Systemic risk, too big to fail and safety net were the buzzwords of financial crisis in 2007
and 2008. Throughout the world, the financial crisis has led to state intervention on a scale
that would have been almost unimaginable before, e.g., bail-out and comprehensive guarantee.
Laying aside market economy principles, governments were forced to rescue banks whose
insolvency could have put the stability of the financial system in jeopardy. However, Financial
institutions’ group structures like as financial holding companies was too complex to permit
orderly and cost-effective resolution, i.e., on the one hand ‘too complex and connected to fail
and be bail out’, on the other hand ‘too big and complex to manage and regulate’.
Therefore, a clear and comprehensive bank recovery and resolution regime, that covers
both national and cross border bank failures, is crucial for ensuring long term financial and
economic stability, and for reducing the potential public cost of possible future financial crises.
Since 4. November 2014, financial institutions are subject to supervision by the European
Central Bank, i.e. Single Supervisory Mechanism (SSM). As of 1. January 2015 all member
States of EU have to apply a single mechanism for the resolution of banks, as prescribed by
the “EU Bank Recovery and Resolution Directive (BRRD)”. In parallel, the German Act on the
Recovery and Resolution of Credit Institutions (SAG) came into effect. The new rules provide
authorities with more comprehensive and effective arrangements to deal with failing banks:
esp. Resolution of distressed and systemically important banks without incurring risks for the
stability of the financial system/ early regulatory intervention/ shifting the risks and costs from
the public sphere to creditors and shareholders of the distressed bank.
Systemic risk is specific to the financial sector. Special insolvency legislation already takes into account at national level the difference between banks and other economic agents.
However, these legal provisions need to be developed further. An administrative special
resolution regime are likely to prove insufficient to solve the too bit to fail problem. The recent
financial market crisis has also shown that change is needed. Crisis prevention and crisis
management must be the main priority so that financial distress does not lead to insolvency
in the first place.