10 Amendments of Tom VANDENKENDELAERE related to 2016/0362(COD)
Amendment 59 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18 a) The inclusion, in contracts governed by third country law, of clauses that recognize bail-in of liabilities under the contract, may facilitate the resolution of an institution. However, an overly broad requirement for such clauses in contracts governed by third country law would be highly detrimental for European institutions as regards access to third country markets without improving the resolvability of these institutions. It is therefore of paramount importance to clarify that the contractual recognition clauses need not be included in contracts governed by third country law where this would be counterproductive, or would result in disproportionate and /or unreasonable burdens or effects for the institutions and their counterparties, or where it would be simply impractical. Contractual recognition clauses would mainly be apposite in contracts regarding payment liabilities specifically designated to absorb losses in resolution (MREL eligible liabilities) and for other such payment liabilities where the resolution authority considers that the possibility for bail-in is necessary to avoid a potential impediment to resolution. This would also be fully in line with the Financial Stability Board’s Principles for Cross-border Effectiveness of Resolution Action. Conversely, it is not relevant to include contractual recognition clauses in contracts that give rise to liabilities that, if bailed-in, would not contribute to the resolvability of the institution. Thus, the requirement for such clauses should not apply to contracts that only give rise to contingent liabilities. Moreover, the requirement for a contractual recognition clause would not be apposite for, e.g., liabilities governed by international standard terms, terms prescribed by the counterparty, or predetermined rules and regulations. Examples of such agreements include contracts regarding trade finance instruments such as guarantees or letters of credit, warranties (including tender and performance bonds and associated advance payment and retention guarantees), other guarantees that are based on non-negotiable terms prescribed by the counterparty or pursuant to predetermined international standards and practices, and agreements with third country market infrastructures. In all of these cases the institution will not be able to impose contractual recognition clauses on the counterparty. In addition, it may in many cases be unduly burdensome for institutions to include contractual recognition clauses in contracts with third country counterparties, for example small and medium sized enterprises or public entities in third countries. If the contract with a third country counterparty gives rise to liabilities that would not contribute to their solvability of the institution, it would also be disproportionate to require contractual recognition clauses.
Amendment 184 #
Proposal for a directive
Article 1 – paragraph 22 a (new)
Article 1 – paragraph 22 a (new)
Directive 2014/59/EU
Article 44 – paragraph 2 – subparagraph 1 – point g a (new)
Article 44 – paragraph 2 – subparagraph 1 – point g a (new)
Amendment 244 #
Proposal for a directive
Article 1 – paragraph 23
Article 1 – paragraph 23
Directive 2014/59/EU
Article 45c – paragraph 1 – point d a (new)
Article 45c – paragraph 1 – point d a (new)
(d a) the need to ensure that the level of the requirement referred to in Article 45(1) is proportionate to the specificities of the following business and funding models: (i) the prevalence of deposits in the funding structure; (ii) the lack of experience in issuing debt instruments due to: the limited access to domestic or cross-border capital markets and the limited recourse to issuance of such instruments in light of the funding structure; (iii) the fact that the institution will rely primarily on CET1 and AT1 instruments to meet the requirement referred to in Article 45(1).
Amendment 419 #
Proposal for a directive
Article 1 – paragraph 23
Article 1 – paragraph 23
Directive 2014/59/EU
Article 45g – paragraph 2
Article 45g – paragraph 2
Amendment 442 #
Proposal for a directive
Article 1 – paragraph 23
Article 1 – paragraph 23
Directive 2014/59/EU
Article 45g – paragraph 4
Article 45g – paragraph 4
Amendment 485 #
Proposal for a directive
Article 1 – paragraph 23
Article 1 – paragraph 23
Directive 2014/59/EU
Article 45h – paragraph 5 – subparagraph 4
Article 45h – paragraph 5 – subparagraph 4
The matter shall not be referred to EBA after the end of the four-month period or after a joint decision has been reached. The group level resolution authority shall not refer the matter to EBA for binding mediation where the level set by the resolution authority of the subsidiary is within two percentage points of the consolidated level set under paragraph 4 of this Article under both measures set out in Article 45(2).
Amendment 522 #
Proposal for a directive
Article 1 – paragraph 24
Article 1 – paragraph 24
Directive 2014/59/EU
Article 55 – paragraph 2 – subparagraph 1 – point a
Article 55 – paragraph 2 – subparagraph 1 – point a
(a) that the relevant liabilities or instruments referred to in the first subparagraph can be subject to write down and conversion powers by the resolution authority of a Member State pursuant to the law of the third country or to a binding agreement concluded with that third country;
Amendment 525 #
Proposal for a directive
Article 1 – paragraph 24
Article 1 – paragraph 24
Directive 2014/59/EU
Article 55 – paragraph 2 – subparagraph 1 – point b
Article 55 – paragraph 2 – subparagraph 1 – point b
(b) that it is legally, contractually or economically impracticable for an institution or entity referred to in point (b), (c) or (d) of Article 1(1), or where it would be disproportionate to include such a contractual term in certain liabilities;
Amendment 539 #
Proposal for a directive
Article 1 – paragraph 24
Article 1 – paragraph 24
Directive 2014/59/EU
Article 55 – paragraph 2 a (new)
Article 55 – paragraph 2 a (new)
2a. The requirement referred to in paragraph 1 shall not apply to trade finance liabilities and contingent liabilities that would not be triggered by a resolution or impede a resolution.
Amendment 543 #
Proposal for a directive
Article 1 – paragraph 24
Article 1 – paragraph 24
Directive 2014/59/EU
Article 55 – paragraph 6 – subparagraph 1
Article 55 – paragraph 6 – subparagraph 1
EBA shall develop draft regulatory technical standards in order to specify the conditions under which it would be legally, contractually or economically impracticable or disproportionate for an institution or entity referred to in point (b), (c) or (d) of Article 1(1) to include the contractual term referred to paragraph 1 in certain liabilities, and under which a waiver from the requirement referred to in paragraph 1 would not impede the resolvability of that institution or entity.