European Supervisory Authorities: in principle, BaFin adopts all guidelines and questions and answers in its administrative practice
In the interests of harmonising European supervisory law, BaFin generally endeavours to adopt ESA guidelines and Q&As in its administrative practice.
Of around 180 guidelines and 3,000 Q&As published to date, 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.
BaFin will follow the same approach 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 on the BaFin website. In addition, the website contains links to all published ESA guidelines and their translations as well as all published Q&As. BaFin also provides non-binding translations of selected Q&As. Whether or not a translation is available, however, 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 (see, for example, the ESMA Regulation). In practice, it is guidelines and Q&As that play a key role here, alongside opinions.
Guidelines pursuant to Article 16 and Q&As pursuant to Article 29 of the ESAs founding Regulations are convergence tools aimed at harmonising supervision within the EU. They are intended to ensure consistent application of Union law, a common supervisory culture and coherent supervisory practices.
Common to both measures 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 become effective in Germany. In some cases, a legislative act may be required before guidelines or Q&As can be adopted in German supervisory law, for example through the amendment of a German regulation.
The decision to adopt guidelines in BaFin's administrative practice is made through the "comply or explain" procedure with a confirmation of compliance submitted to the competent ESA. 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.