01 April 2015
The European Banking Authority (EBA) published today a Recommendation specifying its opinion on the confidentiality regime of several non-EU supervisory authorities to facilitate their participation in supervisory colleges overseeing international banks, led by EU supervisors. The paper looks at the conditions that need to be met in terms of confidentiality requirements and gives an overview of equivalence to EU standards. This work aims to harmonise the application of Art. 116 (6) of the Capital Requirements Directive (CRD) in the composition of supervisory colleges.
In the Recommendation issued today, the EBA provided an indication of the equivalence of the confidentiality regime of certain non-EU countries to the EU confidentiality regime. The non-EU authorities were reviewed on the basis treatment of the notion of confidential information, professional secrecy requirements, restrictions on the use and disclosure of confidential information. The authorities included come from the following countries: Bosnia and Herzegovina, Brazil, Canada, China, FYR Macedonia, Mexico, Montenegro, Serbia, Singapore, Switzerland, Turkey, and the USA.
The EBA looked specifically at ensuring that each non-EU authority is subject to a confidentiality regime equivalent to the one provided in the EU by the Capital Requirements Directive (CRD). Equivalence of confidentiality regimes of third country supervisory authorities is key to ensure the safe and secure flow of information within that college. Although the final decision on college membership is for each supervisor, promoting convergence amongst EU authorities is designed to eliminate inconsistencies in approaches, which could ultimately hamper the efficient and timely operation of the colleges of supervisors in the EU.
Following the publication of the English version, the EBA will make available, in due course, the translations of these Recommendations in all EU languages. Within two months from the publication of the translated Recommendations, Competent Authorities shall confirm to the EBA their compliance status, which will be disclosed on the EBA website. The recommendations concern exclusively the assessment of the confidentiality regime of those third country supervisory authorities with a view to inform the relevant opinions, which CAs who are members of a college of supervisors, should express as referred to in Article 116 (6) of CRD; the Recommendation is not providing any form of guidance on the appropriateness of such participation as referred to in Article 116 (6): the latter issue remains to be determined by the college of supervisors alone taking into account the overall structure of the supervised group and the legislation applicable.
The recommendations on the equivalence of confidentiality regimes were issued on the basis of Article 16 of Regulation (EU) 1093/2010 establishing the EBA. The EBA expects all CAs to which the Recommendation is addressed to comply with it and to incorporate it into their supervisory practices as appropriate.