Decision (EU) 2019/1376 of the European Central Bank

of 23 July 2019

on delegation of the power to adopt decisions on passporting, acquisition of qualifying holdings and withdrawal of authorisations of credit institutions (ECB/2019/23)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions1, and in particular Article 4(1)(a), (b), (c) and (d), and Articles 4(3), 6(4), 14(3), 14(5), 15(3), and 17(1) thereof,
Having regard to Decision (EU) 2017/933 of the European Central Bank of 16 November 2016 on a general framework for delegating decision-making powers for legal instruments related to supervisory tasks (ECB/2016/40)2, and in particular Article 4 thereof,

Whereas:

(1)

Within the framework of Article 6 of Regulation (EU) No 1024/2013, the European Central Bank (ECB) carries out the exclusive task to supervise credit institutions with the aim to ensure a consistent application of supervisory standards, to foster financial stability and to ensure a level playing field.

(2)

Pursuant to Article 4(1)(a) of Regulation (EU) No 1024/2013, the ECB is exclusively competent to withdraw authorisations of credit institutions established in the participating Member States.

(3)

Pursuant to Article 4(1)(c) of Regulation (EU) No 1024/2013, the ECB is exclusively competent to assess notifications of the acquisition and disposal of qualifying holdings in credit institutions, except in the case of a bank resolution.

(4)
Pursuant to Article 4(1)(b) of Regulation (EU) No 1024/2013, the ECB is exclusively competent to carry out, for prudential supervisory purposes, the tasks which the competent authority of the home Member State has under the relevant Union law for significant credit institutions established in a participating Member State, which wish to establish a branch or provide cross-border services in a non-participating Member State. In addition, under Article 17(1) of Regulation (EU) No 1024/2013 and under Article 11(1) and (3) of Regulation (EU) No 468/2014 of the European Central Bank (ECB/2014/17)3, any significant supervised entity wishing to establish a branch within the territory of another participating Member State must notify the national competent authority of the participating Member State where the significant supervised entity has its head office, of its intention. Under Article 11(3) of Regulation (EU) No 468/2014 (ECB/2014/17), where no decision to the contrary is taken by the ECB within two months of receipt of that notification, the branch may be established and commence its activities.
(5)
Pursuant to Article 4(1)(b) and (d) of Regulation (EU) No 1024/2013 in conjunction with Article 34(1)(d) of Directive 2013/36/EU of the European Parliament and of the Council4, the ECB is exclusively competent to carry out the task, which the competent authority of the home Member State has under relevant Union law, of granting consent to a (significant) credit institution that has declared its intention to jointly and severally guarantee the commitments entered into by its subsidiary financial institution, which intends to carry out activities listed in Annex I of Directive 2013/36/EU in a participating Member State or in another Member State, either by establishing a branch or by providing services.
(6)
The ECB, as the competent authority, is required to adopt a substantial number of decisions on passporting, acquisitions of qualifying holdings and withdrawals of authorisations of credit institutions each year. To facilitate the decision-making process, a delegation decision is necessary in relation to the adoption of such decisions which the ECB has to take on a regular basis and which entail only limited discretion. The Court of Justice of the European Union has recognised delegation of authority to be necessary to enable an institution required to adopt a considerable number of decisions to perform its duties. Similarly, it has recognised the need to ensure that decision-making bodies are able to function as a principle inherent to all institutional systems5.
(7)

Delegation of decision-making powers should be limited and proportionate, and the scope of the delegation should be clearly defined.

(8)

Decision (EU) 2017/933 (ECB/2016/40) specifies the procedure to be followed for adopting delegation decisions concerning supervision and the persons who may be delegated decision-making powers. That Decision does not affect the ECB's exercise of its supervisory tasks and is without prejudice to the Supervisory Board's competence to propose complete draft decisions to the Governing Council.

(9)
Where the criteria for the adoption of a delegated decision, as laid down in this Decision, are not met, decisions should be adopted in accordance with the non-objection procedure set out in Article 26(8) of Regulation (EU) No 1024/2013 and further specified in Article 13g of Decision ECB/2004/26. Furthermore, the non-objection procedure should also be used if the heads of work units have concerns regarding the fulfilment of assessment criteria due to the complexity of the assessment.
(10)
ECB supervisory decisions may be subject to administrative review pursuant to Article 24 of Regulation (EU) No 1024/2013 and as further specified in Decision ECB/2014/167. In the event of such administrative review, the Supervisory Board should take into account the opinion of the Administrative Board of Review and submit a new draft decision to the Governing Council for adoption under the non-objection procedure,

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