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Commission Delegated Regulation (EU) 2016/1075 of 23 March 2016 supplementing Directive 2014/59/EU of the European Parltime and of the Council with regard to regulatory technical standards specifying the content of recovery plans, resolution plans and group resolution plans, the minimum criteria that the competent authority is to assess as regards recovery plans and group recovery plans, the conditions for group financial support, the requirements for independent valuers, the contractual recognition of write-down and conversion powers, the procedures and contents of notification requirements and of notice of suspension and the operational functioning of the resolution colleges (Text with EEA relevance)

Type Delegated Regulation

Publication 2016-07-08

State In force

Department European Commission

Source EUR-Lex

articles 110

For the purposes of paragraph 1 an actual or potential interest shall be deemed material whenever, in the assessment of the appointing authority or such other authority as may be empowered to perform this task in the Member State concerned, it could influence, or be reasonably perceived to influence, the independent valuer's judgement in carrying out the valuation.

For the purposes of paragraph 1 interests in common or in conflict with at least the following parties shall be relevant:

(a) the senior management and the members of the management body of the relevant entity;

(b) the legal or natural persons who control or have a qualifying holding in the relevant entity;

(c) the creditors identified by the appointing authority, or such other authority as may be empowered to perform this task in the Member State concerned, to be significant on the basis of the information available to the appointing authority or such other authority as may be empowered to perform this task in the Member State concerned;

(d) each group entity.

For the purposes of paragraph 1 at least the following matters shall be relevant:

(a) the provision by the independent valuer of services, including the past provision of services, to the relevant entity and the persons referred to in paragraph 3, and in particular the link between those services and the elements relevant for the valuation;

(b) personal and financial relationships between the independent valuer and the relevant entity and the persons referred to in paragraph 3;

(d) in relation to legal persons, any structural separation or other arrangements that shall be put in place to address any threats to independence such as self-review, self-interest, advocacy, familiarity, trust or intimidation, including arrangements to differentiate between those staff members who may be involved in the valuation and other staff members.

Without prejudice to paragraphs 3 and 4, a person shall be deemed to have an actual material interest in common or in conflict with the relevant entity where the independent valuer, in the year preceding the date on which that person's eligibility to act as independent valuer is assessed, has completed a statutory audit of the relevant entity pursuant to Directive 2006/46/EC of the European Parliament and of the Council ([^E0003]).

Any person considered for the position of independent valuer, or appointed as an independent valuer shall:

(a) maintain, in accordance with any applicable codes of ethics and professional standards, policies and procedures to identify any actual or potential interest which may be considered to constitute a material interest in accordance with paragraph 2;

(b) without delay notify the appointing authority or such other authority as may be empowered to perform the task referred to in paragraph 2 in the Member State concerned of any actual or potential interest which the independent valuer considers may, in the assessment of the authority, be considered to amount to a material interest in accordance with paragraph 2;

(c) take appropriate steps to ensure that none of the staff or other persons involved in carrying out the valuation have any material interest of a kind as referred to in paragraph 2.

CHAPTER V RESOLUTION

SECTION I Contractual recognition and conversion powers

Article 42

Definitions

For the purposes of this Chapter V, Section I, the following definitions apply:

(1) ‘material amendment’ means, in relation to a relevant agreement, as defined in point 2 of this Article, entered into before the date of application of the national provisions transposing Section 5 of Chapter IV of Title IV of Directive 2014/59/EU, an amendment, including an automatic amendment, made after that date and affecting the substantive rights and obligations of a party to a relevant agreement; amendments which do not affect the substantive rights and obligations of a party to a relevant agreement include a change to the contact details of a signatory or the addressee for the service of documents, typographical changes to correct drafting errors or automatic adjustments of interest rates;

(2) ‘relevant agreement’ means any agreement, including the terms of a capital instrument, creating a liability to which Article 55(1) of Directive 2014/59/EU applies.

Article 43

Liabilities to which the exclusion from the obligation to include the contractual term referred to in Article 55(1) of Directive 2014/59/EU applies

For the purposes of point (a) of the first subparagraph of Article 55(1) of Directive 2014/59/EU, a secured liability shall not be considered as an excluded liability where, at the time at which it is created, it is:

(a) not fully secured;

(b) fully secured but governed by contractual terms that do not oblige the debtor to maintain the liability fully collateralised on a continuous basis in compliance with regulatory requirements of Union law or of a third country law achieving effects that can be deemed equivalent to Union law.

For purposes of point (d) of the first subparagraph of Article 55(1) of Directive 2014/59/EU, liabilities issued or entered into after the date of application of the provisions adopted by Member States for the transposition of Section 5 of Chapter IV of Title IV of Directive 2014/59/EU in a Member State shall comprise:

(a) liabilities created after that date, regardless of whether they are created under relevant agreements entered into before that date, including under master or framework agreements between the contracting parties governing multiple liabilities;

(b) liabilities created before or after that date under relevant agreements entered into before that date and which are subject to a material amendment;

(d) liabilities under debt instruments issued before or after that date under relevant agreements entered into before that date and which are subject to a material amendment.

For the purposes of the second subparagraph of Article 55(1) of Directive 2014/59/EU, a resolution authority shall determine that the requirement to include a contractual term in a relevant agreement shall not apply where it is satisfied that the law of the third country concerned or a binding agreement concluded with that third country provides for an administrative or judicial procedure which:

(a) at the request of the resolution authority, or at the initiative of the third country administrative or judicial authority whose law governs the liability or instrument, enables such duly empowered third country administrative or judicial authority, within a period which the resolution authority determines will not compromise the effective application of the write-down and conversion powers by that authority to do either of the following:
(i) recognise and give effect to the exercise of the write-down and conversion powers by the resolution authority;
(ii) support through the application of relevant powers the exercise of the write-down and conversion powers by the resolution authority;

(b) provides that the grounds on which a third country administrative or judicial authority may refuse to recognise or support the exercise of the write-down and conversion powers pursuant to point (a) are clearly stated and are limited to one or more of the following exceptional cases:
(i) the recognition or support of the exercise of the write-down and conversion powers by the resolution authority would have adverse effects on financial stability in the third country concerned;
(ii) the recognition or support of the exercise of the write-down and conversion powers by the resolution authority would result in third country creditors, in particular depositors located and payable in that third country, being treated less favourably than creditors, and depositors located or payable in the Union, with similar rights under applicable Union law;
(iii) recognition or support would have material financial implications for the third country concerned;
(iv) recognition or support of the exercise of write-down and conversion powers by the resolution authority would have effects contrary to the public order of the third country concerned.

For the purposes of the application of the second subparagraph of Article 55(1) of Directive 2014/59/EU, the resolution authority shall assess that the grounds referred to in paragraph 3(b) would not prevent the recognition or support of the exercise of the write-down and conversion powers in all circumstances where such powers are applied.

Article 44

Contents of the contractual term required by Article 55(1) of Directive 2014/59/EU

Contractual term in a relevant agreement shall include the following:

(1) the acknowledgement and acceptance by the counterparty of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU, that the liability may be subject to the exercise of write-down and conversion powers by a resolution authority;

(2) a description of the write-down and conversion powers of each resolution authority in accordance with the national law transposing Section 5 of Chapter IV of Title IV of Directive 2014/59/EU or, where applicable, under Regulation (EU) No 806/2014 of the European Parliament and of the Council ([^E0004]), in particular the powers set out in points (e), (f), (g) and (j) of Article 63(1) of Directive 2014/59/EU;

(3) the acknowledgement and acceptance by the counterparty of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU:
(a) that it is bound by the effect of an application of the powers referred to in point (b), including:
(i) any reduction in the principal amount or outstanding amount due, including any accrued but unpaid interest, in respect of the liability of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU under the relevant agreement;
(ii) the conversion of that liability into ordinary shares or other instruments of ownership;
(b) that the terms of the relevant agreement may be varied as necessary to give effect to the exercise by a resolution authority of its write-down and conversion powers and such variations will be binding on the counterparty of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU;
(c) that ordinary shares or other instruments of ownership may be issued to or conferred on the counterparty of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU, as a result of the exercise of the write-down and conversion powers;

(4) the acknowledgement and acceptance by the counterparty of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU, that the contractual term is exhaustive on the matters described therein to the exclusion of any other agreements, arrangements or understandings between the counterparties relating to the subject matter of the relevant agreement.

SECTION II Notifications and notice of suspension

Article 45

General requirements for notifications

(1) Notifications submitted under Articles 81(1), (2), (3) and 83(2) of Directive 2014/59/EU shall be in writing and transmitted by adequate and safe electronic means.

(2) The relevant authorities referred to in paragraphs 1, 2 and 3 of Article 81 of Directive 2014/59/EU and in Article 83(2) shall specify the contact details for submitting a notification and make these publicly available.

(3) Before sending a notification, the sender may make contacts orally with the relevant authorities referred to in paragraphs 1, 2 and 3 of Article 81 of Directive 2014/59/EU to inform them that a notification is being submitted.

(4) For the purpose of notifications referred to in points (a), (b), (c), (d), (h) and (j) of Article 81(3) of Directive 2014/59/EU and in points (a), (b), (f) and (h) of Article 83(2) thereof, competent authorities and resolution authorities shall use the language in common use for cooperation with the consolidating supervisor and the group level resolution authority.

(5) The relevant authorities referred to in paragraphs 1, 2 and 3 of Article 81 of Directive 2014/59/EU and in Article 83(2) thereof shall acknowledge receipt of the notification to the sender specifying the date and time of receipt as recorded by the recipient and the contact details of the staff handling the notification.

Article 46

Notification by the management body to a competent authority

(1) The notifications submitted by the management body of an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU to a competent authority, shall include:

(a) the name, the address of the registered office and, where available, the legal entity identifier of the institution or entity sending the notification;

(b) the name and address of the registered office of the immediate and ultimate parent undertaking of that institution or entity, where relevant;

(c) the relevant information and analyses that the management body took into account when performing the assessment for determining that the conditions under Article 32(4) of Directive 2014/59/EU have been met;

(d) a copy of the management body's written resolution confirming its assessment that the institution or the entity is failing or likely to fail;

(e) any additional information that the management body considers relevant to its assessment.

(2) The notification pursuant to Article 81(1) of Directive 2014/59/EU shall be communicated immediately to the competent authority following the decision by the management body that an institution or entity referred to in point (b), (c) or (d) of Article 1(1) of that Directive is failing or likely to fail.

Article 47

Communication of the competent authority to the resolution authority of the received notification

Upon receipt of the notification referred to in Article 46, the competent authority shall immediately send the following information to the resolution authority:

(1) a copy of the notification received including all the information referred to in Article 46(1);

(2) the details of crisis prevention measures or actions referred to in Article 104 of Directive 2013/36/EU that the competent authority has taken or requires the institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU to take, where relevant;

(3) any additional supporting documents the competent authority deems necessary for the resolution authority to be able to take an informed decision.

Article 48

Notification of assessment that an institution meets the conditions for resolution set out in points (a) and (b) of Article 32(1) of Directive 2014/59/EU

The notification of a competent authority or resolution authority for the purposes of Article 81(3) of Directive 2014/59/EU shall include:

(a) the name of the institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU to which the notification relates;

(b) the information set out in points (a) and (b) of Article 46(1);

The notification shall be made without delay following a determination that the conditions referred to in points (a) and (b) of Article 32(1) of Directive 2014/59/EU have been met.

The competent authority shall, without delay, provide the resolution authority with any additional information that the resolution authority may request in order to complete its assessment.

Article 49

Notice

The notice referred to in paragraph 4 of Article 83 of Directive 2014/59/EU to be published by the resolution authority, shall include:

(a) the name, the address of the registered office and, where available, the legal entity identifier of the institution or of the entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU under resolution;

(b) the name and address of the registered office of the immediate and ultimate parent undertaking of that institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU, where relevant;

(c) a list of the names of other group entities and related branches in respect of which resolution actions exercise their effects, including, to the extent possible, information on branches located in third countries;

(d) a summary of the relevant resolution actions that are taken, the dates from which those resolution actions take effect and in particular their effects on retail customers and which includes the following:
(i) information on the access to deposits according to Directive 2014/49/EU on deposit guarantee schemes held at the institution affected by the resolution action;
(ii) information on the access to other clients' assets or funds within the meaning of point (e) of Article 31(2) of Directive 2014/59/EU, held at the institution affected by the resolution action;
(iii) information on the contractual payment or delivery obligations subject to suspension under Article 69 of Directive 2014/59/EU, including the commencement and expiration of the suspension period, where applicable;
(iv) information on the secured creditors of the institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU under resolution subject to restrictions on the enforcement of security interest including the commencement and expiration of that restriction period in accordance with Article 70 of Directive 2014/59/EU, where applicable;
(v) information on the contractual parties affected by the temporary suspension of termination rights including the commencement and expiration of the suspension period under Article 71 of Directive 2014/59/EU, where applicable;

(e) the confirmation of the ordinary course of contractual commitments, including repayment schedules, not subject to suspensions under Articles 69, 70 and 71 of Directive 2014/59/EU;

(f) the point of contact within the institution where customers and creditors can seek further information and updates on the institution or entity referred to in point (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU and its operations.

The notice shall be published as soon as reasonably practical after taking a resolution action.

CHAPTER VI RESOLUTION COLLEGES

SECTION I Operational organisation of resolution colleges

Article 50

Mapping and identification of resolution college members and possible observers

For the purposes of identifying the members and potential observers of the resolution college, the group-level resolution authority shall conduct the mapping of group entities referred to in Article 1(1) of Directive 2014/59/EU, taking into account the mapping of that group as performed by the consolidating supervisor in accordance with Article 2 of Commission Delegated Regulation (EU) 2016/98 ([^E0005]) and Article 2 of Commission Implementing Regulation (EU) 2016/99 ([^E0006]).

Upon finalisation of the mapping referred to in paragraph 1, the group-level resolution authority shall communicate the list of members and potential observers to the resolution college.

The group-level resolution authority shall review and update the mapping of group entities and the list of members and potential observers at least annually. It shall also review and update the mapping and the list of members and potential observers following any material change to the legal or organisational structure of the group or to its business.

When assessing whether to establish a resolution college in accordance with Article 88(6) of Directive 2014/59/EU, the group-level resolution authority shall also consider whether that other group or college operates in accordance with this Regulation.

Article 51

Third country resolution authorities as observers in the resolution college

Upon receipt of a relevant request from a third country resolution authority as referred to in Article 88(3) of Directive 2014/59/EU, the group-level resolution authority shall communicate the request to the resolution college.

The communication shall be accompanied by all of the following:

(a) the opinion of the group-level resolution authority, also having regard to point (b), on the equivalence of the confidentiality and professional secrecy regime applicable to the candidate observer;

(b) the terms and conditions of observers' participation in the resolution college that shall be included in the written arrangements and procedures as proposed by the group-level resolution authority;

(c) the view of the group-level resolution authority as to the significance of the relevant branch, if the candidate is a third-country resolution authority for a branch;

(d) the setting of a time limit, upon the expiration of which consent shall be assumed: within that time limit any disagreeing resolution college member referred to in Article 88(2)(b), (c) or (d) of Directive 2014/59/EU may express its fully reasoned objection to the opinion of the group-level resolution authority referred to in point (a) of this paragraph.

When an objection is expressed, the group-level resolution authority shall take it into account before making its final decision. For that purpose, it may also request the explicit views of the members of the college referred to Article 88(2)(b), (c) and (d) of Directive 2014/59/EU and take into account the majority of the views thereon.

When the group-level resolution authority makes the decision to invite the resolution authority of the third country, it shall send an invitation to the candidate observer. The invitation shall be accompanied by the terms and conditions of participation as an observer set out in the written arrangements. The candidate receiving the invitation shall be considered an observer upon acceptance of the invitation, which shall be deemed as acceptance of the terms and conditions of participation.

Following acceptance, the group-level resolution authority shall transmit an updated outcome of the mapping referred in Article 50 to the resolution college.

Article 52

Communication with the Union parent undertaking

The group-level resolution authority shall ensure regular interaction and cooperation with the Union parent undertaking to enhance the efficient and effective functioning of the resolution college.

The group-level resolution authority shall communicate to the Union parent undertaking the establishment of the resolution college and a list of its members and observers, as well as any change to the members and observers of the resolution college.

Article 53

Establishment and update of contact lists

The group-level resolution authority shall maintain and share with the resolution college members and observers contact details of nominated persons from each member and observer for the purpose of performing resolution college tasks.

The contact details should also include out-of-hours contact details to be used for emergency situations and in particular for the purpose of deciding on the need to establish and agree on a group resolution scheme.

The group-level resolution authority shall ensure that it receives from all college members and observers contact details of the relevant contact persons and is informed without undue delay on all relevant changes.

Article 54

Elements of written arrangements and procedures for the functioning of the resolution college

The written arrangements and procedures pursuant to Article 88(5)(a) of Directive 2014/59/EU shall include at least the following elements:

(a) a description of the group, the Union parent undertaking, the subsidiaries and significant branches;

(b) the identification of the college members and observers;

(c) a description of the general resolution college framework for cooperation between authorities and coordination of activities and tasks.

The general framework for cooperation and coordination shall include all of the following:

(a) a description of the different resolution college substructures for the performance of different tasks, where relevant. For that purpose, in particular with regard to college members concluding joint decisions, the group-level resolution authority shall consider the need of organising the resolution college in various substructures;

(b) an identification of the college members and observers participating in specific college activities. For that purpose, the group-level resolution authority shall ensure that the various college substructures, including substructures involving observers, shall not result in constraining or pre-empting the process of the joint decision-making in particular with regard to those members of the college who are required to conclude joint decisions in accordance with the relevant provisions of Directive 2014/59/EU;

(c) a description of the framework, the terms and conditions of the participation of the observers in the resolution college, including terms and conditions of their involvement in the various dialogues and processes of the college as well as their rights and obligations with regard to exchanging information having regard to Articles 90 and 98 of Directive 2014/59/EU. The group-level resolution authority shall ensure that the general framework and terms and conditions of the observers' participation are not more favourable than the framework, terms and conditions set out for college members in accordance with this Regulation and the relevant written arrangements of the particular college;

(d) a description of cooperation and coordination arrangements in emergency situations, especially of systemic nature, which may pose threats to the viability of any of the group entities;

(e) a description of the processes to be followed, when joint decision is not required but the formation of a common understanding within the resolution college or within any of its substructures appears necessary;

(f) a description of the arrangements for exchanging information including the relevant scope, frequency and communication channels having regard to Articles 90 and 98 of Directive 2014/59/EU and to the role of the group-level resolution authority as the coordinator for collecting and disseminating information amongst college members and observers;

(g) a description of relevant information to be shared with resolution college members and observers in particular in relation to resolution planning, resolvability assessment and other tasks referred to in Article 88(1) of Directive 2014/59/EU also having regard to Articles 90 and 98 of Directive 2014/59/EU and to the role of the group-level resolution authority;

(h) a description of the arrangements for the treatment of confidential information having regard to Articles 90 and 98 of Directive 2014/59/EU;

(i) a description of procedures for hosting regular and ad hoc physical meetings;

(j) a description of the method for coordinating the input to be provided independently by the resolution authorities to the supervisory college or to the consolidating supervisor, where required by legislation or on an own initiative basis;

(k) a description of the method for communicating the input referred to in point (j), in particular a description of the relevant role of the group-level resolution authority in communicating that input to the consolidating supervisor;

(l) a description of the communication policy with the consolidating supervisor, the competent authorities in the relevant Member States, the Union parent undertaking and the entities of the group referred to in Article 58;

(m) any other agreement concerning the functioning of the resolution college; and

(n) any provisions covering discontinuance arrangements.

Article 55

Establishment and update of written arrangements and procedures for the functioning of the resolution college

The group-level resolution authority shall prepare its proposal for the written arrangements and procedures for the functioning of the resolution college in accordance with Article 54.

The group-level resolution authority shall communicate its proposal to the members of the resolution college for consultation, inviting them to provide their opinion and indicating the time-line for the submission of those opinions.

The group-level resolution authority shall take into account the opinions of the members of the resolution college and reason its decision when not taking them into account.

Upon finalisation the group-level resolution authority shall communicate the written arrangements and procedures for the functioning of the resolution college to the members of the resolution college.

Written arrangements and procedures for the functioning of the resolution college shall be reviewed and updated, in particular after any substantive changes in the composition of the resolution college.

While updating the general written arrangements and procedures for the functioning of the resolution college, the group-level resolution authority and the other members of the college shall follow the procedure set out in paragraphs 1 to 5.

Article 56

Operational aspects of college meetings and other activities

The resolution colleges shall convene at least one meeting in person per year. The group-level resolution authority with the consent of all members of the college, having taken into account the specificities of the group, may determine a different frequency of physical meetings of the resolution college.

The group-level resolution authority shall organise other college activities on a regular basis, in particular where a dialogue between college members is required.

The group-level resolution authority shall prepare and communicate to college members the agenda and objectives of planned meetings and other activities.

All resolution college members participating in college meetings or other activities shall ensure that the appropriate representatives, according to the objectives of the meeting and other activities of the resolution college, participate in these meetings and other activities and that these representatives shall be empowered to commit their authorities, to the maximum extent possible, in case decisions are expected to be taken in these meetings or other activities.

The group-level resolution authority shall ensure that relevant documents are circulated well in advance before a particular meeting or activity of the resolution college.

Outcomes and decisions of college meetings or other activities shall be documented in writing and communicated to college members in due time.

Article 57

Exchange of information

Subject to Articles 90 and 98 of Directive 2014/59/EU, the group-level resolution authority and the members of the college shall ensure that they exchange all essential and relevant information, whether received from a group entity, a competent authority, a resolution authority or any other designated authority or any other source.

That information shall be adequate and accurate, as well as shared in a timely manner to enable and facilitate the efficient, effective and full performance of the tasks of resolution college members in both going concern and emergency situations.

For the purpose of effective and efficient coordination between the supervisory and resolution college, the group-level resolution authority and the consolidating supervisor shall exchange all information required to ensure that colleges fulfil their role set out in Article 116 of Directive 2013/36/EU and Article 88 of Directive 2014/59/EU.

The group-level resolution authority receiving information referred to in paragraphs 1 and 2 shall transmit it to the members of the resolution college.

Where the college is organised in different substructures, the group-level resolution authority shall keep all resolution college members fully informed, in a timely manner, on the actions taken or the measures carried out in those college substructures.

If not provided for otherwise, any ordinary means of communication may be used, preferring secure means of communication, in particular where sensitive information is being transmitted. For publicly available information, it shall be sufficient that the group-level resolution authority provides the reference to such information.

Where a secure resolution college website exists, the use of this website shall be the main means of communication.

Articles 50 to 76 of this Regulation shall not affect the information gathering powers of the competent or resolution authorities.

Article 58

Communication policy

The group-level resolution authority shall be the authority responsible for communication with the Union parent undertaking and the consolidating supervisor, where the latter is different from the group-level resolution authority.

The resolution authorities referred to in Article 88(2)(b), (c) and (d) of Directive 2014/59/EU shall be the authorities responsible for the communication with the entities and the competent authorities in the respective Member States.

Article 59

Coordination of external communication

The members of the resolution college shall coordinate their external communications related to group resolution strategies and schemes.

For the purpose of coordination of the external communication, the members of the resolution college shall agree at least on the following:

(a) allocation of responsibilities for coordinating external communication, during a going concern situation, in a situation where an institution or group is considered as failing or likely to fail, and in a resolution situation;

(b) determining the level of information to be disclosed on group resolution strategies;

(c) coordination of public statements in situations where an institution or group is considered as failing or likely to fail;

(d) coordination of public statements related to resolution actions taken including the publication of orders or instruments by which the resolution actions were taken or notices summarising the effects of resolution actions.

Article 60

Emergency situations

The group-level resolution authority shall establish and regularly test operational procedures for the functioning of the resolution college in emergency situations, in particular systemic ones, which may pose threats to the viability of any of the group entities.

Operational procedures referred to in paragraph 1 shall cover at least the following elements:

(a) secure means of communication to be used;

(b) set of information to be exchanged;

(d) communication procedures to be followed by the relevant college members.

SECTION II Group resolution planning joint decisions

Subsection 1 Joint decision process on group resolution plan and resolvability assessment

Article 61

Planning of the steps of the joint decision process

Prior to the start of the joint decision process, the group-level resolution authority and the resolution authorities of subsidiaries shall agree on a timetable of steps to be followed in that process (‘joint decision timetable’).

In the case of a failure to agree on that timetable, the group-level resolution authority shall set the joint decision timetable after considering the views and reservations expressed by the resolution authorities of subsidiaries.

The joint decision timetable shall be updated at least annually and shall include all of the following steps to be implemented in a sequence agreed between the group-level resolution authority and the resolution authorities of subsidiaries:

(a) preliminary dialogue between the group-level resolution authority and the resolution authorities of subsidiaries on the resolution strategy of the group, in preparation of the joint decision on the group resolution plan and resolvability assessment;

(b) request information necessary to the Union parent undertaking for the drawing up of the group resolution plan and the performance of the resolvability assessment in accordance with Article 11 of Directive 2014/59/EU;

(c) submission of the information requested in point (b) of this paragraph by the Union parent undertaking directly to the group-level resolution authority in accordance with Article 13(1) of Directive 2014/59/EU;

(d) transmission of the information that the group-level resolution authority receives from the Union parent undertaking to the authorities referred to in Article 13(1) of Directive 2014/59/EU and indication of a time limit for any additional information requests;

(e) submission of contributions for the development of the group resolution plan and the resolvability assessment by the resolution authorities of subsidiaries to the group-level resolution authority;

(f) submission of the draft group resolution plan and the draft resolvability assessment from the group-level resolution authority to the resolution college members;

(g) submission of possible comments on the draft group resolution plan and on the draft resolvability assessment from the resolution college members to the group-level resolution authority;

(h) discussion with the Union parent undertaking on the draft group resolution plan and its resolvability assessment, where that is deemed appropriate by the group-level resolution authority;

(i) dialogue between the group-level resolution authority and the resolution authorities of subsidiaries on the draft group resolution plan and its resolvability assessment;

(j) circulation of the draft joint decision document on the group resolution plan and on the resolvability assessment by the group-level resolution authority to the resolution authorities of subsidiaries;

(k) dialogue on the draft joint decision document on the group resolution plan and on the resolvability assessment between the group-level resolution authority and the resolution authorities of subsidiaries;

(l) reaching joint decision on the group resolution plan and on the resolvability assessment;

(m) communication of the conclusion of the joint decision to the Union parent undertaking along with a summary of the key elements of the group resolution plan.

The 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 decision on the review and assessment of the group recovery plan in accordance with Article 8(2) of Directive 2014/59/EU.

Article 62

Elements of the joint decision timetable

When drafting the joint decision timetable, the authorities involved or the group-level resolution authority when acting alone shall take into account Articles 16(3) and 17(2) of Directive 2014/59/EU on the need for simultaneous assessment of resolvability and suspension of the process to address substantive impediments and shall ensure that the relevant time limits provided in the joint decision timetable are adjusted accordingly.

When drafting the 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 respective provisions of Directive 2014/59/EU.

The following aspects of the timetable shall be communicated from the group-level resolution authority to the Union parent undertaking:

(a) an estimated date when the request of the information necessary for drawing up of the group resolution plan and performing the resolvability assessment is expected to be made in accordance with Article 61(2)(b) and the time limit for submission of that information in accordance with Article 61(2)(c);

(b) an estimated date for the organisation of the discussion referred to in Article 61(2)(h), where relevant;

Article 63

Preliminary dialogue on the resolution strategy

The group-level resolution authority shall organise a preliminary dialogue with the resolution authorities of subsidiaries to perform all of the following:

(1) discuss a preliminary proposal on the resolution strategy for the group;

(2) verify whether any of the information necessary for the development of the group resolution plan and the resolvability assessment is already available to any of the competent authorities, and share this information in accordance with Article 11(2) of Directive 2014/59/EU;

(3) determine the additional information to be requested from the Union parent undertaking;

(4) agree on any contributions needed from the resolution authorities of subsidiaries to the group-level resolution authority for the development of the group resolution plan and the performance of the resolvability assessment.

Article 64

Information from the Union parent undertaking

The group-level resolution authority shall request from the Union parent undertaking all the necessary information in accordance with Article 11 of Directive 2014/59/EU, taking into account the outcome of the dialogue provided for in Article 63.

The group-level resolution authority shall communicate clearly to the Union parent undertaking the entities of the group to which this information relates and applies, as well as the time limit for the provision of such information.

The Union parent undertaking shall provide the information requested to the group-level resolution authority in a timely manner, but no later than within the time limit specified under paragraph 2.

The group-level resolution authority may ask for additional information from the Union parent undertaking, both before transmitting information to the authorities referred to in Article 13(1) of Directive 2014/59/EU and after that, whenever Article 66(2) of this Regulation applies.

Article 65

Transmission of information from the group-level resolution authority

The group-level resolution authority shall, without undue delay, transmit information received in accordance with Article 64 to the authorities referred to in Article 13(1) of Directive 2014/59/EU and shall invite them to provide comments within a specific time limit on whether additional information is required.

Any authority receiving information may request additional information from the group-level resolution authority within the time limit specified under paragraph 1, where the receiving authority deems the additional information to be relevant to the entity or the branch under its jurisdiction for the purpose of the development and maintenance of the group resolution plan and performance of the resolvability assessment. In such case, the relevant provisions of Article 64 shall apply accordingly.

The transmission of information from the group-level resolution authority to the authorities referred in paragraph 2 shall not be deemed complete until the actual transmission of both the initial and the subsequent information.

The group-level resolution authority shall, taking into account paragraph 3, communicate to the resolution college the starting date of the four-month period for reaching the joint decision on the group resolution plan and resolvability assessment in accordance with Article 13(4) of Directive 2014/59/EU.

The group-level resolution authority and the authorities referred to in Article 13(1) of Directive 2014/59/EU shall exchange additional information necessary to facilitate the drawing up of the group resolution plan and the performance of the resolvability assessment, subject to the confidentiality requirements laid down in Articles 90 and 98 of Directive 2014/59/EU.

Article 66

Development and circulation of the draft group resolution plan and resolvability assessment

The resolution authorities of subsidiaries shall provide to the group-level resolution authority their contributions to the group resolution plan and resolvability assessment in a timely manner and in any event by the time limit specified in the joint decision timetable pursuant to Article 61(2)(e).

The group-level resolution authority shall develop the draft group resolution plan in accordance with Article 12 of Directive 2014/59/EU, taking into account any contributions submitted by the resolution authorities of subsidiaries.

The group-level resolution authority shall circulate the draft group resolution plan and resolvability assessment to the college members in a timely manner, however no later than within the time limit specified under Article 61(2)(f).

Article 67

Consultation with resolution college members

College members consulted by the group-level resolution authority shall provide their comments on the draft group resolution plan and the resolvability assessment within the time limit specified under Article 61(2)(g).

In particular, the relevant competent authorities referred to in Articles 115 and 116 of Directive 2013/36/EU shall provide their opinion with regard to the assessment of the resolvability of the entities in their jurisdiction.

Where any of the authorities considers that there are substantive impediments to the resolvability of the group or any of its entities, it shall communicate its assessment to the group-level resolution authority in a timely manner and in any event by the time limit specified under Article 61(2)(g).

The group-level resolution authority shall transmit to the resolution authorities of subsidiaries the comments received from the other resolution college members, including comments on the assessment of the resolvability of the entities in their jurisdiction expressed by these authorities.

Article 68

Discussion with the Union parent undertaking

When the group-level resolution authority organises a discussion on the draft group resolution plan and resolvability assessment with the Union parent undertaking pursuant to Article 61(2)(h) it shall do so in a timely manner and in any event within the time limits specified in the relevant step of the joint decision timetable. The group-level resolution authority shall communicate to the resolution authorities of subsidiaries any observations submitted by the Union parent undertaking during this consultation.

Article 69

Dialogue on the draft resolution plan and resolvability assessment

The group-level resolution authority shall organise a dialogue on the draft group resolution plan and resolvability assessment with the resolution authorities of subsidiaries in a timely manner pursuant to Article 61(2)(i), however no later than within the time limit specified in the joint decision timetable.

The dialogue shall include issues of assessment of the group's resolvability and shall facilitate the identification of possible substantive impediments to resolvability, taking into account any observations submitted by the Union parent undertaking. For that purpose, the group-level resolution authority shall inform the resolution authorities of subsidiaries on its own assessment on the resolvability of the group and shall take into account the opinion expressed by other college members.

Based on the dialogue referred to in paragraph 1, the group-level resolution authority shall finalise the group resolution plan and the performance of the resolvability assessment. Changes applied to the draft group resolution plan and resolvability assessment shall reflect the outcome of the dialogue.

Where substantive impediments to resolvability are identified Article 76(1) applies.

Article 70

Drafting the joint decision on group resolution plan and resolvability assessment

The group-level resolution authority shall prepare a draft joint decision on the group resolution plan and resolvability assessment. The draft joint decision shall set out all of the following:

(1) the names of the group-level resolution authority and the resolution authorities of subsidiaries reaching the joint decision on the group resolution plan and resolvability assessment;

(2) the names of the resolution authorities and competent authorities consulted in the drawing up and maintenance of the group resolution plan and the performance of the resolvability assessment, in particular:
(a) the names of the resolution authorities of significant branches and the resolution authorities of Member States where the entities referred to in Article 1(1)(c) and (d) of Directive 2014/59/EU are established;
(b) the names of the relevant competent authorities referred to in Articles 115 and 116 of Directive 2013/36/EU;
(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;

(3) the name of the Union parent undertaking and the group entities covered by the group resolution plan and resolvability assessment, and to which the joint decision relates and applies;

(4) the references to the applicable Union and national law relating to the preparation, finalisation and application of the joint decision on group resolution plan and resolvability assessment;

(5) the date of the adoption of the joint decision on the group resolution plan and resolvability assessment, and of any relevant update thereof;

(6) the group resolution plan and resolvability assessment including any measures to address or remove substantive impediments to resolvability in accordance to Article 17(4), (5) and (6) and Article 18 of Directive 2014/59/EU, subject to which the joint decision is taken. Where Union parent undertaking or any of its entities are in the process of implementing those measures, then information on the timeline for their implementation shall be also provided;

(7) a summary of views expressed by the authorities consulted in the joint decision process on the group resolution plan and its resolvability assessment;

(8) where the EBA has been consulted during the joint decision process, an explanation of any deviation from the advice of the EBA.

Article 71

Reaching joint decision on the group resolution plan and resolvability assessment

The group-level resolution authority shall send the draft joint decision on the group resolution plan and resolvability assessment 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.

Upon their receipt of the draft joint decision the resolution authorities of subsidiaries not disagreeing shall transmit their written agreement to the group-level resolution authority within the time limit specified under paragraph 1.

The final joint decision shall consist of the joint decision document drafted in accordance with Article 70 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.

The group-level resolution authority shall communicate the joint decision on the group resolution plan and resolvability assessment to the resolution college.

Article 72

Communication of the joint decision and summary of the group resolution plan to the Union parent undertaking

The group-level resolution authority shall communicate the joint decision and a summary of the key elements of the group resolution plan, including the resolvability assessment, to the management body of the Union parent undertaking in a timely manner and in any event by the time limit specified in the joint decision timetable pursuant to Article 61(2)(m).

The group-level resolution authority shall inform the resolution authorities of subsidiaries about that communication.

The group-level resolution authority may discuss the joint decision on group resolution plan and resolvability assessment with the Union parent undertaking to explain the details of that decision.

Subsection 2 Process in the absence of joint decision on group resolution plan and resolvability assessment

Article 73

Partial disagreement

Where one or more of the resolution authorities of subsidiaries disagree with the group resolution plan and resolvability assessment, the group-level resolution authority and the resolution authorities of subsidiaries which do not disagree pursuant to Article 13(7) of the Directive 2014/59/EU shall follow all relevant steps set out in Articles 70, 71 and 72 for drafting, reaching and communicating the joint decision on the group resolution plan and resolvability assessment.

The joint decision taken on the group resolution plan and resolvability assessment shall be set out in a document that contains all of the items set out in Article 70.

A summary of views expressed by the resolution authorities of subsidiaries who were involved in the initial joint decision process on the group resolution plan and resolvability assessment but disagreed to it shall be included. In particular, the summary shall include references to all issues that led to disagreement.

Article 74

Elements of communication of individual decisions

In the absence of a joint decision between the resolution authorities within four months in accordance with Article 13(5) of Directive 2014/59/EU, the decision taken by the group-level resolution authority on the group resolution plan and resolvability assessment shall be communicated in writing to the resolution college members by means of a document containing all of the following items:

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

(b) the name of the Union parent undertaking;

(c) references to the applicable Union and national law relating to the preparation, finalisation and application of the decision;

(d) the date of the decision;

(e) the group resolution plan and resolvability assessment including any measures to address or remove substantive impediments to resolvability in accordance to Article 17(4), (5) and (6) of Directive 2014/59/EU, subject to which the decision is taken. Where the Union parent undertaking is in the process of implementing those measures, the timeline for their implementation shall be also provided;

(f) 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 on the group resolution plan and resolvability assessment, along with a summary of the views expressed by those authorities and information on issues leading to disagreement;

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

In the absence of a joint decision between the resolution authorities within four months in accordance with Article 13(6) of Directive 2014/59/EU, the resolution authorities drawing up individual resolution plans shall transmit to the group-level resolution authority a document that contains all of the following items:

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

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

(d) the date of the decision;

(e) the resolution plan and the assessment of resolvability of the entities under their jurisdiction including any measures to address or remove substantive impediments to resolvability in accordance to Article 17(4), (5) and (6) of Directive 2014/59/EU, subject to which the decision is taken. Where the entities are in the process of implementing these measures, then the timeline for their implementation shall be also provided;

(f) the name of the group-level resolution authority along with explanations on the reasons for disagreement with the proposed group resolution plan and resolvability assessment.

Where the EBA has been consulted, the decisions taken in the absence of a joint decision in accordance with Article 13(5) and (6) of Directive 2014/59/EU shall include an explanation as to why the advice of the EBA was not followed.

Article 75

Communication of individual decisions in the absence of a joint decision

In the absence of a joint decision between the group-level resolution authority and the resolution authorities of subsidiaries within the time period referred to in Article 13(4) of Directive 2014/59/EU, all decisions referred to in Article 13(5) and (6) of that Directive 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 13(4) of Directive 2014/59/EU;

(b) the date one month after the provision of any advice by the EBA following a request for consultation in accordance with the third subparagraph of Article 13(4) of Directive 2014/59/EU;

(c) the date one month after any decision taken by the EBA in accordance with the second subparagraph of Article 13(5) or Article 13(6) of Directive 2014/59/EU or any other date set by the EBA in such a decision.

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

Subsection 3 Joint decision on measures to address substantive impediments to resolvability

Article 76

Suspension of the joint decision process on the group resolution plan and resolvability assessment

When the group-level resolution authority identifies substantive impediments to resolvability or assents to an opinion on identified substantive impediments expressed by any of the authorities having been consulted on the group resolution plan and resolvability assessment, the group-level resolution authority shall suspend the joint decision process in accordance with Article 17(2) of Directive 2014/59/EU and shall notify its decision to the resolution college members.

The group-level resolution authority shall start re-conducting the joint decision process on the group resolution plan including the performance of its resolvability assessment, as soon as the joint decision process referred to in Article 18 of Directive 2014/59/EU on measures to address or remove substantive impediments to resolvability has been completed.

Article 77

Planning of the steps of the joint decision process on measures to address substantive impediments to resolvability

Prior to the start of the joint decision process on measures to address or remove substantive impediments to resolvability, the group-level resolution authority and the resolution authorities of subsidiaries shall agree on a timetable of steps to be followed in the joint decision timetable.

In the case of a failure to agree on that timetable, the group-level resolution authority shall set the joint decision timetable after considering the views and any reservations expressed by the resolution authorities of subsidiaries.

The joint decision timetable shall include the following steps:

(a) preparation and circulation of the report on substantive impediments identified in accordance with Article 18(2) of Directive 2014/59/EU by the group-level resolution authority in consultation with the consolidating supervisor and the EBA;

(b) submission of the report pursuant to Article 18(2) of Directive 2014/59/EU from the group-level resolution authority to the Union parent undertaking, the resolution authorities of subsidiaries, and the resolution authorities of jurisdictions in which significant branches are located;

(c) date when the Union parent undertaking submits to the group-level resolution authority its observations and alternative measures to remedy the substantive impediments, if any, in accordance with Article 18(3) of Directive 2014/59/EU;

(d) dialogue between the group-level resolution authority and the resolution authorities of subsidiaries and other resolution college members, on any observations or alternative measures to remedy the substantive impediments proposed by the Union parent undertaking pursuant to Article 18(3) of Directive 2014/59/EU, as appropriate;

(e) development of the draft joint decision on measures to address or remove substantive impediments to resolvability;

(f) finalisation of the joint decision on measures to address or remove substantive impediments to resolvability; and

(g) communication of the joint decision on measures to address or remove substantive impediments to resolvability.

The joint decision timetable shall be reviewed and updated by the group-level resolution authority in order to reflect the extension of the joint decision process where the Union parent undertaking submits observations and proposes any alternative measures to address or remove substantive impediments to resolvability in accordance to Article 18(3) of Directive 2014/59/EU.

The group-level resolution authority shall communicate to the Union parent undertaking those aspects of the joint decision timetable that envisage the involvement of the Union parent undertaking.

Article 78

Consultation and communication of the report

The group-level resolution authority shall prepare a draft report on substantive impediments to resolvability in accordance with Article 18(2) of Directive 2014/59/EU and shall transmit it to the consolidating supervisor, the EBA, the competent authorities and the resolution authorities of the subsidiaries and of jurisdictions in which significant branches are located.

It may also submit the draft report to other resolution college members and observers, as appropriate and in the manner agreed and detailed in the resolution college written arrangements and procedures.

Comments and views received shall be considered by the group-level resolution authority for the purposes of the finalisation of the report. The group-level resolution authority shall provide full reasoning in relation to any deviation from a view or comment made by the EBA or by the consolidating supervisor.

Upon finalisation, the report shall be provided to the Union parent undertaking.

The group-level resolution authority shall communicate to the resolution college the start of the four-month period for reaching the joint decision on measures to address substantive impediments to resolvability.

Article 79

Submission of observations of the Union parent undertaking and consultation with the authorities

Where the Union parent undertaking submits observations and proposes to the group-level resolution authority, within four months of the date of receipt of the report in accordance with Article 18(3) of Directive 2014/59/EU, alternative measures to remedy the substantive impediments to resolvability, the group-level resolution authority shall forward those observations and measures to other college members without undue delay and in any case within 10 days.

The group-level resolution authority shall, having regard to paragraph 1, communicate to the resolution college the extension of the time period for reaching the joint decision on measures to address substantive impediments to resolvability in accordance with Article 18(3) and (5) of Directive 2014/59/EU.

While circulating the observations and alternative measures submitted by the Union parent undertaking, the group-level resolution authority shall set a time limit for submission of comments.

Where authorities do not provide their comments by the time limit referred to in paragraph 3, the group-level resolution authority shall presume that these authorities do not have any comments on the observations and alternative measures submitted by the Union parent undertaking and shall proceed further.

The group-level resolution authority shall provide, as soon as possible and without undue delay, to the resolution authorities of subsidiaries any comments submitted by the other resolution college members and shall discuss with them the proposed measures to address substantive impediments to resolvability.

The group-level resolution authority and the resolution authorities of subsidiaries shall in addition duly discuss and consider the potential impact of the proposed measures on all entities that are part of the group, on all the Member States where the group operates, and on the Union as a whole.

Article 80

Drafting the joint decision on measures to address substantive impediments to resolvability

The group-level resolution authority shall, taking into account the outcome of the dialogue under Article 79(5) and (6), as appropriate, prepare a draft joint decision on measures to address or remove substantive impediments to resolvability.

The draft joint decision shall set out all of the following items:

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

(b) the names of the group-level resolution authority and the resolution authorities of subsidiaries reaching the joint decision;

(c) the names of the relevant competent authorities and the names of the resolution authorities of significant branches that have been consulted on the resolvability of the group, on the measures to address or remove substantive impediments, and on the observations and alternative measures, if any, submitted by the Union parent undertaking;

(d) 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;

(e) the references to the applicable Union and national law relating to the preparation, finalisation and application of the joint decision;

(f) the date of the joint decision;

(g) the measures pursuant to Article 17(5) and (6) of 2014/59/EU decided by the group-level resolution authority and the resolution authorities of subsidiaries and the time period within which the respective group entities shall address these measures;

(h) where the measures proposed by the Union parent undertaking are not accepted or are partially accepted by the group-level resolution authority and the resolution authorities of subsidiaries, an explanation of how the measures proposed by the Union parent undertaking are assessed as not fit to remove the substantive impediments to resolvability and how the measures referred to in point (g) would effectively reduce or remove the substantive impediments to resolvability;

(i) a summary of views expressed by the authorities consulted in the joint decision process;

(j) where the EBA has been consulted during the joint decision process, an explanation of any deviation from the advice of the EBA.

Article 81

Reaching the joint decision

The group-level resolution authority shall send the draft joint decision on measures to address substantive impediments to resolvability 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.

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.

The final joint decision shall consist of the joint decision document drafted in accordance with Article 80 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.

The group-level resolution authority shall communicate the joint decision on measures to address substantive impediments to resolvability to the resolution college.

Article 82

Communication of the joint decision

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 by the time limit specified in the joint decision timetable pursuant to Article 77(2)(g). The group-level resolution authority shall inform the resolution authorities of subsidiaries about that communication.

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