial regulation and supervision are related areas worth mentioning.

On 12 April 2010 the European Central Bank (ECB) and the European Commission held a joint conference on financial integration and stability, the legacy of the crisis (IP/10/417).



The ECB president Jean-Claude Trichet reminded that the financial supervisory framework in the EU will be based on two pillars. The micro-prudential pillar, the European System of Financial Supervisors (ESFS), will be composed of the national supervisors and three European Supervisory Authorities (ESAs). The European Systemic Risk Board (ESRB) will form the macro-prudential pillar.

According to Trichet, the ECB stands ready to support the ESRB:

in particular taking into account the important presence of the members of the General Council of the ECB in the ESRB and the fact that the ECB will provide the secretariat and analytical, statistical, logistical and administrative support to the ESRB, as required under the legislative proposals. Preparatory work at the ECB has been organised through the setting up of an ad hoc team and is under way so that the ESRB can take up its work after its formal establishment. The ECB is in the process of enhancing its capabilities for monitoring and assessing financial stability risks. Only a number of weeks ago, we reformed our Directorate Financial Stability and Supervision into a Directorate General Financial Stability with more resources.




Internal market commissioner Michel Barnier’s speaking points (in French) stressed the need for proper regulation and supervision of integrated European financial markets.




Further reading: the Commission’s web page on financial services supervision.




On 15 April 2010, Olli Rehn spoke about reinforcing economic governance in Europe (SPEECH/10/160). The commissioner for economic and monetary policy said that the aim of the Europe 2020 strategy is to mobilise growth drivers in order to modernise our social market economies. The second pillar is the consolidation of public finances.

Rehn outlined enhancing economic policy coordination through three main building blocks: reinforcing the Stability and Growth Pact, deepening and broadening economic surveillance and setting up a permanent crisis resolution mechanism.




Ralf Grahn

Saturday, 18 October 2008

EU: Monetary policy X Cross-border financial supervision

The European Community includes an internal market characterized by the abolition, as between member states, of obstacles to the free movement of goods, persons, services and capital. In addition to Article 3(1)(c) of the Treaty establishing the European Community (TEC), the free movement of capital and payments in the European Community is confirmed and detailed in Articles 56 to 60 TEC.

The member states have created a single area for capital movements, but retained 27 jurisdictions supervising financial institutions.

Having painted themselves into a corner, what have the EU (EC) member states done to make the paint dry a little faster?

***

When intergovernmental EU cooperation is mentioned, fairly many know that the member states have kept foreign, security and defence policy matters as their reserved turf, but economic and monetary union (EMU) is another area where the European Parliament is resolutely sidelined.

This has not prevented the EP from trying to form its opinions and to stimulate debate. One example is the report by Kern Alexander , John Eatwell, Avinash Persaud and Robert Reoch: Financial Supervision and Crisis Management in the EU (Report to the European Parliament Committee on Economic and Monetary Affairs; published 2008):

http://www.europarl.europa.eu/activities/committees/studies/download.do?file=19191#search=%20Financial%20supervision%20

The report states that financial regulation and crisis management have not kept pace with the changes of the financial markets, and it calls for a new approach to the content and structure of
regulation, supervision and crisis management.


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Since Article 105(5) TEC puts the ‘competent’, i.e. national authorities in charge of prudential supervision of (global and European) credit institutions and the stability of the financial system, the gap between the real world and the treaty has to be filled somehow.

As always, intergovernmental or interinstitutional voluntary cooperation and various soft law approaches are words to look out for in a context like this.

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The Council (ECOFIN) agreed on so called Financial Markets Stability Roadmaps 9 October 2007 and 4 December 2007. They were updated 15 May 2008 (Council document 9056/1/08 REV 1):

http://www.eu2008.si/en/News_and_Documents/download_docs/May/0514_Svet_ECOFIN/030financial_stability_roadmaps.pdf

The roadmaps concerned: Enhancing the Lamfalussy framework, incl. financial supervision; Financial Stability Arrangements; Actions taken in response to the financial turmoil.


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One example of an approach based on voluntary cooperation and soft law is the upgraded Memorandum of Understanding on Co-operation between the Financial Supervisory Authorities, Central Banks and Finance Ministries of the European Union on Cross-Border Financial Stability (published 20 June 2008):

http://www.ecb.europa.eu/pub/pdf/other/mou-financialstability2008en.pdf

The memorandum updates a 2005 MoU, and it is based on the realisation that financial integration increases the scope for cross-border and cross-sector contagion and thus the likelihood of a systemic crisis affecting more than one member state. Financial stability is, therefore, a common concern for all member states and the EU as a whole, and must be safeguarded on the basis of close cooperation among all parties.

The objective of the MoU is ensure cooperation in financial crises between financial supervisory authorities, central banks and finance ministries through appropriate procedures for sharing of information and assessments, in order to facilitate the pursuance of their respective policy functions and to preserve stability of the financial system of individual member states and of the EU as a whole.

Sharing of information, views and assessments are typical catchwords of such non-binding cooperation, as is the emphasis on ‘their respective … functions’. The memorandum does not create any legal commitment for any of the parties to intervene in favour of anyone affected by a financial crisis. Parties with common concerns are invited to conclude more detailed voluntary specific cooperation agreements.

The parties commit themselves to open, full, constructive and timely cooperation; and to prepare and search for jointly acceptable solutions (read: consensus), and they commit themselves to common principles in the management of systemic or serious crises. A coordinating role is foreseen for the home country supervisory authority.

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The European Parliament debated improved financial supervision in the context of the Lamfalussy follow-up on 9 October 2008:

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-0476

The resolution contains a wealth of references of value to the serious student.

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Declaration on a concerted action plan of the euro area countries 12 October 2008 (Council document 14239/08) contained the results of the first Eurozone summit:

http://register.consilium.europa.eu/pdf/en/08/st14/st14239.en08.pdf

Financial supervision was mentioned in point 10, page 5:

Given the exceptional market circumstances, we urge national supervisors, in accordance with
the spirit of Basel 2 rules, to implement prudential rules also with a view to stabilising the financial system.

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The latest authoritative guidelines that we have are the Presidency Conclusions of the European Council 15 to 16 October 2008 (Council document 14368/08):

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/103441.pdf

The principles adopted at the first Eurozone summit were given broad support by the October European Council.

A financial crisis cell will be established, meaning an informal warning, information-exchange and evaluation mechanism (point 6, page 3).

The European Council stresses the need to strengthen the supervision of the European financial sector, particularly cross-border groups, and to implement urgently the Ecofin Council's roadmap, with a view to improving the coordination of supervision at European level. In this context the European Council welcomes the setting up of a high-level group by the Commission. To begin with, the European Council invites national supervisors to meet at least once a month, to exchange information.

The European Council supports the speeding up of work to strengthen the rules on stability, including work on the Capital Requirements Directive (point 8, page 3).


***

EurActiv has followed financial supervision matters closely. Here are two news items:

EurActiv 10 October 2008: Parliament calls for overhaul of financial supervision

EurActiv 15 October 2008: EU leaders set for scramble on financial supervision

Perhaps the best way to conclude this overview of cross-border financial supervision is contained in the headline of the following news report:

EurActiv 17 October 2008: Summit: Minor progress on banking supervision

http://www.euractiv.com/en/financial-services/summit-minor-progress-banking-supervision/article-176456

Integrated supervision for integrated financial markets is still a long way off.


Ralf Grahn

Friday, 17 October 2008

EU: Monetary policy IX Banking supervision

Only treaty reform could unlock pan-European banking supervision, or even better, cross-sectoral supervision, as we have seen. Short-term, other financial supervision solutions have to be found, within the constraints of the Treaty establishing the European Community (TEC), but likewise under the Lisbon Treaty, i.e. the Treaty on the Functioning of the European Union (TFEU).

Let us look at the evolving discussion.

***

Bernhard Speyer & Norbert Walter: Towards a new structure for EU financial supervision (Deutsche Bank, EU Monitor 48, 22 August 2007) took a detailed look at financial supervision in the European Union:

http://www.dbresearch.de/PROD/DBR_INTERNET_DE-PROD/PROD0000000000214976.pdf

Speyer and Walter noted that financial supervision concerns both crisis prevention and crisis management. The present supervisory structures are neither effective nor efficient. In spite of market integration and in contrast to the political commitment to build an integrated financial market, financial supervision in the EU remains a responsibility of individual member states, with the European dimension only being taken into account in the form of intensified cooperation.

After their damning indictment of the existing supervisory structures, Speyer and Walter analysed various options under discussion, before proposing three steps to advance:

1: Empowering the existing Level 3 committees (voting, binding guidelines)

2: Implementation of the lead supervisor regime (real powers and mediation)

3: Establishment of a European System of Financial Supervision (comprising banking, insurance and securities markets supervision under one roof; separate from the ECB)


***

Slowly, the political wheels have been turning. In December 2007 the European Council arrived at these interim conclusions, although there was no feeling of any clear and present danger (page 13):

“48. The European Council, in view of the recent developments in the financial markets, emphasises that macroeconomic fundamentals in the EU are strong and that sustained economic growth is expected. Continued monitoring of financial markets and the economy is crucial, as uncertainties remain. The European Council underlines the importance of the themes identified in the work programme adopted by the Council on 9 October 2007 aimed at, alongside the EU's international partners, improving transparency for investors, markets and regulators, improving valuation standards, improving the prudential framework, risk management and supervision in the financial sector as well as reviewing the functioning of markets, including the role of credit rating agencies. The European Council welcomes the significant steps adopted regarding the enhancement of EU arrangements for financial stability and strongly encourages their appropriate follow-up. It will come back to these issues at its spring 2008 meeting on the basis of a progress report.”

Source: European Council, revised Presidency Conclusions 14 December 2007 (Council document 16616/1/07 REV 1).


***

The European Council’s follow-up 13 to 14 March 2008 (revised Presidency Conclusions; Council document 7652/1/08 REV 1) devoted two and a half pages to the stability of financial markets. The European Council endorsed the interim report of the Council (ECOFIN) on financial market stability, and it saw the need for action on a number of issues (points 30 ─ 36, pages 16 ─ 18).

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Nout Wellink presented and overview in his 28 April 2008 speech ‘Banking supervision in Europe ─ developments and challenges’, published in the BIS Review 53/2008 (Bank for International Settlements):

http://www.bis.org/review/r080430a.pdf?noframes=1

Wellink, President of the Netherlands Bank and Chairman of the Basel Committee on Banking Supervision, outlined cross-border supervision and the interplay between central banks and supervisors.

Given the legal constraints, in the near term so-called colleges of supervisors should first be established for all major cross-border groups, and in a second step the role of the lead supervisor or consolidated supervisor should be strengthened in order to avoid stalemates.

According to Wellink, the two necessary conditions for effective cooperation between supervisors and central banks – cooperative and open mindsets and adequate information sharing – are most effectively met within “an institutional framework in which the Eurosystem’s responsibilities for monetary policy in the euro area are coupled with extensive supervisory responsibilities of NCB’s in domestic markets and with reinforced cooperation at a euro area-wide level”.

***

Since the spring, unsettling financial forecasts have been replaced by financial mayhem in Europe, too. We are going to look at some of the latest political actions and legal acts to improve financial supervision in the European Union.


Ralf Grahn

EU: Monetary policy VIII Financial supervision

European leaders have scrambled heroically to sort out the financial mess. The same leaders are responsible for the rules which let the meltdown happen in the first place and the treaties which make it hard to solve the cross-border problems when they have erupted.

The most important financial institutions are increasingly global or European in scope, but the prudential supervision of credit institutions and the stability of the financial system has deliberately been left to the (in)competent national authorities.

This is the situation pursuant to the existing Article 105(5) of the Treaty establishing the European Community (TEC). It remains the case under the Lisbon Treaty, as you can see from Article 127(5) of the Treaty on the Functioning of the European Union (TFEU).

The obvious solution is banking supervision at European level, but it is as if we lived in medieval times, when every science was a servant to theology (ancilla theologiae). The European System of Central Banks is graciously allowed to assist: to contribute to the smooth conduct of supervisory policies at national level. Able or unable to prevent meltdown, national authorities call the tune although they lack the scope.

The Treaty of Lisbon brings no change to this. In other words, it would require a new treaty (amendment) to remedy the situation. As we have seen, the form (international treaty), decision-making (unanimous agreement) and national approval (ratification) by all member states have made treaty reform a ‘mission impossible’, The logic of international relations has also left the citizens of the European Union as hapless bystanders and spectators.

In addition, since the Nice Treaty there has constantly been a reform project blocking the tunnel, leaving no room for other treaty reforms (except the more technical accession treaties).

***

With these ground rules, it is no wonder that the EU and EC treaties are hard to read and even harder to master. Treaty reform becomes endless tinkering between member states’ governments, instead of an open and democratic process. In the end, the treaties impose as many self-defeating restrictions on the union, as they grant powers to tackle common problems where the individual governments are out of their depth.

***

Let us continue with our example.

Some people must have realised that European financial markets require pan-European supervision, but what came out of the treaty treaty-building sausage machine offered only the slimmest of hopes.

Substantially: Only limited (specific) tasks can be transferred to the European Central Bank. Putting in place a European regulator (or major reform) is impossible without reforming the treaty.

Insurance undertakings are wholly excluded from any attempts at supervision with global vision.

Procedurally: Even these limited tasks require unanimous decision by the Council, according to Article 105(6) TEC. The Lisbon Treaty is no help; Article 127(6) would still require unanimity in the Council, and the European Parliament would be downgraded from giving its assent to offering its opinion.

The Treaty of Lisbon takes a small step, but backwards, if seen from the angle of representative democracy.

Earlier we saw that the European Convention proposed the ordinary legislative procedure (European laws), but the tasks would have been as specific (limited) as before, and insurance undertakings as excluded as currently from any possible arrangement.

From a practical point of view, Article III-77(6) of the draft Constitution was more or less a theoretical improvement, perhaps a political signal of the awareness the limits of scattered supervision and multi-jurisdiction financial firms.

Even this degree of temerity was too much for the intergovernmental conference 2004, which clobbered the proposal and reinstated Council unanimity and downgraded the European Parliament to opinion-giver.

The IGC 2007 had practically no room for improvements on the 2004 Constitutional Treaty. On the contrary, the governments prepared the IGC 2007 Mandate with a view to what might be salvaged and what should be jettisoned by the Reform Treaty (as it was then called).

***

What to do, when doing the right thing is impossible?

Paralysis or muddling through seem to be the options.

About the evolving opinions concerning multi-jurisdiction firms; the European Financial Services Roundtable (EFR), representing major financial and insurance companies, has argued that a more efficient and effective supervision of financial institutions is a key element to improving growth and integration of European financial markets. The appointment of a fully empowered lead supervisor for each financial institution is considered to be a realistic way to achieve this goal.

The EFR issued its third report ‘On the lead supervisor model and the future of financial supervision in the EU ─ Follow-up recommendation of the EFR’, where the arguments were taken further. The June 2005 report is available at:

http://www.efr.be/members/upload/news/22676EFRlsvfinal-June2005.pdf

The EFR pro­posed that the lead supervisor should be responsible for the prudential supervi­sion not only of branches in other EU member states, but also of fully owned (fully controlled) subsidiaries in other EU member states. Supervisors in member states, where systemically important branches and subsidiaries are located, should be taken adequately into account by their being represented in the “college of supervisors”, leading to dialogue between supervisors.

In order to avoid competitive distortions, the lead supervisor concept would have to be applied by all member states. To ensure this, a legislative basis – most probably an EU regulation (directly applicable in all member states) – would have to be creat­ed, said the EFR.

The national central bank corresponding to the nationality of the lead supervisor would be the responsible lender of last resort and would ultimately take the decision on whether to activate the function or not.

The EFR recommend a gradually converging model of deposit insurance schemes, aimed at levelling the playing field without imposing additional burdens on the financial industry.

The EFR presented its criteria to evaluate any supervisory structure (page 10).

***

Slowly these (half-)measures seem to inch their way towards political and legislative decisions.


Ralf Grahn

Wednesday, 15 October 2008

EU: Monetary policy IIIb ECB supervision in Constitution?

Does the Constitutional Treaty differ from the draft Constitution with regard to the objectives and the basic tasks of the European System of Central Banks (ESCB) and the European Central Bank (ECB)?

Did the intergovernmental conference (IGC 2004) make it easier to supervise European and global banks at the European level?

Let us see what our legal materials have to say.

***

Draft Constitution Article III-77 and Constitution Article III-185 texts compared

Renumbering the Articles referred to was a technical adjustment. In paragraph 4, where the draft Constitution spoke of ‘fields of competence’, the Constitutional Treaty used the slightly more direct expressions ‘areas within its powers’ (twice) and ‘matters within its powers’ (once), but without making any material difference.

The word ‘offices’ was added to what became the string ‘Union institutions, bodies, offices or agencies’ (paragraph 4).

The contribution ─ whatever that means ─ of the European system of Central Banks to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system, in paragraph 5, remained identical with the proposal by the European Convention. The draft Constitution, as we remember, was the same as the current Article 105(5) TEC; the draft only writing the ESCB ‘in extenso’.

In paragraph 6, the Convention had proposed ordinary European laws as a means to give the European Central Bank specific tasks concerning policies relating to the prudential supervision of credit institutions and other financial institutions. This would have meant co-decision by the European Parliament and qualified majority voting in the Council.

The IGC 2004 put paid to that. The governments reverted to the current unanimity rule, with some fine-tuning of the details.

Instead of the ordinary legislative procedure, proposed by the Convention, the Constitutional Treaty provided for a European law of the Council. In place of full participation (co-decision), as proposed by the draft Constitution, or even assent, as currently under the TEC, the European Parliament was further marginalised to be consulted, along with the European Central Bank.

In 2004 the member states’ governments (more or less) slammed the door on European level supervision of financial institutions, leaving the European Union with a fragmented network of national supervising authorities for increasingly global and European banks.

***

Sweden

The Swedish government memorandum ‘Fördraget om upprättande av en konstitution för Europa’ (Utrikesdepartemetet, Departementsserien (Ds) 2004:52; December 2004) described the signed Constitutional Treaty.

The Swedish government gave a factually correct description of the current Article 105(6) TEC and of Article III-185(6) Constitution. The government mentioned ‘some weakening’ of the European Parliament’s influence, since the EP was only to be consulted (page 241):

”Inom ramen för den monetära politiken får rådet i dag genom enhälligt beslut på förslag från kommissionen efter att ha hört Europeiska centralbanken och med Europaparlamentets samtycke tilldela Europeiska centralbanken särskilda uppgifter i samband med tillsynen över kreditinstitut och andra finansinstitut med undantag av försäkringsföretag. I det konstitutionella fördraget får Europeiska centralbanken i en europeisk lag som antas av rådet tilldelas dessa särskilda uppgifter. Rådet skall besluta med enhällighet efter att ha hört Europaparlamentet och Europeiska centralbanken (artikel III-185.6). En viss försvagning sker här av Europaparlamentets inflytande i och med att dess samtycke ersätts med dess hörande.”



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On the whole, here on page 173, the Swedish draft ratification bill ‘Lagrådsremiss ─ Fördraget om upprättande av en konstitution för Europa’ (2 June 2005) reiterated the remarks made in the memorandum mentioned above.

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Finland

The government of Finland laid out the Constitutional Treaty in its ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan perustuslaista tehdyn sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 67/2006 vp). In the government’s view, the proposals concerning EMU legislative procedures did not change the institutional balance essentially, but it first mentioned the instances, where the ordinary legislative procedure was instituted, and then the ratification bill mentioned where the position of the European Parliament was weakened (pages 81─82):

”Perustuslakisopimus merkitsee tiettyjä muutoksia lainsäädäntömenettelyihin talous- ja rahaliiton alalla, mikä ei kuitenkaan muuta olennaisesti toimielinten valtasuhteita. Perustuslakisopimuksessa siirrytään tavanomaiseen lainsäätämisjärjestykseen monenvälistä valvontamenettelyä koskevien yksityiskohtaisten sääntöjen vahvistamisessa (III-179 artiklan 6 kohta), Euroopan keskuspankkijärjestelmän ja Euroopan keskuspankin perussäännön eräiden määräysten muuttamisessa (III-187 artiklan 3 kohta) sekä sellaisten toimenpiteiden osalta, jotka ovat tarpeen euron käytössä yhteisenä rahana (III-191 artikla). Toisaalta Euroopan parlamentin asema tietyissä talous- ja rahaliittoa koskevissa kysymyksissä heikkenee, kuten päätettäessä eräiden kieltojen täsmentämiseksi tarvittavista säännöistä (III-183 artiklan 2 kohta), erityistehtävien antamista Euroopan keskuspankille (III-185 artiklan 6 kohta) sekä liikkeeseen laskettavien eurometallirahojen yksikköarvojen ja teknisten määritelmien yhdenmukaistamisesta (186 artiklan 2 kohta).”

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The same remarks on legislative procedures within EMU appear in Swedish in ’Regeringens proposition till Riksdagen med förslag om godkännande av Fördraget om upprättande av en konstitution för Europa och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen (RP 67/2006 rd), with the Finnish government’s comments on page 84:

”Det konstitutionella fördraget innebär vissa ändringar i lagstiftningsförfarandena på området för den ekonomiska och monetära unionen, vilka ändå inte på något väsentligt sätt förändrar maktförhållandena mellan institutionerna. I det konstitutionella fördraget övergår man till ordinarie lagstiftningsförfarande i fråga om meddelandet av närmare föreskrifter om det multilaterala övervakningsförfarandet (artikel III-179.6), ändrandet av vissa bestämmelser i stadgan för Europeiska centralbankssystemet och Europeiska centralbanken (artikel III-187.3) samt nödvändiga åtgärder för att använda euron som gemensam valuta (artikel III-191). Å andra sidan försvagas Europaparlamentets ställning i vissa frågor som gäller den ekonomiska och monetära unionen, t.ex. när man skall besluta om regler som behövs för att närmare ange hur vissa förbud skall tillämpas (artikel III-183.2), särskilda uppgifter som tilldelas Europeiska centralbanken (artikel III-185.6) samt harmonisering av valörerna och de tekniska specifikationerna för de euromynt som skall sättas i omlopp (artikel 186.2).”

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Fischer

Klemens H. Fischer in ‘Der Europäische Verfassungsvertrag‘ (Nomos, Stämpfli & Manz, 2005) only made the observations that „Artikel III-185 EUVV korrespondiert mit Artikel 105 EGV“ and „Artikel III-185 EUVV korrespondiert mit Artikel III-77 VVE“ (page 316).

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United Kingdom

According to Protocol (No 13, in the Constitutional Treaty) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland as regards economic and monetary union, Article 4, the Constitution’s Article III-185(1) to (5) did not apply to the UK. The United Kingdom was thus exempted from the ESCB contribution to the smooth operation of national prudential supervisors, but the UK opt-out did not concern paragraph 6, so Britain (surprisingly) remained among the potential veto powers concerning the transferral of new supervisory tasks to the European Central Bank (if I understand correctly).

The UK Foreign and Commonwealth Office (FCO) ‘White Paper on the Treaty establishing a Constitution for Europe’ (Cm 6309, September 2004) briefly remarked that the government had advocated the amendment on prudential supervision put forward by the Irish presidency in document CIG 81/04, Annex 18 (page 46).

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In other words, in 2004 the EU member states unanimously signed the Constitutional Treaty requiring unanimous European laws by the Council (and marginalising the European Parliament) to confer financial supervision on the European Central Bank.

The next instalment turns to the IGC 2007 and the Lisbon Treaty.



Ralf Grahn