This study constitutes the characteristics of the European Banking Authority’s rights and obligations in the context of the legislative process relating to binding technical standards, carried out by means of the dogmatic and legal method. It aims at achieving three research assumptions, which are as follows: setting of the course of the legislative process relating to binding technical standards, setting up of EBA’s competences and obligations covered by the tasks entrusted to the Authority in the said scope, setting up the Authority’s competences and obligations preparing (preceding) the legislative process with regard to those standards. The principal considerations in this respect are preceded by general legal characteristics of regulatory and implementing technical standards drafted with the Authority’s participation, as a new legal set of instruments entrusted to the European Commission by the European Parliament and the Council, pursuant to Article 10(1) of Regulation No. 1093/2010, in connection with Article 290 TFUE8 in relation to regulatory technical standards and pursuant to Article 15(1) of Regulation No. 1093/2010, in connection with Article 291 TFUE in relation to implementing technical standards. The above-mentioned issues have been illustrated in five consecutive chapters.
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Introduction 5
Chapter I. Technical standards drafted with the participation of the European Banking Authority – characteristics of the selected general issues 8
1. Functions 8
2. Definitions 9
3. Legal nature 10
4. Legal basis 12
5. Forms of establishment 13Chapter II. The fundamental legislative procedure of technical standards in the light of regulatory powers of the European Banking Authority 15
A. The fundamental legislative procedure 15
1. Draft-making initiative 15
2. Sending of a draft BTS copy to the European Parliament and to the Council 15
3. Endorsing and expressing a decision concerning endorsement of draft BTS 17
3.1. Draft endorsement 18
3.2. Non-endorsement of a draft 20
3.3. Draft amendment 21
4. Consequences of a positive decision regarding amendment of draft BTS 22
4.1. General remarks 22
4.2. Compliance of amendments with the Commission’s proposals 22
4.3. Non-compliance of amendments with the Commission’s proposals 23
5. Consequences of a negative decision regarding amendment of draft BTS 26
B. The alternative legislative procedure 28
1. Initiation of the alternative BTS-related legislative procedure 28
2. Legal character of the date for submitting draft BTS 29
3. Commission’s obligations preceding the BTS-related alternative legislative procedure 30
4. EBA’s competences relating to draft BTS sent by the Commission 32
4.1. Proposal of amendments to the Commission’s draft 32
4.1.1. BTS adoption with all amendments 35
4.1.2. BTS adoption with some amendments 36
4.2. Refusal to present a proposal of amendments to the Commission’s draft 37Chapter III. Development of draft technical standards by the European Banking Authority 40
1. Essence and contents 40
2. Non-performance 41
3. Defective performance 42
3.1. Infringement of Article 8(1) Letter (a) of Regulation No. 1093/2010 42
3.2. Infringement of Article 10(1) the second subparagraph or Article 15(1) the first subparagraph of Regulation No. 1093/2010 43
3.3. Infringement of Article 30(3) of Regulation No. 1093/2010 44
3.4. Infringement of Article 22(3) the second subparagraph of Regulation No. 1093/2010 48
3.5. Substantial defectiveness 50Chapter IV. Consultations and analyses of draft technical standards developed by the European Banking Authority 52
1. Essence and contents 52
1.1. Consultations 52
1.2. Analyses 54
2. Legal nature 55
3. Consequences of infringing the obligation to consult and analyse draft BTS 57
3.1. Non-performance 57
3.2. Defective performance 59
3.2.1. Defective performance of the obligation to conduct consultations 59
3.2.2. Defective performance of the obligation to conduct analyses 62Chapter V. Requesting the opinion of the Banking Stakeholder Group regarding draft technical standards developed by the European Banking Authority 64
1. Legal basis of the obligation to request a BSG’s opinion 64
1.1. Article 37(1) of Regulation No. 1093/2010 65
1.2. Article 10(1) (Article 15(1)) of Regulation No. 1093/2010 66
1.3. Conclusions 69
2. Correlation between BSG’s powers and the Authority’s obligations 70
3. Relationship between requesting BSG’s opinion and conducting consultations 71
4. Consequences of infringing the obligation to request a BSG’s opinion 73
Summary 75
Bibliography 78