Banking Act 2009

63 General continuity obligation: property transfers U.K.

(1) In this section and section 64—

(a) “residual bank” means a bank all or part of whose business has been transferred in accordance with section 11(2)(b)[F1 , 12(2) [F2 , 12ZA(3)] [F3 , 41A(2) or 44D(2)]] ,

(b) “group company” means anything which is, or was immediately before the transfer, a group undertaking in relation to a residual bank,

(c) “group undertaking” has the meaning given by section 1161(5) of the Companies Act 2006 (interpretation),

(d) “the transferred business” means the part of the bank's business that has been transferred, and

(e) “transferee” means a commercial purchaser or [F4 resolution company] to whom all or part of the transferred business has been transferred.

[F5 (1A) In this section a reference to insolvency includes a reference to (i) liquidation, (ii) bank insolvency, (iii) administration, (iv) bank administration, (v) receivership, (vi) composition with creditors and (vii) a scheme of arrangement.]

(2) The residual bank and each group company must provide such services and facilities as are required to enable a transferee to operate the transferred business, or part of it, effectively.

(3) The duty under subsection (2) (the “continuity obligation”) may be enforced as if created by contract between the residual bank or group company and the transferee.

[F6 (3A) The continuity obligation continues to apply despite the residual bank or group company entering insolvency, and may not be disclaimed by a liquidator under section 178(2) of the Insolvency Act 1986 or Article 152(2) of the Insolvency (Northern Ireland) Order 1989.]

(4) The duty to provide services and facilities in pursuance of the continuity obligation is subject to a right to receive reasonable consideration.

[F7 (4A) But if the services and facilities provided in pursuance of the continuity obligation were provided to the bank whose business has been transferred, under an agreement with that bank, before the property transfer instrument providing for the transfer was made, they are to continue for the duration of that agreement to be provided on the terms set out in that agreement (and subsection (4) does not apply).]

(5) The continuity obligation is not limited to the provision of services or facilities directly to a transferee.

(6) The Bank of England may, with the consent of the Treasury, by notice to the residual bank or a group company state that in the Bank's opinion—

(a) specified activities are required to be undertaken in accordance with the continuity obligation;

(b) activities are required be undertaken in accordance with the continuity obligation on specified terms.

(7) A notice under subsection (6) shall be determinative of the nature and extent of the continuity obligation as from the time when the notice is given.

Textual Amendments

F1 Words in s. 63(1)(a) substituted (31.12.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 2 para. 17; S.I. 2014/3160, art. 2(1)(b)

F2 Words in s. 63(1)(a) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 71(2)(a)

F3 Words in s. 63(1)(a) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 13(3)

F4 Words in s. 63(1)(e) substituted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 71(2)(b)

F5 S. 63(1A) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 71(3)

F6 S. 63(3A) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 71(4)

F7 S. 63(4A) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 71(5)

Commencement Information

I1 S. 63 in force at 21.2.2009 by S.I. 2009/296, art. 3, Sch. para. 1