EBA publishes Opinion to hasten the preparations of financial institutions for Brexit

The European Banking Authority (EBA) has just published an Opinion relating to the risks posed by lack of preparation by financial institutions for the departure of the UK from the EU. In this Opinion, the EBA asks Competent Authorities to ensure that financial institutions take practical steps now to prepare for the possibility of a withdrawal of the UK from the EU with no ratified Withdrawal Agreement in place, and no transition period.

The monitoring of firms’ contingency planning conducted by supervisory and resolution authorities shows that financial institutions need to speed up their preparations for the potential departure of the UK from the EU in March 2019 without a ratified Withdrawal Agreement in place. While the political agreement on a transition period is welcome, it will not be given legal effect until there is a ratified Withdrawal Agreement in place. This is not guaranteed, and in any event, it will only come at the end of the Article 50 process.

In a bid to ensure that firms are fully prepared for all scenarios the EBA has shared its views on its expectations in the Opinion. Andrea Enria, Chairperson of the EBA, said “firms cannot take for granted that they continue to operate as at present nor can they rely on as yet unrealised political agreements or public policy interventions” He added “Risks, capacity and legal implications must be examined and addressed.”

Identify potential exposures

It is imperative that financial institutions in the EU27 and in the UK identify potential exposures and risk channels that may be affected, and the possible implications of the potential departure of the UK without a ratified Withdrawal Agreement in place.

Based on the EBA’s assessment, financial institutions should take adequate steps to mitigate the impact without relying on possible public sector solutions that may not be proposed and/or agreed in time. In particular, financial institutions should ensure they have the correct regulatory permissions, and associated management capacity in place ahead of time. They should identify risks around access to financial market infrastructures and funding markets and mitigate those. Financial institutions should also assess and take necessary actions to address any impacts on rights and obligations of their existing contracts, in particular derivative contracts.

Financial institutions also have a duty to communicate clearly to their customers where the latter might be impacted by the departure of the UK without a ratified Withdrawal Agreement. Financial institutions should inform their Competent Authorities about the actions they are taking, including with respect to communication with their customers.

Legal basis and next steps

The EBA’s competence to deliver an Opinion to Competent Authorities is based on Articles 29(1)(a) of Regulation (EU) No 1093/2010 (‘EBA Regulation’). Article 29(1)(a) mandates the EBA to play an active role in building a common Union supervisory culture and consistent supervisory practices and approaches throughout the Union including by providing opinions to competent authorities.

Where financial institutions have any concerns in light of the Opinion issued by the EBA, they should contact their Competent Authorities to discuss them and to seek guidance, where necessary. The EBA will continue to monitor the level of readiness of EU financial institutions, and may issue further communications, where deemed necessary.