3 November 2020
The European Central Bank (ECB), the European Systemic Risk Board (ESRB), and the European Supervisory Authorities (ESAs) are closely monitoring the COVID-19 situation and have taken measures to seek to protect markets and consumers and to ensure firms have adequate contingency plans in place. Additionally, on 14 July 2020, the European Commission published a document setting out best practices in relation to the relief measures offered to consumers and businesses in the context of the COVID-19 crisis. The best practices cover measures discussed below, such as the credit payment moratoria and best practices for insurers, and is the product of meetings with a range of stakeholders including the ESAs.
This webpage sets out the measures taken by the EU financial regulators to date and key points firms should be aware of. Please see our separate webpage on the measures taken by the UK financial services regulators in response to COVID-19 here.
In line with other central banks, the ECB has announced a €750bn Pandemic Emergency Purchase Programme (PEPP) to buy public (including Italy and Greece) and private sector debt across the eurozone. Purchases under the PEPP will be conducted in a flexible manner for maximum impact and alignment with other measures by the ESAs. Further, the ECB announced measures providing added flexibility to banking supervision to ensure that its directly supervised banks can continue to fulfil their role to fund households and corporations. To this extent it introduced supervisory flexibility to its treatment of non-performing loans and encouraged banks to avoid excessive procyclical effects when applying the IFRS 9 international accounting standard (an approach consistent with ESMA). The ECB also activated capital and operational relief measures already announced amounting to €120 billion, which could be used to absorb losses or potentially finance up to €1.8 trillion of lending.
On 27 March 2020, the ECB released a statement advising banks to be prudent when deciding dividend payments and share buyback schemes. It stated that banks should be forward-looking and preserve liquidity to support households and businesses. The ECB provided further guidance in its recommendations published on 28 July 2020 on dividend distributions, in which it extended its recommendation to banks that no dividend distributions are paid out and to refrain from share buy-backs until 1 January 2021. Similarly, on 28 July 2020, the ECB published a letter addressed to banks discussing remuneration policies. The ECB highlighted the principle of proportionality in implementing the supervisory expectations and stated it expects banks to adopt extreme moderation with regard to variable remuneration payments until 1 January 2021.
On 16 April 2020, the ECB announced a temporary reduction in capital requirements for market risk by allowing banks to reduce a supervisory measure, the qualitative market risk multiplier, to adjust for the market volatility and retain market liquidity.
The ECB published an opinion on 20 May 2020, on the proposed Regulation containing amendments to the Capital Requirements Regulation (575/2013) (CRR) as regards adjustments in response to the COVID-19 pandemic. The ECB provided its general comments on the proposals and specific observations on each of the key reforms introduced.
On 7 July 2020, the ECB published a blog post by Kerstin af Jochnick, ECB Supervisory Board Member, sharing her thoughts as an ECB policymaker on maintaining effective supervisory engagement with banks in the short term and designing the new normal of the European banking sector in the medium term as the coronavirus crisis slowly fades away. Ms af Jochnick noted that the COVID-19 shock is likely to accelerate some of the trends that were already under way before the crisis (for example digitisation and strengthening crisis management and resolution frameworks) and as such, planning what the business of banking will look like post-COVID-19 should start now. The ECB also published the results of its vulnerability analysis of banks directly supervised within the Single Supervisory Mechanism. The results show that the Results show euro area banking sector can withstand pandemic-induced stress, but if the situation worsens, depletion of bank capital would be material.
On 28 July 2020, the ECB published a letter addressing the operational capacity to deal with distressed debtors in the context of the COVID-19 pandemic. The ECB states that banks should provide sustainable solutions or support in an efficient and timely manner which also requires them to have effective risk management practices. Additionally, banks should take timely action to minimise any cliff effects as the moratoria measures expire. The ECB also expects banks to clearly understand the risks they are facing and devise an appropriate strategy, with both a short and medium-term focus.
On 10 September 2020, the ECB took various monetary policy decisions, namely, (i) the interest rate on the main refinancing operations and the interest rates on the marginal lending facility and the deposit facility will remain unchanged at 0.00%, 0.25% and -0.50% respectively; (ii) the Governing Council will continue its purchases under the PEPP with a total available fund of €1,350 billion; (iii) net purchases under the asset purchase programme (APP) will continue at a monthly pace of €20 billion, together with the purchases under the additional €120 billion until the end of the year; and (iv) the Governing Council will continue to provide ample liquidity through its refinancing operations. The Economic Bulletin published on 24 September 2020 summarises that these measures are necessary to support the economic recovery and to safeguard medium-term price stability. The strength of the recovery remains surrounded by significant uncertainty, as it continues to be highly dependent on the future evolution of the pandemic and the success of containment policies.
On 16 September 2020, the ECB adopted a Decision on the temporary exclusion of certain exposures to central banks from the total exposure measure, in view of the exceptional circumstances presented by the COVID-19 pandemic. The ECB explained in a related press release that these measures are aimed at easing the implementation of monetary policy by allowing euro area banks under its direct supervision to exclude certain central bank exposures from the leverage ratio.
On 23 September 2020, the ECB published the following:
In a speech published on 6 October 2020, Philip R. Lane, a member of the Executive Board of the ECB, stated that the euro area economy is still operating far below its pre-pandemic level The monetary policy challenge since the onset of the crisis can be divided into two stages. In the first stage, the challenge for the ECB is to counter the negative inflation shock. The central element in this first stage has been the introduction of the PEPP. The second stage is to ensure that, once the economy returns to the pre-pandemic inflation path, the monetary policy stance is appropriately calibrated to ensure timely and robust convergence to the ECB's medium-term inflation aim.
On 8 October 2020, Yves Mersch, a member of the Executive Board of the ECB and Vice-Chair of the Supervisory Board of the ECB, gave a speech on early lessons regarding European economic governance from the COVID-19 crisis. He observed that, for the first time in its history, the EU is taking on common debt to help finance a recovery. He further stated that the response to the crisis has underlined the importance of a common approach to common problems and may be the reason for a broader review of the allocation of competences across the different governance layers in the supranational community.
On 29 October 2020, Kerstin af Jochnick, Member of the Supervisory Board of the ECB, delivered a speech on supervision in times of uncertainty. The speech discusses the challenges that the COVID-19 pandemic has posed for banks and banking supervisors alike, and aslo highlights the instrumental role that internal auditors can play in navigating the crisis.
On 2 November 2020, Yves Mersch gave a speech on the legal aspects of the ECB’s response to the COVID-19 pandemic. The ECB has exclusive but narrow competence to define the EU monetary policy for the purpose of maintaining price stability. Moreover, the European Court of Justice has consistently held that, as the ECB enjoys broad discretion, the Court must be able to control the discretion. The ECB is also bound by certain established legal principles, such as ensuring that measures introduced are proportionate to the ECB’s legitimate objectives. The speech also discussed the legality of the PEPP and the temporary collateral easing measures.
On 14 May 2020, the ESRB published a press release highlighting the first set of actions to address the impact of COVID-19 as discussed at the extraordinary meeting of the General Board of the ESRB. The General Board aims to use the flexibility in the existing EU regulatory standards to ensure adequate capital and liquidity resources are available, as well as sustaining a stable Single Market through equivalent policy responses across sectors and Member States. The actions are in five key priority areas:
The ESRB published its second set of actions to address the impact of COVID-19 on 8 June 2020, following the extraordinary meeting of the General Board on 27 May 2020. This set of actions includes:establishing an EU-wide framework to monitor debt moratoria, guarantee schemes and other fiscal measures put in place by member states:
On 22 June 2020, the ESRB published its decision on the on the cancellation of certain reports on actions and measures taken pursuant to Recommendation ESRB/2014/1 (relating to guidance for setting countercyclical buffer rates) and Recommendation ESRB/2015/2 (addresses the cross-border effects of macro-prudential measures). The reports, which were due by 30 June 2020, are no longer required to be submitted, however, the submission of subsequent reports is not affected.
On 1 October 2020, the General Board of the ESRB had a meeting to discuss the consequences of the COVID-19 pandemic. A few key takeaways are:
The General Board will continue the COVID-19-related work in the priority areas identified earlier this year and suggested in a letter to the European Commission and the ESMA medium-term actions, which could be undertaken with regard to external credit ratings.
European Securities and Markets Authority (ESMA) published an initial public statement on 11 March 2020 highlighting the ongoing priority of ensuring business continuity, and making various recommendations to financial market participants. The recommendations include specific reminders to issuers of the need to disclose any relevant significant information concerning the impacts of COVID-19 on their fundamentals, prospects or financial situation as soon as possible in accordance with the Market Abuse Regulation (MAR), and providing transparency in any financial reporting disclosures. Further, on 20 March 2020, ESMA extended the response date for all ongoing consultations due to close on, or after, 16 March 2020 by four weeks to allow institutions to focus on their core operations.
ESMA has also issued a public statement on the recording requirements of telephone conversations pursuant to MiFID II. ESMA acknowledges that recording may not be practicable in certain circumstances, but it expects firms to mitigate any potential risks and to use all possible efforts to restore recording of telephone conversations as soon as possible.
In its updated webpage, on 11 May 2020 ESMA stated that it is continuously engaging with Credit Rating Agencies (CRAs), as the single EU direct supervisor of CRAs. Its focus is on business continuity and compliance with key regulatory requirements (e.g. conflicts of interest, internal controls, transparency and governance).
On 20 May 2020, ESMA published a public statement addressing the implications of COVID-19 on the half-yearly financial reports of listed issuers. In the statement, ESMA reminds issuers to not unduly delay their reports and to ensure compliance with their obligations under MAR. The statement also sets out specific guidance on the preparation of half-yearly financial statements and makes recommendations on the detailed and entity specific disclosures it expects issuers to include in their interim management reports.
ESMA's 14 Edition Newsletter was published on 27 May 2020. The newsletter noted that ESMA continues to closely monitor the impact of COVID-19 and provided an update on ESMA's recent activities related to COVID-19. It also highlighted deadlines for closing consultations next month and catch up on the full list of publications from April and May.
On 10 June 2020, ESMA issued a decision renewing the temporary requirement to natural or legal persons who have net short positions to temporarily lower the notification thresholds in relation to the issued share capital of companies whose shares are admitted to trading on a regulated market to notify the national competent authorities (NCAs) if the position reaches or exceeds 0.1% of the issued share capital after the entry into force of the decision. The decision entered into force on 17 June 2020 and applies until 17 September 2020.
ESMA published a statement on 11 June 2020 on open access provisions for exchange traded derivatives (ETDs) under the Markets in Financial Instruments Regulation (600/2014) (MiFIR) in the light of COVID-19. In the statement, ESMA explained that as of 4 July 2020, trading venues (TVs) and central counterparties (CCPs) offering the trading and clearing of ETDs will be subject to the open access regime for trading and clearing ETDs under MiFIR. The high degree of uncertainty and volatility driven by COVID-19, may increase TVs and CCPs operational risk. These increased risks, combined with limited capacity for assessing access requests and managing the migration of transactions flows, may impact the orderly functioning of markets or financial stability.
On 15 June 2020, ESMA published a revised work programme in response to the significant resources diverted in its responses to COVID-19. ESMA's focus has been on maintaining markets that are open and orderly and that allow prices to adjust and liquidity to be provided. To appropriately deal with COVID-19 a full assessment of ESMA activities for 2020 was undertaken and each originally planned workstream was assessed and classified into high, medium or low priority. The result of the assessment formed the basis of the revised work programme.
On 9 July 2020, ESMA published a statement in the context of the COVID-19 pandemic in relation to the prohibition of providing external support to money market funds (MMFs) within the meaning of Article 35 of Regulation (EU) 2017/1131 (MMF Regulation). In the statement ESMA clarifies that MMFs may enter into transactions with third parties, including affiliated or related parties, provided the requirements of Article 35 of the MMF Regulation are met.
In a press release on 28 July 2020, ESMA announced it is working on a proposal to possibly further delay the entry into force of the Central Securities Depositories Regulation (909/2014) (CSDR) settlement discipline regime until 1 February 2022 due to COVID-19, and upon the request of the European Commission.
On 2 September 2020, ESMA published the second Trends, Risks and Vulnerabilities (TRV) Report of 2020 which analyses the impact of COVID-19 on financial markets. In this report, ESMA maintained its risk assessment that the market environment remains fragile. ESMA also raised the question of the sustainability of the current market rebound. The report further provides in-depth look at specific risk issues in four articles, namely:
On 22 September 2020, the ESAs issued their first joint risk assessment report of the financial sector since the outbreak of the COVID-19 pandemic. The ESAs highlighted the need to:
On 2 October 2020, ESMA published its 2021 Work Programme setting out its priorities and areas of focus for the next 12 months in support of its mission to enhance investor protection and promote stable and orderly financial markets. The key areas of focus are:
On 9 October 2020, Verena Ross, an Executive Director at ESMA, delivered a speech covering the impact of COVID-19 on the financial markets. The financial system has recently shown a good level of robustness to withstand shocks. While the short term focus will be preparing for possible further market volatility and disruptions, the longer term focus should be:
Effective regulation and supervision of the financial markets through further development and consistent implementation of MiFID and MAR frameworks will be important in making the capital markets union project a success.
The speech by Steven Maijoor, the Chair of ESMA, on 12 October 2020 outlined ESMA's achievements over the last 12 months in the pursuit of its objectives of enhancing investor protection and promoting stable and orderly financial markets in the EU. In particular, ESMA has intensified its engagement and dialogue with its directly supervised entities, which was of importance in view of an increased number of downgrades in credit ratings over a very short period of time He also pointed out that one area in which the regulatory framework was not capable of responding adequately to the pandemic stresses was in the money market funds sector. The exceptional interventions of central banks were in fact decisive in ensuring that these funds would continue to meet regulatory requirements.
On 28 October 2020, ESMA issued its annual Public Statement on European Common Enforcement Priorities which sets out the priorities that EEA corporate reporting enforcers will consider when examining listed companies’ 2020 annual financial reports. Additionally, ESMA expects issuers to consider its COVID-19 related recommendations from March on the implications for the calculation of expected credit losses, and its May Statement on half-yearly financial reports (see above).
On 12 March 2020 the European Banking Authority (EBA) released a public statement announcing its decision to postpone the EU-wide stress test exercise to 2021 to allow banks to prioritise supporting their customers and address the key operational challenges they may be facing. The EBA also reminded NCAs and banks of the flexibility in capital and liquidity regulations.
The EBA subsequently released two statements on 25 March 2020, providing clarity on the functioning of the prudential framework and addressing consumer and payment issues in light of COVID-19. The ECB called for flexibility and pragmatism in the application of the prudential framework and clarified that, in case of debt moratoria, there is no automatic classification in default, forborne, or IFRS9 status. Nonetheless, it asked institutions to ensure adequate risk management measures are in place, to use the measures in compliance with EU law and ensuring consumer protection remains a priority. The EBA also emphasised the importance of contactless payments and encouraged payment services providers to use the maximum thresholds available.
Following on from the EBA's statement on the prudential framework, on 3 April 2020, the EBA published a final report containing guidelines on the legislative and non-legislative moratoria on loan repayments. It clarified that the payment moratoria do not trigger classification as forbearance or distressed restructuring if the measures are taken based on market led initiatives. The EBA also recognised the importance of accurate and transparent monitoring and recording of the scope and effects of COVID-19 on the market, and urged institutions to consider the longer term financial difficulties that may be faced.
On 22 April 2020, the EBA released a statement on the application of the prudential framework to mitigate the impact of COVID-19 on the EU banking sector. The statement addressed the following: a postponement of the revised market risk reporting requirements (Fundamental Review of the Trading Book (FRTB)), a deferral to the implementation of the final two phases of the framework for margin requirements for non-centrally cleared derivatives and flexibility under the CRR to mitigate the increase in aggregated amounts of additional valuation adjustments (AVAs). In conjunction, the EBA also published a final report on the proposed amendments to the regulatory technical standards (RTS) on prudent valuation under the CRR.
On 2 June 2020, the EBA published its final report on guidelines on reporting and disclosure of exposures subject to measures applied in response to COVID-19. The guidelines follow the implementation of a broad range of measures, such as legislative moratoria on loan repayments and public guarantees in Member States, with the aim to support the operational and liquidity challenges faced by borrowers. The guidelines have been developed to address data gaps associated with such measures to ensure an appropriate understanding of institutions’ risk profile and the asset quality on their balance sheets both for supervisors and the wider public.
In a press release published on 18 June 2020, the EBA announced its decision to extend the application date of its Guidelines on legislative and non-legislative moratoria to 30 September 2020 (initially 30 June 2020). The Guidelines allowed banks to grant payment holidays to customers, under either legislative or non-legislative moratoria. As a result of the continued impact of COVID-19, the EBA has stressed the crucial role of banks in providing financing and this extension can ensure the adequate treatment of borrowers across the EU.
On 7 August 2020, the EBA published an updated report on the implementation of selected COVID-19 policies. The report provides clarification on questions raised in the context of the EBA’s monitoring of the implementation of COVID-19 policies. The report is structured in four key parts: (i) the first part provides a follow-up on the implementation and monitoring issues around COVID-19 credit risk policy relief measures, (ii) section two focuses on the implementation issues around the Guidelines on legislative and non-legislative moratoria on loan repayments, (iii) section three focuses on common criteria that institutions should follow for the identification and treatment of operational risk events and losses, through the provision of a dedicated ‘risk classification schema’ and (iv) section four provides technical clarifications in response to implementation questions raised by supervisors and institutions since the report was first published in July.
The EBA published a statement on 9 July 2020, on resolution planning in light of the COVID-19 pandemic. The statement identified the need to further specify key elements of the resolution authorities’ toolbox and aims to re-affirm that resolution planning is crucial in time of uncertainty to ensure that resolution is a credible option in case of failure. In particular, the statement provided an update of resolution plans, an update of minimum requirement for own funds and eligible liabilities decisions, the progress in removing impediments to resolvability and the activation of resolution colleges.
On 23 July 2020, the EBA published guidelines establishing a special procedure for the 2020 supervisory review and evaluation process (SREP) in light of COVID-19. The guidelines put forward a risk‐driven approach building on the existing requirements of the Capital Requirements Directive and the SREP GL and adapting them to the exceptional circumstances of the COVID‐19 pandemic. They focus on four key aspects of SREP: focus of the pragmatic SREP, overall SREP assessment and scoring, supervisory measures, and conduct of the SREP in cross-boarder contexts.
On 10 August 2020, the EBA published final reports on draft implementing technical standards (ITS) and guidelines on supervisory reporting and disclosures, both relating to amendments to the CRR made by Regulation (EU) 2020/873 (Quick Fix Regulation) relating to own funds, the non-performing exposures backstop and the leverage ratio.
The EBA published a revised 2020 programme on 14 August 2020, which has been amended to reflect the projects postponed due to COVID-19 to alleviate the immediate operational burden for banks. The revised work programme also includes the EBA's prioritisation principles for the revision of the work plan including, freezing the publication of new consultations papers (unless critical) and limiting the interaction with the industry.
On 1 September 2020, the EBA published the Annual Report on resolution colleges for 2019. The report highlights the main areas that the EBA will monitor in 2020, which primarily address responses to the effects of COVID-19. In particular, for the 2020 cycle of resolution college meetings, the EBA intends to monitor engagement on the extent to which colleges undertake reviews of ‘Business Reorganisation Plans’ to assess if changes are required in response to the economic effects of COVID-19.
On 21 September 2020, the EBA published a statement that it will phase out its guidelines on legislative and non-legislative loan repayments moratoria in accordance with its end of September deadline. The regulatory treatment set out in the guidelines will continue to apply to all payment holidays granted under eligible payment moratoria before 30 September 2020, thus avoiding having to reclassify existing loans abruptly at a later stage. Banks can continue supporting their customers with extended payment moratoria also after 30 September 2020, such loans should be classified on a case-by-case basis according to the usual prudential framework.
On 30 September 2020, the EBA published its annual work programme for 2021, describing the activities and tasks for the coming year and highlighting its key strategic areas of work. In 2021, the EBA will focus on six strategic areas:
The EBA will also continue establishing a culture of sound and effective governance and good conduct in financial institutions, and particularly focus on addressing the aftermath of COVID-19.
On 12 October 2020, José Manuel Campa, the EBA Chairperson, delivered a speech stating that EU banks have entered the outbreak of the pandemics on a relatively strong footing. The strong capitalisation and liquidity profile of the banks and the EBA's swift actions in promoting flexibility and frontloading some policy measures have contributed to the financial resilience of the region. There remains need to address overcapacity, review business models and advance with banking sector consolidation and the EBA’s EU-wide 2021 bank stress test will play an important role in this regard.
On 17 March 2020, the European Insurance and Occupational Pensions Authority (EIOPA) published a statement on actions to mitigate the impact on the EU insurance sector. They emphasised the need for insurers to take steps for business continuity and urged national authorities to give flexibility and offer operational relief. Similarly, the EIOPA stated insurance companies should preserve their solvency capital positions (under Solvency II) to protect the industry and the insured. To ensure the EIOPA's priorities are consistent, they have extended or delayed projects where input from NCAs and/or the industry is foreseen. In a statement on 2 April 2020, the EIOPA also urged all (re)insurers to temporarily suspend all discretionary dividend distributions and any planned share buy backs. They stated, in the current turbulent market it is prudent for insurers to protect their capital position.
On 18 May 2020, EIOPA published its updated Risk Dashboard based on the fourth quarter 2019 Solvency II data. While the report does not capture the latest market developments resulting from COVID-19, it showed that insurers face very high market risk but the general market perceptions and imbalances remained at a medium level.
On 8 July 2020, EIOPA provided clarification on its supervisory expectations on product oversight and governance (POG) requirements in the context of COVID-19, to ensure fair and consistent consumer outcomes through a product’s lifecycle. EIOPA expects insurance manufacturers to identify their products affected as a result of COVID-19, assess possible unfair treatment of customers for these products and consider proportionate remedial measures. The assessment should be on a medium to longer term basis with any remedial measures mitigating the situation and preventing further occurrences of detriment.
EIOPA published a supervisory statement on 20 July 2020, discussing the treatment, for Solvency II purposes, of schemes based on reinsurance implemented by Member States within the temporary framework for state aid measures with regard to COVID-19. As EIOPA has noticed significant differences in the implementation of national measures, to ensure a consistent and level playing field, they have outlined several supervisory recommendations for NCAs. On 27 July 2020, EIOPA published another statement on Solvency II discussing the supervisory reporting. It stated that insurance and reinsurance undertaking should now be able to comply with the deadlines provided in the Solvency II framework.
On 17 August 2020, EIOPA published the updated Risk Dashboard based on the first quarter of 2020 Solvency II data. The results show that, due to COVID-19, insurers are particularly exposed to very high levels of macro risk, while market, credit, profitability and solvency risks are at high level.
On 30 September 2020, EIOPA published its priorities for 2021-2023. EIOPA's main focus will be COVID-19 crisis management, risk mitigation and active support to the recovery of the European economy. In particular, consumer protection will remain a key strategic priority in light of increasing risks emerging from the pandemic.
If you would like to discuss any of the points arising out of the regulators' announcements or need assistance with reviewing your contingency plans, please get in touch.
by multiple authors
by multiple authors