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)

Article 83

Monitoring the application of the joint decision

Subsection 4 Process in the absence of joint decision on measures to address substantive impediments to resolvability

Article 84

Elements of communication of individual decisions

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

• (b) the name of the Union parent undertaking 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 measures pursuant to Article 17(5) and (6) of Directive 2014/59/EU decided by the group-level resolution authority and the time limit within which those measures shall be addressed;

• (f) where the measures proposed by the Union parent undertaking are not accepted or are partially accepted by the group-level resolution authority, 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 set out in point (e) of this paragraph would effectively reduce or remove the substantive impediments to resolvability;

• (g) the names of resolution college members and observers involved, in accordance with the terms and conditions of observers' participation, in the joint decision process on measures to address substantive impediments to resolvability along with a summary of the views expressed by these authorities and information on issues leading to disagreement;

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

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

• (b) the name of the entities under the jurisdiction of the resolution authority to which the decision relates and applies;

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

• (d) the date of the decision;

• (e) the measures pursuant to Article 17(5) and (6) of Directive 2014/59/EU decided by the resolution authority and the time limit within which the respective entities shall address these measures;

• (f) where the measures proposed by the subsidiaries in accordance with Article 17(3) and (4) of Directive 2014/59/EU are not accepted or are partially accepted by the resolution authorities of subsidiaries respectively, an explanation of how the measures proposed by these subsidiaries are assessed as not fit to remove the substantive impediments to resolvability and how the measures set out in point (e) of this paragraph would effectively reduce or remove the substantive impediments to resolvability;

• (g) the name of the group-level resolution authority along with explanations on the reasons for disagreement with the measures proposed by the group-level resolution authority to address substantive impediments to resolvability.

Article 85

Communication of individual decisions in the absence of joint decision

• (a) the date one month after the expiry of the time period referred to in Article 18(5) of Directive 2014/59/EU, as applicable;

• (b) the date one month after the provision of any advice by the EBA following a request for consultation in accordance with the second subparagraph of Article 18(5) of Directive 2014/59/EU;

• (c) the date one month after any decision taken by the EBA in accordance with the third subparagraph of Article 18(6) or second subparagraph of Article 18(7) of Directive 2014/59/EU or any other date set by the EBA in such a decision.

SECTION III Joint decision process on minimum requirements for own funds and eligible liabilities

Subsection 1 Joint decision process

Article 86

Planning of the joint decision on minimum requirements for own funds and eligible liabilities

In case of disagreement, the group-level resolution authority shall set the minimum requirements for own funds and eligible liabilities joint decision timetable after considering the views and reservations expressed by the resolution authorities of subsidiaries.

For the purpose of taking in parallel the joint decision on minimum requirements with the development and maintenance of the group resolution plan as required by Article 45(15) of Directive 2014/59/EU, the minimum requirements for own funds and eligible liabilities joint decision timetable shall be organised taking into account the timetable for the joint decision on group resolution plan and resolvability assessment.

In particular, the group-level resolution authority and the resolution authorities of subsidiaries shall consider that the four-month period for the reach of the joint decision on minimum requirements for own funds and eligible liabilities starts at the same time as the joint decision on group resolution plan and resolvability assessment.

• (a) submission of the group-level resolution authority's proposal on the minimum requirements for own funds and eligible liabilities at consolidated and parent entity level to the resolution authorities of subsidiaries and to the consolidating supervisor;

• (b) submission of resolution authorities of subsidiaries' proposals on the minimum requirements for own funds and eligible liabilities for the entities under their jurisdiction at individual level to the group-level resolution authority and the respective competent authorities;

• (c) dialogue between the group-level resolution authority and the resolution authorities of subsidiaries on the proposed minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level, as well as with the resolution authorities of jurisdictions where significant branches are established;

• (d) preparation and submission by the group-level resolution authority of the draft joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level to the resolution authorities of subsidiaries;

• (e) dialogue on the draft joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level with the Union parent undertaking and the subsidiaries of the group, where required by the legislation of a Member State;

• (f) reaching the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level;

• (g) communication of the joint decision on minimum requirements for own funds and eligible liabilities at consolidated, parent and subsidiary level to the Union parent undertaking.

• (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 decisions on institution-specific prudential requirements in accordance with Article 113 of Directive 2013/36/EU;

The minimum requirements for own funds and eligible liabilities joint decision timetable shall be reviewed in light of and reflect the outcome of the resolvability assessment, especially when that assessment results in measures to remove or address substantive impediments to resolvability that may have immediate effect on the minimum requirements for own funds and eligible liabilities at consolidated or entity level.

Article 87

Proposal at consolidated and Union parent undertaking level

• (a) the minimum requirement for own funds and eligible liabilities to be met, at all times, by the Union parent undertaking, unless use of waiver has been granted in accordance with Article 45(11) of Directive 2014/59/EU;

• (b) the minimum requirement for own funds and eligible liabilities applied at consolidated level.

Article 88

Proposal at subsidiary level

Article 89

Dialogue on the proposed minimum requirements for own funds and eligible liabilities

Article 90

Drafting the joint decision on minimum requirements for own funds and eligible liabilities

• (a) the names of the group-level resolution authority and the resolution authorities of subsidiaries reaching the joint decision on the minimum requirements for own funds and eligible liabilities at consolidated, parent and each subsidiary level;

• (b) the names of the consolidating supervisor and other competent authorities that have been consulted;

• (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;

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

• (e) the references to the applicable Union and national law relating to the preparation, finalisation and reach of the joint decision; references to any additional criteria provided by the Member States on the basis of which the minimum requirement for own funds and eligible liabilities shall be determined;

• (f) the date of the draft joint decision, and of any relevant update thereto;

• (g) the minimum requirement on own funds and eligible liabilities at consolidated level, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

• (h) the minimum requirement on own funds and eligible liabilities at the level of the Union parent undertaking, unless use of waivers in accordance with Article 45(11) of Directive 2014/59/EU is granted, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

• (i) the minimum requirement on own funds and eligible liabilities at each subsidiary on an individual basis, unless use of waivers in accordance with Article 45(12) of Directive 2014/59/EU has been granted, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU.

Article 91

Reaching the joint decision on minimum requirements for own funds and eligible liabilities

Article 92

Communication of the joint decision on minimum requirements for own funds and eligible liabilities

Article 93

Monitoring the application of the joint decision on minimum requirements for own funds and eligible liabilities

Subsection 2 Process in the absence of a joint decision at consolidated level

Article 94

Joint decisions taken at each subsidiary level in the absence of a joint decision at consolidated level

In the absence of a joint decision at consolidated or parent entity level in accordance with Article 45(9) of Directive 2014/59/EU, the group-level resolution authority and the resolution authorities of subsidiaries shall endeavour to reach a joint decision on the level of the minimum requirement of own funds and eligible liabilities to be applied to each respective subsidiary at individual level.

The joint decision shall take into account the minimum requirement on own funds and eligible liabilities set at consolidated and parent entity level by the group-level resolution authority, and shall follow all steps, other than the ones concerning setting up the minimum requirements for own funds and eligible liabilities at consolidated or parent entity level, of Articles 90 to 93, for drafting, reaching, communicating and monitoring the application of the joint decision on the level of the minimum requirement of own funds and eligible liabilities to be applied to each respective subsidiary at an individual level.

Article 95

Elements of communication of individual decisions

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

• (b) the name of the Union parent undertaking and the names of other entities in that jurisdiction to which the joint decision applies;

• (c) references to the applicable Union and national law relating to the preparation, finalisation and application of the decision and in particular references to any additional criteria provided by the Member State, in which the Union parent undertaking is authorised, on the basis of which the minimum requirement for own funds and eligible liabilities are determined;

• (d) the date of the decision;

• (e) the minimum requirement on own funds and eligible liabilities at consolidated level, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level, having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

• (f) the minimum requirement on own funds and eligible liabilities at the level of the Union parent undertaking, unless use of waivers in accordance to Article 45(11) is granted, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level, having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

• (g) 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, along with a summary of the views expressed by those authorities and information on issues leading to disagreement;

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

• (i) where the decision that relates to the minimum requirement on own funds and eligible liabilities provides that such requirement is partially met at consolidated or individual level for the Union parent undertaking through contractual bail-in instruments, the decision shall also include details demonstrating the satisfaction of the group-level resolution authority that the instruments qualify as a contractual bail-in instruments in accordance to the criteria set in Article 45(14) of Directive 2014/59/EU.

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

• (b) the name of the group's subsidiaries under its jurisdiction 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 and in particular, references to any additional criteria provided by the Member States, in which those group's subsidiaries are authorised, on the basis of which the minimum requirement for own funds and eligible liabilities are determined;

• (d) the date of the decision;

• (e) the minimum requirement on own funds and eligible liabilities to be applied to the subsidiary at individual level, and a time limit to reach that level, where applicable, along with appropriate reasoning for setting the minimum requirement on own funds and eligible liabilities at that level having regard to the assessment criteria referred to in Article 45(6)(a) to (f) of Directive 2014/59/EU;

• (f) the name of the group-level resolution authority along with a summary of the views it expressed and information on issues leading to disagreement;

• (g) comments of the resolution authority of the subsidiary on the views expressed by the group-level resolution authority, in particular on issues leading to disagreement;

• (h) where the decision that relates to the minimum requirement on own funds and eligible liabilities provides that such requirement is partially met at the subsidiary level through contractual bail-in instruments, the decision shall also include details demonstrating the satisfaction of the respective resolution authority of the subsidiary that the instruments qualify as a contractual bail-in instruments in accordance to the criteria set in Article 45(14) of Directive 2014/59/EU.

Article 96

Communication of individual decisions in the absence of joint decision

• (a) the date one month after the expiry of the time period referred to in Article 45(9) or (10) of Directive 2014/59/EU, as applicable;

• (b) the date one month after the provision of any advice by the EBA following a request for consultation in accordance with the second subparagraph of Article 18(5) of Directive 2014/59/EU;

• (c) the date one month after any decision taken by the EBA in accordance with the third subparagraph of Article 45(9) or the fifth subparagraph of Article 45(10) of Directive 2014/59/EU or any other date set by the EBA in such a decision.

SECTION IV Cross-border group resolution

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

Article 97

Process for deciding on the need for a group resolution scheme

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

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

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

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

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

Article 98

Dialogue on the need for a group resolution scheme

• (a) the notification received;

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

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

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

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

Article 99

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

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

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

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

Article 100

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

Article 101

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

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

Subsection 2 Joint decision process on the group resolution scheme

Article 102

Process of the joint decision on the group resolution scheme

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

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

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

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

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

• (5) communication of the outcome of the joint decision to the resolution college members.

Article 103

Preparation and communication of the draft group resolution scheme

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

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

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

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

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

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

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

• (a) for consultation in accordance with Article 104;

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

Article 104

Consultation on the group resolution scheme

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

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

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

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

Article 105

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

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

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

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

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

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

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

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

Article 106

Finalising the joint decision on the group resolution scheme

Article 107

Communication of the joint decision to the college

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

Article 108

Notification in case of disagreement

• (a) the name of the resolution authority;

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

• (c) the date of the notification;

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

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

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

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

Article 109

Decision-making process between non-disagreeing resolution authorities

CHAPTER VII FINAL PROVISIONS

Article 110

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

[^E0001]: Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).

[^E0002]: Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149).

[^E0003]: Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings (OJ L 224, 16.8.2006, p. 1.)

[^E0004]: Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ L 225, 30.7.2014, p. 1).

[^E0005]: Commission Delegated Regulation (EU) 2016/98 of 16 October 2015 supplementing Directive 2013/36/EU of the European Parliament and of the Council with regard to regulatory technical standards for specifying the general conditions for the functioning of colleges of supervisors (OJ L 21, 28.1.2016, p. 2).

[^E0006]: Commission Implementing Regulation (EU) 2016/99 of 16 October 2015 laying down implementing technical standards with regard to determining the operational functioning of the colleges of supervisors according to Directive 2013/36/EU of the European Parliament and of the Council (OJ L 21, 28.1.2016, p. 21).