Enhancing European Bank Resolution and Recovery
| Author | Kern Alexander |
| DOI | 10.1177/1023263X1201900310 |
| Published date | 01 September 2012 |
| Date | 01 September 2012 |
| Subject Matter | Legal Development |
19 MJ 3 (2012) 459
LEGAL DEVELOPMENT
Enhancing European Bank Resolution and Recovery
Kern Alexander *
§1. IN T RO DUCT ION
During the nancial crisis of 2007–09, most EU states did not have e ective bank
resolution and rec overy regime s to ensure an ord erly restruc turin g or windi ng-up of a
failing ban k or nancial institution. W hen a number of major European banks began to
fail in 200 8, including Fortis, De xia and the Royal Ba nk of Scotland, the absence of an
e ective resolut ion and recovery fra mework led EU Member State authorities to engage
in a chaotic scramble to free ze and seize assets lo cated in their jurisd ictions in order to pay
creditors and depositors of distre ssed nancia l institutions in their countries . Moreover,
national authorities resor ted to ad hoc measures to provide state g uarantees and i nject
capital into fail ing nancial institutions.1 e crisis demonstr ated the EU’s lack of a
clear and predictable lega l framework to govern how a distres sed nancia l institut ion
would be reorganized or liqu idated in an orderly manner without undermi ning nancial
stability.
To address this, the Europea n Commission published a Communication in 20 09 on
an ‘EU Framework for Cross-Border Crisis Management in the Ba nking Sec tor’, which
analysed gaps and wea knesses in t he EU legal framework governi ng bank resolution.2
In December 2010, the Council of Minis ters (ECOFIN) adopted conclusions calling for
a more comprehensive Union framework to regulate nancial markets, including crisis
prevention, management and resolution. A er fu rther consultat ion, on 6June 2012 the
European Commis sion proposed a Directive on a Framework for Bank Recover y and
* Professor Kern Ale xander, Chair for Law a nd Finance, Fac ulty of Law, University of Zu rich, and
Member of the Exper t Panel on Financial Se rvices, Europea n Parliament.
1 According to the I MF estimate s, crisis-related lo sses incurre d by European banks between 20 07 and
2010 were close to €1 trillion or 8% of t he EU GDP. In addition, between Oct ober 2008 and Oc tober 2011,
the Commissi on approved €4.5 trillion (equi valent to 37% of EU GDP) of state aid measures to nancial
institution s. See www.g20.org /images/stories/docs/eng/wash ington.pdf (las t visited 9August 2012).
2 Commission Communication on an EU Framework for Cross-Border Crisis Management in the
Banki ng Sector, COM(2009) 561 na l.
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