Artikelen bij COM(2023)226 - Wijziging van Verordening (EU) nr. 806/2014 wat betreft vroegtijdige-interventiemaatregelen, afwikkelingsvoorwaarden en financiering van afwikkelingsmaatregelen - Hoofdinhoud
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| dossier | COM(2023)226 - Wijziging van Verordening (EU) nr. 806/2014 wat betreft vroegtijdige-interventiemaatregelen, afwikkelingsvoorwaarden en ... |
|---|---|
| document | COM(2023)226  |
| datum | 18 april 2023 |
Inhoudsopgave
Article 1 - Amendments to Regulation (EU) No 806/2014
(1)Article 3(1) is amended as follows:
(a)point (24a) is replaced by the following:
‘(24a) ‘resolution entity’ means a legal person established in a participating Member State, which the Board or the national resolution authority, in accordance with Article 8 of this Regulation, has identified as an entity in respect of which the resolution plan provides for resolution action;’;
(b)the following points (24d) and (24e) are inserted:
‘(24d) ‘non-EU G-SII’ means a non-EU G-SII as defined in Article 4(1), point (134), of Regulation (EU) No 575/2013;
(24e) ‘G-SII entity’ means a G-SII entity as defined in Article 4(1), point (136), of Regulation (EU) No 575/2013;’;
(c)point (49) is replaced by the following:
‘(49) ‘bail-inable liabilities’ means the liabilities, including those liabilities that give rise to accounting provisions, and capital instruments that do not qualify as Common Equity Tier 1, Additional Tier 1 or Tier 2 instruments of an entity as referred to in Article 2 and that are not excluded from the scope of the bail-in tool pursuant to Article 27(3);’;
(2)in Article 4, the following paragraph 1a is inserted:
‘1a. Member States shall inform the Board as soon as possible of their request to enter into a close cooperation with the ECB pursuant to Article 7 of Regulation (EU) No 1024/2013.
Following the notification made pursuant to Article 7 of Regulation (EU) No 1024/2013 and before close cooperation is established, Member States shall provide all information about the entities and groups established in their territory that the Board may require to prepare for the tasks conferred on it by this Regulation and the Agreement.’;
(3)Article 7 is amended as follows:
(a)in paragraph 3, fourth subparagraph, the first sentence is replaced by the following:
‘When performing the tasks referred to in this paragraph, the national resolution authorities shall apply the relevant provisions of this Regulation. Any references to the Board in Article 5(2), Article 6(5), Article 8(6), (8), (12) and (13), Article 10(1) to (10), Article 10a, Articles 11 to 14, Article 15(1), (2) and (3), Article 16, Article 18(1), (1a), (2) and (6), Article 20, Article 21(1) to (7), Article 21(8), second subparagraph, Article 21(9) and (10), Article 22(1), (3) and (6), Articles 23 and 24, Article 25(3), Article 27(1) to (15), Article 27(16), second subparagraph, second sentence, third subparagraph, and fourth subparagraph, first, third and fourth sentences, and Article 32, shall be read as references to the national resolution authorities with regard to groups and entities referred to in the first subparagraph of this paragraph.’;
(b)paragraph 5 is amended as follows:
(i)the words ‘Article 12(2)’ are replaced by the words ‘Article 12(3)’;
(ii)the following subparagraph is added:
‘After the notification referred to in the first subparagraph has taken effect, participating Member States may decide that the responsibility for performing the tasks related to entities and groups established in their territory, other than those referred to in paragraph 2, shall be returned to the national resolution authorities, in which case the first subparagraph shall no longer apply. Member States that intend to make use of that option shall notify the Board and the Commission thereof. That notification shall take effect from the day of its publication in the Official Journal of the European Union.’;
(4)Article 8 is amended as follows:
(a)in paragraph 2, the following subparagraph is added:
‘The Board may instruct the national resolution authorities to exercise the powers referred to in Article 10(8) of Directive 2014/59/EU. The national resolution authorities shall implement the instructions of the Board in accordance with Article 29 of this Regulation.’;
(b)in paragraph 10, the following subparagraph is added:
‘The identification of the measures to be taken in respect of the subsidiaries referred to in the first subparagraph, point (b), that are not resolution entities may be subject to a simplified approach by the Board if such approach would not negatively affect the resolvability of the group, taking into account the size of the subsidiary, its risk profile, the absence of critical functions and the group resolution strategy.’;
(c)the following paragraph 14 is added:
‘14. The Board shall not adopt resolution plans for the entities and groups referred to in paragraph 1 where Article 22(5) applies or where the entity or group is being wound up in accordance with the applicable national law pursuant to Article 32b of Directive 2014/59/EU.’;
(5)Article 10 is amended as follows:
(a)in paragraph 4, fourth subparagraph, the words ‘first subparagraph’ are replaced by the words ‘third subparagraph’;
(b)in paragraph 7, the words ‘addressed to the institution or the parent undertaking’ are replaced by the words ‘addressed to the entity or the parent undertaking’ and the words ‘impact on the institution’s business model’ are replaced by the words ‘impact on the entity’s or the group’s business model’;
(c)paragraph 10 is amended as follows:
(i)in the second subparagraph, the word ‘institution’ is replaced by the words ‘entity concerned’;
(ii)in the third subparagraph, the word ‘institution’ is replaced by the word ‘entity’;
(iii)the following subparagraph is added:
‘If the measures proposed by the entity concerned effectively reduce or remove the impediments to resolvability, the Board shall take a decision, after having consulted the ECB or the relevant national competent authority and, where appropriate, the designated macro-prudential authority. That decision shall indicate that the measures proposed effectively reduce or remove the impediments to resolvability and shall instruct the national resolution authorities to require the institution, the parent undertaking, or any subsidiary of the group concerned, to implement the measures proposed.’;
(6)Article 10a is amended as follows:
(a)in paragraph 1, the introductory wording is replaced by the following:
‘1. Where an entity is in a situation where it meets the combined buffer requirement when considered in addition to each of the requirements referred to in Article 141a(1), points (a), (b) and (c), of Directive 2013/36/EU, but fails to meet the combined buffer requirement when considered in addition to the requirements referred to in Articles 12d and 12e of this Regulation when calculated in accordance with Article 12a(2), point (a), of this Regulation, the Board shall have the power, in accordance with paragraphs 2 and 3 of this Article, to instruct the national resolution authority to prohibit an entity from distributing more than the Maximum Distributable Amount related to the minimum requirement for own funds and eligible liabilities ("M-MDA"), calculated in accordance with paragraph 4 of this Article, through any of the following actions:’;
(b)the following paragraph 7 is added:
‘7. Where an entity is not subject to the combined buffer requirement on the same basis as the basis on which it is required to comply with the requirements referred to in Articles 12d and 12e, the Board shall apply paragraphs 1 to 6 of this Article on the basis of the estimation of the combined buffer requirement in accordance with Commission Delegated Regulation (EU) 2021/1118*. Article 128, fourth paragraph, of Directive 2013/36/EU shall apply.
The Board shall include the estimated combined buffer requirement referred to in the first subparagraph in the decision determining the requirements referred to in Articles 12d and 12e of this Regulation. The entity shall make the estimated combined buffer requirement publicly available together with the information referred to in Article 45i(3) of Directive 2014/59/EU.
______________________________
* Commission Delegated Regulation (EU) 2021/1118 of 26 March 2021 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to regulatory technical standards specifying the methodology to be used by resolution authorities to estimate the requirement referred to in Article 104a of Directive 2013/36/EU of the European Parliament and of the Council and the combined buffer requirement for resolution entities at the resolution group consolidated level where the resolution group is not subject to those requirements under that Directive (OJ L 241, 8.7.2021, p. 1).’;
(7)in Article 12, the following paragraph 8 is added:
‘8. The Board shall be responsible for granting the permissions referred to in Articles 77(2) and 78a of Regulation (EU) No 575/2013 to the entities referred to in paragraph 1 of this Article. The Board shall address its decision to the entity concerned.’;
(8)in Article 12a, paragraph 1 is replaced by the following:
‘1. The Board and national resolution authorities shall ensure that the entities referred to in Article 12(1) and (3) meet, at all times, the requirements for own funds and eligible liabilities where required by and as determined by the Board in accordance with this Article and Articles 12b to 12i.’;
(9)Article 12c is amended as follows:
(a)in paragraphs 4 and 5, the word ‘G-SIIs’ is replaced by the words ‘G-SII entities’;
(b)in paragraph 7, introductory wording, the words ‘paragraph 3’ are replaced by the words ‘paragraph 4’, and the word ‘G-SIIs’ is replaced by the words ‘G-SII entities’;
(c)paragraph 8 is amended as follows:
(i)in the first subparagraph, the word ‘G-SIIs’ is replaced by the words ‘G-SII entities’;
(ii)in the second subparagraph, point (c), the word ‘G-SII’ is replaced by the words ‘G-SII entity’;
(d)the following paragraph 10 is added:
‘10. The Board may permit resolution entities to comply with the requirements referred to in paragraphs 4, 5 and 7 using own funds or liabilities as referred to in paragraphs 1 and 3 when all of the following conditions are met:
(a)for entities that are G-SII entities or resolution entities that are subject to Article 12d(4) or (5), the Board has not reduced the requirement referred to in paragraph 4 of this Article, pursuant to the first subparagraph of that paragraph;
(b)the liabilities referred to in paragraph 1 of this Article that do not meet the condition referred to in Article 72b(2), point (d), of Regulation (EU) No 575/2013 comply with the conditions set out in Article 72b(4), points (b) to (e), of that Regulation.’;
(10)in Article 12d, paragraph 3, eight subparagraph, and paragraph 6, eight subparagraph, the words ‘critical economic functions’ are replaced by the words ‘critical functions’;
(11)the following Article 12da is inserted:
‘Article 12da
Determination of the minimum requirement for own funds and eligible liabilities for transfer strategies leading to market exit
1. When applying Article 12d to a resolution entity whose preferred resolution strategy envisages primarily the use of the sale of business tool or the bridge institution tool and its exit from the market, the Board shall set the recapitalisation amount provided in Article 12d(3) in a proportionate way on the basis of the following criteria, as relevant:
(a)the resolution entity’s size, business model, funding model and risk profile, and the depth of the market in which the resolution entity operates;
(b)the shares, other instruments of ownership, assets, rights or liabilities to be transferred to a recipient as identified in the resolution plan, taking into consideration:
(i)the core business lines and critical functions of the resolution entity;
(ii)the liabilities excluded from bail-in pursuant to Article 27(3);
(iii)the safeguards referred to in Articles 73 to 80 of Directive 2014/59/EU;
(c)the expected value and marketability of the shares, other instruments of ownership, assets, rights or liabilities of the resolution entity referred to in point (b), taking into account:
(i)any material impediments to resolvability, identified by the resolution authority, that are directly related to the application of the sale of business tool or the bridge institution tool;
(ii)the losses resulting from the assets, rights or liabilities left in the residual institution;
(d)whether the preferred resolution strategy envisages the transfer of shares or other instruments of ownership issued by the resolution entity, or of all or part of the assets, rights and liabilities of the resolution entity;
(e)whether the preferred resolution strategy envisages the application of the asset separation tool.
2. Where the resolution plan provides that the entity is to be wound up under normal insolvency proceedings or other equivalent national procedures and envisages the use of the deposit guarantee scheme pursuant to Article 11(5) of Directive 2014/49/EU, the Board shall also take into account paragraph 1 of this Article when carrying out the assessment referred to in Article 12d(2a), second subparagraph, of this Regulation.
3. The application of paragraph 1 shall not result in an amount that is higher than the amount resulting from the application of Article 12d(3).’;
(12)in Article 12e(1), the words ‘G-SII or part of a G-SII’ are replaced by the words ‘G-SII entity’;
(13)Article 12g is amended as follows:
(a)paragraph 1 is amended as follows:
(i)the second subparagraph is replaced by the following:
‘The Board, after having consulted the competent authorities, including the ECB, may decide to apply the requirement laid down in this Article to an entity as referred to in Article 2, point (b), and to a financial institution as referred to in Article 2, point (c), that is a subsidiary of a resolution entity but is not itself a resolution entity.’;
(ii)in the third subparagraph, the words ‘first subparagraph’ are replaced by the words ‘first and second subparagraphs’;
(b)the following paragraph 4 is added:
‘4. Where, in accordance with the global resolution strategy, subsidiaries established in the Union, or a Union parent undertaking and its subsidiary institutions, are not resolution entities and the members of the European resolution college, where established pursuant to Article 89 of Directive 2014/59/EU, agree with that strategy, subsidiaries established in the Union or, on a consolidated basis, the Union parent undertaking, shall comply with the requirement of Article 12a(1) by issuing the instruments referred to in paragraph 2, points (a) and (b), of this Article to any of the following:
(a)their ultimate parent undertaking established in a third country;
(b)the subsidiaries of that ultimate parent undertaking that are established in the same third country;
(c)other entities under the conditions set out in paragraph 2, points (a)(i) and (b)(ii), of this Article.’;
(14)Article 12k is amended as follows:
(a)in paragraph 1, first subparagraph, the first sentence is replaced by the following:
‘By way of derogation from Article 12a(1), the Board shall determine appropriate transitional periods for entities to comply with the requirements in Articles 12f or 12g, or with the requirements that result from the application of Article 12c(4), (5) or (7), as appropriate.’;
(b)in paragraph 3, point (a), the words ‘the Board or the national resolution authority’ are replaced by the words ‘the Board’;
(c)in paragraph 4, the words ‘G-SII’ are replaced by the words ‘G-SII or a non-EU G-SII’;
(d)in paragraphs 5 and 6, the words ‘the Board and the national resolution authorities’ are replaced by the words ‘the Board’;
(15)Article 13 is replaced by the following:
‘Article 13
Early intervention measures
1. The ECB may apply early intervention measures where an entity as referred to in Article 7(2)(a) meets any of the following conditions:
(a)the entity meets the conditions referred to in Article 102 of Directive 2013/36/EU or in Article 16(1) of Regulation (EU) No 1024/2013 and either of the following applies:
(i)the entity has not taken the remedial actions required by the ECB, including the measures referred to in Article 104 of Directive 2013/36/EU, Article 16(2) of Regulation (EU) No 1024/2013 or Article 49 of Directive (EU) 2019/2034;
(ii)the ECB deems that remedial actions other than early intervention measures are insufficient to address the problems due inter alia to a rapid and significant deterioration of the financial condition of the entity;
(b)the entity infringes or is likely to infringe in the 12 months following the assessment of the ECB the requirements laid down in Title II of Directive 2014/65/EU, in Articles 3 to 7, 14 to 17, or 24, 25 and 26 of Regulation (EU) No 600/2014, or in Articles 12f or 12g of this Regulation.
The ECB may determine that the condition referred to in the first subparagraph, point (a)(ii), is met without having previously taken other remedial actions, including the exercise of the powers referred to in Article 104 of Directive 2013/36/EU or in Article 16(2) of Regulation (EU) No 1024/2013.
2. For the purposes of paragraph 1, early intervention measures shall include the following:
(a)the requirement for the management body of the entity to do either of the following:
(i)to implement one or more of the arrangements or measures set out in the recovery plan;
(ii)to update the recovery plan in accordance with Article 5(2) of Directive 2014/59/EU where the circumstances that led to the early intervention are different from the assumptions set out in the initial recovery plan and to implement one or more of the arrangements or measures set out in the updated recovery plan within a specific timeframe;
(b)the requirement for the management body of the entity to convene or, if the management body fails to comply with that requirement, convene directly, a meeting of shareholders of the entity, and in both cases set the agenda and require certain decisions to be considered for adoption by the shareholders;
(c)the requirement for the management body of the entity to draw up a plan, in accordance with the recovery plan where applicable, for negotiation on restructuring of debt with some or all of its creditors;
(d)the requirement to change the legal structure of the institution;
(e)the requirement to remove or replace the senior management or management body of the entity in its entirety or with regard to individuals, in accordance with Article 13a;
(f)the appointment of one or more temporary administrators to the entity, in accordance with Article 13b.
3. The ECB shall choose the appropriate early intervention measures based on what is proportionate to the objectives pursued, having regard to the seriousness of the infringement or likely infringement and the speed of the deterioration in the financial situation of the entity, among other relevant information.
4. For each of the measures referred to in paragraph 2, the ECB shall set a deadline that is appropriate for completion of that measure and that enables the ECB to evaluate its effectiveness.
5. Where a group includes entities established in participating Member States as well as in non-participating Member States, the ECB shall represent the national competent authorities of the participating Member States for the purposes of consultation and cooperation with non-participating Member States in accordance with Article 30 of Directive 2014/59/EU.
Where a group includes entities established in participating Member States and subsidiaries established, or significant branches located, in non-participating Member States, the ECB shall communicate any decisions or measures referred to in Articles 13 to 13c relevant to the group to the competent authorities or the resolution authorities of the non-participating Member States, as appropriate.’;
(16)the following Articles 13a, 13b and 13c are inserted:
‘Article 13a
Replacement of the senior management or management body
For the purposes of Article 13(2), point (e), the new senior management or management body, or individual members of those bodies, shall be appointed in accordance with Union and national law and be subject to the approval of the ECB.
Article 13 - b Temporary administrator
1. For the purposes of Article 13(2), point (f), the ECB may, based on what is proportionate in the circumstances, appoint any temporary administrator to do either of the following:(a)temporarily replace the management body of the entity;
(b)work temporarily with the management body of the entity.
The ECB shall specify its choice under points (a) or (b) at the time of appointment of the temporary administrator.
For the purposes of the first subparagraph, point (b), the ECB shall further specify at the time of the appointment of the temporary administrator the role, duties and powers of that temporary administrator and any requirements for the management body of the entity to consult or to obtain the consent of the temporary administrator prior to taking specific decisions or actions.
The ECB shall make public the appointment of any temporary administrator, except where the temporary administrator does not have the power to represent the entity.
Any temporary administrator shall fulfil the requirements set out in Article 91(1), (2) and (3) of Directive 2013/36/EU. The assessment by the ECB of whether the temporary administrator complies with those requirements shall be an integral part of the decision to appoint that temporary administrator.
2. The ECB shall specify the powers of the temporary administrator at the time of his or her appointment, based on what is proportionate in the circumstances. Such powers may include some or all of the powers of the management body of the entity, under the statutes of the entity and under national law, including the power to exercise some or all of the administrative functions of the management body of the entity. The powers of the temporary administrator in relation to the entity shall comply with the applicable company law.
3. The ECB shall specify the role and functions of the temporary administrator at the time of appointment. Such role and functions may include all of the following:
(a)ascertaining the financial position of the entity;
(b)managing the business or part of the business of the entity to preserve or restore its financial position;
(c)taking measures to restore the sound and prudent management of the business of the entity.
The ECB shall specify any limits on the role and functions of the temporary administrator at the time of his or her appointment.
4. The ECB shall have the exclusive power to appoint and remove any temporary administrator. The ECB may remove a temporary administrator at any time and for any reason. The ECB may vary the terms of appointment of a temporary administrator at any time subject to this Article.
5. The ECB may require that certain acts of a temporary administrator be subject to the prior consent of the ECB. The ECB shall specify any such requirements at the time of appointment of the temporary administrator or at the time of any variation of the terms of appointment of the temporary administrator.
In any case, the temporary administrator may exercise the power to convene a general meeting of the shareholders of the entity and to set the agenda of such a meeting only with the prior consent of the ECB.
6. At the request of the ECB, the temporary administrator shall draw up reports on the financial position of the entity and on the acts performed in the course of his or her appointment, at intervals set by the ECB, and in any case at the end of his or her mandate.
7. The temporary administrator shall be appointed for maximum 1 year. That period may be exceptionally renewed if the conditions for appointing the temporary administrator continue to be met. The ECB shall determine those conditions and shall justify any renewal of the appointment of the temporary administrator to the shareholders.
8. Subject to this Article, the appointment of a temporary administrator shall not prejudice the rights of the shareholders laid down in Union or national company law.
9. A temporary administrator appointed pursuant to paragraphs 1 to 8 of this Article shall not be deemed to be a shadow director or a de facto director under national law.
Article 13 - c Preparation for resolution
1. For the entities and groups referred to in Article 7(2), and the entities and groups referred to in Article 7(4), point (b), and Article 7(5) where the conditions for the application of those provisions are met, the ECB or national competent authorities shall notify the Board without delay of any of the following:(a)any of the measures referred to in Article 16(2) of Regulation (EU) No 1024/2013 or Article 104(1) of Directive 2013/36/EU they require an entity or group to take;
(b)where supervisory activity shows that the conditions laid down in Article 13(1) of this Regulation or Article 27(1) of Directive 2014/59/EU are met in relation to an entity or group, the assessment that those conditions are met, irrespective of any early intervention measure;
(c)the application of any of the early intervention measures referred to in Article 13 of this Regulation or Article 27 of Directive 2014/59/EU.
The Board shall notify the Commission of notification it has received pursuant to the first subparagraph.
The ECB or the relevant national competent authority shall closely monitor, in cooperation with the Board, the situation of the entities and groups referred to in the first subparagraph and their compliance with the measures referred to in the first subparagraph, point (a), that aim to address a deterioration in the situation of those entities and groups and with the early intervention measures referred to in the first subparagraph, point (c).
2. The ECB or the relevant national competent authority shall notify the Board as early as possible where they consider that there is a material risk that one or more of the circumstances referred to in Article 18(4) would apply in relation to an entity as referred to in Article 7(2), or an entity as referred to in Article 7(4), point (b), and Article 7(5) where the conditions for the application of those provisions are met. That notification shall contain:
(a)the reasons for the notification;
(b)an overview of the measures which would prevent the failure of the entity within a reasonable timeframe, their expected impact on the entity as regards the circumstances referred to in Article 18(4) and the expected timeframe for the implementation of those measures.
After having received the notification referred to in the first subparagraph, the Board shall assess, in close cooperation with the ECB or the relevant national competent authority, what constitutes a reasonable timeframe for the purposes of the assessment of the condition referred to in Article 18(1), point (b), taking into account the speed of the deterioration of the conditions of the entity, the need to implement effectively the resolution strategy and any other relevant considerations. The Board shall communicate that assessment to the ECB or to the relevant national competent authority as early as possible.
Following the notification referred to in the first subparagraph, the ECB or the relevant national competent authority and the Board shall, in close cooperation, monitor the situation of the entity, the implementation of the any relevant measures within their expected timeframe and any other relevant developments. For that purpose, the Board and the ECB or the relevant national competent authority shall meet regularly, with a frequency set by the Board considering the circumstances of the case. The ECB or the relevant national competent authority and the Board shall provide each other with any relevant information without delay.
The Board shall notify the Commission of any information it has received pursuant to the first subparagraph.
3. The ECB or the relevant national competent authority shall provide the Board with all the information requested by the Board that is necessary for all of the following:
(a)updating the resolution plan and preparing for the possible resolution of an entity as referred to in Article 7(2), or an entity as referred to in Article 7(4), point (b), and Article 7(5) where the conditions for the application of those provisions are met;
(b)carrying out the valuation referred to in Article 20(1) to (15).
Where such information is not already available to the ECB or the national competent authorities, the Board and the ECB and such national competent authorities shall cooperate and coordinate to obtain that information. For that purpose, the ECB and the national competent authorities shall have the power to require the entity to provide such information, including through on-site inspections, and to provide that information to the Board.
4. The Board shall have the power to market to potential purchasers, or make arrangements for such marketing, the entity referred to in Article 7(2), or the entity referred to in Article 7(4), point (b), and Article 7(5) where the conditions for the application of those provisions are met or require the entity to do so, for the following purposes:
(a)to prepare for the resolution of that entity, subject to the conditions specified in Article 39(2) of Directive 2014/59/EU and the requirements of professional secrecy laid down in Article 88 of this Regulation;
(b)to inform the assessment by the Board of the condition referred to in Article 18(1), point (b), of this Regulation.
5. For the purposes of paragraph 4, the Board shall have the power to:
(a)request the entity concerned to put in place a digital platform for sharing the information that is necessary for the marketing of that entity with potential purchasers or with advisors and valuers engaged by the Board;
(b)require the relevant national resolution authority to draft a preliminary resolution scheme for the entity concerned.
6. The determination that the conditions laid down in Article 13(1) of this Regulation or Article 27(1) of Directive 2014/59/EU are met and the prior adoption of early intervention measures are not necessary conditions for the Board to prepare for the resolution of the entity or to exercise the powers referred to in the paragraphs 4 and 5 of this Article.
7. The Board shall inform the Commission, the ECB, the relevant national competent authorities and the relevant national resolution authorities of any action taken pursuant to paragraphs 4 and 5 without delay.
8. The ECB, the national competent authorities, the Board and the relevant national resolution authorities shall closely cooperate:
(a)when considering taking the measures referred to in paragraph 1, first subparagraph, point (a) that aim to address a deterioration in the situation of an entity and group, and the measures referred to in paragraph 1, first subparagraph, point (c);
(b)when considering taking any of the actions referred to in paragraphs 4 and 5;
(c)during the implementation of the actions referred to in points (a) and (b) of this subparagraph.
The ECB, the national competent authorities, the Board and the relevant national resolution authorities shall ensure that those measures and actions are consistent, coordinated and effective.’;
(17)in Article 14(2), points (c) and (d) are replaced by the following:
‘(c) to protect public funds by minimising reliance on extraordinary public financial support, in particular when provided from the budget of a Member State;
(d) to protect depositors while minimising losses for deposit guarantee schemes, and to protect investors covered by Directive 97/9/EC;’;
(18)in Article 16, paragraph 2 is replaced by the following:
‘2. The Board shall take a resolution action in relation to a parent undertaking as referred to in Article 2, point (b), where the conditions laid down in Article 18(1) are met.
For those purposes, a parent undertaking as referred to Article 2, point (b), shall be deemed to be failing or likely to fail in any of the following circumstances:
(a)the parent undertaking meets one or more of the conditions laid down in Article 18(4), points (b), (c) or (d);
(b)the parent undertaking infringes materially, or there are objective elements that show that the parent undertaking will, in the near future, infringe materially, the applicable requirements laid down in Regulation (EU) No 575/2013 or in the national provisions that transpose Directive 2013/36/EU.’;
(19)Article 18 is amended as follows:
(a)paragraphs 1, 1a, 2 and 3 are replaced by the following:
‘1. The Board shall adopt a resolution scheme pursuant to paragraph 6 in relation to the entities referred to in Article 7(2), and to the entities referred to in Article 7(4), point (b) and Article 7(5) where the conditions for the application of those provisions are met, only when it has determined, in its executive session, upon receiving a communication pursuant to the second subparagraph or on its own initiative, that all of the following conditions are met:
(a)the entity is failing or is likely to fail;
(b)having regard to the timing, the need to implement effectively the resolution strategy and other relevant circumstances, there is no reasonable prospect that any alternative private sector measure, including measures by an IPS, supervisory action, early intervention measures, or the write down or conversion of relevant capital instruments and eligible liabilities as referred to in Article 21(1), taken in respect of the entity would prevent the failure of the entity within a reasonable timeframe;
(c)a resolution action is necessary in the public interest pursuant to paragraph 5.
The assessment of the condition referred to in the first subparagraph, point (a), shall be made by the ECB for the entities referred to in Article 7(2), point (a), or by the relevant national competent authority for the entities referred to in Article 7(2), point (b), Article 7(3), second subparagraph, Article 7(4), point (b) and Article 7(5), after having consulted the Board. The Board, in its executive session, may make such an assessment only after having informed the ECB or the relevant national competent authority of its intention to make such an assessment and only if the ECB or the relevant national competent authority, within three calendar days of receipt of that information, do not make such an assessment themselves. The ECB or the relevant national competent authority shall, without delay, provide the Board with any relevant information that the Board requests to inform its assessment, before or after being informed by the Board of its intention to make the assessment of the condition referred to in the first subparagraph, point (a).
Where the ECB or the relevant national competent authority has assessed that the condition referred to in the first subparagraph, point (a), is met in relation to an entity as referred to in the first subparagraph, they shall communicate that assessment to the Commission and to the Board without delay.
The assessment of the condition referred to in the first subparagraph, point (b), met shall be made by the Board, in its executive session and in close cooperation with the ECB or the relevant national competent authority. The ECB or the relevant national competent authority shall, without delay, provide the Board with any relevant information that the Board requests to inform its assessment. The ECB or the relevant national competent authority may also inform the Board that it considers the condition laid down in the first subparagraph, point (b), to be met.
1a. The Board may adopt a resolution scheme in accordance with paragraph 1 in relation to a central body and all credit institutions permanently affiliated to it that are part of the same resolution group where the central body and all credit institutions permanently affiliated to it, or the resolution group to which they belong, comply as a whole with the conditions laid down in paragraph 1, first subparagraph.
2. Without prejudice to cases where the ECB has decided to exercise directly supervisory tasks relating to credit institutions pursuant to Article 6(5), point (b) of Regulation (EU) No 1024/2013, in the event of receipt of a communication pursuant to paragraph 1 in relation to an entity or group as referred to in Article 7(3), the Board shall communicate its assessment as referred to paragraph 1, fourth subparagraph, to the ECB or the relevant national competent authority without delay.
3. The previous adoption of a measure pursuant to Article 16 of Regulation (EU) No 1024/2013, to Article 27 of Directive 2014/59/EU, to Article 13 of this Regulation or to Article 104 of Directive 2013/36/EU shall not be a condition for taking a resolution action.’;
(b)paragraph 4 is amended as follows:
(i)in the first subparagraph, point (d) is replaced by the following:
‘(d) extraordinary public financial support is required except where such support is granted in one of the forms referred to in Article 18a(1)’;
(ii)the second and third subparagraphs are deleted;
(c)paragraph 5 is replaced by the following:
‘5. For the purposes of paragraph 1, point (c), a resolution action shall be treated as in the public interest where that resolution action is necessary for the achievement of, and is proportionate to, one or more of the resolution objectives referred to in Article 14 and where winding up of the institution under normal insolvency proceedings would not meet those resolution objectives more effectively.
When carrying out the assessment referred to in the first subparagraph, the Board, based on the information available to it at the time of that assessment, shall consider and compare all extraordinary public financial support that can reasonably be expected to be granted to the entity, both in the event of resolution and in the event of winding up in accordance with the applicable national law.’;
(d)in paragraph 7, the second subparagraph is replaced by the following:
‘Within 24 hours from the transmission of the resolution scheme by the Board, the Commission shall endorse the resolution scheme or object to it, either with regard to the discretionary aspects of the resolution scheme in the cases not covered in the third subparagraph of this paragraph or with regard to the proposed use of State aid or Fund aid that is not considered compatible with the internal market.’;
(e)the following paragraph 11 is added:
‘11. Where the conditions referred to in paragraph 1, points (a) and (b), are met, the Board may instruct the national resolution authorities to exercise the powers under national law transposing Article 33a of Directive 2014/59/EU, in accordance with the conditions laid down in national law. The national resolution authorities shall implement the instructions of the Board in accordance with Article 29.’;
(20)the following Article 18a is inserted:
‘Article 18a
Extraordinary public financial support
1. Extraordinary public financial support outside of resolution action may be granted to an entity as referred to in Article 2 only in one of the following cases and provided that the extraordinary public financial support complies with the conditions and requirements established in the Union State aid framework:
(a)where, to remedy a serious disturbance in the economy of a Member State or to preserve financial stability, the extraordinary public financial support takes any of the following forms:
(i)a State guarantee to back liquidity facilities provided by central banks in accordance with the central banks’ conditions;
(ii)a State guarantee of newly issued liabilities;
(iii)an acquisition of own funds instruments other than Common Equity Tier 1 instruments or of other capital instruments, or a use of impaired assets measures at prices, duration, and terms that do not confer an undue advantage upon the institution or entity concerned, provided that none of the circumstances referred to in Article 18(4), points (a), (b) or (c), or Article 21(1) are present at the time the public support is granted.
(b)where the extraordinary public financial support takes the form of an intervention by a deposit guarantee scheme to preserve the financial soundness and long-term viability of the credit institution in compliance with the conditions set out in Articles 11a and 11b of Directive 2014/49/EU, provided that none or of the circumstances referred to in Article 18(4) are present;
(c)where the extraordinary public financial support takes the form of an intervention by a deposit guarantee scheme in the context of the winding up of an institution pursuant to Article 32b of Directive 2014/59/EU and in accordance with the conditions set out in Article 11(5) of Directive 2014/49/EU;
(d)where the extraordinary public financial support takes the form of State aid within the meaning of Article 107(1) TFEU granted in the context of the winding up of the institution or entity pursuant to Article 32b of Directive 2014/59/EU, other than the support granted by a deposit guarantee scheme pursuant to Article 11(5) of Directive 2014/49/EU.
2. The support measures referred to in paragraph 1, point (a), shall fulfil all of the following conditions:
(a)the measures are confined to solvent entities, as confirmed by the ECB or by the relevant national competent authority;
(b)the measures are of a precautionary and temporary nature and are based on a pre-defined exit strategy approved by the ECB or the relevant national competent authority, including a clearly specified termination date, sale date or repayment schedule for any of the measures provided;
(c)the measures are proportionate to remedy the consequences of the serious disturbance or to preserve financial stability;
(d)the measures are not used to offset losses that the entity has incurred or is likely to incur in the near future.
For the purposes of the first subparagraph, point (a), an entity shall be deemed to be solvent where the ECB or the relevant national competent authority have concluded that no breach has occurred, or is likely to occur in the 12 following months, of any of the requirements referred to in Article 92(1) of Regulation (EU) No 575/2013, Article 104a of Directive 2013/36/EU, Article 11(1) of Regulation (EU) 2019/2033, Article 40 of Directive (EU) 2019/2034 or the relevant applicable requirements under national or Union law.
For the purposes of the first subparagraph, point (d), the relevant competent authority shall quantify the losses that the entity has incurred or is likely to incur. That quantification shall be based, as a minimum, on the institution’s balance sheet, provided that the balance sheet complies with the applicable accounting rules and standards, as confirmed by an independent external auditor, and, where available, on asset quality reviews conducted by the ECB, EBA or national authorities or, where appropriate, on on-site inspections conducted by the ECB or the relevant national competent authority.
The support measures referred to in paragraph 1, point (a)(iii), shall be limited to measures that have been assessed by the ECB or the national competent authority as necessary to maintain the solvency of the entity by addressing its capital shortfall established in the adverse scenario of national, Union or SSM-wide stress tests or equivalent exercises conducted by the ECB, EBA or national authorities, where applicable, confirmed by the ECB or the relevant competent authority.
By way of derogation from paragraph 1, point (a)(iii), acquisition of Common Equity Tier 1 instruments shall be exceptionally permitted where the nature of the shortfall identified is such that the acquisition of any other own funds instruments or other capital instruments would not make it possible for the entity concerned to address its capital shortfall established in the adverse scenario in the relevant stress test or equivalent exercise. The amount of acquired Common Equity Tier 1 instruments shall not exceed 2% of the total risk exposure amount of the institution or entity concerned calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013.
In case any of the support measures referred to in paragraph 1, point (a), is not redeemed, repaid or otherwise terminated in accordance with the terms of the exit strategy established at the time of granting such measure, the ECB or the relevant national competent authority shall conclude that the condition laid down in Article 18(1), point (a), is met in relation to the institution or entity which has received those support measures and shall communicate that assessment to the Commission and to the Board, in accordance with Article 18(1), third subparagraph.’;
(21)Article 19 is amended as follows:
(a)paragraph 1 is replaced by the following:
‘1. Where resolution action involves the granting of State aid pursuant to Article 107(1) TFEU or of Fund aid in accordance with paragraph 3 of this Article, the resolution scheme referred to in Article 18(6) of this Regulation shall not enter into force until such time when the Commission adopts a positive or conditional decision, or a decision not to raise objections, concerning the compatibility of the use of such aid with the internal market. The Commission shall take the decision concerning the compatibility of the use of State aid or of Fund aid with the internal market at the latest when it endorses or objects to the resolution scheme pursuant to Article 18(7), second subparagraph, or when the period of 24 hours referred to in Article 18(7), fifth subparagraph, expires, whichever is earlier.
In performing the tasks conferred on them by Article 18 of this Regulation, Union institutions shall have in place structural arrangements that ensure operational independence and avoid conflicts of interest that could arise between the functions entrusted with the performance of those tasks and other functions and shall make public in an appropriate manner all relevant information on their internal organisation in this regard.’;
(b)paragraph 3 is replaced by the following:
‘3. As soon as the Board considers that it may be necessary to use the Fund, it shall informally, promptly, and in a confidential manner contact the Commission to discuss the possible use of the Fund, including legal and economic aspects related to its use. Once the Board is sufficiently certain that the resolution scheme envisaged will entail the use of Fund aid, the Board shall formally notify the Commission of the proposed use of the Fund. That notification shall contain all the information that the Commission needs to make its assessments pursuant to this paragraph, and that the Board has in its possession or which the Board has the power to obtain in accordance with this Regulation.
Upon receiving the notification referred to in the first subparagraph, the Commission shall assess whether the use of the Fund would distort, or threaten to distort, competition by favouring the beneficiary or any other undertaking so as, insofar as it would affect trade between Member States, to be incompatible with the internal market. The Commission shall apply to the use of the Fund the criteria established for the application of State aid rules as enshrined in Article 107 TFEU. The Board shall provide the Commission with the information in its possession, or which the Board has the power to obtain in accordance with this Regulation, and that the Commission deems to be necessary to carry out that assessment.
When making its assessment, the Commission shall be guided by all the relevant regulations adopted under Article 109 TFEU, all related and relevant communications and guidance of the Commission, and all measures adopted by the Commission in application of the rules of the Treaties relating to State aid as are in force at the time the assessment is to be made. Those measures shall be applied as if references to the Member State responsible for notifying the aid were references to the Board, and with any other necessary modifications.
The Commission shall decide on the compatibility of the use of the Fund with the internal market and address that decision to the Board and to the national resolution authorities of the Member State or Member States concerned. That decision may be contingent on conditions, commitments or undertakings in respect of the beneficiary and it shall take into account the need for timely execution of resolution action by the Board.
The decision may also lay down obligations on the Board, the national resolution authorities in the participating Member State or Member States concerned or the beneficiary to enable compliance with it to be monitored. This may include requirements for the appointment of a trustee or other independent person to assist in monitoring. A trustee or other independent person may perform such functions as may be specified in the Commission decision.
Any decision pursuant to this paragraph shall be published in the Official Journal of the European Union.
The Commission may issue a negative decision, addressed to the Board, where it decides that the proposed use of the Fund would be incompatible with the internal market and cannot be implemented in the form proposed by the Board. On receipt of such a decision the Board shall reconsider its resolution scheme and prepare a revised resolution scheme.’;
(c)paragraph 10 is replaced by the following:
‘10. By way of derogation from paragraph 3, the Council may, on an application of a Member State or the Board, within 7 days of such application being made, unanimously decide that the use of the Fund is to be considered compatible with the internal market, where such a decision is justified by exceptional circumstances. The Commission shall take a decision on the case where the Council has not decided within those 7 days.’;
(22)Article 20 is amended as follows:
(a)paragraph 1 is replaced by the following:
‘1. Before determining whether the conditions for resolution, or the conditions for write down or conversion of capital instruments and eligible liabilities as referred to in Article 21(1) are met, the Board shall ensure that a fair, prudent and realistic valuation of the assets and liabilities of an entity as referred to in Article 2 is carried out by a person that is independent from any public authority, including the Board and the national resolution authority, and from the entity concerned.’;
(b)the following paragraph 8a is inserted:
‘8a. Where necessary to inform the decisions referred to paragraph 5, points (c) and (d), the valuer shall complement the information in paragraph 7, point (c), with an estimate of the value of the off-balance sheet assets and liabilities, including contingent liabilities and assets.’;
(c)in paragraph 18, the following point (d) is added:
‘(d) when determining the losses that the deposit guarantee scheme would have incurred had the institution been wound up under normal insolvency proceedings, apply the criteria and methodology referred to in Article 11e of Directive 2014/49/EU and in any delegated act adopted pursuant to that Article.’;
(23)Article 21 is amended as follows:
(a)paragraph 1 is amended as follows:
(i)the first subparagraph is amended as follows:
—the introductory wording is replaced by the following:
‘1. The Board, acting under the procedure laid down in Article 18, shall exercise the power to write down or convert relevant capital instruments, and eligible liabilities as referred to in paragraph 7a, in relation to the entities and groups referred to in Article 7(2), and to the entities and groups referred to in Article 7(4), point (b), and Article7(5) where the conditions for the application of those provisions are met, only where it determines, in its executive session, on receiving a communication pursuant to the second subparagraph or on its own initiative, that one or more of the following conditions are met:’;
—point (e) is replaced by the following:
‘(e) extraordinary public financial support is required by the entity or group, except where that support is granted in one of the forms referred to in Article 18a(1).’;
(ii)the second subparagraph is replaced by the following:
‘The assessment of the conditions referred to in the first subparagraph, points (a) to (d), shall be made by the ECB for entities referred to in Article 7(2)(a), or by the relevant national competent authority for entities referred to in Article 7(2)(b), (4)(b) and (5), and by the Board, in its executive session, in accordance with the allocation of tasks pursuant to the procedure laid down in Article 18(1) and (2).’;
(b)paragraph 2 is deleted;
(c)in paragraph 3, point (b) is replaced by the following:
‘(b) having regard to timing, the need to implement effectively the write down and conversion powers or the resolution strategy for the resolution group and other relevant circumstances, there is no reasonable prospect that any action, including alternative private sector measures, supervisory action or early intervention measures, other than the write-down or conversion of relevant capital instruments, and eligible liabilities as referred to in paragraph 7a, would prevent the failure of that entity or group within a reasonable timeframe.’;
(d)paragraph 9 is replaced by the following:
‘9. Where one or more of the conditions referred to in paragraph 1 are met in relation to an entity referred to in that paragraph, and the conditions referred to in Article 18(1) are also met in relation to that entity or to an entity belonging to the same group, the procedure laid down in Article 18(6), (7) and (8) shall apply.’;
(24)Article 27 is amended as follows:
(a)paragraph 7 is replaced by the following:
‘7. The Fund may make a contribution as referred to in paragraph 6 only where all of the following conditions are met:
(a)a contribution to loss absorption and recapitalisation equal to an amount not less than 8 % of the total liabilities including own funds of the institution under resolution, measured in accordance with the valuation provided for in Article 20(1) to (15), has been made by shareholders, the holders of relevant capital instruments and other bail-inable liabilities through reduction, write-down, or conversion pursuant to Article 48(1) of Directive 2014/59/EU and Article 21(10) of this Regulation, and by the deposit guarantee scheme pursuant to Article 79 of this Regulation and Article 109 of Directive 2014/59/EU where relevant;
(b)the contribution from the Fund does not exceed 5 % of the total liabilities including own funds of the institution under resolution, measured in accordance with the valuation provided for in Article 20(1) to (15).’;
(b)paragraphs 9 and 10 are replaced by the following:
‘9. The Fund may make a contribution from resources which have been raised through ex-ante contributions as referred to in Article 70 and which have not yet been used, provided that all of the following conditions are met:
(a)the Fund has made a contribution pursuant to paragraph 6 and the 5 % limit referred to in paragraph 7, point (b), has been reached;
(b)all liabilities ranking lower than deposits, and not excluded from bail-in pursuant to paragraphs 3 and 5, have been written down or converted in full.
10. In extraordinary circumstances, as an alternative or in addition to the contribution of the Fund referred to in paragraph 9, where the conditions laid down in paragraph 9 are met, the Board may seek further funding from alternative financing sources.’;
(c)in paragraph 13, the second subparagraph is replaced by the following:
‘The assessment referred to in the first subparagraph shall establish the amount by which bail-inable liabilities need to be written down or converted:
(a)to restore the Common Equity Tier 1 capital ratio of the institution under resolution, or, where applicable, establish the ratio of the bridge institution, taking into account any contribution of capital by the Fund made pursuant to Article 76(1), point (d);
(b)to sustain sufficient market confidence in the institution under resolution or the bridge institution, taking into account the need to cover contingent liabilities, and enable the institution under resolution to continue to meet, for at least 1 year, the conditions for authorisation andto continue to carry out the activities for which it is authorised under Directive 2013/36/EU or Directive 2014/65/EU.’;
(25)Article 30 is amended as follows:
(a)the title is replaced by the following:
‘Obligation to cooperate and information exchange’;
(b)the following paragraphs 2a, 2b and 2c are inserted:
‘2a. The Board, the ESRB, the EBA, ESMA and EIOPA shall cooperate closely and provide each other with all information necessary for the performance of their respective tasks.
2b. The ECB and other members of the European System of Central Banks (ESCB) shall cooperate closely with the Board and provide it with all information necessary for the performance of the Board’s tasks, including information collected by them in accordance with their statute. Article 88(6) shall apply to the exchanges concerned.
2c. The designated authorities referred to in Article 2(1), point (18), of Directive 2014/49/EU shall cooperate closely with the Board and provide it with all information necessary to the performance of its tasks.’;
(c)paragraph 6 is replaced by the following:
‘6. The Board shall endeavour to cooperate closely with any public financial assistance facility, including the European Financial Stability Facility (EFSF) and the European Stability Mechanism (ESM), in particular in all of the following situations:
(a)in the extraordinary circumstances referred to in Article 27(9) and where such a facility has granted, or is likely to grant, direct or indirect financial assistance to entities established in a participating Member State;
(b)where the Board has contracted for the Fund a financial arrangement pursuant to Article 74.’;
(d)paragraph 7 is replaced by the following:
‘7. Where necessary, the Board shall conclude a memorandum of understanding with the ECB and other members of the ESCB, the national resolution authorities and the national competent authorities describing in general terms how they will cooperate under paragraphs 2, 2a, 2b and 4 of this Article and under Article 74, second paragraph, in the performance of their respective tasks under Union law. The memorandum shall be reviewed on a regular basis and shall be published subject to the requirements of professional secrecy.’;
(26)the following Article 30a is inserted:
‘Article 30a
Information held by centralised automated mechanism
1. The authorities operating the centralised automated mechanisms established by Article 32a of Directive (EU) 2015/849 of the European Parliament and of the Council** shall provide the Board, upon its request, with information related to the number of customers for which an entity as referred to in Article 2 is the only or principal banking partner.
2. The Board shall request the information referred to in paragraph 1 only on a case-by-case basis and where necessary for the purpose of performing its tasks under this Regulation.
3. The Board may share the information obtained pursuant to the first paragraph with national resolution authorities in the context of the performance of their respective tasks under this Regulation.
______________________________
** Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).’;
(27)in Article 31, the following paragraph 3 is added:
‘3. For the entities and groups referred to in Article 7(2), and for the entities and groups referred to in Article 7(4), point (b) and Article 7(5) where the conditions for the application of those provisions are met, national resolution authorities shall consult the Board before acting under Article 86 of Directive 2014/59/EU.’;
(28)in Article 32(1), the first subparagraph is replaced by the following:
‘Where a group includes entities established in participating Member States as well as in in non-participating Member States or third countries, without prejudice to any approval by the Council or the Commission required under this Regulation, the Board shall represent the national resolution authorities of the participating Member States for the purposes of consultation and cooperation with non-participating Member States or third countries in accordance with Articles 7, 8, 12, 13, 16, 18, 45h, 55, and 88 to 92 of Directive 2014/59/EU.’;
(29)Article 34 is amended as follows:
(a)in paragraph 1, the introductory wording is replaced by the following:
‘The Board may, making full use of all of the information which is already available to the ECB, including information collected by the members of the ESCB in accordance with their statute, or of all the information available to the national competent authorities, to the ESRB, the EBA, ESMA or EIOPA, require, through the national resolution authorities or directly, after having informed those authorities, the following legal or natural persons to provide it with all the information necessary, in accordance with the procedure requested by the Board and in the form requested by the Board, to perform its tasks:’;
(b)paragraphs 5 and 6 are replaced by the following:
‘5. The Board, the ECB, the members of the ESCB, the national competent authorities, the ESRB, the EBA, ESMA, EIOPA and the national resolution authorities may draw up memoranda of understanding setting out a procedure governing the exchange of information. The exchange of information between the Board, the ECB and other members of the ESCB, the national competent authorities, the ESRB, the EBA, ESMA, EIOPA and the national resolution authorities shall not be deemed to infringe the requirements of professional secrecy.
6. National competent authorities, the ECB, members of the ESCB, the ESRB, the EBA, ESMA, EIOPA, and the national resolution authorities shall cooperate with the Board to verify whether some or all of the information requested is already available at the time the request is made. Where such information is available, the national competent authorities, the ECB and other members of the ESCB, the ESRB, the EBA, ESMA, EIOPA, or the national resolution authorities shall provide that information to the Board.’;
(30)in Article 43(1), the following point (aa) is inserted:
‘(aa) the Vice-Chair appointed in accordance with Article 56;’;
(31)in Article 50(1), point (n) is replaced by the following:
‘(n) appoint an Accounting Officer and an Internal Auditor, subject to the Staff Regulations and the Conditions of Employment, who shall be functionally independent in the performance of their duties;’;
(32)Article 53 is amended as follows:
(a)in paragraph 1, the first sentence is replaced by the following:
‘The Board in its executive session shall be composed of the Chair, the Vice-Chair and the four members referred to in Article 43(1), point (b).’;
(b)in paragraph 5, the words ‘Article 43(1)(a) and (b)’ are replaced by the words ‘Article 43(1), points (a), (aa) and (b)’.;
(33)in Article 55, paragraphs 1 and 2 are replaced by the following:
‘1. When deliberating on an individual entity or a group established in only one participating Member State, if all members referred to in Article 53(1) and (3) are not able to reach a joint agreement by consensus within a deadline set by the Chair, the Chair, the Vice-Chair and the members referred to in Article 43(1), point (b), shall take a decision by a simple majority.
2. When deliberating on a cross-border group, if all members referred to in Article 53(1) and (4) are not able to reach a joint agreement by consensus within a deadline set by the Chair, the Chair, the Vice-Chair and the members referred to in Article 43(1), point (b), shall take a decision by a simple majority.’;
(34)Article 56 is amended as follows:
(a)in paragraph 2, point (d) is replaced by the following:
‘(d) the establishment of a preliminary draft budget and a draft budget of the Board, in accordance with Article 61, and the implementation of the budget of the Board, in accordance with Article 63;’;
(b)in paragraph 5, the first subparagraph is replaced by the following:
‘The term of office of the Chair, of the Vice-Chair and of the members referred to in Article 43(1), point (b), shall be five years. That term shall be renewable once.
A person who has served two terms of office as the Chair, the Vice-Chair or a member referred to in Article 43(1), point (b), shall not be eligible for appointment to any of the other two positions.’;
(c)in paragraph 6, first subparagraph, the following sentence is added:
‘The Commission may arrange the names on the shortlist in the order reflecting the Commission’s assessment of the suitability of each candidate in light of the criteria referred to in paragraph 4 of this Article.’;
(d)the following paragraph 6a is inserted:
‘6a. In the 9 months preceding the end of the first term of office of the Chair, of the Vice-Chair and of the members referred to in Article 43(1), point (b), the Commission shall evaluate the results achieved in the first term of office and shall decide whether to put forward a proposal for renewal of the term based on the results of that evaluation.
The Council, acting on a proposal from the Commission, shall adopt an implementing decision to renew the term of office of the Chair, of the Vice-Chair and of the members referred to in Article 43(1), point (b). The Council shall act by qualified majority.’;
(e)in paragraph 7, the last sentence is replaced by the following:
‘The Chair, the Vice-Chair, and the members referred to in Article 43(1), point (b) shall remain in office until their successors are appointed and have taken up their duties in accordance with the Council decision referred to in paragraph 6 of this Article.’;
(35)Article 61 is replaced by the following:
‘Article 61
Establishment of the budget
1. By 31 March each year, the Chair shall draw up a preliminary draft budget of the Board, including a statement of estimates of the Board’s revenue and expenditure for the following year, together with the establishment plan, for the following year and submit it to the Board in its plenary session.
The Board in its plenary session shall, where necessary, adjust the preliminary draft budget of the Board together with the draft establishment plan.
2. On the basis of the preliminary draft budget as adopted by the Board in its plenary session, the Chair shall draw up a draft budget of the Board and submit it to the Board in its plenary session for adoption.
By 30 November each year, the Board in its plenary session shall adjust the draft budget submitted by the Chair, where necessary, and adopt the final budget of the Board together with the establishment plan.’;
(36)in Article 69, paragraph 4 is replaced by the following:
‘4. If, after the initial period referred to in paragraph 1, the available financial means fall below the target level specified in that paragraph, the regular contributions calculated in accordance with Article 70 shall be raised until the target level is reached. The Board may defer the collection of the regular contributions raised in accordance with Article 70 for 1 or more years to ensure that the amount to be collected reaches an amount that is proportionate to the costs of the collection process, provided that such deferral does not materially affect the capacity of the Board to use the Fund pursuant to Section 3. After the target level has been reached for the first time and where the available financial means have subsequently been reduced to less than two-thirds of the target level, those contributions shall be set at a level allowing for reaching the target level within 6 years.’;
(37)Article 70 is amended as follows:
(a)paragraph 3 is replaced by the following:
‘3. The available financial means to be taken into account in order to reach the target level specified in Article 69 may include irrevocable payment commitments which are fully backed by collateral of low-risk assets unencumbered by any third-party rights, at the free disposal of and earmarked for the exclusive use by the Board for the purposes specified in Article 76(1). The share of those irrevocable payment commitments shall not exceed 50 % of the total amount of contributions raised in accordance with this Article. Within that limit, the Board shall determine annually the share of irrevocable payment commitments in the total amount of contributions to be raised in accordance with this Article.’;
(b)the following paragraph 3a is inserted:
‘3a. The Board shall call the irrevocable payment commitments made pursuant to paragraph 3 of this Article when the use of the Fund is needed pursuant to Article 76.
Where an institution or entity stops being within the scope of Article 2 and is no longer subject to the obligation to pay contributions in accordance with paragraph 1 of this Article, the Board shall call the irrevocable payment commitments made pursuant to paragraph 3 and still due. If the contribution linked to the irrevocable payment commitment is duly paid at first call, the Board shall cancel the commitment and return the collateral. If the contribution is not duly paid at first call, the Board shall seize the collateral and cancel the commitment.’;
(38)in Article 71(1), the second subparagraph is replaced by the following:
‘The total amount of extraordinary ex-post contributions per year shall not exceed three times 12,5 % of the target level.’;
(39)in Article 74, the following paragraph is inserted:
‘The Board shall inform the Commission and the ECB as soon as it considers that it may be necessary to activate financial arrangements contracted for the Fund in accordance with this Article, and shall provide the Commission and the ECB with all information necessary for the performance of their tasks in respect of such financial arrangements.’;
(40)Article 76 is amended as follows:
(a)paragraph 3 is replaced by the following:
‘3. Where the Board determines that the use of the Fund for the purposes referred to in paragraph 1 is likely to result in part of the losses of an entity referred to in Article 2 being passed on to the Fund, the principles governing the use of the Fund set out in Article 27 shall apply.’;
(b)the following paragraphs 5 and 6 are added:
‘5. Where the resolution tools referred to in Article 22(2), point (a) or (b), are used to transfer only part of the assets, rights or liabilities of the institution under resolution, the Board shall have a claim against the residual entity for any expense and loss incurred by the Fund as a result of any contributions made to resolution pursuant to paragraphs 1 and 2 of this Article in connection to losses which creditors would have otherwise borne.
6. The claims of the Board referred to paragraph 5 of this Article and in Article 22(6) shall, in each participating Member State, have the same priority ranking as the claims of the national resolution financing arrangements in the national law of that Member State governing normal insolvency proceedings pursuant to Article 108(9) of Directive 2014/59/EU.’;
(41)Article 79 is amended as follows:
(a)paragraphs 1, 2 and 3 are replaced by the following:
‘1. Participating Member States shall ensure that when the Board takes resolution action with respect to a credit institution, provided that such action ensures that depositors continue to have access to their deposits, to prevent depositors from bearing losses, the deposit guarantee scheme to which that credit institution is affiliated shall contribute for the purposes and under the conditions laid down in Article 109 of Directive 2014/59/EU.
2. The Board shall determine the amount of the contribution of the deposit guarantee scheme in accordance with paragraph 1 after having consulted the deposit guarantee scheme, and where necessary the designated authority within the meaning of Article 2(1), point (18), of Directive 2014/49/EU, on the estimated cost of repaying depositors pursuant to Article 11e of Directive 2014/49/EU and in compliance with the conditions referred to in Article 20 of this Regulation.
3. The Board shall notify its decision as referred to in the first subparagraph to the designated authority within the meaning of Article 2(1), point (18), of Directive 2014/49/EU and to the deposit guarantee scheme to which the institution is affiliated. The deposit guarantee scheme shall implement that decision without delay.’;
(b)in paragraph 5, the second and third subparagraph are deleted;
(42)in Article 85(3), the words ‘referred to in’ are replaced by the words ‘adopted under’;
(43)in Article 88, the following paragraph 7 is added:
‘7. This Article shall not prevent the Board from disclosing its analyses or assessments, including when they are based on information provided by the entities referred to in Article 2 or other authorities as referred to in paragraph 6 of this Article, when the Board assesses that the disclosure would not undermine the protection of the public interest as regards financial, monetary or economic policy and that there is a public interest in disclosing which overrides any other interests referred to in paragraph 5 of this Article. Such disclosure shall be considered to be made by the Board in the exercise of its functions under this Regulation for the purposes of paragraph 1 of this Article.’.
Article 2 - Entry into force and application
It shall apply from … [OP please insert the date = 18 months from the date of entry into force of this amending Regulation].
However, Article 1, points (1)(a), points (2) and, (3), point (4)(a), point (5)(a), (b) and (c)(i) and (ii), point (6)(a), point (7), point (13)(a)(i) and (b), point (14)(a), (b) and (d), point (19)(d) and (e), point (21), point (23)(a)(i), first indent, (b) and (d), points (25) to (35), and points (39), (42) and (43), shall apply from … [OP please insert the date = 1 month from the date of entry into force of this amending Regulation].
This Regulation shall be binding in its entirety and directly applicable in all Member States.