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Better Regulation – The CEBS Perspective

Better Regulation – The CEBS Perspective. Helmut Bauer | 19 February 2007. Lamfalussy architecture. Level 1  legislative frame. European Parliament, ECOFIN Council. directive. Level 2  technical details. European Commission, European Banking Committee. technical annexes.

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Better Regulation – The CEBS Perspective

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  1. Better Regulation – The CEBS Perspective Helmut Bauer | 19 February 2007

  2. Lamfalussy architecture Level 1  legislative frame European Parliament, ECOFIN Council directive Level 2  technical details European Commission, European Banking Committee technical annexes Level 3  consistent implementation and convergence of supervisory practices; enhanced co-operation; regulatory advice guidelines, standards, recommendations Level 4  enforcement

  3. Lamfalussy architecture Level 1  legislative frame Level 1 European Parliament, ECOFIN Council • Primary legislation directive Level 2  technical details Level 2 European Commission, European Banking Committee • Secondary legislation technical annexes Level 3  consistent implementation and supervisory convergence; enhanced co-operation; regulatory advice Level 3 • No legislation – implementation/application guidelines, standards, recommendations Level 4  enforcement

  4. Source: The New Yorker October 4, 1993

  5. assess impact consult be transparent

  6. assess impact • Necessity • Effectiveness and Focus • Proportionality Is a policy initiative necessary? What are the various options? Is there a sound rationale for an initiative? Is it relevant to our Charter? Is it properly kept under review? Is the initiative focused on the problem? Have anticipated side effects, and the risk of unintended consequences been taken into account? Is the initiative appropriate for the perceived problem or risk? What are the positive and negative impacts on consumers and market participants? What are the reasons for having choosen a particular initiative and rejected the alternatives?

  7. consult

  8. be transparent

  9. Dialectical triade synthesis thesis antithesis

  10. Regulatory dialectic (or arbitrage) • Edward J. Kane “Impact of Regulation on Economic Behaviour” (1981): • „Market institutions and politically imposed restraints reshape themselves in a Hegelian manner, simultaneously resolving and renewing an endless series of conflicts between economic and political power. The approach envisions repeating stages of regulatory avoidance (or „loophole mining“) and re-regulation, with stationary equilibrium virtually impossible.”

  11. Regulatory dialectic • Basel 1 (1978) • Market Risk Amendment (1996) • Basel 2 (2007) Move to risk- and incentives-based regulation:

  12. Regulatory dialectic • Ethymology • From ancient Greek διαλεκτική (dialektike) "the art of argument through interactive questioning and answering", from διαλεκτικός (dialektikos) "competent debater", from διαλέγομαι (dialegomai) "to participate in a dialogue", from διά (dia) "inter, through" + λέγειν (legein) "to speak".

  13. Niklas Luhmann

  14. social dimension time dimension dynamics of market integration and globalisation dynamics of a knowledge-based, innovative industry Niklas Luhmann

  15. Regime social dimension time dimension consistent, legal certainty + level playing field dynamics of market integration and globalisation flexible, and able to learn proportionate + risk-based + incentives-based + principle-based dynamics of a knowledge-based, innovative industry Niklas Luhmann

  16. Torsten Strulik, Matthias Kussin in “Financial Market Regulation and Knowledge Politics” (2005): • “... It is apparent that the strategic creation of innovation is a crucial aim in economics, politics and law. ... Of central interest is if and to what extent the new ‘cognitive’ supervisory regime (Basel II) creates conditions for a mixed public-private form of risk management that is in accordance with the increasing demands for the creation of stability and innovation." • “Basel II - the regulatory constitution of collective intelligence”

  17. Lamfalussy architecture Level 1  legislative frame Level 1 European Parliament, ECOFIN Council • Primary legislation directive Level 2  technical details Level 2 European Commission, European Banking Committee • Secondary legislation technical annexes Level 3  consistent implementation and supervisory convergence; enhanced co-operation; regulatory advice Level 3 • Bottom-up + dialogue guidelines, standards, recommendations Level 4  enforcement

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