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

SECTION IV Cross-border group resolution

Subsection 1 Decision on the need for a group resolution scheme under Articles 91 and 92 of Directive 2014/59/EU

Article 97 Process for deciding on the need for a group resolution scheme

The process for the assessment of the need for a group resolution scheme shall comprise the following steps to be implemented:

(1)

dialogue, where possible, on the need for a group resolution scheme and for mutualising financing arrangements;

(2)

draft assessment or draft decision on the need for a group resolution scheme by the group-level resolution authority and communication to the members of the resolution college;

(3)

consultation on the draft assessment or draft decision on the need for a group resolution scheme among the members of the resolution college;

(4)

finalisation of the assessment or the decision on the need for a group resolution scheme and communicating to the resolution college.

Article 98 Dialogue on the need for a group resolution scheme

1. After receiving the notification referred to in point (a) or (h) of Article 81(3) of Directive 2014/59/EU, the group-level resolution authority shall endeavour to organise a dialogue in accordance with paragraphs 2 and 3 of this Article involving at least those members of the college who are the resolution authorities of the subsidiaries.

2. For the purposes of paragraph 1, the group-level resolution authority shall transmit the following information to the members:

(a) the notification received;

(b) its proposal on the topics referred to in paragraph 3;

(c) the time limit by which the dialogue should be concluded.

3. The dialogue shall concern the following:

(a) whether, in accordance with Article 91 or 92 of Directive 2014/59/EU, the resolution of the subsidiary, or of the Union parent undertaking respectively, would have group dimensions and would require the drawing up of a group resolution scheme;

(b) whether the financing plan shall be based on mutualisation of national financing arrangements in accordance with Article 107 of Directive 2014/59/EU.

Article 99 Preparation and communication of the draft assessment or draft decision on the need for a group resolution scheme

1. For the purposes of assessing the need for a group resolution scheme in the context of paragraphs 1 to 4 of Article 91 of Directive 2014/59/EU, the group-level resolution authority shall prepare its draft assessment following receipt of the notification referred to in Article 91(1) of that Directive.

2. For the purposes of deciding that a group resolution scheme is not needed, as referred to in Article 92(2) of Directive 2014/59/EU, the group-level resolution authority shall prepare its draft decision after assessing that the Union parent undertaking meets the conditions referred to in Articles 32 and 33 of that Directive and that none of the conditions referred to in points (a) to (d) of Article 92(1) of Directive 2014/59/EU applies.

3. The group-level resolution authority shall take into account the outcome of the dialogue, where applicable, for preparing the draft assessment or decision.

4. The group-level resolution authority shall provide its draft assessment or decision to the resolution college setting out:

(a) for the purposes of Article 91 of Directive 2014/59/EU, its opinion on the likely impact of the notified resolution actions or of the insolvency measures on the group and on group entities in other Member States, and, in particular, whether the resolution actions or the other measures would make it likely that the conditions for resolution would be satisfied in relation to a group entity in another Member State;

(b) for the purposes of Article 92 of Directive 2014/59/EU, its opinion on the non-applicability of any of the conditions for a group resolution scheme as referred to in Article 92(1) of that Directive taking due account of conditions referred to in paragraph 2 of that Article;

(c) its opinion on the need to mutualise the financing arrangements for the purposes of the financing plan in accordance with Article 107 of Directive 2014/59/EU.

5. The group-level resolution authority shall attach to its draft assessment or decision all relevant material information, which it has received under Article 81, 82, 91 or 92 of Directive 2014/59/EU and shall set a clear time limit by which members of the resolution college shall express concerns or views divergent from the draft assessment or decision.

6. The draft assessment or decision shall be prepared and communicated by the group-level resolution authority to the resolution college, without undue delay and, where applicable, respecting the time limit set out in Article 91 of Directive 2014/59/EU.

Article 100 Consultation on the draft assessment or decision on the need for a group resolution scheme

1. The members of the resolution college receiving the draft assessment or draft decision shall express their material diverging views or concerns, if any.

2. Material divergent views and concerns shall be clearly set out in writing, which may be submitted in electronic format, and shall be fully reasoned.

3. Material divergent views and concerns shall only be expressed, without undue delay recognising the urgency of the situation and by the set time limit.

4. Upon expiry of the time limit, the group-level resolution authority shall presume consent of the members who did not express any material divergent views or concerns.

Article 101 Finalisation of the assessment or the decision on the need for a group resolution scheme

1. Upon expiry of the time limit for consultation, and without undue delay taking into account the time limit set out in Article 91 of Directive 2014/59/EU, where applicable, the group-level resolution authority shall finalise its assessment or decision on the need for a group resolution scheme.

The final assessment or decision shall also include an opinion on the need to mutualise national financing arrangements for the purposes of the financing plan in accordance with Article 107 of Directive 2014/59/EU and it shall take into account concerns and divergent views expressed during consultation with amendments as appropriate.

2. The group-level resolution authority shall provide reasoning for the assessment or for the decision that a group resolution scheme is not needed only if material divergent views and concerns had been raised during consultation.

3. The group-level resolution authority shall provide an explanation as to why the final assessment did not follow the advice of EBA, if EBA has been consulted.

4. The group-level resolution authority shall, without undue delay, communicate its final assessment or decision to the members of the resolution college involved in the process.

5. Where it considers that a group resolution scheme is needed, the group-level resolution authority may decide not to communicate its final assessment or decision as provided for in paragraph 4 and proceed to apply the procedure for preparing the group resolution scheme set out in Article 102.

Subsection 2 Joint decision process on the group resolution scheme

Article 102 Process of the joint decision on the group resolution scheme

The process to reach a joint decision on the group resolution scheme proposed under Article 91(4) or Article 92(1) of Directive 2014/59/EU shall comprise the following steps to be implemented:

(1)

preparation of the draft group resolution scheme by the group-level resolution authority and communication to the resolution college members;

(2)

consultation on the draft group resolution scheme at least among the resolution authorities of the entities covered by the group resolution scheme;

(3)

preparation and communication of the joint decision on the group resolution scheme, by the group-level resolution authority to the resolution authorities of the subsidiaries covered by the group resolution scheme;

(4)

finalisation of the joint decision on the group resolution scheme pursuant to Article 91(7) or of Article 92(3) of Directive 2014/59/EU;

(5)

communication of the outcome of the joint decision to the resolution college members.

Article 103 Preparation and communication of the draft group resolution scheme

1. The draft group resolution scheme shall be drawn up by the group-level resolution authority in accordance with Article 91(6) of Directive 2014/59/EU and shall include the following elements:

(a) a description of the measures, if any, that need to be implemented in order to ensure that the group resolution scheme can be operationalised;

(b) a description of legal or regulatory preconditions to be fulfilled, if any, for carrying out the group resolution scheme;

(c) the time frame for executing the group resolution scheme as well as the timing and sequencing of each resolution action to be undertaken;

(d) the allocation of tasks and responsibilities for the coordination of the resolution actions, external communication and internal communication to the members of the resolution college and contact information of the members of the resolution college;

(e) a financing plan, on the basis of Article 107 of Directive 2014/59/EU, as appropriate and taking into account the need for mutualisation of the financing arrangements.

2. For the purposes of point (a) of Article 91(6) of Directive 2014/59/EU, the group-level resolution authority shall ensure that the draft group resolution scheme includes:

(a) an explanation why an alternative option to the resolution plan, pursuant to Article 13 of Directive 2014/59/EU, must be followed, including why the proposed actions are considered to more efficiently achieve the resolution objectives and principles referred to in Articles 31 and 34 of that Directive than the strategy and resolution actions provided for in the resolution plan;

(b) an identification and description of elements of the group resolution scheme which depart from the resolution plan referred to Article 13 of Directive 2014/59/EU.

3. The group-level resolution authority shall provide the draft resolution scheme to the members of the resolution college, without undue delay and with a time limit:

(a) for consultation in accordance with Article 104;

(b) for finalising the joint decision on the group resolution scheme in accordance with Article 106.

4. The group-level resolution authority shall develop and communicate the draft group resolution scheme without undue delay and taking into account the time limits of Article 91 of Directive 2014/59/EU where applicable.

5. The group-level resolution authority shall ensure that the time limits set out in paragraph 3 shall be adequate for the authorities to express their views taking into account the time limit set out in Article 91 of Directive 2014/59/EU, as applicable.

Article 104 Consultation on the group resolution scheme

1. The members of the resolution college receiving the draft group resolution scheme in accordance with Article 103(3) shall express their material diverging views or concerns, if any.

2. Material divergent views and concerns may address all aspects of the draft group resolution scheme, including:

(a) impediments, if any, in national law or otherwise to carrying out the group resolution scheme in accordance with the strategy and resolution actions;

(b) any relevant updates to the information submitted for the mutualisation of the financing arrangements that could impact carrying out the financing plan;

(c) the impact of the group resolution scheme or of the financing plan on the subsidiaries covered by the group resolution scheme in their respective Member State.

3. Material divergent views and concerns shall be clearly set out in writing, which may include electronic format, and shall be fully reasoned.

Material divergent views and concerns shall be expressed without undue delay recognising the urgency of the situation and by the time limit set in Article 103(3).

4. Upon expiry of the time limit, the group-level resolution authority shall presume that all members who did not express divergent views or concerns have agreed to the group resolution scheme.

Article 105 Preparation and communication of the joint decision on the group resolution scheme

1. Upon expiry of the time limit for consultation, the group-level resolution authority shall prepare the draft joint decision on the group resolution scheme in accordance with Articles 91 and 92 of Directive 2014/59/EU and, as applicable, Article 107 thereof.

2. For the draft joint decision, the group-level resolution authority shall consider and take into account all concerns and divergent views expressed during the consultation and it shall make amendments to the group resolution scheme as appropriate.

3. The group-level resolution authority shall provide reasoning on:

(a) how it has handled the material divergent views and concerns expressed by the resolution authorities of the subsidiaries covered by the group resolution scheme for the purposes of the draft joint decision;

(b) why and to what extent the advice of the EBA was not followed in the group resolution scheme, if a consultation with the EBA has been held.

4. The draft joint decision shall include the following elements:

(a) the names of the group-level resolution authority and the resolution authorities responsible for the subsidiaries covered by the group resolution scheme;

(b) the name of the Union parent undertaking and a list of all entities within the group to which the group resolution scheme relates to and applies;

(c) the references to the applicable Union and national law relating to the preparation, finalisation and application of the joint decision on the group resolution scheme;

(d) the date of the draft joint decision on the group resolution scheme;

(e) the final group resolution scheme, including any reasoning if needed in accordance with paragraph 3.

5. The group-level resolution authority shall send the draft joint decision on the group resolution scheme without undue delay to the resolution authorities of the entities covered by the group resolution scheme setting a time limit for providing their agreement to the joint decision on the group resolution scheme.

Article 106 Finalising the joint decision on the group resolution scheme

1. The resolution authorities receiving the joint decision in accordance with Article 105(5) and not disagreeing with it shall provide to the group-level resolution authority written evidence of their agreement, which may be sent by electronic means, before the established time limit.

2. The final joint decision on the group resolution scheme shall consist of the final joint decision and the written evidence of agreement attached thereto.

Article 107 Communication of the joint decision to the college

1. The final joint decision shall be transmitted without undue delay by the group-level resolution authority to the resolution authorities of the subsidiaries covered by the group resolution scheme.

2. A summary of the joint decision on the group resolution scheme shall be communicated by the group-level resolution authority to members of the resolution college.

Subsection 3 Disagreements and decisions taken in the absence of a joint decision

Article 108 Notification in case of disagreement

1. Where a resolution authority disagrees with or departs from the group resolution scheme proposed by the group-level resolution authority or considers that it needs to take independent resolution actions or measures for reasons of financial stability pursuant to Article 91(8) and Article 92(4) of Directive 2014/59/EU, that resolution authority shall notify the group-level resolution authority of the disagreement without undue delay.

2. The notification referred to in paragraph 1 shall include the following:

(a) the name of the resolution authority;

(b) the name of the entity under the jurisdiction of the resolution authority;

(c) the date of the notification;

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

(e) a statement of the resolution authority on its disagreement, or departure from the group resolution scheme, or of its consideration that independent resolution actions or measures are appropriate for the entity or entities under its jurisdiction;

(f) a detailed reasoning for the elements of the group resolution scheme with which the resolution authority is in disagreement, or from which it departs, or an explanation of why it considers that independent resolution action or measures are appropriate;

(g) a detailed description of the actions or measures that the resolution authority will take, including the timing and sequencing of actions.

3. The group-level resolution authority shall notify the other members of the resolution college of the notification referred to in paragraph 2.

Article 109 Decision-making process between non-disagreeing resolution authorities

1. Resolution authorities which do not disagree as set out in Article 91(9) and Article 92(5) of Directive 2014/59/EU shall proceed as provided for in Articles 106 and 107 of this Regulation and conclude a joint decision among themselves.

2. The joint decision shall contain all the elements referred to in Articles 106 and 107 in addition to the information on disagreement received in accordance with Article 108(2).