Article 41(1) of MiFIR provides that the “EBA may [….] temporarily prohibit or restrict in the Union: (a) the marketing, distribution or sale of certain structured deposits or structured deposits with certain specified features; or (b) a type of financial activity or practice. A prohibition or restriction may apply in circumstances, or be subject to exceptions, specified by the EBA.” According to Article 41(2) of MiFIR the EBA shall take such decisions only when: (a) the proposed action addresses a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union; (b) regulatory requirements under Union law that are applicable to the relevant structured deposit or activity do not address the threat; and (c) a competent authority or competent authorities have not taken action to address the threat or the actions that have been taken do not adequately address the threat.
A similar mandate and intervention powers are foreseen for Member State competent authorities in articles 39(3) and 42 of MiFIR, in respect of structured deposits which are marketed, distributed or sold in or from their Member State.
On 16 May 2014 the EBA received a request from the European Commission for technical advice on the criteria and factors for intervention powers concerning structured deposits. The EBA has now published its final technical advice.