The Bank Recovery and Resolution (No. 2) Order 2014

PART 9 U.K. Minimum requirement for own funds and eligible liabilities

CHAPTER 1 U.K. Determination of minimum requirement for an institution

Interpretation of Chapter 1 U.K.

121.—(1) In this Chapter “ relevant institution” means an institution, other than a mortgage credit institution, which is authorised by the PRA or FCA and is not part of a group subject to supervision on a consolidated basis in accordance with Article 111 of the capital requirements directive.

(2) “Mortgage credit institution” means an institution—

(a) which does not have permission under Part 4A of FSMA to carry on the regulated activity of accepting deposits (within the meaning given by section 22 of that Act, read with Schedule 2 and any order under section 22); and

(b) whose lending—

(i) relates to an agreement under which the obligation of the borrower to repay is secured, or is to be secured, by a legal mortgage on land; and

(ii) is financed by covered bonds M1 .

Marginal Citations

M1 For the meaning of “covered bond” see the recovery and resolution directive, Article 2.1, point (96).

Duties of the Bank in relation to minimum requirement U.K.

122.—(1) The Bank must exercise the powers conferred by section 3A of the Banking Act 2009 M2 (removal of impediments to the exercise of stabilisation powers etc)—

(a) to ensure that a relevant institution is required at all times to maintain a minimum requirement for own funds and eligible liabilities F1 ...; and

(b) with the object of ensuring that at all times the institution meets the minimum requirement specified in a direction given for that purpose.

(2) The Bank must inform EBA of the minimum requirement for own funds and eligible liabilities determined for each relevant institution.

Textual Amendments

F1 Words in art. 122(1)(a) omitted (28.12.2020) by virtue of The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 45

Marginal Citations

M2 Section 3A was inserted by S.I. 2014/3329.

Determination of minimum requirement U.K.

123.—(1) This article applies for the purpose of the determination by the Bank of the minimum requirement for own funds and eligible liabilities.

(2) The amount of the relevant institution's total liabilities must include total liabilities under any derivative contracts held by the institution.

(3) An assessment of total liabilities under a derivative contract must take account of the rights of the parties to the contract to set off or net under a title transfer collateral arrangement, set-off arrangement or netting arrangement (within the meaning given by section 48(1)(b), (c) and (d) of the Banking Act 2009).

(4) [F2 An eligible liability must be excluded] from the amount of the relevant institution's [F3 own funds and eligible liabilities] if—

(a) the instrument that creates the liability is not issued or fully paid up;

(b) the liability is owed to, or secured or guaranteed by, the institution itself;

(c) the purchase of the instrument that creates the liability was funded directly or indirectly by the institution itself;

(d) the liability has a remaining maturity of less than one year;

(e) the liability arises from a derivative contract held by the institution;

(f) the liability arises from a deposit in respect of which the depositor's rights, in any proceedings relating to the insolvency of the institution, would be preferred to the rights of other creditors; or

(g) the instrument that creates the liability is governed by the law of a third country and the Bank is not satisfied that a decision by the Bank to convert or write down the liability would be effective under that law.

(5) For the purpose of paragraph (4)(d), where the instrument that creates the liability confers on a party to the instrument a right to the repayment of a sum before maturity, the maturity date is the first date on which that party would become entitled to repayment if the right were exercised.

(6) The determination must be based on an assessment of the [F4 following criteria—

(a) the need to ensure that the relevant institution can be resolved by the application of the resolution tools including, where appropriate, by making special bail-in provision within the meaning of section 48B of the Banking Act 2009, in a way that meets the special resolution objectives;

(b) the need to ensure, in appropriate cases, that the relevant institution has sufficient eligible liabilities to ensure that, if mandatory reduction provision within the meaning of section 6B of the Banking Act 2009 or special bail-in provision were made—

(i) losses could be absorbed; and

(ii) the capital ratio and, as applicable, the leverage ratio, of the relevant institution could be restored,

to a level necessary to enable it to continue to comply with the conditions for authorisation under Part 4A of FSMA and to continue to carry out the activities for which it is authorised;

(c) the need to ensure that, if the resolution plan anticipates that certain classes of eligible liabilities might be excluded from bail-in under section 48B(10) of the Banking Act 2009 or that certain classes of eligible liabilities might be transferred to a recipient in full under a partial transfer—

(i) the relevant institution has sufficient other eligible liabilities or own funds to ensure that losses could be absorbed; and

(ii) the capital ratio and, as applicable, the leverage ratio, of the relevant institution could be restored,

to the level necessary to enable it to continue to comply with the conditions for authorisation under Part 4A of FSMA and to continue to carry out the activities for which it is authorised;

(d) the size, the business model, the funding model and the risk profile of the relevant institution; and

(e) the extent to which the failure of the relevant institution would have adverse effects on financial stability, including, due to its interconnectedness with other institutions or entities or with the rest of the financial system, through contagion to other institutions or entities.]

(7) The Bank must make that assessment in consultation with the appropriate regulator.

Textual Amendments

F2 Words in art. 123(4) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(a)

F3 Words in art. 123(4) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(b)

F4 Words in art. 123(6) substituted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 46

Review of minimum requirement U.K.

124.—(1) The Bank must review the minimum requirement for own funds and eligible liabilities when, in accordance with Chapter 4 of Part 5, it reviews the resolution plan (within the meaning given in Chapter 1 or 3 of that Part) adopted for the relevant institution.

(2) Article 123 applies for the purpose of the review, but paragraph (6) of that article has effect for that purpose as if the reference to the determination (of the minimum requirement for own funds and eligible liabilities) were a reference to the re-determination of the requirement on review.

CHAPTER 2 U.K. Determination of minimum consolidated requirement where the PRA or FCA is the consolidating supervisor

Application and interpretation of Chapter 2 U.K.

125.—(1) This Chapter applies where the PRA or FCA is the consolidating supervisor in relation to a relevant group.

(2) In this Chapter—

“four month period” means four months beginning with the date on which the Bank gives notice of its provisional determination of the minimum consolidated requirement under article 126(3);

“group entity” includes an undertaking which is—

(a)

a parent undertaking of the EEA parent undertaking; and

(b)

a mixed activity holding company which has at least one subsidiary which—

(i)

is an institution; and

(ii)

is not a subsidiary of a financial holding company which is also a subsidiary of the mixed activity holding company;

“group institution” means—

(a)

the EEA parent undertaking, if it is a relevant institution;

(b)

a group subsidiary which is a relevant institution;

(c)

a group entity, other than an institution, which is—

(i)

required under article 139 or 146 to maintain a minimum requirement for own funds and eligible liabilities; or

(ii)

required by a resolution authority other than the Bank to maintain a minimum requirement for own funds and eligible liabilities;

(d)

where the group resolution plan does not provide for the separate resolution M3 of a subsidiary set up in a third country, that subsidiary if it would be a relevant institution if it were set up in an EEA State;

“minimum consolidated requirement” means the requirement for a minimum level of own funds and eligible liabilities of the group institutions F5 ...;

“minimum requirement”, in relation to a group institution, means a minimum requirement for own funds and eligible liabilities F6 ...; and

“netting arrangement”—

(a)

in relation to an institution authorised by the PRA or FCA, means a title transfer collateral arrangement, set-off arrangement or netting arrangement (within the meaning given by section 48(1)(b), (c) and (d) of the Banking Act 2009);

(b)

in relation to an institution set up in any other EEA State, has the meaning given by point (98) of Article 2.1 of the recovery and resolution directive.

(3) “Relevant institution”, in the definition of “group institution”, means an institution which—

(a) if authorised by the PRA or FCA, is not a mortgage credit institution within the meaning given in Chapter 1; and

(b) if set up in a country other than the United Kingdom, does not meet criteria which are equivalent in that country to the criteria set out in article 121(2).

Textual Amendments

F5 Words in art. 125(2) omitted (28.12.2020) by virtue of The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 47(a)

F6 Words in art. 125(2) omitted (28.12.2020) by virtue of The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 47(b)

Marginal Citations

M3 For the meaning of “resolution” see the recovery and resolution directive, Article 2.1, point (1).

Determination of minimum consolidated requirement U.K.

126.—(1) This article applies for the purpose of determining the minimum consolidated requirement [F7 for each resolution group].

(2) Where every group entity [F8 in the resolution group] is set up in the United Kingdom, the Bank must determine the minimum consolidated requirement, and is solely responsible for the determination.

(3) Where a group entity [F9 in the resolution group] is set up in another EEA State, the Bank must—

(a) make a provisional determination of the minimum consolidated requirement [F10 for the resolution group];

(b) give notice of the provisional determination to the resolution authority established in that EEA State; and

(c) endeavour within the college to determine the minimum consolidated requirement jointly with that resolution authority.

(4) The amount of each group institution's total liabilities must include total liabilities under any derivative contracts held by the institution.

(5) An assessment of total liabilities under a derivative contract must take account of the rights of the parties to the contract to set off or net under a netting arrangement.

(6) [F11 An eligible liability must be excluded] from the amount of the group institution's [F12 own funds and eligible liabilities] if—

(a) the instrument that creates the liability is not issued or fully paid up;

(b) the liability is owed to, or secured or guaranteed by, the institution itself;

(c) the purchase of the instrument that creates the liability was funded directly or indirectly by the institution itself;

(d) the liability has a remaining maturity of less than one year;

(e) the liability arises from a derivative contract held by the institution;

(f) the liability arises from a deposit in respect of which the depositor's rights, in any proceedings relating to the insolvency of the institution, would be preferred to the rights of other creditors; or

(g) the instrument that creates the liability is governed by the law of a third country and the Bank is not satisfied that a decision by the Bank to convert or write down the liability would be effective under that law.

(7) For the purpose of paragraph (6)(d), where the instrument that creates the liability confers on a party to the instrument a right to the repayment of a sum before maturity, the maturity date is the first date on which that party would become entitled to repayment if the right were exercised.

(8) The determination—

(a) must be based on an assessment of the [F13 following criteria—

(i) the need to ensure that each group institution can be resolved by the application of the resolution tools including, where appropriate, by making special bail-in provision within the meaning of section 48B of the Banking Act 2009, in a way that meets the special resolution objectives;

(ii) the need to ensure, in appropriate cases, that each group institution has sufficient eligible liabilities to ensure that, if mandatory reduction provision within the meaning of section 6B of the Banking Act 2009 or special bail-in provision were made—

(aa) losses could be absorbed; and

(ab) the capital ratio and, if applicable, the leverage ratio, of the group institution could be restored,

to a level necessary to enable it to continue to comply with the conditions for authorisation under Part 4A of FSMA and to continue to carry out the activities for which it is authorised;

(iii) the need to ensure that, if the resolution plan anticipates that certain classes of eligible liabilities might be excluded from bail-in under section 48B(10) of the Banking Act 2009 or that certain classes of eligible liabilities might be transferred to a recipient in full under a partial transfer—

(aa) each group institution has sufficient other eligible liabilities or own funds to ensure that losses could be absorbed; and

(ab) the capital ratio and, if applicable, the leverage ratio, of the group institution could be restored,

to the level necessary to enable it to continue to comply with the conditions for authorisation under Part 4A of FSMA and to continue to carry out the activities for which it is authorised;

(iv) the size, the business model, the funding model and the risk profile of each group institution; and

(v) the extent to which the failure of each group institution would have an adverse effect on financial stability, including, due to its interconnectedness with other institutions or entities or with the rest of the financial system, through contagion to other institutions or entities]; and

(b) must take account of any provision made in the group resolution plan for the separate resolution of a subsidiary set up in a third country.

(9) Where the Bank makes an assessment under paragraph (8)(a) with respect to a group institution authorised by the PRA or FCA, it must make the assessment in consultation with the appropriate regulator.

Textual Amendments

F7 Words in art. 126(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 48(a)

F8 Words in art. 126(2) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 48(b)

F9 Words in art. 126(3) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 48(c)(i)

F10 Words in art. 126(3)(a) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 48(c)(ii)

F11 Words in art. 126(6) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(a)

F12 Words in art. 126(6) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(b)

F13 Words in art. 126(8)(a) substituted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 48(d)

Joint determination U.K.

127.—(1) Where the Bank endeavours to determine the minimum consolidated requirement [F14 for a resolution group] jointly with one or more other resolution authorities under article 126(3)(c), it must endeavour to make the determination within the four month period.

(2) Where the Bank and another resolution authority (“authority A”) are unable within the four month period to make a joint determination of the minimum consolidated requirement, the Bank—

(a) must make the determination, either alone or jointly with any resolution authority with which it is able to make a joint determination; and

(b) in relation to a group institution for which authority A is the resolution authority, must ensure that the determination takes account of authority A's assessment of that institution against the criteria for determining the minimum requirement for a group institution.

(3) The Bank must give the EEA parent undertaking written notice of the determination made under this article, including a reasoned account of the determination.

Textual Amendments

F14 Words in art. 127(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 49

References to EBA: determination of minimum consolidated requirement U.K.

128.—(1) Where, before the end of the four month period, another resolution authority has referred to EBA in accordance with Article 19 of the EBA Regulation any matter relating to the prospective determination of the minimum consolidated requirement [F15 for a resolution group], the Bank must—

(a) defer the determination for one month beginning with the date on which the four month period ends; and

(b) ensure that the requirement determined is not less than the requirement specified in any decision taken by EBA before the end of that month under Article 19.3 of the EBA Regulation.

(2) For the purposes of a reference to EBA of a matter to which this article refers the four month period is deemed to be the conciliation phase referred to in Article 19.2 of the EBA Regulation.

Textual Amendments

F15 Words in art. 128(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 50

Review of minimum consolidated requirement U.K.

129.—(1) The Bank must review the minimum consolidated requirement [F16 for each resolution group] when, in accordance with Chapter 4 of Part 5, it reviews the group resolution plan.

(2) Articles 126 to 128 apply for the purpose of the review, but have effect for that purpose as if each reference to determining (or the determination of) the minimum consolidated requirement were a reference to re-determining (or the re-determination of) the requirement on review.

Textual Amendments

F16 Words in art. 129(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 51

CHAPTER 3 U.K. Determination of minimum consolidated requirement where neither the PRA nor the FCA is the consolidating supervisor

Application and interpretation of Chapter 3 U.K.

130.—(1) This Chapter applies where neither the PRA nor the FCA is the consolidating supervisor in relation to a relevant group.

(2) In this Chapter “group entity” and “minimum consolidated requirement” have the same meaning for the relevant group as they have for a relevant group in Chapter 2.

Joint determination of minimum consolidated requirement U.K.

131.—(1) The Bank must endeavour within the college to determine the minimum consolidated requirement [F17 for each resolution group] jointly with the group-level resolution authority M4 and other resolution authorities for group entities.

(2) The Bank must endeavour to make that determination within four months beginning with the date on which the group-level resolution authority gives the Bank notice of its provisional determination of the minimum consolidated requirement.

(3) The Bank may, within that period, refer any matter relating to the prospective determination of the minimum consolidated requirement to EBA in accordance with Article 19 of the EBA Regulation.

Textual Amendments

F17 Words in art. 131(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 52

Marginal Citations

M4 For the meaning of “group-level resolution authority” see the recovery and resolution directive, Article 2.1, point (44).

Review of minimum consolidated requirement U.K.

132.—(1) This article applies where the group-level resolution authority reviews the group resolution plan.

(2) Article 131 applies for the purpose of reviewing the minimum consolidated requirement, but has effect for that purpose as if the reference to determining (and each reference to the determination of) the requirement were a reference to re-determining (or the re-determination of) the requirement on review.

CHAPTER 4 U.K. Determination of minimum requirements for group institutions where the PRA or FCA is the consolidating supervisor

Application and interpretation of Chapter 4 U.K.

133.—(1) This Chapter applies where the PRA or FCA is the consolidating supervisor in relation to a relevant group.

(2) In this Chapter—

“four month period”, “group entity” and “minimum requirement” have the same meaning for the relevant group as they have for a relevant group in Chapter 2;

“group institution” means a UK institution or a non-UK institution;

“minimum consolidated requirement” means the minimum consolidated requirement (within the meaning given in Chapter 2) which is determined for the relevant group;

“netting arrangement” has the same meaning as in Chapter 2;

“non-UK institution” means—

(a)

the EEA parent undertaking, if it is a relevant institution set up in another EEA State;

(b)

a group subsidiary which is a relevant institution set up in another EEA State;

(c)

a group entity, other than an institution, which is required by a resolution authority other than the Bank to maintain a minimum requirement for own funds and eligible liabilities; and

“UK institution” means—

(a)

the EEA parent undertaking, if it is a relevant institution authorised by the PRA or FCA;

(b)

a group subsidiary which is a relevant institution authorised by the PRA or FCA.

Duties of the Bank in relation to minimum requirement U.K.

134.—(1) The Bank must exercise the powers conferred by section 3A of the Banking Act 2009—

(a) to ensure that a UK institution is required at all times to maintain a minimum requirement; and

(b) with the object of ensuring that at all times the institution meets the minimum requirement specified in a direction given for that purpose.

(2) Where the relevant group includes a non-UK institution, the Bank must—

(a) make a provisional determination of the minimum requirement for each UK institution;

(b) give notice of that provisional determination to the resolution authority for the non-UK institution;

(c) endeavour within the college to determine jointly with that resolution authority the minimum requirements for each UK institution and the non-UK institution.

(3) The Bank must inform EBA of the minimum requirement determined for each UK institution.

Determination of minimum requirement U.K.

135.—(1) This article applies for the purpose of determining the minimum requirement for a group institution.

(2) The amount of the institution's total liabilities must include total liabilities under any derivative contracts held by the institution.

(3) An assessment of total liabilities under a derivative contract must take account of the rights of the parties to the contract to set off or net under a netting arrangement.

(4) [F18 An eligible liability must be excluded] from the amount of the institution's [F19 own funds and eligible liabilities] if—

(a) the instrument that creates the liability is not issued or fully paid up;

(b) the liability is owed to, or secured or guaranteed by, the institution itself;

(c) the purchase of the instrument that creates the liability was funded directly or indirectly by the institution itself;

(d) the liability has a remaining maturity of less than one year;

(e) the liability arises from a derivative contract held by the institution;

(f) the liability arises from a deposit in respect of which the depositor's rights, in any proceedings relating to the insolvency of the institution, would be preferred to the rights of other creditors; or

(g) the instrument that creates the liability is governed by the law of a third country and the Bank is not satisfied that a decision by the Bank to convert or write down the liability would be effective under that law.

(5) For the purpose of paragraph (4)(d), where the instrument that creates the liability confers on a party to the instrument a right to the repayment of a sum before maturity, the maturity date is the first date on which that party would become entitled to repayment if the right were exercised.

(6) The determination—

(a) must be based on an assessment of the criteria set out in [F20 article 126(8)(a)]; and

(b) must take account of the minimum consolidated requirement.

(7) Where the determination is for a UK institution, the Bank must make the assessment under paragraph (6)(a) in consultation with—

(a) the PRA, if the institution is a PRA-authorised person;

(b) the FCA, if the institution is any other UK authorised person.

Textual Amendments

F18 Words in art. 135(4) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(a)

F19 Words in art. 135(4) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(b)

F20 Words in art. 135(6)(a) substituted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 53

Joint determination of minimum requirements U.K.

136.—(1) Where the Bank endeavours to determine minimum requirements for group institutions jointly with one or more other resolution authorities under article 134(2)(c), it must endeavour to make the determination within the four month period.

(2) Where the Bank and other resolution authorities are unable within the four month period to make a joint determination of minimum requirements for group institutions, the Bank must determine the minimum requirements for UK institutions.

(3) The Bank must give the EEA parent undertaking and each UK institution written notice of the determination of the institution's minimum requirement, including a reasoned account of the determination.

References to EBA: determination of minimum requirement U.K.

137.—(1) The Bank may, within the four month period, refer any matter relating to the prospective determination of a minimum requirement for a non-UK institution to EBA in accordance with Article 19 of the EBA Regulation.

(2) Paragraph (1) does not apply where a prospective determination is within one percentage point of the minimum consolidated requirement.

Review of minimum requirements U.K.

138.—(1) The Bank must review the minimum requirements for group institutions when, in accordance with Chapter 4 of Part 5, it reviews the group resolution plan.

(2) Articles 134 to 137 apply for the purpose of the review, but have effect for that purpose as if each reference to determining (or the determination of) a minimum requirement were a reference to re-determining (or the re-determination of) the requirement on review.

Minimum requirement for other group entities set up in the United Kingdom U.K.

139.—(1) The Bank may decide, after consulting the regulator, that a group entity, other than a UK institution, set up in the United Kingdom should be required to maintain a minimum requirement for own funds and eligible liabilities F21 ....

(2) Where the Bank makes a such decision, articles 134 to 138 apply for the purpose of determining and reviewing the requirement and ensuring that the requirement is maintained and met, but have effect for that purpose as if each reference to an institution, except a reference to a non-UK institution, included a reference to the group entity for which the requirement is being (or has been) determined.

(3) In this article “the regulator”—

(a) where there is a PRA-authorised person and any other UK authorised person in the relevant group, means the PRA and the FCA;

(b) where there is a PRA-authorised person and no other UK authorised person in the relevant group, means the PRA;

(c) where there is no PRA-authorised person in the relevant group, means the FCA.

Textual Amendments

F21 Words in art. 139(1) omitted (28.12.2020) by virtue of The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 54

CHAPTER 5 U.K. Determination of minimum requirements for group institutions where neither the PRA nor the FCA is the consolidating supervisor

Application and interpretation of Chapter 5 U.K.

140.—(1) This Chapter applies where neither the PRA nor the FCA is the consolidating supervisor in relation to a relevant group.

(2) In this Chapter—

“four month period” means four months beginning with the date on which the group-level resolution authority gives the Bank notice of its provisional determination of the minimum consolidated requirement as referred to in article 131(2);

“group entity” and “minimum requirement” have the same meaning for the relevant group as they have for a relevant group in Chapter 2;

“group institution”, “non-UK institution” and “UK institution” have the same meaning for the relevant group as they have for a relevant group in Chapter 4; and

“netting arrangement” has the same meaning as in Chapter 2.

Duties of the Bank in relation to minimum requirement U.K.

141.—(1) The Bank must exercise the powers conferred by section 3A of the Banking Act 2009—

(a) to ensure that a UK institution is required at all times to maintain a minimum requirement; and

(b) with the object of ensuring that at all times the institution meets the minimum requirement specified in a direction given for that purpose.

(2) The Bank must—

(a) make a provisional determination of the minimum requirement for each UK institution;

(b) give notice of that provisional determination to the group-level resolution authority and other resolution authorities for non-UK institutions;

(c) endeavour within the college to determine jointly with those authorities the minimum requirements for each UK institution and each non-UK institution.

(3) The Bank must inform EBA of the minimum requirement determined for each UK institution.

Determination of minimum requirement U.K.

142.—(1) This article applies for the purpose of determining the minimum requirement for a group institution.

(2) The amount of the institution's total liabilities must include total liabilities under any derivative contracts held by the institution.

(3) An assessment of total liabilities under a derivative contract must take account of the rights of the parties to the contract to set off or net under a netting arrangement.

(4) [F22 An eligible liability must be excluded] from the amount of the institution's [F23 own funds and eligible liabilities] if—

(a) the instrument that creates the liability is not issued or fully paid up;

(b) the liability is owed to, or secured or guaranteed by, the institution itself;

(c) the purchase of the instrument that creates the liability was funded directly or indirectly by the institution itself;

(d) the liability has a remaining maturity of less than one year;

(e) the liability arises from a derivative contract held by the institution;

(f) the liability arises from a deposit in respect of which the depositor's rights, in any proceedings relating to the insolvency of the institution, would be preferred to the rights of other creditors; or

(g) the instrument that creates the liability is governed by the law of a third country and the Bank is not satisfied that a decision by the Bank to convert or write down the liability would be effective under that law.

(5) For the purpose of paragraph (4)(d), where the instrument that creates the liability confers on a party to the instrument a right to the repayment of a sum before maturity, the maturity date is the first date on which that party would become entitled to repayment if the right were exercised.

(6) The determination—

(a) must be based on an assessment of the criteria set out in Article 45.6 of the recovery and resolution directive [F24 as it had originally had legal effect]; and

(b) must take account of the minimum consolidated requirement (within the meaning given in Chapter 2) which is determined for the relevant group.

(7) Where the determination is for a UK institution, the Bank must make the assessment under paragraph (6)(a) in consultation with—

(a) the PRA, if the institution is a PRA-authorised person;

(b) the FCA, if the institution is any other UK authorised person.

Textual Amendments

F22 Words in art. 142(4) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(a)

F23 Words in art. 142(4) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 41(14)(b)

F24 Words in art. 142(6)(a) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 55

Joint determination of minimum requirements U.K.

143.—(1) Where the Bank endeavours to determine minimum requirements for group institutions jointly with one or more other resolution authorities under article 142(2)(c), it must endeavour to make the determination within the four month period.

(2) Where the Bank and other resolution authorities are unable within the four month period to make a joint determination of minimum requirements for group institutions, the Bank must determine the minimum requirements for UK institutions having regard to any views or reservations expressed by the group-level resolution authority during the four month period.

(3) The Bank must give each UK institution written notice of the determination of its minimum requirement, including a reasoned account of the determination.

References to EBA: determination of minimum requirement U.K.

144.—(1) Where, before the end of the four month period, the group-level resolution authority has referred any matter relating to the prospective determination of a minimum requirement for a UK institution to EBA in accordance with Article 19 of the EBA Regulation, the Bank must—

(a) defer the determination for one month beginning with the date on which the four month period ends; and

(b) ensure that the requirement determined is not less than the requirement specified in any decision taken by EBA before the end of that month under Article 19.3 of the EBA Regulation.

(2) For the purposes of a reference to EBA of a matter to which this article refers the four month period is deemed to be the conciliation phase referred to in Article 19.2 of the EBA Regulation.

Review of minimum requirements U.K.

145.—(1) This article applies where the group-level resolution authority reviews the group resolution plan.

(2) Articles 141 to 144 apply for the purpose of reviewing the minimum requirements for group institutions, but have effect for that purpose as if the reference to determining (and each reference to the determination of) the requirements were a reference to re-determining (or the re-determination of) the requirements on review.

Minimum requirement for other group entities set up in the United Kingdom U.K.

146.—(1) The Bank may decide, after consulting the regulator (within the meaning given by article 139(3)), that a group entity, other than an institution, set up in the United Kingdom should be required to maintain a minimum requirement for own funds and eligible liabilities F25 ....

(2) Where the Bank makes a such decision, articles 141 to 145 apply for the purpose of determining and reviewing the requirement and ensuring that the requirement is maintained and met, but have effect for that purpose as if each reference to an institution, except a reference to a non-UK institution, included a reference to the group entity for which the requirement is being (or has been) determined.

Textual Amendments

F25 Words in art. 146(1) omitted (28.12.2020) by virtue of The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 54

CHAPTER 6 U.K. Minimum requirement for own funds and eligible liabilities: other provisions

Waiver of application of Chapter 4 or 5 U.K.

147.—(1) This article applies in relation to a relevant group.

(2) The Bank may waive the application of Chapter 4 or 5 in relation to an EEA parent institution which is a UK institution where it—

(a) complies with the minimum consolidated requirement determined in accordance with Chapter 2 or 3; and

(b) benefits from the exercise of the discretion laid down in Article 7.3 of the capital requirements regulation.

(3) The Bank may waive the application of Chapter 4 or 5 in relation to a UK institution which is a group subsidiary where—

(a) both the institution and its parent undertaking are UK authorised persons;

(b) the supervision of the institution by the PRA or FCA (“the regulator”) is part of the supervision on a consolidated basis of the parent undertaking in accordance with Article 111 of the capital requirements directive M5 ;

(c) the highest level UK institution in the relevant group, if that is not the EEA parent institution, complies on a sub-consolidated basis with the minimum consolidated requirement determined in accordance with Chapter 2 or 3;

(d) there is no legal or other material impediment, whether actual or foreseeable, to the prompt transfer of own funds or repayment of liabilities by the parent undertaking to the institution;

(e) either—

(i) the parent undertaking has satisfied the regulator that no significant risks arise from the institution's operations; or

(ii) the parent undertaking has satisfied the regulator that the institution is prudently managed, and has declared, with the consent of the regulator, that it guarantees the institution's commitments;

(f) the institution is covered by the risk evaluation, measurement and control procedures of the parent undertaking;

(g) the parent undertaking holds more than 50 per cent. of the voting rights attached to shares in the capital of the institution or has the right to appoint or remove the majority of the members of the institution's management body (within the meaning given by point (7) of Article 3.1 of the capital requirements directive); and

(h) the institution benefits from the exercise of the discretion laid down in Article 7.1 of the capital requirements regulation.

(4) In this article—

“parent undertaking”, in relation to a UK institution, means an undertaking which is a parent undertaking of the institution and has no other subsidiary which is also a parent undertaking of the institution; and

“UK institution” means an institution which is authorised by the PRA or FCA and is not a mortgage credit institution within the meaning given in Chapter 1.

Marginal Citations

M5 OJ No. L 176, 27.6.2013, p. 338. For corrigenda see OJ No. L 208, 2.8.2013, p. 73.

Meeting minimum requirement through contractual bail-in instruments etc U.K.

148.—(1) This article applies where—

(a) a minimum requirement is determined in accordance with Chapter 1 for an institution authorised by the PRA or FCA;

(b) a minimum requirement is determined in accordance with Chapter 4 or 5 for an undertaking set up in the United Kingdom; or

(c) a minimum consolidated requirement is determined in accordance with Chapter 2 or 3 for a relevant group.

(2) The Bank may determine that a minimum requirement or minimum consolidated requirement to which this article applies must be met partially through contractual bail-in instruments or composed wholly or partially of own funds or a specified kind of liability.

(3) In this article “contractual bail-in instrument” means an instrument which —

(a) contains a contract term that where the Bank decides to apply the stabilisation option referred to in paragraph (c) of section 1(3) of the Banking Act 2009 M6 (the bail-in option) in respect of the institution, undertaking or relevant group concerned, the instrument is to be written down or converted to the extent required before other eligible liabilities are written down or converted; and

(b) is subject to a binding subordination agreement, undertaking or provision under which, in the event that normal insolvency proceedings are commenced, the instrument ranks below other eligible liabilities and cannot be repaid until other eligible liabilities outstanding on the date of commencement of the insolvency proceedings have been repaid.

Marginal Citations

M6 Section 1(3) was substituted by the Financial Services (Banking Reform) Act 2013, Schedule 2, paragraphs 1 and 12(1) and (3); and was amended by S.I. 2014/3329.