102 Amendments of Philippe LAMBERTS related to 2012/0150(COD)
Amendment 143 #
Proposal for a directive
Recital 1
Recital 1
(1) The financial crisis that started in 20087 has shown that there is a significant lack of adequate tools at Union level to effectively deal with unsound or failing credit institutions. Such tools are, in particular, needed to prevent insolvency or, when insolvency occurs, to minimize negative repercussions by preserving the systemically important functions of the institution concerned. During the crisis, those challenges were a major factor that forced Member States to save credit institutions using public fundstaxpayers’ money. While the possibility of State intervention always remains, the objective of a credible recovery and resolution framework is to obviate the need for such action to the greatest extent possible.
Amendment 153 #
Proposal for a directive
Recital 10
Recital 10
(10) National Authorities should take into account the risk, size and interconnectedness of an institution in the context of recovery and resolution plans and when using the different tools at their disposal, making sure that the regime is applied in an appropriate and proportionate way.
Amendment 159 #
Proposal for a directive
Recital 11
Recital 11
(11) In order to ensure the required speed of action, to guarantee independence from economic actors and to avoid conflicts of interest, Member States should appoint public administrative authorities to perform the functions and tasks in relation to resolution pursuant to this Directive. Member States should ensure that appropriate resources are allocated to those resolution authorities. The designation of public authorities should not exclude delegation under the responsibility of the resolution authority. However, it is not necessary to prescribe the exact authority that Member States should appoint as the resolution authority. While harmonisation of that aspect may facilitate coordination, it wouldmay also considerably interfere with the constitutional and administrative systems of Member States. A sufficient degree of coordination can still be achieved with a less intrusive requirement: all the national authorities involved in the resolution of institutions should be represented in resolution colleges, where coordination at cross- border or Union level should take place. Member States should, therefore, be free to choose which authoritiesy should be responsible for applying the resolution tools and exercising the powers provided for in this Directive.
Amendment 161 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) However, in order to safeguard legal certainty and avoid contradictory responsibilities and conflicts of interest, it is important to distinguish the roles and tasks of competent authorities responsible for financial supervision and of resolution authorities. Therefore, Member States should not be able to designate the national authorities responsible for the prudential supervision of credit institutions and investment firms as resolution authorities under this Directive. Member States should, however, ensure close cooperation between the national authorities responsible for prudential supervision and resolution. In the same rationale there should be a clear separation of responsibilities within EBA for resolution purposes.
Amendment 163 #
Proposal for a directive
Recital 12
Recital 12
(12) In light of the consequences that the failure of a credit institution or an investment firm may have on the financial system and the economy of a Member State as well as the possible need to use public funds to resolve a crisis, the Ministries of Finance or other relevant ministries in the Member States should be timely and closely involved, at an early stage, in the process of crisis management and resolution. National Parliaments should be informed on a confidential basis whenever an institution is deemed irresolvable. The European Parliament should be informed on a confidential basis whenever a group is deemed irresolvable.
Amendment 173 #
Proposal for a directive
Recital 17
Recital 17
(17) Where an institution does not present an adequate recovery plan, supervisors should be empowered to require that institution to take any measure necessary to redress the deficiencies of the plan, including making changes to its business model, structure or to its funding strategy. That requirement may affect the freedom to conduct a business as guaranteed by Article 16 of the Charter of Fundamental Rights. The limitation of that fundamental right is however necessary to meet the objectives of financial stability and for protecting depositors and creditors. More specifically, such a limitation is necessary in order to strengthen the business of institutions and avoid that institutions grow excessively or take excessive risks without being able to tackle setbacks and losses and to restore their capital base. The limitation is also proportionate as only preventative action can ensure that adequate precautions are taken and therefore complies with Article 52 of the Charter of Fundamental Rights of the European Union.
Amendment 176 #
Proposal for a directive
Recital 18
Recital 18
(18) Resolution planning is an essential component of effective resolution. Authorities should have all the information necessary in order to plan how the essential functions of an institution or of a cross- border group may be isolated from the rest of the business and transferred in order to ensure the preservation and continuance of essential functions. The requirement to prepare a resolution plan should, however, be simplifias appropriate adapted, reflecting the systemic importance of the institution or group.
Amendment 182 #
Proposal for a directive
Recital 19
Recital 19
(19) Resolution authorities should have the power to require changes to the structure and organization of institutions or groups in order to remove practical impediments to the application of resolution tools and ensure the resolvability of the entities concerned. Due to the potentially systemic nature of all institutions, it is crucial in order to maintain financial stability that authorities have the possibility to resolve any institution. In order to respect the right to conduct business laid down by Article 16 of the Charter of Fundamental Rights, the authorities’ discretion should be limited to what is necessary in order to simplify the structure and operations of the institution solely to improve its resolvability. In addition, any measure imposed for such purposes should be consistent with Union law. Measures should be neither directly nor indirectly discriminatory on ground of nationality, and be justified by the overriding reason of being conducted in the public interest in financial stability. To determine whether an action was taken in the general public interest, resolution authorities, acting in the general public interest, should be able to achieve their resolution objectives without encountering impediments to the application of resolution tools or their ability to exercise the powers conferred to them. Furthermore, an action should aim at not going beyond the minimumwhat is necessary to attain the objectives. When determining the measures to be taken, resolution authorities should take into account the warnings and recommendations of the European Systemic Risk Board established under Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board.
Amendment 184 #
Proposal for a directive
Recital 21
Recital 21
(21) Recovery and resolution plans should not assume access to extraordinary public financial support or expose taxpayers to the risk of loss. Access to liquidity facilities provided by central banks, including emergency liquidity facilities, should not be considered as extraordinary public financial support provided that the institution is solvent at the moment of the liquidity provision, and such liquidity provision is not part of a larger aid package; that the facility is fully secured by collateral to which haircuts are applied, in function of its quality and market value, that the central bank charges a penal interest rate to the beneficiary; and that the measure is taken at the central bank’s own initiative and, in particular, is not backed by any counter- guarantee of the State.
Amendment 190 #
Proposal for a directive
Recital 22
Recital 22
(22) The provision of financial support from one entity of a cross-border group to another entity of the same group is currently restricted by a number of provisions laid down by national laws. Those provisions are designed to protect the creditors and shareholders of each entity. Those provisions, however, do not take into account the interdependency of the entities of the same group or the group interest. At the international level, only in certain legal systems has the concept of group interest been developed through jurisprudence or legal rules. That concept takes into account, beside the interest of each individual group entity, the indirect interest that each entity in a group has in the prosperity of the group as a whole. However, it differs from Member State to Member State and does not provide the necessary legal certainty. It is, therefore, appropriate to set out under which conditions financial support mayshall be transferred among entities of a cross-border banking group with a view to ensuring the financial stability of the group as a whole. Financial support between group entities should be voluntary. It is appropriate that the exercise of the right of establishment is not directly or indirectly made conditional by Member States to the existence of an agreement to provide financial support.
Amendment 196 #
Proposal for a directive
Recital 24
Recital 24
(24) The resolution framework should provide for timely entry into resolution before a financial institution is balance- sheetclose of being insolvent and before all equity has been fully wiped out. Resolution should be initiated when a firm is no longer viable or likely to be no longer viable and other measures have proved insufficient to prevent failure. The fact that an institution does not meet the requirements for authorization should not justify per-se the entry into resolution, especially if the institution is still or likely to be still viable. An institution should be considered as failing or likely to fail when it is or is to be in breach of the capital requirements for continuing authorisation because it has incurred or is likely to incur in losses that are to deplete all or substantially all of its own funds, when the assets of the institution are or are to be less than its liabilities, when the institution is or is to be unable to pay its obligations as they fall due, or when the institution requires extraordinary public financial support. The need for emergency liquidity assistance from a central bank should not in itself be a condition that sufficiently demonstrates that an institution is or will be, in the near- term, unable to pay its liabilities as they fall due. In order to preserve financial stability, in particular in case of a systemic liquidity shortage, State guarantees on liquidity facilities provided by central banks or State guarantees on newly issued liabilities should not trigger the resolution framework provided that a number of conditions are met. In particular the State guarantee measures should to be approved under the State aid framework and should not be part of a larger aid package, and the use of the guarantee measures should be strictly limited in time. In both instances, the bank needs to be solvent.
Amendment 199 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28a) In order to ensure uniform application and implementation of the recovery and resolution powers provided for in this Directive, EBA should have a leading role at Union level.
Amendment 204 #
Proposal for a directive
Recital 29
Recital 29
(29) When applying resolutions tools and exercising resolution powers, resolution authorities should make sure that shareholders and creditors bear an appropriate share of the losses, that the managers whose action or lack of action has contributed to the imminent threat of failure of the credit institution or investment firm are replaced, that the costs of the resolution of the institution are minimised, and that all creditors of an insolvent institution that are of the same class are treated in a similar manner. When the use of the resolution tools involves the granting of State aid, interventions should have to be assessed in accordance with the relevant State aid provisions. State aid may be involved, inter alia, where resolution funds or deposit guarantee funds intervene to assist in the resolution of failing institutions.
Amendment 212 #
Proposal for a directive
Recital 35
Recital 35
(35) The resolution tools should balways be assessed and wherever possible applied before any public sector injection of capital or equivalent extraordinary public financial support to an institution. This, however, should not impede the use, for the purpose of financing resolution, of funds from the deposit guarantee schemes or the resolution funds. In this respect, the use of extraordinary public financial support or resolution funds, including deposit guarantee funds, to assist in the resolution of failing institutions should be assessed in accordance with relevant State aid provisions.
Amendment 214 #
Proposal for a directive
Recital 44
Recital 44
(44) An effective resolution regime should minimisensure that not just shareholders but also creditors of failing credit institutions and investment firms suffer appropriate losses. This will give them a stronger incentive to monitor credit institutions in normal circumstances. It should also reduce the costs of the resolution of a failing institution or firm borne by the taxpayers. It should also ensure that also and make it possible to resolve large and systemic institutions can be resolvedd firms without jeopardising financial stability. The bail-in tool achieves thatese objectives by ensuring that shareholders andclaims of creditors of the institution suffer appropor firm can be wriatte losses and bearn down or converted into equity ans appropriate part of those coststo restore the capital of the institution or firm. To this end, the Financial Stability Board recommended that statutory debt- write down powers should be included in a framework for resolution, as an additional option in conjunction with other resolution tools. The potential of the bail-in tool to affect the funding situation of other institutions or firms means that it is essential to assess whether changes in sectorial legislation are required to ensure, ex-ante, that the debt instruments concerned are not held to an inappropriate extent by other financial institutions.
Amendment 229 #
Proposal for a directive
Recital 50
Recital 50
(50) To avoid institutions structuring their liabilities in a manner that impedes the effectiveness of the bail in tool it is appropriate to establish that the institutions should have at all times an aggregate amount of own funds, subordinated debt and senior liabilities subject to the bail in tool expressed as a percentage of the total liabilities of the institution, that do not qualify as own funds for the purposes of Directive 2006/48/EC or Directive 2006/49/EC excluding covered bonds as defined in article 52(4) of Council Directive 2009/65/EEC. Resolution authorities should also be able to require that this percentage is totally or partially composed of own funds and subordinated debt.
Amendment 230 #
Proposal for a directive
Recital 50
Recital 50
(50) To avoid institutions structuring their liabilities in a manner that impedes the effectiveness of the bail in tool it is appropriate to establish that the institutions should have at all times an aggregate amount of own funds, subordinated debt and senior liabilities subject to the bail in tool expressed as a percentage of the total liabilities of the institution, that do not qualify as own funds for the purposes of Directive 2006/48/EC or Directive 2006/49/EC. It is essential that the basis to which the percentage is applied is not itself subject to institutions’ own internal models and corresponds to simple, auditable balance sheet quantities. Resolution authorities should also be able to require that this percentage is totally or partially composed of own funds and subordinated debt and to vary the percentage applied to each institution according to its risk profile.
Amendment 232 #
Proposal for a directive
Recital 51 a (new)
Recital 51 a (new)
(51a) Member States should ensure that credit institutions do not hold liabilities issued by other credit institutions eligible for write-down under the bail-in tool in order to prevent any contagion effects as a result of a triggering event. Furthermore, the Commission should consider legislative proposals on the imposition of limits on the amount of liabilities eligible for bail-in that can be held by other types of financial institutions.
Amendment 244 #
Proposal for a directive
Recital 70
Recital 70
(70) In order to reach a critical mass and to avoid pro-cyclical effects which would arise if financing arrangements had to rely solely on ex post contributions in a systemic crisis, it is indispensable that the ex-ante available financial means of the national financing arrangements amount to a certain target level. Furthermore, the national financing arrangements should have the power to raise the level of ex- ante contributions.
Amendment 247 #
Proposal for a directive
Recital 71
Recital 71
(71) In order to ensure a fair calculation of contributions and provide incentives to operate under a less risky model, contributions to national financing arrangements should take account of the degree of credit, liquidity and market risks incurred by credit institutions.
Amendment 295 #
Proposal for a directive
Article 2 – paragraph 1 – point 26
Article 2 – paragraph 1 – point 26
(26) ‘extraordinary public financial support’ means State Aid within the meaning of Article 107 (1) of the Treaty on the Functioning of the European Union or any other public financial support at supra-national level, that is provided in order to preserve or restore the viability, liquidity or solvency of an institution;
Amendment 310 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Each Member States shall designate one or more resolution authoritiesy that areis empowered to apply the resolution tools and exercise the resolution powers.
Amendment 322 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. Resolution authorities may be the competent authorities for supervision for the purposes of Directives 2006/48/EC and 2006/49/EC, central banks, competent ministries or other public administrative authorities, provided that Member States adopt rules and arrangements necessary to avoid conflicts of interest between the functions of supervision pursuant to Directives 2006/48/EC and 2006/49/EC or the other functions of the relevant authority and the functions of resolution authorities pursuant to this Directive. In particular, Member States shall ensure that, within the competent authorities, central banks, competent ministries or other public administrative authorities there is a separation between the resolution function and the supervisory or other functions of the relevant authorityshall be fully separated from the competent authorities for supervision for the purposes of Directives 2006/48/EC and 2006/49/EC, central banks, competent ministries or other public administrative authorities.
Amendment 325 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. WheMember States shall require theat resolution authority andies cooperate closely with the competent authority pursuant to Directive 2006/48/EC are separate entities, Member States shall require that they cooperate closely in the preparation, planning and application of resolution decisions.
Amendment 329 #
Proposal for a directive
Article 3 – paragraph 5
Article 3 – paragraph 5
5. Where the designated authority in accordance with paragraph 1 is not the competent ministry in a Member State, any decision of the designated authority pursuant to this Directive shall be taken in consultunder close cooperation with the competent ministry.
Amendment 334 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
6. Member States shall ensure that the authoritiesy designated in accordance paragraph 1 haves the expertise, resources and operational capacity to apply resolution measures, and areis able to exercise their powers with the speed and flexibility that are necessary to achieve the resolution objectives.
Amendment 338 #
Proposal for a directive
Article 3 – paragraph 7
Article 3 – paragraph 7
Amendment 344 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
8. Member States shall inform European Banking Authority (EBA) of the national authority or authorities appointed as resolution authorities and contact authority and, where relevant, their specific functions and responsibilities. EBA shall publish the list of those resolution authorities.
Amendment 356 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Having regard to the impact that the failure of the institution could have, due to the nature of its business, its size or its interconnectedness to other institutions or to the financial system in general, on financial markets, on other institutions, on funding conditions, Member States shall ensure that competent and resolution authorities determine the excontent to which the following apply to institutionsand details of:
Amendment 359 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) the contents and details of recovery and resolution plans provided for in Articles 5, 7, 9 and 11;
Amendment 364 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) the contents and details of the information required from institutions as provided for in Articles 5 (5) and Articles 10 and 11.
Amendment 369 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. In applying provisions set out by in this Directive not referred to in paragraph 1, the competent authorities and resolution authorities of the Member States shall take into account the structure, business model, size, risk, interconnectedness as well as membership of an institutional protection scheme as referred to Article 80 (8) of Directive 2006/48/EC.
Amendment 390 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that each institution draws up and maintains a recovery plan providing, through for measures to be taken by the management of the institution or by a group entity, for the restllowing a significant deterioration of its financial situation following significant deterioration. Recovery plans shall be considered as a governance arrangement within the meaning of Article 22 of Directive 2006/48/EC. The recovery plans at the group level may be complemented with plans at the level of subsidiaries in host Member States if deemed appropriate by the host resolution authority and in particular if the operations of the institution's subsidiary constitute a significant share of that Member State's financial system.
Amendment 402 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Recovery plans shall not assume any access to or receipt of extraordinary public financial support but shall include, where applicable, an analysis of how and when an institution may apply for the use of central bank facilities in stressed conditions and available collateral as long as such support can be reasonably assumed to be available to all institutions under such conditions.
Amendment 410 #
Proposal for a directive
Article 5 – paragraph 5
Article 5 – paragraph 5
5. The competent authorities shall ensure that institutions include in recovery plans appropriate conditionand well defined ex ante conditions, triggers and procedures to ensure the timely implementation of recovery actions as well as a wide range of recovery options. Competent authorities shall ensure that firms test their recovery plans against a range of scenarios of financial distress,macroeconomic and financial distress relevant to the institutions' specific conditions and varying in their severity including system wide events, legal-entity specific stress and group-wide stress.
Amendment 418 #
Proposal for a directive
Article 5 – paragraph 6 – subparagraph 1
Article 5 – paragraph 6 – subparagraph 1
EBA, in consultation with the European Systemic Risk Board (ESRB), shall develop draft technical standards specifying the range of scenarios to be used for the purposes of paragraph 1 and 5 of this Article in accordance with Article 25(3) of Regulation (EU) No 1093/2010 as well as the circumstances under which complementary plans at the level of host member States as referred to in paragraph 1 are appropriate.
Amendment 431 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) the plan or specific options could be implemented effectively in situations of financial stress and without causingby reducing to the maximum extent possible any significant adverse effect on the financial system, including in the event that other institutions implemented recovery plans within the same time period.
Amendment 437 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Where competent authorities assess that there are deficiencies in the recovery plan, or potential impediments to its implementation, they shall notify the institution of their assessment and require the institution to submit, within threone months, a revised plan demonstrating how those deficiencies or impediments have been addressed.
Amendment 440 #
Proposal for a directive
Article 6 – paragraph 4 – introductory part
Article 6 – paragraph 4 – introductory part
4. If the institution fails to submit a revised recovery plan, or if the competent authority determines that the revised recovery plan does not adequately remedy the deficiencies or potential impediments identified in its original assessment, the competent authorities shall require the institution to take any measure it considers necessary to ensure that the deficiencies or impediments are removed. In addition to the measures that may be required in accordance with Article 136 of Directive 2006/48/EC, the competent authorities may, in particular, require the institution to take actions tospecific required actions so as to ensure that a revised plan is deemed sufficient including inter alia:
Amendment 443 #
Proposal for a directive
Article 6 – paragraph 4 – point a
Article 6 – paragraph 4 – point a
(a) facilitate the reduction of the risk and liquidity profile of the institution;
Amendment 447 #
Proposal for a directive
Article 6 – paragraph 4 – point c
Article 6 – paragraph 4 – point c
(c) make changes to the firm strategyorganisational structure or strategy including where appropriate the structural separation of proprietary trading activities from relationship banking activities;
Amendment 462 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that parent undertakings or institutions that are subject to consolidated supervision pursuant to Articles 125 and 126 of Directive 2006/48/EC draw up and submit to the consolidating supervisor a group recovery plan that includes a recovery plan for the whole group, including for the companies referred to in points (c) and (d) of Article 1, as well as a recovery plan for each institutions that isare part of the group in accordance with provisions of Article 5.1.
Amendment 483 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. The group recovery plan shall include for the whole group and for each of itsrelevant entities the elements and arrangements provided in Article 5. It shall also include, where applicable, arrangements for possible intra- group financial support adopted in accordance with any agreement for group financial support that has been concluded in accordance with Article 16.
Amendment 534 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The resolution plan shall take into consideration a range of scenarios including that the event of failure may be idiosyncratic or may occur at a time of broader financial instability or system wide events. The resolution plan shall not assume any extraordinary public financial support or any other public financial support at supra-national level besides the use of the financing arrangements established in accordance with Article 91.
Amendment 543 #
Proposal for a directive
Article 9 – paragraph 4 – point i a (new)
Article 9 – paragraph 4 – point i a (new)
(ia) an estimation under the scenarios referred to in paragraph 5 subparagraph 1 and funding strategies referred to in point (i) of the expected cost of resolution;
Amendment 553 #
Proposal for a directive
Article 9 – paragraph 5 – subparagraph 1
Article 9 – paragraph 5 – subparagraph 1
EBA, in consultation with the ESRB, shall develop draft regulatory technical standards specifying the detailed content of resolution plans, a range of scenarios for the event of failure for the purposes of paragraph 2 as well as the circumstances referred to in paragraph 3 and paragraph 1 of article 11.
Amendment 568 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall ensure that resolution authorities draw up group resolution plans. Group resolution plans shall include both a plan for resolution at the level of the parent undertaking or institution subject to consolidated supervision pursuant to Article 125 and 126 of Directive 2006/48/EC and where relevant the resolution plans for the individual subsidiary institutions drawn up in accordance with Article 9 of this Directive. The group resolution plans shall also include plans for the resolution of the companies referred to in points (c) and (d) of Article 1 and plans for the resolution of institutions with branches in other Member States in compliance with the provisions of Directive 2001/24/EC. The resolution plans at the group level may be complemented with plans at the level of subsidiaries in host Member States if deemed appropriate by the host resolution authority and in particular if the operations of the institution's subsidiary constitute a significant share of that Member State's financial system.
Amendment 577 #
Proposal for a directive
Article 11 – paragraph 3 – point d
Article 11 – paragraph 3 – point d
(d) identify measures, including the legal and economic separation of particular functions or business lines such as proprietary trading activities, that are necessary to facilitate group resolution when the conditions for resolution are met;
Amendment 582 #
Proposal for a directive
Article 11 – paragraph 3 – point e
Article 11 – paragraph 3 – point e
(e) identify how the group resolution actions could be financed and, where appropriate, set out set out detailed ex ante principles for sharing responsibility for that financing between sources of funding in different Member States. The plan shall not assume extraordinary public financial support or any other public financial support at supra-national level besides the use of the financing arrangements established in accordance with Article 91. Those principles shall be set out on the basis of equitable and balanced criteria and shall take into account, in particular, the economic impact of the resolution in the Member States affected and the distribution of the supervisory powers between the different competent authorities.
Amendment 624 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure that resolution authorities, in consultation with competent authorities, assess the extent to which institutions and groups are resolvable without the assumption of extraordinary public financial support besides the use of the financing arrangements established in accordance with Article 91. An institution or group shall be deemed resolvable if it is feasible and credible for the resolution authority to either liquidate it under normal insolvency proceedings or to resolve it by applying the different resolution tools and powers to the institution and group without giving rise to hile reducing to the maximum extent possible any significant adverse consequences for the financial systems, including in circumstances of broader financial instability or system wide events, of the Member State in which the institution is situated, having regard to the economy or financial stability in that same or other Member State or the Union and with a view to ensure the continuity of critical functions carried out by the institution or group either because they can be easily separated in a timely manner or by other means. EBA shall be timely notified whenever an institution or a group is not deemed to be resolvable.
Amendment 626 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1a. A group shall be deemed resolvable if the detailed ex ante principles for responsibility sharing as referred to in article 11.3(e) are assessed as being sufficient and appropriate by the group level resolution authority.
Amendment 628 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
2a. The resolution authorities shall inform within two weeks their respective National Parliament of the cases where institutions under their assessment are not deemed to be resolvable. This information shall be treated as confidential.
Amendment 629 #
Proposal for a directive
Article 13 – paragraph 2 b (new)
Article 13 – paragraph 2 b (new)
2b. EBA shall inform within two weeks the European Parliament of the cases where groups are not deemed to be resolvable. This information shall be treated as confidential.
Amendment 661 #
Proposal for a directive
Article 14 – paragraph 4 – point g
Article 14 – paragraph 4 – point g
(g) requiring changes to legal or operational structures of the institution, including where appropriate the structural separation of proprietary trading activities from relationship banking activities, so as to reduce complexity in order to ensure that critical functions may be legally and economically separated from other functions through the application of the resolution tools;
Amendment 673 #
Proposal for a directive
Article 14 – paragraph 4 – point j a (new)
Article 14 – paragraph 4 – point j a (new)
(ja) requiring changes to the detailed ex ante principles for responsibility sharing referred to in paragraph 11.3(e)
Amendment 695 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The group level resolution authorities and the resolution authorities of the subsidiaries, in consultation with the relevant competent authorities, shall consult each other within the resolution college and shall take all reasonable steps to reach a joint decision in regards to the application of measures identified in accordance with Article 14(3) as well as whether the detailed ex ante principles for the sharing of responsibility as referred to in 11.3(e) are deemed as not being sufficient or appropriate.
Amendment 737 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall ensure that a parent institution in a Member State, or a Union parent institution, or a company referred to in points (c) and (d) of Article 1and its subsidiaries that are institutions or financial institutions covered by the supervision of the parent undertaking, mayshall enter into an agreement to provide financial support to any other party to the agreement that experiences financial difficulties, provided that the conditions laid down in this chapter are satisfied.
Amendment 804 #
Proposal for a directive
Article 22 a (new)
Article 22 a (new)
Amendment 812 #
Proposal for a directive
Article 23 – paragraph 1 – introductory part
Article 23 – paragraph 1 – introductory part
1. Where an institution does not meet or is likely to breach the requirements of Directive 2006/48/EC[CRD MCR] including inter alia own funds requirements provided for in Article 87(1) of Regulation (EU) No .../2012 of the European Parliament and of the Council of ... [on prudential requirements for credit institutions and investment firms] plus 1,5% or its financial condition is deemed to be seriously imperilled according to the dashboard of indicators referred to in Article 22a (new), Member States shall ensure that competent authorities, , have at their disposal, in addition to the measures referred to in Article 136 of Directive 2006/48/EC where applicable, in particular, the following measures:
Amendment 819 #
Proposal for a directive
Article 23 – paragraph 1 – point c a (new)
Article 23 – paragraph 1 – point c a (new)
(ca) require the management of the institution to provide minutes of the management board meetings;
Amendment 820 #
Proposal for a directive
Article 23 – paragraph 1 – point c b (new)
Article 23 – paragraph 1 – point c b (new)
(cb) participate in meetings of the management board of the institution;
Amendment 823 #
Proposal for a directive
Article 23 – paragraph 1 – point d
Article 23 – paragraph 1 – point d
(d) require the management of the institution to remove and replace one or more board members or managing directors after informing the shareholders, if these persons are found unfit to perform their duties pursuant to Article 11 of Directive 2006/48/EC;
Amendment 881 #
Proposal for a directive
Article 26 – paragraph 2 – point a
Article 26 – paragraph 2 – point a
(a) to ensure the continuity of critical functions where these cannot be taken over by another institution without incurring unacceptable cost to public funds;
Amendment 890 #
Proposal for a directive
Article 26 – paragraph 2 – point d
Article 26 – paragraph 2 – point d
(d) to avoid unnecessary destruction of value and to seek to minimise the cost of resolution;
Amendment 896 #
Proposal for a directive
Article 26 – paragraph 2 – point f
Article 26 – paragraph 2 – point f
Amendment 957 #
Proposal for a directive
Article 29 – paragraph 1 – point d
Article 29 – paragraph 1 – point d
(d) senior managers of the institution under resolution are subject to a temporary ban regarding the exercise of senior responsibility on another institution for up to 20 years or bear losses that are commensurate under civil or criminal law with their individual responsibility for the failure of the institution;
Amendment 979 #
Proposal for a directive
Article 30 – paragraph 1
Article 30 – paragraph 1
1. Before taking resolution action and in particular, for the purposes of Articles 31, 34, 36, 41, 42 and 65, resolution authorities shall ensure that a fair, prudent and realistic valuation of the assets and liabilities of the institution is carried out by a person independent from any public authority, including the resolution authority, and the institution. The resolution authority shall endorse that valuation. Where independent valuation is not possible due to the urgency in the circumstances of the case, resolution authorities may carry out the valuation of the assets and liabilities of the institution.
Amendment 980 #
Proposal for a directive
Article 30 – paragraph 1 a (new)
Article 30 – paragraph 1 a (new)
1 a. For the purpose of paragraph 1 resolution authorities shall ensure that the institutions provide, at least annually or more frequently if deemed appropriate by the resolution authority, an estimation of the long term economic value of its assets on the basis of a discount rate established by the resolution authority for the portfolio of assets as a whole;
Amendment 984 #
Proposal for a directive
Article 30 – paragraph 2
Article 30 – paragraph 2
2. Without prejudice to the Union State aid framework, where applicable, the valuation required by paragraph 1 shall be based on prudent and realistic assumptions, including as to rates of default and severity of losses, and its objective shall be to assess the market value of the assets and liabilities of the institution that is failing or is likely to fail so that any losses that could be derived are recognised at the moment the resolution tools are exercised. However, where the market for a specific asset or liability is not functioning properly the valuation may reflect the long term economic value of those assets or liabilities. Valuation shall not assume the provision of extraordinary public support or any other public financial support at supra-national level to the institution, regardless of whether it is actually provided.
Amendment 986 #
Proposal for a directive
Article 30 – paragraph 2 a (new)
Article 30 – paragraph 2 a (new)
2 a. The resolution plans referred to in article 9 and 11 shall include provisions for the ex post compensation whenever the realised value of the assets referred to in paragraphs 1 and 2 and the valuation on the basis of which the assets are transferred in accordance with provisions of article 34 to 36 differ.
Amendment 987 #
Proposal for a directive
Article 30 – paragraph 3 – point c
Article 30 – paragraph 3 – point c
(c) the list of outstanding on balance sheet and off balance sheet liabilities shown in the books and records of the institution, with an indication of the respective credits and priority level under the applicable insolvency law;
Amendment 990 #
Proposal for a directive
Article 30 – paragraph 4
Article 30 – paragraph 4
4. The valuation shall indicate the subdivision of the creditors in classes in accordance with their priority level under the applicable insolvency law and an estimate of the treatment that each class could be expected to receive in winding up proceedings including an estimate of the losses that could be expected to be attributed to depositors covered by a deposit guarantee scheme.
Amendment 1052 #
Proposal for a directive
Article 36 – paragraph 11
Article 36 – paragraph 11
11. EBA shall develop guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010 to promote the convergence of supervisory and resolution practices regarding thedraft regulatory technical standards to determinatione when, in accordance to paragraph 4 of this Article the liquidation of the assets or liabilities under normal insolvency proceeding could have an adverse effect on the financial market. EBA shall develop these guidelinedraft regulatory technical standards at the latest by the date established in the first subparagraph of Article 115(1) of this Directive.
Amendment 1054 #
Proposal for a directive
Article 36 – paragraph 12
Article 36 – paragraph 12
12. TPower is delegated to the Commission, taking into account, wo adopt the re appropriate, the experience acquired in the application of EBA guidelines, shall adopt delegated actsgulatory technical standards referred to in the paragraph 11 in accordance with Articles 103 aimed at specifying the circumstances when the liquidation of the assets or liabilities under normal insolvency proceeding could have an adverse effect on the financial market to 14 of Regulation (EU) No 1093/2010.
Amendment 1087 #
Proposal for a directive
Article 38 – paragraph 2 – subparagraph 1 – point b
Article 38 – paragraph 2 – subparagraph 1 – point b
(b) secured liabilities, including covered bonds as defined in Article 52(4) of Council Directive 2009/65/EEC.
Amendment 1094 #
Proposal for a directive
Article 38 – paragraph 2 – subparagraph 1 – point d
Article 38 – paragraph 2 – subparagraph 1 – point d
Amendment 1127 #
Proposal for a directive
Article 38 – paragraph 2 a (new)
Article 38 – paragraph 2 a (new)
Amendment 1133 #
Proposal for a directive
Article 38 – paragraph 3
Article 38 – paragraph 3
3. Where resolution authorities apply the bail-in tool, they may exclude from the application of the write-down and conversion powers liabilities arising from derivatives that do not fall within the scope of point (d) of paragraph 2, if that exclusion is necessary or appropriate to achieve the objectives specified in points (a) and (b) of Article 26(2). Resolution authorities shall ensure that, without prejudice to those objectives and taking into account paragraph 4 point (b) point (ii) of this Article, derivative contracts cleared through a central counterparty shall be treated as senior to those that are not.
Amendment 1147 #
Proposal for a directive
Article 38 a (new)
Article 38 a (new)
Article 38 a Restrictions on holdings of bail-in liabilities 1. Member States shall ensure that resolution authorities prevent other credit institutions from holding bail-in tools as defined in Article 2 (49) of this Directive.
Amendment 1151 #
Proposal for a directive
Article 39 – paragraph 1
Article 39 – paragraph 1
1. Member States shall ensure that the institutions maintain, at all times, a sufficient aggregate amount of own funds and eligible liabilities expressed as a percentage of the total liabilities of the institution that do not qualify as own funds under Section 1 of Chapter 2 of Title V of Directive 2006/48/EC or under Chapter IV of Directive 2006/49/EC excluding covered bonds as defined in Article 52(4) of Council Directive 2009/65/EEC.
Amendment 1172 #
Proposal for a directive
Article 39 – paragraph 3 – point a a (new)
Article 39 – paragraph 3 – point a a (new)
(a a) the degree to which the institution holds eligible capital beyond the legal minimum requirement;
Amendment 1189 #
Proposal for a directive
Article 39 – paragraph 6
Article 39 – paragraph 6
6. Resolution authorities shall inform EBA of the minimum amount they have determined for each institution under their jurisdiction. EBA shall assess whether the minimum amount is deemed to be sufficient to fully absorb losses at the point of non-viability of the issuing institution and report to the Commission by 1 January 2018 at the latest on the implementation of the requirement under paragraph 1. In particular EBA shall report to the Commission whether there are divergences regarding the implementation at national level of that requirement.
Amendment 1210 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. Where resolution authorities apply the bail-in tool for the purpose referred to in point (a) of Article 37(2), the assessment referred to in paragraph 1 of this Article shall establish the amount by which eligible liabilities need to be reduced in order to restore the Common Equity Tier 1 capital ratio of the institution under resolution and the amount that the resolution authority considers necessary to sustain sufficient market confidence in the institution and enable it to continue to comply with the conditions for authorisation and to carry on the activities for which is authorised under Directive 2006/48/EC or Directive 2004/39/EC. Where resolution authorities also intend to use the bridge institution tool in accordance with Article 34 or the asset separation tool in accordance with Article 36, the amount by which eligible liabilities need to be reduced shall take account a prudent estimate of the capital needs of the bridge institution and the asset management vehicle as appropriate.
Amendment 1238 #
Proposal for a directive
Article 44 – paragraph 1 a (new)
Article 44 – paragraph 1 a (new)
1 a. The liabilities referred to in paragraph 1 shall be those resulting from the close out of the derivative positions concerned;
Amendment 1245 #
Proposal for a directive
Article 45 – paragraph 4 – subparagraph 1
Article 45 – paragraph 4 – subparagraph 1
EBA shall develop guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010,draft regulatory technical standards on the setting of conversion rates. EBA shall develop these guidelinestandards at the latest by the date provided for in the first subparagraph of Article 115(1) of this Directive.
Amendment 1319 #
Proposal for a directive
Article 66 – paragraph 3 – point c
Article 66 – paragraph 3 – point c
(c) disregard any provision of extraordinary public support and any other public financial support at supra-national level to the institution.
Amendment 1434 #
Proposal for a directive
Article 91 – paragraph 3 – point a
Article 91 – paragraph 3 – point a
(a) the power to raise the level of ex ante contributions as specified in Article 94 with a view to reaching the target level specified in Article 93;
Amendment 1456 #
Proposal for a directive
Article 93 – paragraph 1
Article 93 – paragraph 1
1. Member States shall ensure that, in a period no longer than 107 years after the entry into force of this directive, the available financial means of their financing arrangements reach at least 1.5% of the amount of deposits of all the credit institutions authorised in their territory which are guaranteed under Directive 94/19/EC.
Amendment 1469 #
Proposal for a directive
Article 94 – paragraph 1
Article 94 – paragraph 1
1. In order to reach the target level specified in Article 93, Member States shall ensure that ex-ante contributions are raised at least annually from the institutions authorised in their territory.
Amendment 1503 #
Proposal for a directive
Article 94 – paragraph 7 – point b
Article 94 – paragraph 7 – point b
(b) the stability and variety of the company's sources of funding and unencumbered highly liquid assets;
Amendment 1512 #
Proposal for a directive
Article 94 – paragraph 7 – point e
Article 94 – paragraph 7 – point e
(e) the extent to which the institution has previously benefited from Stateextraordinary public financial support ;
Amendment 1532 #
Proposal for a directive
Article 96 – paragraph 1
Article 96 – paragraph 1
Member States shall ensure that financing arrangements under their jurisdiction are enabled to contract borrowings or other forms of support from financial institutions, the central bank, or other third parties, in the event that the amounts raised in accordance with Article 94 are not sufficient to cover the losses, costs or other expenses incurred by the use of the financing arrangements, and the extraordinary contributions provided for in Article 95 are not immediately accessible.
Amendment 1559 #
Proposal for a directive
Article 97 – paragraph 2 – subparagraph 2
Article 97 – paragraph 2 – subparagraph 2
Subject to the first subparagraph, national financing arrangements shall not be obliged to lend to another national financing arrangement in those circonstances when the resolution authority of the Member State of the financing arrangement considers that it would not have sufficient funds to finance any foreseeable resolution in the near future. In such a case, the resolution authority of the Member State concerned shall provide in writing the reasons for its refusal to lend to the requesting resolution authority and the Commission. The Commission may take a decision to the effect that the reasons provided are do not justify the refusal to lend in which case the resolution authority of the Member State concerned shall be bound to lend the amount requested. In any case they should not be obliged to lend more than half of the funds that the national financing arrangement has available at the moment when the borrowing request is formalised.
Amendment 1563 #
Proposal for a directive
Article 97 – paragraph 2 a (new)
Article 97 – paragraph 2 a (new)
2 a. For the purpose of paragraph 1 Member States shall require National resolution funds to obtain for a special purpose banking licence in accordance with Directive [CRD] 2006/48/EC.
Amendment 1571 #
Proposal for a directive
Article 98 – paragraph 2
Article 98 – paragraph 2
2. For the purposes of paragraph 1, the group level resolution authority, in consultation to the resolution authorities of the institutions that are part of the group, shall establish, if necessary before taking any resolution action, a financing plan determining the total financial needs for the financing of the group resolution as well as the modalities for that financing.
Amendment 1602 #
Proposal for a directive
Article 99 – paragraph 1
Article 99 – paragraph 1
1. Member States shall ensure that, where the resolution authorities take resolution action, and provided that this action ensures that depositors continue having access to their deposits, the deposit guarantee scheme to which the institution is affiliated is liable, up to the amount of covered deposits, for the amount of losses that it would have had to bear if the institution had been wound up under normal insolvency proceedings in accordance with article 13.4.
Amendment 1648 #
Proposal for a directive
Article 113 – paragraph 1
Article 113 – paragraph 1
EBA shall create a permanent internal committee pursuant to Article 41 of Regulation (EU) No 1093/2010 for the purpose of preparing the EBA decisions and draft regulatory technical standards and draft implementing technical standards provided for in this Directive. That internal committee shall be at least composed of the resolution authorities referred to in Article 3 of this Directive.
Amendment 1650 #
Proposal for a directive
Article 113 – paragraph 1 a (new)
Article 113 – paragraph 1 a (new)
For the purpose of this directive EBA shall ensure a full effective organisational separation between the resolution committee and other functions referred to in Regulation No 1093/2010. The resolution committee shall promote the development and coordination of recovery and resolution plans, develop methods for the resolution of failing financial institutions and an assessment of the need for appropriate financing instruments, in accordance with Articles 21 to 26. Any other decisions, tasks as well as the adoption of draft regulatory technical standards and draft implementing technical standards referred to in this directive shall be delegated to the resolution committee in accordance with article 41 of Regulation No 1093/2010.
Amendment 1651 #
Proposal for a directive
Article 113 a (new)
Article 113 a (new)
Article 113 a Cooperation with EBA Cooperation with EBA The competent authorities shall cooperate with the EBA for the purposes of this Directive in accordance with Regulation (EU) No 1093/2010. The competent authorities shall, without delay, provide EBA with all the information necessary to carry out its duties in accordance with Regulation (EU) No 1093/2010.
Amendment 1652 #
Proposal for a directive
Article 113 b (new)
Article 113 b (new)
Article 113 b Staff and resources of EBA By ..., EBA shall assess the staffing and resources needs arising from the assumption of its powers and duties in accordance with this Directive and submit a report to the European Parliament, the Council and the Commission.
Amendment 1655 #
Proposal for a directive
Article 114 – paragraph 1 – point b a (new)
Article 114 – paragraph 1 – point b a (new)
(b a) regarding the appropriateness of imposing limits to the amount of liabilities as defined in Article 2 (62) of this Directive that can be held by other financial institutions;
Amendment 1670 #
Proposal for a directive
Annex 1 – section 1 – paragraph 1 – point 9 a (new)
Annex 1 – section 1 – paragraph 1 – point 9 a (new)
(9 a) the aggregate amount of capital instruments issued by the institution that are subject to write-down or conversion to Common Equity Tier 1 instruments upon the occurrence of a market-based trigger before the institution reaches the point of non-viability.