L'autorité de surveillance a toujours un rôle ingrat. Elle concentre des pouvoirs uniques et importants et elle peut avoir tendance compte tenu du caractère technique de la matière à faire plus que simplement appliquer les règles existantes. Surtout quand celles-ci ne rendent compte que imparfaitement des questions qui doivent être affrontées et résolues.

Intéressant discours sur l'activité de surveillance de la BCE. Le passage suivant a de l'importance pour toutes les autorités de surveillance, y compris la FINMA, notamment s'agissant des appréciations qu'elles peuvent porter et de comment elles doivent s'en tenir aux règles édictées, voire entreprendre les démarches pour que celles-ci puissent être modifiées mais non édicter leurs propres règles en dehors du cadre légal existant :

"Let me now turn to the ECB’s approach to supervision. I believe that the fusion of different cultures has created a very robust supervisory model – a model that is rigorous, firmly based on on-site inspections, with a strong quantitative backbone, attentive to the consistency of outcomes and proportionate. There have been criticisms, though. In particular, it has been argued that the ECB has trespassed into rule-making – that it has ventured beyond its supervisory mandate.

This criticism is not well founded in my view. There are areas in which the rules are not specific enough, and we need to develop common supervisory criteria to address concrete issues. And there are many matters that the legislator has left to the choice of supervisory authorities: the work done by the SSM on options and discretions, generally well received and praised, is a case in point here. But there is a broader theme that interests me more. Are we supervisors too focused on applying rules rather than exerting judgement? Do we pay too much attention to the general case and not enough to the individual one? Are we constraining our supervisory judgement within an excessively tight set of criteria, which may prevent us from achieving the best results in every specific case?

First of all, we do not and should not design rules; this is up to the legislators and the technical authorities delegated by legislators. The ECB has a supervisory task, not a rule-making one. That said, there should be a feedback loop. Supervisors and regulators must talk to each other, and the experience of supervisors must inform the work of regulators. For instance, some rules may be less effective in practice than expected when they were designed. And some rules may interact in a way that makes them difficult to apply. For instance, the ECB has flagged the difficulty of applying early intervention measures due to the overlap of tools defined in the BRRD and the Capital Requirements Directive. The experience of supervisors should be taken into account when shaping and reviewing the rules.

But at the end of the day, rules are rules, and we have to apply them; there is no getting around that. This brings us to the other questions I just raised. And yes, good supervision reaches beyond the rules and general cases. Good supervision is based as much on judgement as on rules. Supervisory judgement is crucial in order to accommodate the individual situation of each bank; it should not be confined by overly detailed rules. In particular, this is crucial in a rapidly changing financial landscape in which rules and regulations simply cannot keep up. Here, we need to thoroughly understand evolving risks within and across banks, and we need to address them by taking a dynamic and forward-looking supervisory approach. Often this entails identifying emerging best practices and promoting them across the industry."