EU FINANCIAL SERVICES ACTION PLAN
Promise
and Problems from a U.S. Perspective
Testimony before the Financial Services Committee
United States House of Representatives
May 22, 2002
Karen Shaw Petrou
Managing Partner
Federal Financial Analytics, Inc.
It is a pleasure to appear at a hearing scheduled in 2002 to consider
a plan that the European Union believes will demonstrate its competitive
impact by 2010. Ordinarily, Congress considers developments as complex
and uncertain as the European Union Financial Services Action Plan
only as their impact is fully felt or sometimes even later
than that. Congressional review now will ensure that policy-makers
have a clear and anticipatory view of the potential costs and benefits
of the Plan, allowing U.S. interests to be represented long before
any confrontation with our good friends across the Atlantic might
be necessary. This hearing also will help those in the U.S. who
have yet to focus on the EU Plan from their own institutions
perspective or that of the financial services market more generally.
Today, I would like to highlight the likely benefits of transformation
of the European Union into a single financial market. The changes
proposed will, in general, make the EU financial system far more
efficient, thereby serving consumer and economic development needs
far better than the divided and often-anachronistic current system
can do. However, it is vital that these reforms ensure the safety
and soundness of the overall EU system to prevent systemic risk.
Further, the proposed changes should promote EU competitiveness
without creating implicit barriers to trade in financial services
that harm the fair competitive power of U.S. companies. U.S. policy
on trade in financial services has traditionally been set by several,
sometimes competing U.S. government agencies, and the Committee
would do well to look into ways to ensure that the U.S. interest
is clearly represented in this critical segment of the U.S. economy.
I. The EU Plan
Other witnesses have already provided the Committee with a thorough
description of the FSAP, as well as of the complex way in which
the EU will consider and adopt it. One can only say that it makes
the process of changing U.S. law look like a slam-dunk. The legislative
and non-legislative measures under consideration (over 40 in total)
cover the entire range of financial issues spanning from
dictating how on-line banking will be offered to standards redefining
securities settlement, pension law and a wide range of associated
technical and tax issues.
It is important to note that the EU plan envisions reform for a
financial services industry structured in a strikingly different
way from that in the U.S. Thus, as I shall discuss in more detail
below, much of the EU plan is based on the dominant role of banks
and the long tradition of bank regulation. The chart below demonstrates
the dominant role of banks as financial intermediaries in the EU,
in contrast to the far more balanced relationship between banks,
investment houses, insurance companies and other providers of financial
services in the U.S. As noted, industry structure in Japan is also
sharply different than that in the EU and U.S.
HERE
Relative difference in the role of banks can also be seen by comparing
bank-held assets to a countrys overall economy. As measured
as a share of GDP, a 2001 study of bank consolidation by the G-10
found that the banking industry has been relatively less important
in the U.S. than elsewhere. In three of the European countries studied
Belgium, Netherlands, and the United Kingdom banking
assets were more than three times annual GDP during the late 1990s.
In other EU member countries, France and Spain in particular, banking
assets were about double GDP. However, banking assets in the U.S.
did not exceed 100% of GDP at any time in the 1990s, generally remaining
steady at around 70% of GDP.
The EU system is not only far more dependent on banks than the
U.S., but banks are also far more consolidated. The G-10 study found
that the United States had many more banks and lower concentration
levels than European countries (with the possible exception of Germany).
In 1998, the study found that about 36% of U.S. assets were concentrated
in the largest 10 banks, while 59% of the United Kingdoms
banking assets were in that nations top 10 banks. In France,
85% of assets were concentrated in the top 10.
II. Potential Competitiveness
Concerns
Given that the EU system is a big bank-dominated one, its
unsurprising that the FSAP implements a bank-like regulatory scheme.
However, this can raise problems for U.S. institutions, some of
which may result in effective trade barriers that limit the ability
of U.S. firms to continue to compete effectively in the EU. Two
principle areas of concern are the pending capital adequacy standards
and the overall rule governing financial "conglomerates."
A. Capital Rules
The EU FSAP calls for implementation of a revised "Capital
Adequacy Directive" as part of the overall harmonization plan.
This Directive, in turn, is generally derived from the bank capital
rules now under development by the Basel Committee for Banking Supervision,
a panel currently chaired by the president of the Federal Reserve
Bank of New York and one that includes senior U.S. regulators in
numerous respects. As a result, one might think that the capital
rules would have no potential adverse competitive impact, but indeed
they have this, as well as a potential risk for the stability of
the financial system more generally.
One especially controversial aspect of the pending Basel rules
is a proposal to impose a new capital charge for "operational
risk." This is the risk of human or systems failure, as well
as that associated with natural or manmade disasters. The most clear
and dramatic case of operational risk, of course, is the September
11 attack on the World Trade Center, but other cases include day-to-day
systems problems and more costly cases of internal control failure
(like the recent losses due to a rogue foreign exchange trader and
those related to a fraudulent metal-trading scheme). All financial
services firms, of course, have operational risk. The time-honored
way to mitigate it is through effective risk management, contingency
planning and to absorb the cost adequate reserves,
revenues and insurance. To date, no bank has failed due to operational
risk. The proposed capital charge could well create a perverse incentive
against effective operational risk management, because institutions
will not be able to invest both in proven forms of risk mitigation
and the new, very high capital charge. Ironically, because the capital
charge may be based arbitrarily based on gross income, the banks
that have made the necessary investments to mitigate operational
risk and are the best managers of such risk may end up bearing the
highest effective capital charge.
The overall idea of the operational risk-based capital charge arises
in the EU. There, bank regulators depend far more on explicit capital
charges than on effective supervision. Most EU regulators do not
engage in the regular, in-depth examinations to which U.S. banks
are subjected, and they must instead use capital standards to insulate
taxpayers from the cost of bank failures. Further, EU regulators
need not worry about the potential risk associated with a perverse
capital charge because they can impose it on all regulated financial
services firms, thus spreading the pain more or less evenly across
banks and non-banks alike.
In sharp contrast, U.S. law permits bank regulators to impose bank
capital charges including the proposed new operational risk
one only on banks. However, non-bank firms are major players
in many of the lines of business asset management and payment
processing, for example on which the capital charge will
fall most heavily. They will have a significant capital advantage
over their bank competitors, some of whom may choose to abandon
their banking charters or move key lines of business outside a bank.
This will increase the relative riskiness of the U.S. banking system,
while also placing U.S. banks at a significant and unnecessary competitive
disadvantage in the EU.
The EU is also pushing for capital charges against asset securitization
that could create a serious competitive problem for U.S. institutions.
In asset securitization, loans, mortgages, credit cards, etc.
are structured into securities that are then held by investors,
freeing lenders up to make additional loans to new borrowers. The
U.S. is the dominant provider of asset securitization services around
the world, reflecting the high degree of technical innovation in
the industry. A punitive capital charge on asset securitization
would permit EU regulators to substitute a capital requirement for
effective supervision, while at the same time hindering U.S. competitiveness
at home and abroad.
B. Conglomerate Rule
Another potentially problematic aspect of the EU FSAP is its proposed
new regulatory structure for financial "conglomerates."
Under the proposal, all companies doing business in the EU
including U.S.-based ones will be required to meet holding
company regulatory standards dictated by the EU. Home-country regulation
will have to meet EU standards, or firms will be required to restructure
all of their EU operations into a single entity with numerous barriers
between it and its U.S. parent.
This conglomerate rule could create significant problems for all
U.S. financial services firms not structured as financial holding
companies. Since passage of GLBA, many non-bank financial services
firms have eschewed the FHC structure because of its very bank-like
nature. This is particularly true with regard to the FHC capital
standards, which would now bring non-banks into a capital framework
potentially inappropriate for them let alone pose the risk
of the operational capital charge outlined above. Further, U.S.
law requires insurance companies to operate under state regulation,
without a parent holding company governed by any specific state
or federal standards. Many Europeans are puzzled by the diversity
of our regulatory structure, in which firms in essentially the same
lines of business can select among a wide variety of charters at
both the federal and state level. However, that is the way we like
it in large part because the diversity of competing regulators
promotes precisely the competitiveness that has made U.S. firms
such successful competitors in the EU. Any effort by the EU to force
U.S. firms into conglomerates under a single regulator here, as
well as in the EU, could have significant and adverse effects on
the U.S. financial services industry.
Congress should therefore monitor the EU process to ensure that
the rules solely govern business done in the EU, where the EU has
the full right and privilege of deciding how things should be done.
Trade in financial services has long been governed by the principle
of "national treatment" that is, financial firms
in a foreign country are allowed to do everything home-country firms
can do, even if these powers dont match up with theirs at
home. In the U.S., for example, we have long allowed foreign financial
services firms with impermissible activities in their own countries
to operate in the U.S. as long as they abide by our market restrictions
here. The EU should carefully adhere to this principle of national
treatment as the FSAP is finalized.
This is not to suggest, however, that Congress could not do more
to position U.S. institutions to compete successfully in the EU.
In GLBA, for example, a new "investment bank holding company"
structure was established, giving investment banks a "conglomerate"
option if the FSAP proceeds, as well as certain potential benefits
at home.
III. Trade in Financial Services
Finally, consideration of the EU FSAP provides an opportunity to
review how the U.S. itself handles questions related to international
trade in financial services. Currently, responsibility for this
issue is split among various agencies, with the U.S. Trade Representative
responsible for insurance issues and Treasury handling the rest.
While Treasury has worked hard on trade in financial services issues
over the years, giving it responsibility in this area is like asking
the State Department also to handle trade negotiations. Congress
rightly split trade negotiations for other industrial sectors from
the State Department into the USTR to give the U.S. an agency that
could take on trade issues without having to downplay disputes because
of larger diplomatic or military concerns. A similar problem arises
with trade powers in Treasury, given the Departments larger
responsibilities.
In this Congress, responsibility for financial services legislation
was rightly consolidated into a single panel, reflecting the increasingly
indistinguishable structure of the industry itself. The same should
be done with trade in financial services. A single agency
preferably one without competing responsibilities should
be charged with representing U.S. interests in international financial
services matters, drawing on the expertise of bank regulators, the
SEC, state insurance regulators and all other parties with a rightful
voice in this important issue.
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