Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC

Independence and impartiality

Any party to the appeal proceedings may object to the participation of a member of the Board of Appeal on any of the grounds referred to in paragraphs 1 and 2, or if suspected of bias.

No objection may be based on the nationality of members nor shall it be admissible if, while being aware of a reason for objecting, the party to the appeal proceedings has nonetheless taken a procedural step other than objecting to the composition of the Board of Appeal.

The Board of Appeal shall decide on the action to be taken in the cases specified in paragraphs 1 and 2 without the participation of the member concerned.

For the purpose of taking that decision, the member concerned shall be replaced on the Board of Appeal by his alternate. Where the alternate is in a similar situation, the Chairperson shall designate a replacement from among the available alternates.

The members of the Board of Appeal shall undertake to act independently and in the public interest.

For that purpose, they shall make a declaration of commitments and a declaration of interests indicating either the absence of any interest which may be considered prejudicial to their independence or any direct or indirect interest which might be considered prejudicial to their independence.

Those declarations shall be made public, annually and in writing.

CHAPTER V

REMEDIES

Article 60

Appeals

The Board of Appeal shall decide upon the appeal within three months after the appeal has been lodged.

An appeal lodged pursuant to paragraph 1 shall not have suspensive effect.

However, the Board of Appeal may, if it considers that circumstances so require, suspend the application of the contested decision.

Article 60a

Exceeding of competence by the Authority

Any natural or legal person may send reasoned advice to the Commission if that person is of the opinion that the Authority has exceeded its competence, including by failing to respect the principle of proportionality referred to in Article 1(5), when acting under Articles 16 and 16b, and that is of direct and individual concern to that person.

Article 61

Actions before the Court of Justice of the European Union

CHAPTER VI

FINANCIAL PROVISIONS

Article 62

Budget of the Authority

The revenues of the Authority, a European body in accordance with Article 70 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (²⁷) (‘the Financial Regulation’), shall consist, in particular, of any combination of the following:

(a) obligatory contributions from the national public authorities competent for the supervision of financial institutions, which shall be made in accordance with a formula based on the weighting of votes set out in Article 3(3) of Protocol (No 36) on transitional provisions. For the purposes of this Article, Article 3(3) of Protocol (No 36) on transitional provisions shall continue to apply beyond the deadline of 31 October 2014 therein established;

(b) a subsidy from the Union, entered in the General Budget of the European Union (Commission Section);

(c) any fees paid to the Authority in the cases specified in the relevant instruments of Union law;

(d) any voluntary contribution from Member States or observers;

(e) agreed charges for publications, training and for any other services provided by the Authority where they have been specifically requested by one or more competent authorities.

Any voluntary contribution from Member States or observers referred to in point (d) of the first sub-paragraph shall not be accepted if such acceptance would cast doubt on the independence and impartiality of the Authority. Voluntary contributions that constitute compensation for the cost of tasks delegated by a competent authority to the Authority shall not be considered to cast doubt on the independence of the latter.

Article 63

Establishment of the budget

Article 64

Implementation and control of the budget

The Authority’s accounting officer shall also send, by 15 June each year, a reporting package to the Commission’s accounting officer, in a standardised format as laid down by the Commission’s accounting officer for consolidation purposes.

Article 65

Financial rules

The financial rules applicable to the Authority shall be adopted by the Management Board after consulting the Commission. Those rules may not depart from Commission Delegated Regulation (EU) 2019/715 (²⁸) unless the specific operational needs for the functioning of the Authority so require and only with the prior agreement of the Commission.

Article 66

Anti-fraud measures

CHAPTER VII

GENERAL PROVISIONS

Article 67

Privileges and immunities

The Protocol (No 7) on the privileges and immunities of the European Union annexed to the Treaty on European Union and to the TFEU shall apply to the Authority and its staff.

Article 68

Staff

Article 69

Liability of the Authority

Article 70

Obligation of professional secrecy

Without prejudice to cases covered by criminal law, any confidential information received by persons referred to in paragraph 1 whilst performing their duties may not be divulged to any person or authority whatsoever, except in summary or aggregate form, such that individual financial institutions cannot be identified.

The obligation under paragraph 1 of this Article and the first subparagraph of this paragraph shall not prevent the Authority and the competent authorities from using the information for the enforcement of the legislative acts referred to in Article 1(2), and in particular for legal procedures for the adoption of decisions.

The same requirements for professional secrecy shall also apply to observers who attend the meetings of the Management Board and the Board of Supervisors and who take part in the activities of the Authority.

That information shall be subject to the conditions of professional secrecy referred to in paragraphs 1 and 2. The Authority shall lay down in its internal rules of procedure the practical arrangements for implementing the confidentiality rules referred to in paragraphs 1 and 2.

Article 71

Data protection

This Regulation shall be without prejudice to the obligations of Member States relating to their processing of personal data under Regulation (EU) 2016/679 or the obligations of the Authority relating to its processing of personal data under Regulation (EU) 2018/1725 of the European Parliament and of the Council (³¹) when fulfilling its responsibilities.

Article 72

Access to documents

Article 73

Language arrangements

Article 74

Headquarters Agreement

The necessary arrangements concerning the accommodation to be provided for the Authority in the Member State where its seat is located and the facilities to be made available by that Member State, as well as the specific rules applicable in that Member State to the staff of the Authority and members of their families, shall be laid down in a Headquarters Agreement between the Authority and that Member State which they concluded after obtaining the approval of the Management Board.

That Member State shall provide the best possible conditions to ensure the proper functioning of the Authority, including multilingual, European-oriented schooling and appropriate transport connections.

Article 75

Participation of third countries

CHAPTER VIII

TRANSITIONAL AND FINAL PROVISIONS

Article 76

Relationship with the Committee of European Banking Supervisors

The Authority shall be considered the legal successor of Committee of European Banking Supervisors (CEBS). By the date of establishment of the Authority, all assets and liabilities and all pending operations of CEBS shall be automatically transferred to the Authority. CEBS shall establish a statement showing its closing asset and liability situation as of the date of that transfer. That statement shall be audited and approved by CEBS and by the Commission.

Article 77

Transitional staff provisions

All members of staff under contracts referred to in paragraph 1 shall be offered the possibility of concluding temporary agent contracts pursuant to Article 2(a) of the Conditions of Employment of Other Servants at the various grades as set out in the Authority’s establishment plan.

An internal selection limited to staff who have contracts with CEBS or its Secretariat shall be carried out after the entry into force of this Regulation by the authority authorised to conclude contracts in order to check the ability, efficiency and integrity of those to be engaged. The internal selection procedure shall take full account of the skills and experience demonstrated by the individuals’ performance prior to the engagement.

Article 78

National provisions

The Member States shall make such provision as is appropriate to ensure the effective application of this Regulation.

Article 79

Amendments

Decision No 716/2009/EC is hereby amended in so far as CEBS is removed from the list of beneficiaries set out in Section B of the Annex to that Decision.

Article 80

Repeal

Commission Decision 2009/78/EC, establishing CEBS, is hereby repealed with effect from 1 January 2011.

Article 81

Review

By 31 December 2021, and every three years thereafter, the Commission shall publish a general report on the experience acquired as a result of the operation of the Authority and the procedures laid down in this Regulation. That report shall evaluate, inter alia:

(a) the effectiveness and convergence in supervisory practices reached by competent authorities: (i) the independence of the competent authorities and convergence in standards equivalent to corporate governance; (ii) the impartiality, objectivity and autonomy of the Authority;

(b) the functioning of the colleges of supervisors;

(c) the progress achieved towards convergence in the fields of crisis prevention, management and resolution, including Union funding mechanisms;

(d) the role of the Authority as regards systemic risk;

(e) the application of the safeguard clause established in Article 38;

(f) the application of the binding mediation role established in Article 19;

(g) the functioning of the Joint Committee;

(h) the obstacles to or impact on prudential consolidation pursuant to Article 8.

The report referred to in paragraph 1 shall also examine whether:

(a) it is appropriate to continue separate supervision of banking, insurance, occupational pensions, securities and financial markets;

(b) it is appropriate to undertake prudential supervision and supervise the conduct of business separately or by the same supervisor;

(c) it is appropriate to simplify and reinforce the architecture of the ESFS in order to increase the coherence between the macro and the micro levels and between the ESAs;

(d) the evolution of the ESFS is consistent with that of the global evolution;

(e) there is sufficient diversity and excellence within the ESFS;

(f) accountability and transparency in relation to publication requirements are adequate;

(g) the resources of the Authority are adequate to carry out its responsibilities;

(h) it is appropriate for the seat of the Authority to be maintained or to move the ESAs to a single seat to enhance better coordination between them.

Article 81a

Review of voting arrangements

From the date on which the number of non-participating Member States reaches four, the Commission shall review and report to the European Parliament, the European Council and the Council on the operation of the voting arrangements described in Articles 41 and 44, taking into account any experience gained in the application of this Regulation.

Article 82

Entry into force

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.

It shall apply from 1 January 2011, with the exception of Article 76 and Article 77(1) and (2), which shall apply as from the date of its entry into force.

The Authority shall be established on 1 January 2011.

This Regulation shall be binding in its entirety and directly applicable in all Member States.