Commission Delegated Regulation (EU) 2016/1075Show full title

SECTION III Joint decision process on minimum requirements for own funds and eligible liabilities

Subsection 1 Joint decision process

Article 86 Planning of the joint decision on minimum requirements for own funds and eligible liabilities

1. Prior to the initiation of the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level, the group-level resolution authority and the resolution authorities of subsidiaries shall agree on a timetable of steps to be followed in that process (hereinafter ‘minimum requirements for own funds and eligible liabilities joint decision timetable’).

In case of disagreement, the group-level resolution authority shall set the minimum requirements for own funds and eligible liabilities joint decision timetable after considering the views and reservations expressed by the resolution authorities of subsidiaries.

For the purpose of taking in parallel the joint decision on minimum requirements with the development and maintenance of the group resolution plan as required by Article 45(15) of Directive 2014/59/EU, the minimum requirements for own funds and eligible liabilities joint decision timetable shall be organised taking into account the timetable for the joint decision on group resolution plan and resolvability assessment.

In particular, the group-level resolution authority and the resolution authorities of subsidiaries shall consider that the four-month period for the reach of the joint decision on minimum requirements for own funds and eligible liabilities starts at the same time as the joint decision on group resolution plan and resolvability assessment.

2. The minimum requirements for own funds and eligible liabilities joint decision timetable shall be updated on a regular basis and shall include at least the following steps:

(a) submission of the group-level resolution authority's proposal on the minimum requirements for own funds and eligible liabilities at consolidated and parent entity level to the resolution authorities of subsidiaries and to the consolidating supervisor;

(b) submission of resolution authorities of subsidiaries' proposals on the minimum requirements for own funds and eligible liabilities for the entities under their jurisdiction at individual level to the group-level resolution authority and the respective competent authorities;

(c) dialogue between the group-level resolution authority and the resolution authorities of subsidiaries on the proposed minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level, as well as with the resolution authorities of jurisdictions where significant branches are established;

(d) preparation and submission by the group-level resolution authority of the draft joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level to the resolution authorities of subsidiaries;

(e) dialogue on the draft joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level with the Union parent undertaking and the subsidiaries of the group, where required by the legislation of a Member State;

(f) reaching the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level;

(g) communication of the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and subsidiary level to the Union parent undertaking.

3. The minimum requirements for own funds and eligible liabilities joint decision timetable shall:

(a) reflect the scope and complexity of each step of the joint decision process;

(b) take into account the timetable of other joint decisions organised within the resolution college;

(c) take into account, to the extent possible, the timetable of other joint decisions organised within the relevant supervisory college, in particular the timetable of the joint decisions on institution-specific prudential requirements in accordance with Article 113 of Directive 2013/36/EU;

The minimum requirements for own funds and eligible liabilities joint decision timetable shall be reviewed in light of and reflect the outcome of the resolvability assessment, especially when that assessment results in measures to remove or address substantive impediments to resolvability that may have immediate effect on the minimum requirements for own funds and eligible liabilities at consolidated or entity level.

4. When drafting the minimum requirements for own funds and eligible liabilities joint decision timetable, the group-level resolution authority shall have regard to the terms and conditions of the observers' participation as set out in the resolution college written arrangements and in the respective provisions of Directive 2014/59/EU.

5. The group-level resolution authority and the resolution authorities of subsidiaries shall communicate to the Union parent undertaking and the entities of the group for which they are respectively responsible an indicative date for the dialogue referred to in paragraph 2(e), where relevant.

6. The group-level resolution authority and the resolution authorities of subsidiaries shall communicate to the Union parent undertaking and the entities of the group for which they are respectively responsible an estimated date for the communication referred to in paragraph 2(g).

Article 87 Proposal at consolidated and Union parent undertaking level

1. The group-level resolution authority shall communicate to the resolution authorities of subsidiaries and the consolidating supervisor its proposal on:

(a) the minimum requirement for own funds and eligible liabilities to be met, at all times, by the Union parent undertaking, unless use of waiver has been granted in accordance with Article 45(11) of Directive 2014/59/EU;

(b) the minimum requirement for own funds and eligible liabilities applied at consolidated level.

2. The proposal referred to in paragraph 1 shall be reasoned, especially with regard to the assessment criteria referred to in points (a) to (f) of Article 45(6) of Directive 2014/59/EU.

3. The group-level resolution authority shall indicate a time limit for receipt of reasoned written comments by the consolidating supervisor, especially with regard to the assessment criteria referred to in points (a) to (f) of Article 45(6) of Directive 2014/59/EU. Where the consolidating supervisor does not provide any comments within the time limit set, the group-level resolution authority shall presume that the consolidating supervisor does not have any comments on its proposal under paragraph 1.

4. The group-level resolution authority shall provide as soon as possible to the resolution authorities of subsidiaries any comments submitted by the consolidating supervisor.

Article 88 Proposal at subsidiary level

1. The resolution authorities of subsidiaries shall communicate to the group-level resolution authority and the respective competent authorities their proposal on the minimum requirement for own funds and eligible liabilities to be met, at all times, by the group's subsidiaries on an individual basis, unless use of waivers has been granted in accordance with Article 45(12) of Directive 2014/59/EU.

2. The proposal referred to in paragraph 1 shall be reasoned, especially with regard to the assessment criteria referred to in points (a) to (f) of Article 45(6) of Directive 2014/59/EU.

3. The resolution authorities of subsidiaries shall agree with the group-level resolution authority and indicate a time limit for receipt of written and fully reasoned comments from the competent authorities in their jurisdiction, especially with regard to the assessment criteria referred to in points (a) to (f) of Article 45(6) of Directive 2014/59/EU. Where the competent authorities do not provide any comments within that time limit set, the resolution authorities of the subsidiaries shall presume that these competent authorities do not have any comments on the respective proposals under paragraph 1.

4. The resolution authorities of subsidiaries shall provide as soon as possible to the group-level resolution authority any comments submitted by the competent authorities.

Article 89 Dialogue on the proposed minimum requirements for own funds and eligible liabilities

1. The group-level resolution authority shall organise a dialogue with the resolution authorities of subsidiaries on the proposed minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level.

2. The group-level resolution authority and the resolution authorities of subsidiaries shall discuss the reconciliation of the proposed minimum requirements for own funds and eligible liabilities at consolidated level with the proposed requirements at the level of the parent and of each subsidiary.

Article 90 Drafting the joint decision on minimum requirements for own funds and eligible liabilities

1. The group-level resolution authority shall prepare a draft joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level, taking into account the use of waivers, if any, under Article 45(11) or (12) of Directive 2014/59/EU. The draft joint decision shall set out all of the following items:

(a) the names of the group-level resolution authority and the resolution authorities of subsidiaries reaching the joint decision on the minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level;

(b) the names of the consolidating supervisor and other competent authorities that have been consulted;

(c) the names of the observers where those observers were involved in the joint decision process in accordance with the terms and conditions of observers' participation as noted in the written arrangements;

(d) the name of the Union parent undertaking and the group entities to which the joint decision relates and applies;

(e) the references to the applicable Union and national law relating to the preparation, finalisation and reach of the joint decision; references to any additional criteria provided by the Member States on the basis of which the minimum requirement for own funds and eligible liabilities shall be determined;

(f) the date of the draft joint decision, and of any relevant update thereto;

(g) the minimum requirement on own funds and eligible liabilities at consolidated level, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

(h) the minimum requirement on own funds and eligible liabilities at the level of the Union parent undertaking, unless use of waivers in accordance with Article 45(11) of Directive 2014/59/EU is granted, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

(i) the minimum requirement on own funds and eligible liabilities at each subsidiary on an individual basis, unless use of waivers in accordance with Article 45(12) of Directive 2014/59/EU has been granted, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU.

2. Where the decision that relates to the minimum requirement on own funds and eligible liabilities provides that this is partially met at consolidated or individual level for the Union parent undertaking or any of the group's subsidiaries through contractual bail-in instruments, the decision shall also include details demonstrating the satisfaction of the resolution authorities that the instruments qualify as contractual bail-in instruments in accordance with the criteria set out in Article 45(14) of Directive 2014/59/EU.

Article 91 Reaching the joint decision on minimum requirements for own funds and eligible liabilities

1. The group-level resolution authority shall send the draft joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level to the resolution authorities of subsidiaries without undue delay setting a time limit for the resolution authorities of subsidiaries to provide their written agreement, to that joint decision, which may be sent by electronic means of communication.

2. Upon receipt of the draft joint decision the resolution authorities of subsidiaries not disagreeing with it shall transmit their written agreement to the group-level resolution authority within the time limit set out in paragraph 1.

3. The final joint decision shall consist of the joint decision document drafted in accordance with Article 90 and of the written agreements referred to in paragraph 2 of this Article and the one of the group-level resolution authority attached thereto and shall be provided to the resolution authorities of subsidiaries agreeing with the joint decision by the group-level resolution authority.

4. The group-level resolution authority shall communicate the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level to the resolution college.

Article 92 Communication of the joint decision on minimum requirements for own funds and eligible liabilities

1. The group-level resolution authority shall communicate the joint decision to the management body of the Union parent undertaking in a timely manner and in any event before the time limit specified in the joint decision timetable pursuant to Article 86(3)(g). The group-level resolution authority shall inform the resolution authorities of subsidiaries about this communication.

2. The resolution authorities of subsidiaries shall provide to the management bodies of the entities under their jurisdiction the respective parts of the joint decision, in a timely manner and in any event within the time limit specified in the joint decision timetable pursuant to Article 86(3)(g).

3. The group-level resolution authority may discuss details of the content and the application of the joint decision with the Union parent undertaking.

4. The resolution authorities of subsidiaries may discuss details of the content and the application of the respective parts of the joint decision with the entities under their jurisdictions.

Article 93 Monitoring the application of the joint decision on minimum requirements for own funds and eligible liabilities

1. The group-level resolution authority shall communicate the outcome of the discussion referred to in Article 92(3) to resolution authorities of subsidiaries where the Union parent undertaking is required to take specific actions in order to meet the minimum requirement for own funds and eligible liabilities at consolidated or individual basis.

2. The resolution authorities of subsidiaries shall communicate the outcome of the discussion referred to in Article 92(4) to the group-level resolution authority where the group's subsidiaries under their jurisdiction are required to take specific actions in order to meet the minimum requirement for own funds and eligible liabilities at consolidated or individual basis.

3. The group-level resolution authority shall forward the outcome of the process referred to in paragraph 2 to the other resolution authorities of subsidiaries.

4. The group-level resolution authority and the resolution authorities of subsidiaries shall monitor the application of the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level, for all entities of the group subject to the joint decision, and at consolidated level.

Subsection 2 Process in the absence of a joint decision at consolidated level

Article 94 Joint decisions taken at each subsidiary level in the absence of a joint decision at consolidated level

In the absence of a joint decision at consolidated or parent entity level in accordance with Article 45(9) of Directive 2014/59/EU, the group-level resolution authority and the resolution authorities of subsidiaries shall endeavour to reach a joint decision on the level of the minimum requirement of own funds and eligible liabilities to be applied to each respective subsidiary at individual level.

The joint decision shall take into account the minimum requirement on own funds and eligible liabilities set at consolidated and parent entity level by the group-level resolution authority, and shall follow all steps, other than the ones concerning setting up the minimum requirements for own funds and eligible liabilities at consolidated or parent entity level, of Articles 90 to 93, for drafting, reaching, communicating and monitoring the application of the joint decision on the level of the minimum requirement of own funds and eligible liabilities to be applied to each respective subsidiary at an individual level.

Article 95 Elements of communication of individual decisions

1. In the absence of a joint decision, the decision on the minimum requirements for own funds and eligible liabilities at consolidated and parent entity level taken by the group-level resolution authority shall be communicated in writing to the resolution college members by means of a document that contains all of the following items:

(a) the name of the group-level resolution authority;

(b) the name of the Union parent undertaking and the names of other entities in that jurisdiction to which the joint decision applies;

(c) references to the applicable Union and national law relating to the preparation, finalisation and application of the decision and in particular references to any additional criteria provided by the Member State, in which the Union parent undertaking is authorised, on the basis of which the minimum requirement for own funds and eligible liabilities are determined;

(d) the date of the decision;

(e) the minimum requirement on own funds and eligible liabilities at consolidated level, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level, having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

(f) the minimum requirement on own funds and eligible liabilities at the level of the Union parent undertaking, unless use of waivers in accordance to Article 45(11) is granted, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level, having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

(g) the names of the resolution college members and observers involved, in accordance with the terms and conditions of observers' participation, in the joint decision process, along with a summary of the views expressed by those authorities and information on issues leading to disagreement;

(h) comments of the group-level resolution authority on the views expressed by the resolution college members and observers, in particular on issues leading to disagreement;

(i) where the decision that relates to the minimum requirement on own funds and eligible liabilities provides that such requirement is partially met at consolidated or individual level for the Union parent undertaking through contractual bail-in instruments, the decision shall also include details demonstrating the satisfaction of the group-level resolution authority that the instruments qualify as a contractual bail-in instruments in accordance to the criteria set in Article 45(14) of Directive 2014/59/EU.

2. In the absence of a joint decision, the resolution authorities of subsidiaries taking their own decisions on the minimum requirement of own funds and eligible liabilities at individual level shall transmit to the group-level resolution authority a document that contains all of the following items:

(a) the name of the resolution authority of the subsidiary taking the decision;

(b) the name of the group's subsidiaries under its jurisdiction to which the decision relates and applies;

(c) references to the applicable Union and national law relating to the preparation, finalisation and application of the decision and in particular, references to any additional criteria provided by the Member States, in which those group's subsidiaries are authorised, on the basis of which the minimum requirement for own funds and eligible liabilities are determined;

(d) the date of the decision;

(e) the minimum requirement on own funds and eligible liabilities to be applied to the subsidiary at individual level, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

(f) the name of the group-level resolution authority along with a summary of the views it expressed and information on issues leading to disagreement;

(g) comments of the resolution authority of the subsidiary on the views expressed by the group-level resolution authority, in particular on issues leading to disagreement;

(h) where the decision that relates to the minimum requirement on own funds and eligible liabilities provides that such requirement is partially met at the subsidiary level through contractual bail-in instruments, the decision shall also include details demonstrating the satisfaction of the respective resolution authority of the subsidiary that the instruments qualify as a contractual bail-in instruments in accordance to the criteria set in Article 45(14) of Directive 2014/59/EU.

3. Where the EBA has been consulted, the decisions taken in the absence of a joint decision shall include an explanation as to why the advice of the EBA was not followed.

Article 96 Communication of individual decisions in the absence of joint decision

1. In the absence of a joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level between the group-level resolution authority and the resolution authorities of subsidiaries within the time period referred to in Article 45(9) or (10) of Directive 2014/59/EU, all decisions taken shall be communicated in writing by the relevant resolution authorities of subsidiaries to the group-level resolution authority by the latest of the following dates:

(a) the date one month after the expiry of the time period referred to in Article 45(9) or (10) of Directive 2014/59/EU, as applicable;

(b) the date one month after the provision of any advice by the EBA following a request for consultation in accordance with the second subparagraph of Article 18(5) of Directive 2014/59/EU;

(c) the date one month after any decision taken by the EBA in accordance with the third subparagraph of Article 45(9) or the fifth subparagraph of Article 45(10) of Directive 2014/59/EU or any other date set by the EBA in such a decision.

2. The group-level resolution authority shall communicate without undue delay its own decision and the decisions referred to in paragraph 1 to the other resolution college members.