Guidelines and Q&As issued by the European Supervisory Authorities
BaFin generally adopts guidelines and questions and answers (Q&As) issued by the EBA, ESMA and EIOPA in addition to those issued by the Joint Committee of these three European Supervisory Authorities (ESAs) in its administrative practice.
If, by way of an exception, BaFin does not adopt guidelines or Q&As issued by the European Supervisory Authorities, then this is expressly stated. In some cases, BaFin provides non-binding translations of the Q&As (EBA Q&As , ESMA Q&As , EIOPA Q&As) as a service for financial market participants. Whether or not a translation has been produced has no influence on the applicability of the Q&As in Germany.
Building on legally binding Level 1 and 2 provisions, the European Supervisory Authorities can take Level 3 measures pursuant to Articles 16 and 29 of the ESAs founding Regulations. In practice, it is guidelines and Q&As that play a key role here, alongside opinions.
Guidelines pursuant to Article 16 of the ESAs founding Regulations and Q&As pursuant to Article 29 of the ESAs founding Regulations are convergence tools intended to harmonise supervision in the EU, specifically through consistent application of Union law, a common supervisory culture and coherent supervisory practices.
Common to the measures pursuant to Articles 16 and 29 of the ESAs founding Regulations is that they are initially not legally binding. Only when BaFin adopts an ESA measure in its administrative practice do the guidelines and Q&As have an effect on the application of supervisory law in BaFin's supervisory area. In some cases, a legislative act may be required before guidelines or Q&As can be adopted in German supervisory law (e.g. amendment of a German regulation).
The decision to adopt measures issued by the ESAs pursuant to Articles 16 and 29 of the ESAs founding Regulations in BaFin's administrative practice is made through the "comply or explain" procedure with a confirmation of compliance submitted to the competent EU authority. In the case of Q&As, BaFin decides on an informal basis whether they are adopted in its administrative practice; this does not require a translation into German.
In the interests of harmonising European supervisory law, BaFin generally endeavours to adopt guidelines and Q&As issued by the ESAs in its administrative practice. Out of around 180 guidelines and 3,000 Q&As intended to specify supervisory law, only a small number have not been adopted in BaFin's administrative practice. Guidelines and Q&As were not adopted, in particular, in cases where they conflicted with features of German supervisory law.
In principle, BaFin will continue to adopt all ESA guidelines and Q&As in its administrative practice in future. If, by way of an exception, BaFin does not adopt a set of guidelines or Q&As in its administrative practice, then this will be expressly stated and published on the BaFin website.
Overview:Guidelines issued by the European Supervisory Authorities
The guidelines issued by the European Supervisory Authorities (ESAs) are published on their websites.
Overview:Q&As issued by the European Supervisory Authorities
The questions and answers provided by the European Supervisory Authorities (ESAs) are published on their websites.