S.I. No. 289/2015 - European Union (Bank Recovery and Resolution) Regulations 2015

• (b) in summary or collective form such that individual institutions or entities referred to in Regulation 2(1)(b) to (i) cannot be identified, or

• (c) with the written prior consent of the authority or the institution or the entity referred to in Regulation 2(1)(b) to (i), as the case may be, which provided the information.

• (5) In deciding whether to disclose information pursuant to paragraph (4), the resolution authority shall assess the possible effects of disclosing such information on—

• (a) the public interest, and in particular on financial, monetary and economic policy,

• (b) the commercial interests of natural and legal persons, and

• (c) inspections, investigations and audits.

• (6) An assessment under paragraph (5) shall assess, in particular, the effects of—

• (a) any disclosure of the contents and details of recovery and resolution plans, referred to in Regulations 11, 12, 14 and 17 to 21, and

• (b) the result of any assessment carried out under Regulations 13, 15 and 26.

• (7) This Regulation shall not prevent—

• (a) employees and experts of the bodies or entities referred to in paragraph (1)(a) to (k) from sharing information among themselves within each body or entity, or

• (b) the resolution authority and the competent authority, including their employees and experts, from sharing information with each other and with Union resolution authorities, Union competent authorities, competent ministries, central banks, deposit guarantee schemes, investor compensation schemes, courts or other authorities responsible for normal insolvency proceedings, the national macroprudential authority, Union macroprudential authorities, auditors, the European Banking Authority, or, subject to Regulation 162, third-country authorities that carry out equivalent functions to resolution authorities, or, subject to strict confidentiality requirements, a potential acquirer for the purposes of planning or carrying out a resolution action.

• (8) Notwithstanding any other provision of this Regulation, the resolution authority may exchange information with any of the following:

• (a) subject to strict confidentiality requirements, an independent professional or any other person where the resolution authority considers it necessary for the purposes of planning or carrying out a resolution action;

• (b) a parliamentary inquiry committee under the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (No. 33 of 2013);

• (c) a commission of investigation under the Commissions of Investigation Act 2004 (No. 23 of 2004);

• (d) the Comptroller and Auditor General;

• (e) national authorities—

• (i) responsible for overseeing payment systems,

• (ii) entrusted with the public duty of supervising other financial sector entities, or

• (iii) responsible for the supervision of financial markets and insurance undertakings, and inspectors acting on their behalf.

• (9) This Regulation is without prejudice to national law (including under any enactment or rule of law) concerning the disclosure of information for the purpose of legal proceedings in criminal or civil cases.

• (10) In this Regulation, “competent ministries” means finance ministries or other ministries of the Member States which are responsible for economic, financial and budgetary decisions at the national level according to national competencies and which have been designated in accordance with Article 3(5) of the Bank Recovery and Resolution Directive.

Chapter 11 Right of appeal and exclusion of other actions

Restrictions on other proceedings.

• (a) Part 7 of the Central Bank and Credit Institutions (Resolution) Act 2011 (No. 27 of 2011);

• (b) section 510 of the Act of 2014, and

• (c) any other legislative provisions which affect the procedure for commencing winding up or examinership, or analogous actions, for credit institutions and investment firms.

• (2) Where an investment firm or other entity falls within the scope of Regulation 2(1) but is not a credit institution and either—

• (a) that firm or entity is an institution under resolution, or

• (b) the conditions for resolution are determined to be met in relation to that firm or entity,

normal insolvency proceedings may, notwithstanding Regulation 150 of the MiFID I Regulations, not be commenced in relation to that firm or entity unless either—

• (i) those proceedings have been taken at the initiative of the resolution authority, or

• (ii) the resolution authority has consented in writing to the commencement of insolvency proceedings in relation to that firm or entity.

• (3) Subject to paragraph (2)—

• (a) the competent authority and the resolution authority shall be notified at least 7 days in advance of the initiation of normal insolvency proceedings in relation to such an investment firm or entity, irrespective of whether it is under resolution or a decision has been made public in accordance with Regulation 145(4) and (5), and

• (b) an application for the initiation of normal insolvency proceedings shall not be determined unless the notice specified in subparagraph (a) has been made, and either—

• (i) the resolution authority has notified the person who intends to initiate insolvency proceedings and, if applicable, the Court that it does not intend to take any resolution action in relation to the investment firm or entity concerned, or

• (ii) a period of 7 days beginning with the date on which the notifications referred to in subparagraph (a) were made has expired.

• (4) Without prejudice to any restriction on the enforcement of security interests imposed pursuant to Regulation 130, the Court may, upon the application ex parte of the resolution authority, apply a stay on any legal action or proceeding to which an institution under resolution is a party, or temporarily restrict the commencement of any such action or proceeding, where the Court is satisfied that it is necessary for the effective application of the resolution tools and powers.

Limitation of judicial review of decision to take crisis management measure.

• (a) either—

• (i) the application for leave to seek judicial review is made to the Court not later than 10 days after the decision is notified to the person concerned, or that person otherwise becomes aware of the decision, or

• (ii) the Court is satisfied that—

• (I) there are substantial reasons why the application was not made within the period referred to in clause (i), and

• (II) it is just, in all the circumstances, to grant leave, having regard to the interests of other affected persons and the public interest,

and

• (b) the Court is satisfied that the application raises a substantial issue for determination.

• (2) The Court may make such order on the hearing of the judicial review as it thinks fit, including an order remitting the matter back to the resolution authority with such directions as the Court thinks appropriate or necessary.

• (3) A person is not entitled to apply for the judicial review of a decision referred to in paragraph (1) where he or she was entitled to apply to have the relevant order of the Court set aside but did not do so.

• (4) A person is not entitled to apply for the judicial review of a decision referred to in paragraph (1) where he or she applied to have the relevant order of the Court set aside and that application was refused by the Court.

Limitation of certain rights of appeal to Court of Appeal.

• (2) A resolution order, or an order varying such an order or setting it aside, is final and no appeal lies from the order of the Court to the Court of Appeal, other than with the leave of the Court.

• (3) The Court shall grant leave to appeal under paragraph (1) or (2) to a person affected by the crisis management measure only where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

• (4) On an appeal from a determination of the Court in respect of an application referred to in paragraph (1), or an appeal from an order referred to in paragraph (2), the Court of Appeal—

• (a) has jurisdiction to determine only the point of law certified by the Court under paragraph (3), and to make only such order in the proceedings as follows from that determination, and

• (b) shall, in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

• (5) This Regulation does not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Bunreacht.

• (6) In paragraph (5), “Bunreacht” means the Constitution of Ireland.

Restrictions on remedies.

• (a) the application is made on notice to the resolution authority and is heard inter partes, and

• (b) the applicant establishes that it is likely to succeed in its substantive action or appeal.

• (2) Where—

• (a) a court decides, upon an appeal, judicial review or otherwise, to set aside a resolution order, and

• (b) the invalidation of administrative acts or transactions concluded by the resolution authority subsequent to the resolution order would prejudice the interests of third parties who have acquired in good faith shares, other instruments of ownership, assets, rights or liabilities of an institution under resolution by virtue of the use of resolution tools or exercise of resolution powers,

then—

• (i) the decision to set aside the resolution order shall not affect the validity of that subsequent administrative act or transaction, and

• (ii) remedies for a wrongful decision or action of the resolution authority shall be limited to damages for the loss suffered by the applicant as a result of that decision or action, subject to section 33AJ of the Act of 1942.

Part 5 Cross-border group resolution

General principles regarding decision-making involving more than one Member State.

• (a) that efficacy of decision-making and minimising resolution costs are imperative when taking resolution action;

• (b) that decisions should be made and action should be taken in a timely manner and with due urgency;

• (c) that authorities should cooperate to ensure that decisions are made and action is taken in a coordinated and efficient manner;

• (d) that authorities’ roles and responsibilities should be defined clearly;

• (e) that due consideration should be given to the interests of Member States where the Union parent undertakings are established, in particular the impact of any decision or action or inaction on the financial stability, fiscal resources, resolution fund, deposit guarantee scheme or investor compensation scheme of those Member States;

• (f) that due consideration should be given to the interests of each individual Member State where a subsidiary is established, in particular the impact of any decision or action or inaction on the financial stability, fiscal resources, resolution fund, deposit guarantee scheme or investor compensation scheme of those Member States;

• (g) that due consideration should be given to the interests of each Member State where significant branches are located, in particular the impact of any decision or action or inaction on the financial stability of those Member States;

• (h) that due consideration should be given to the objectives of balancing the interests of the various Member States involved and of avoiding unfairly prejudicing or unfairly protecting the interests of particular Member States, including avoiding unfair burden allocation across Member States;

• (i) that the resolution authority, when taking resolution actions, takes into account and follows resolution plans prepared under Regulations 22 or 23 unless it considers, taking into account the circumstances of the case, that the resolution objectives will be achieved more effectively by taking actions which are not provided for in the resolution plans;

• (j) that decisions or actions are transparent, where a proposed decision or action is likely to have implications on the financial stability, fiscal resources, resolution fund, deposit guarantee scheme or investor compensation scheme of any relevant Member State;

• (k) that coordination and cooperation are most likely to achieve a result which lowers the overall cost of resolution.

• (2) Any obligation under these Regulations to consult an authority before any decision or action is taken requires that the authority concerned should be consulted on at least those elements of the proposed decision or action which have, or which are likely to have—

• (a) an effect on the Union parent undertaking, the subsidiary or the branch concerned, or

• (b) an impact on the stability of the Member State where the Union parent undertaking, the subsidiary or the branch concerned, is established or located.

• (3) For the purposes of this Part, references to “Regulation 62 or 63” include references to Article 32 or 33 of the Bank Recovery and Resolution Directive as the context requires.

Resolution colleges.

• (2) The resolution college under paragraph (1) shall establish a framework for—

• (a) the resolution authority in its role as group-level resolution authority,

• (b) Union resolution authorities, and

• (c) where appropriate, the Union competent authorities and consolidating supervisors concerned (including the competent authority),

to perform the following tasks:

• (i) exchange information relevant for the development of group resolution plans between each other, for the application to groups of preparatory and preventative powers and for group resolution;

• (ii) develop group resolution plans pursuant to Regulations 21 to 24;

• (iii) assess the resolvability of groups pursuant to Regulation 27;

• (iv) exercise powers to address or remove impediments to the resolvability of groups pursuant to Regulation 29;

• (v) decide on the need to establish a group resolution scheme as referred to in Regulation 155 or 156;

• (vi) reach agreement on a group resolution scheme proposed in accordance with Regulation 155 or 156;

• (vii) coordinate public communication of group resolution strategies and schemes;

• (viii) coordinate the use of financing arrangements established under Part 7;

• (ix) set the minimum requirements for groups at consolidated and subsidiary level under Regulations 82 and 83.

• (3) Resolution colleges under paragraph (1) may be used as a forum to discuss any issues relating to cross-border group resolution.

• (4) Where the resolution authority establishes a resolution college under paragraph (1), the following shall be members:

• (a) the resolution authority;

• (b) the Union resolution authority of each Member State in which a subsidiary covered by consolidated supervision is established;

• (c) the Union resolution authority of each Member State where a parent undertaking of one or more institutions of the group, that is an entity referred to in Regulation 2(1)(f) to (i), is established;

• (d) the Union resolution authority of each Member State in which a significant branch is located;

• (e) the competent authority, in its role as consolidating supervisor;

• (f) the Union competent authority of each Member State whose Union resolution authority is a member of the resolution college and where the Union competent authority is not the Member State’s central bank, the Union competent authority may decide to be accompanied by a representative from the Member State’s central bank;

• (g) the competent ministry of each Member State whose Union resolution authority is a member of the resolution college, where the Union resolution authority is not the competent ministry;

• (h) the authority that is responsible for the deposit guarantee scheme in the State, if different from the authority mentioned in subparagraph (a), and the authority that is responsible for the deposit guarantee scheme in another Member State, where the Union resolution authority of that Member State is a member of a resolution college;

• (i) the European Banking Authority, subject to Article 88(4) of the Bank Recovery and Resolution Directive.

• (5) Where a parent undertaking or an institution established in the Union has, in a third country, a subsidiary institution or a branch that would be considered to be significant were it located in the Union, the resolution authority, as group-level resolution authority, may invite the third-country resolution authority of that third country, upon its request, to participate in the resolution college as an observer.

• (6) The resolution authority may only make the invitation referred to in paragraph (5) where it is satisfied that that third-country resolution authority is subject to confidentiality requirements equivalent, in the opinion of the resolution authority, to those established by Regulation 162.

• (7) The resolution authority, as group-level resolution authority, shall invite the European Banking Authority to attend the meetings of the resolution college for the purpose of contributing to, promoting and monitoring the efficient, effective and consistent functioning of resolution colleges but the European Banking Authority shall not have any voting rights at such meetings.

• (8) The resolution authority, as group-level resolution authority, shall be the chair of the resolution college and shall perform the following functions in relation to meetings of the resolution college:

• (a) establish written arrangements and procedures for the functioning of the resolution college, after consulting the other members of the resolution college;

• (b) coordinate all activities of the resolution college;

• (c) convene and chair all its meetings and keep all members of the resolution college fully informed in advance of the organisation of meetings of the resolution college, of the main issues to be discussed and of the items to be considered;

• (d) notify the members of the resolution college of any planned meetings so that they can request to participate;

• (e) decide which members and observers shall be invited to attend particular meetings of the resolution college, on the basis of specific needs, taking into account the relevance of the issue to be discussed for those members and observers, in particular the potential impact on financial stability in the Member States concerned;

• (f) keep all of the members of the college informed, in a timely manner, of the decisions and outcomes of those meetings.

• (9) Notwithstanding paragraph (8)(e), the resolution authority, as group-level resolution authority, shall ensure that Union resolution authorities shall be entitled to participate in meetings of the resolution college where the agenda contains—

• (a) matters subject to joint decision-making, or

• (b) matters relating to a group entity located in the Member State of that authority.

• (10) Where the resolution authority is the group-level resolution authority, it shall not be obliged to establish a resolution college where other groups or colleges perform the same functions and carry out the same tasks specified in this Regulation and comply with all the conditions and procedures, including those covering membership and participation in resolution colleges, established under this Regulation and under Regulation 154.

• (11) Where paragraph (10) applies, all references to resolution colleges in this Regulation shall also be read as references to those other groups or colleges.

• (12) Where the resolution authority is not the group-level resolution authority, it may act as a member of, and participate in, a resolution college established by a Union resolution authority in respect of a group where—

• (a) a subsidiary covered by the consolidated supervision of the group is authorised in the State,

• (b) a parent undertaking of one or more institutions of the group, that is an entity referred to in Regulation 2(1)(f) to (i) is authorised in the State, or

• (c) a significant branch of the group is located in the State.

• (13) Where the resolution authority acts as a member of, or participates in, a resolution college, whether as group-level resolution authority or otherwise, the competent authority and the Minister may act as a member of, or participate in, the resolution college.

• (14) In all cases where the resolution authority, the competent authority or the Minister participate in a resolution college, they shall cooperate closely with the other members of the college.

European resolution colleges.

• (a) either—

• (i) a Union subsidiary authorised in the State, or

• (ii) a Union branch that is regarded as significant located in the State,

and

• (b) either—

• (i) one or more Union subsidiaries established in other Member States, or

• (ii) one or more Union branches that are regarded as significant located in other Member States,

the resolution authority shall, together with the Union resolution authorities of those other Member States, establish a European resolution college.

• (2) The European resolution college referred to in paragraph (1) shall perform the functions and carry out the tasks, as appropriate, specified in—

• (a) Regulation 152, or

• (b) Article 88 of the Bank Recovery and Resolution Directive,

with respect to the subsidiary institutions and, in so far as those tasks are relevant, to branches.

• (3) Where—

• (a) the third country institution or third country undertaking has established within the Union a financial holding company in accordance with the third subparagraph of Article 127(3) of the Capital Requirements Directive,

• (b) that financial holding company holds either a Union subsidiary or has a significant branch, and

• (c) the competent authority is the consolidating supervisor of that financial holding company,

the resolution authority shall chair the European resolution college.

• (4) In cases other than under paragraph (3), the resolution authority, together with other members of the European resolution college, shall nominate and agree a chair.

• (5) Where the resolution authority and Union resolution authorities of other Member States concerned agree that another group or college, including a resolution college established under Regulation 152, performs the same functions, carries out the same tasks and complies with all conditions and procedures, including those covering membership and participation in European resolution colleges, specified in this Regulation and in Regulation 154, the resolution authority shall not be required to establish a European resolution college.

• (6) Where paragraph (5) applies, all references to a European resolution college in this Regulation shall also be understood as references to that other group or college.

• (7) Subject to paragraphs (3) to (6), the European resolution college shall otherwise function in accordance with Regulation 152.

• (8) The resolution authority, the competent authority and the Minister may act as a member of, or participate in, the European resolution college, in the manner specified in Regulation 152.

Information exchange.

• (2) The resolution authority and competent authority may request from other authorities any information relevant for the exercise of their tasks under these Regulations.

• (3) Where the resolution authority is the group-level resolution authority, it shall coordinate the flow of all relevant information between itself and the Union resolution authorities, and between the Union resolution authorities, and shall provide those Union resolution authorities with all relevant information in a timely manner with a view to facilitating the exercise of the tasks referred to in Regulation 152(2)(ii) to (ix).

• (4) Where the resolution authority has been provided with information by a third-country resolution authority, and there is subsequently a request for the onward transmission of that information, the resolution authority shall seek the consent of that third-country resolution authority to that onward transmission, save where the third-country resolution authority has already consented in writing.

• (5) The resolution authority shall not be obliged to transmit information provided by a third-country resolution authority where the third-country resolution authority has not consented in writing to its onward transmission.

• (6) The resolution authority shall share information with the Minister, when it relates to a decision or matter which requires his or her notification, consultation or consent or which may have implications for public funds.

Group resolution involving a subsidiary of group.

• (a) an institution, or

• (b) any entity referred to in Regulation 2(1)(b) to (i),

that is a subsidiary in a group and that is authorised in the State meets the conditions referred to in Regulation 62 or 63, it shall notify the following information in writing without delay to the group-level resolution authority, to the consolidating supervisor, and to the members of the resolution college for the group in question:

• (i) the decision that the institution or entity referred to in Regulation 2(1)(b) to (i) meets the conditions referred to in Regulation 62 or 63;

• (ii) the resolution actions or insolvency measures that the resolution authority considers to be appropriate for that institution or entity.

• (2) Where the group-level resolution authority, after consulting the other members of the resolution college, assesses that the resolution actions or other measures notified to it by the resolution authority under paragraph (1)(ii) would not make it likely that the conditions set out in Regulation 62 or 63, would be satisfied in relation to a group entity in another Member State, the resolution authority may take the resolution actions or other measures that it notified in accordance with paragraph (1)(ii).

• (3) In the absence of an assessment by the group-level resolution authority within 24 hours, or a longer period that has been agreed, after receiving the notification under paragraph (1), the resolution authority may take the resolution actions or other measures that it notified in accordance with subparagraph (ii) of that paragraph.

• (4) Where the group-level resolution authority, after consulting the other members of the resolution college, assesses that the resolution actions or other measures notified to it by the resolution authority under paragraph (1)(ii) would make it likely that the conditions set out in Regulation 62 or 63 would be satisfied in relation to a group entity in another Member State, and proposes a group resolution scheme, the resolution authority shall defer any action and consider the group resolution scheme with a view to reaching a joint decision with the group-level resolution authority and the Union resolution authorities of the subsidiaries which are covered by the scheme.

• (5) Where the resolution authority is the group-level resolution authority and it receives a notification from a Union resolution authority pursuant to Article 91 of the Bank Recovery and Resolution Directive, the resolution authority shall, after consulting the other members of the resolution college, assess the likely impact of the proposed resolution actions or insolvency measures on the group and on group entities (other than those in the same Member State as the Union resolution authority which made the notification), and, in particular, whether the resolution actions or other measures would make it likely that the conditions for resolution would be satisfied in relation to a group entity (other than those in the same Member State as the Union resolution authority which made the notification).

• (6) Where the resolution authority, after consulting the other members of the resolution college, assesses that the resolution actions or other measures notified to it would make it likely that the conditions set out in Regulation 62 or 63 would be satisfied in relation to a group entity in another Member State, it shall, no later than 24 hours after receiving the notification, propose a group resolution scheme and submit it to the resolution college and the 24-hour period may be extended with the consent of the Union resolution authority which made the notification.

• (7) Where the resolution authority, after consulting the other members of the resolution college, assesses that the resolution actions or other measures notified to it would not make it likely that the conditions set out in Regulation 62 or 63 would be satisfied in relation to a group entity in another Member State, the resolution authority shall communicate its decision without delay to the Union resolution authority which made the notification.

• (8) Any group resolution scheme prepared by the resolution authority shall—

• (a) take into account and follow the resolution plans, as referred to in Regulations 23 and 24, unless the resolution authority and the relevant Union resolution authorities assess, taking into account the circumstances of the case, that resolution objectives will be achieved more effectively by taking actions which are not provided for in the resolution plans,

• (b) outline the resolution actions that should be taken by the relevant resolution authorities in relation to the Union parent undertaking or particular group entities with the aim of meeting the resolution objectives referred to in Regulation 61 and complying with the principles referred to in Regulation 64,

• (c) specify how the resolution actions referred to in subparagraph (b) should be coordinated, and

• (d) establish a financing plan which takes into account the group resolution plan, principles for sharing responsibility as established in accordance with Regulation 21(4)(g), (5) and (6) and complies with Regulation 172.

• (9) Subject to paragraph (14), the group resolution scheme prepared under paragraph (8) shall take the form of a joint decision of the group-level resolution authority and the Union resolution authorities responsible for the subsidiaries that are covered by the group resolution scheme.

• (10) The resolution authority, whether in its role as group-level resolution authority or authority of a subsidiary, may request the European Banking Authority to assist it and the relevant Union resolution authorities in reaching a joint decision, under this Regulation, in accordance with Article 31(c) of Regulation (EU) No 1093/2010.

• (11) Where the resolution authority is not the group-level resolution authority and it either—

• (a) disagrees with a group resolution scheme proposed by the group-level resolution authority,

• (b) considers it necessary to depart from that group resolution scheme, or

• (c) considers that it needs to take resolution action or measures other than those proposed in the scheme in relation to an institution or an entity referred to in Regulation 2(1)(b) to (i) for reasons of financial stability,

the resolution authority shall set out in detail the reasons for the disagreement with or departure from the group resolution scheme.

• (12) The resolution authority shall notify the reasons referred to in paragraph (11), and the actions or measures it intends to take, in writing to the group-level resolution authority and the Union resolution authorities that are covered by the group resolution scheme.

• (13) When setting out its reasons under paragraph (12), the resolution authority shall take into consideration the following:

• (a) the group resolution plan;

• (b) the potential impact on financial stability in the Member States concerned;

• (c) the potential effect of the actions or measures on other parts of the group.

• (14) If one or more Union resolution authorities of subsidiaries disagrees with, or considers it necessary to depart from, a group resolution scheme, the resolution authority may nonetheless reach a joint decision with the group-level resolution authority and any authorities of subsidiaries which do not disagree, on a group resolution scheme covering group entities in the State.

• (15) The joint decision referred to in paragraph (9) or Article 91(7) of the Bank Recovery and Resolution Directive and the decisions taken under paragraph (14) or Article 91(9) of that Directive shall be recognised as conclusive and applied by the resolution authority.

• (16) The resolution authority shall perform all actions under this Regulation without delay and with due regard to the urgency of the situation.

• (17) Where the resolution authority takes resolution action in relation to a group entity otherwise than under a group resolution scheme, it shall cooperate closely with the relevant Union resolution authorities within the resolution college with a view to achieving a coordinated resolution strategy for all group entities which are failing or likely to fail.

• (18) The resolution authority shall inform the members of the resolution college regularly and fully about any resolution actions or measures it has taken in relation to a group entity.

Group resolution.

• (2) The resolution actions or insolvency measures for the purposes of Regulation 155(1)(ii) may include the implementation of a group resolution scheme drawn up in accordance with paragraph (8) of that Regulation in any of the following circumstances:

• (a) resolution actions or other measures at parent level notified in accordance with Regulation 155(1)(ii) would make it likely that the conditions set out in Regulation 62 or 63 would be fulfilled in relation to a group entity in another Member State;

• (b) resolution actions or other measures at parent level only would not be sufficient to stabilise the situation or would not be likely to produce an optimum outcome;

• (c) one or more subsidiaries meet the conditions referred to in Regulation 62 or 63 according to a determination by the Union resolution authorities of those subsidiaries;

• (d) resolution actions or other measures at group level would benefit the group’s subsidiaries in a way which makes a group resolution scheme appropriate.

• (3) Where the actions proposed by the resolution authority under paragraph (2) do not include a group resolution scheme, it shall take its decision after consulting the members of the resolution college.

• (4) A decision under this Regulation shall—

• (a) follow the group resolution plan unless the resolution authority and the relevant Union resolution authorities assess, taking into account the circumstances of the case, that the resolution objectives would be achieved more effectively by taking actions which are not provided for in the group resolution plan, and

• (b) take into account the financial stability of all Member States concerned.

• (5) Where the actions proposed by the resolution authority under paragraph (2) include a group resolution scheme, such a scheme shall take the form of a joint decision of the resolution authority and the Union resolution authorities of the subsidiaries which are covered by the group resolution scheme.

• (6) The resolution authority, whether in its role as group-level resolution authority or resolution authority of a subsidiary for the purposes of the Bank Recovery and Resolution Directive, may request the European Banking Authority to assist it and the relevant Union resolution authorities in reaching a joint decision, under this Regulation, in accordance with Article 31(c) of Regulation (EU) No 1093/2010.

• (7) Where the resolution authority is not the group-level resolution authority and it—

• (a) disagrees with the group resolution scheme proposed by the group-level resolution authority,

• (b) considers it necessary to depart from the group resolution scheme referred to in subparagraph (a), or

• (c) considers that it needs to take resolution action or measures other than those proposed in the scheme referred to in subparagraph (a) in relation to an institution or an entity referred to in Regulation 2(1)(b) to (i) for reasons of financial stability,

the resolution authority shall set out in detail the reasons for the disagreement with or departure from the group resolution scheme.

• (8) The resolution authority shall notify the reasons referred to in paragraph (7), and the actions or measures it intends to take, in writing to the group-level resolution authority and the Union resolution authorities that are covered by the group resolution scheme.

• (9) When setting out its reasons, under paragraph (7), the resolution authority shall take into consideration the following:

• (a) the group resolution plan;

• (b) the potential impact on financial stability in the Member States concerned;

• (c) the potential effect of the actions or measures on other parts of the group.

• (10) Where one or more Union resolution authorities of subsidiaries disagrees with or considers it necessary to depart from a group resolution scheme, the resolution authority may reach a joint decision with the group-level resolution authority and any authorities of subsidiaries which do not disagree, on a group resolution scheme covering group entities in the State.

• (11) The joint decision referred to in paragraph (5) or Article 92(3) of the Bank Recovery and Resolution Directive or a decision taken under paragraph (10) or Article 92(5) of that Directive shall be recognised as conclusive and applied by the resolution authority.

• (12) The resolution authority shall perform all actions under this Regulation without delay and with due regard to the urgency of the situation.

• (13) Where the resolution authority takes resolution action in relation to a group entity other than under a group resolution scheme, it shall cooperate closely with Union resolution authorities within the resolution college with a view to achieving a coordinated resolution strategy for all group entities which are failing or likely to fail.

• (14) The resolution authority shall inform the members of the resolution college regularly and fully in writing about any resolution actions or measures it has taken in relation to a group entity.

Part 6 Relations with third countries

Agreements with third countries.

• (2) An agreement entered into by the resolution authority under paragraph (1) shall be effective—

• (a) only until the entry into force of an agreement referred to in Article 93(1) of the Bank Recovery and Resolution Directive with the third country concerned, and

• (b) only to the extent that it is not inconsistent with Title VI of that Directive.

Recognition and enforcement of third-country resolution proceedings.

• (2) This Regulation shall also apply following the entry into force of an international agreement, as referred to in Article 93(1) of the Bank Recovery and Resolution Directive, with the relevant third country to the extent that recognition and enforcement of third-country resolution proceedings is not governed by that agreement.

• (3) Where—

• (a) third-country resolution proceedings have been initiated in relation to a third-country institution or a parent undertaking,

• (b) the third-country institution or parent undertaking referred to in subparagraph (a) either—

• (i) has Union subsidiaries established in, or Union branches located in and regarded as significant by, 2 or more Member States, or

• (ii) has assets, rights or liabilities which are located in, or governed by the law of, 2 or more Member States,

and

• (c) the resolution authority is a member of a European resolution college, for that third-country institution or parent undertaking, established in accordance with Article 89 of the Bank Recovery and Resolution Directive,

the resolution authority shall, together with the other members of the European resolution college, take a joint decision on whether to recognise, other than as provided for in Regulation 159 or Article 95 of the Bank Recovery and Resolution Directive, the third-country resolution proceedings.

• (4) Where a joint decision has been reached to recognise third-country proceedings, the resolution authority shall endeavour to ensure that the third-country resolution proceedings are recognised in the State, in accordance with national law.

• (5) Where either—

• (a) no European resolution college exists for a third-country institution or a parent undertaking, or

• (b) the European resolution college concerned has not reached a joint decision on the recognition of third-country resolution proceedings,

the resolution authority shall make its own decision on whether to recognise and enforce, other than as provided for in Article 95 of the Bank Recovery and Resolution Directive, third-country resolution proceedings relating to a third-country institution or a parent undertaking authorised in the State.

• (6) In taking a decision under paragraph (5), the resolution authority shall have regard to the interests of each Member State where a third-country institution or parent undertaking operates, and in particular to the potential impact that recognition and enforcement of the third-country resolution proceedings would have on other parts of the group and on the financial stability of those Member States.

• (7) Where a decision has been taken in accordance with paragraph (3) or (5) to recognise or enforce third-country resolution proceedings, the resolution authority may make a proposed resolution order providing for any of the following measures which, in the opinion of the resolution authority, are necessary to give effect to that decision:

• (a) exercise the resolution powers in relation to the following:

• (i) the assets of a third-country institution or parent undertaking that are located in the State or governed by the law of the State;

• (ii) rights or liabilities of a third-country institution where—

• (I) those rights or liabilities are booked by a Union branch in the State,

• (II) those rights or liabilities are governed by the law of the State, or

• (III) claims in relation to those rights and liabilities are enforceable in the State;

• (b) perfect, including by requiring another person to take action to perfect, a transfer of shares or other instruments of ownership in a Union subsidiary established in the State;

• (c) exercise the powers in Regulation 129, 130 or 131 in relation to the rights of any party to a contract with an entity referred to in paragraph (3), where such powers are necessary in order to enforce third-country resolution proceedings;

• (d) make an order that any right to terminate, liquidate or accelerate contracts, or affect the contractual rights, of entities referred to in paragraph (3) and other group entities shall be unenforceable, provided that—

• (i) such a right arises from resolution action taken in respect of the third-country institution, parent undertaking of such entities or other group entities (whether by the third-country resolution authority or otherwise pursuant to the law of that third country), and

• (ii) the substantive obligations under the contract, including payment and delivery obligations, and provision of collateral, continue to be performed.

• (8) The resolution authority may make a proposed resolution order in relation to a parent undertaking where—

• (a) that parent undertaking has a subsidiary institution which is incorporated in a third country,

• (b) the relevant third-country authority has determined that the subsidiary institution referred to in subparagraph (a) meets the conditions for resolution under the law of that third country, and

• (c) the making of a resolution order in relation to the parent undertaking is, in the opinion of the resolution authority, necessary in the public interest.

• (9) Where a proposed resolution order has been made under paragraph (7) or (8), the procedures specified in Regulations 105 to 114 shall apply and the Court and resolution authority may exercise any of the powers specified in those Regulations.

• (10) Regulation 128 shall apply for the purposes of paragraph (8).

• (11) Save as expressly provided, this Regulation shall not affect the law governing normal insolvency proceedings.

• (12) The resolution authority shall be entitled to appear and be heard in any court proceedings relating to the recognition or enforcement of third-country resolution proceedings.

Right to refuse recognition or enforcement of third-country resolution proceedings.

• (a) recognition or enforcement of the third-country resolution proceedings would have an adverse effect on the financial stability of the State or another Member State,

• (b) independent resolution action under Regulation 160 in relation to a Union branch is necessary to achieve one or more of the resolution objectives,

• (c) creditors, including in particular depositors located or payable in the State, would not receive the same treatment as third-country creditors and depositors with similar legal rights under the third-country resolution proceedings,

• (d) recognition or enforcement of the third-country resolution proceedings would have material fiscal implications for the State, or

• (e) the effects of such recognition or enforcement would be contrary to national law (including under any enactment or rule of law).

• (2) Where a European resolution college is established under Article 89 of the Bank Recovery and Resolution Directive or under Regulation 153, the resolution authority may only take a decision to refuse to recognise or enforce third-country resolution proceedings after it has consulted the other members of the European resolution college.

Resolution of Union branches.

• (a) not subject to third-country resolution proceedings, or

• (b) subject to third-country resolution proceedings and one of the circumstances referred to in Regulation 159(1) applies,

the resolution authority may take one, or more, of the following measures in relation to that Union branch:

• (i) withdraw the authorisation of the Union branch, in the case of the branch of a credit institution authorised under section 9A of the Act of 1971;

• (ii) direct the Union branch to cease its business in the State;

• (iii) direct the Union branch to make changes to its legal or operational structure, including by converting to a subsidiary established in the State;

• (iv) direct the Union branch to provide any information necessary to facilitate the exercise of the resolution authority’s powers;

• (v) take one or more of the early intervention measures specified in Regulation 39 in relation to the Union branch;

• (vi) make a proposed resolution order transferring the assets, rights or liabilities of the Union branch to another person.

• (2) The resolution authority may exercise the powers referred to in paragraph (1) where—

• (a) the resolution authority considers that the action is necessary in the public interest, and

• (b) one, or more, of the conditions specified in paragraph (3) is met.

• (3) The conditions referred to in paragraph (2)(b) are the following:

• (a) the resolution authority considers that the Union branch no longer meets, or is likely not to meet, the conditions imposed by law for its establishment or operation within the State and there is no prospect that any private sector, supervisory or relevant third-country action would restore the Union branch to compliance with these conditions or prevent its failure within a reasonable timeframe;

• (b) the resolution authority considers that either—

• (i) the third-country institution of which the Union branch is part is unable or unwilling, or is likely to be unable, to pay its obligations to Union creditors as they fall due, or

• (ii) that third-country institution is unable or unwilling, or is likely to be unable, to pay the obligations that have been created or booked through the Union branch as they fall due,

and the resolution authority is satisfied that no third-country resolution proceedings or insolvency proceedings have been or will be initiated in relation to that third-country institution in a reasonable timeframe;

• (c) the relevant third-country authority has initiated third-country resolution proceedings in relation to the third-country institution of which the Union branch is part;

• (d) the relevant third-country authority has notified the resolution authority in writing of its intention to initiate third-country resolution proceedings in relation to the third-country institution of which the Union branch is part.

• (4) Where the resolution authority takes action in relation to a Union branch in accordance with this Regulation, it shall have regard to the resolution objectives and take the action in accordance with the following principles and requirements, insofar as they are relevant:

• (a) the principles set out in Regulation 64;

• (b) the requirements relating to the application of the resolution tools in Regulations 65 and 66.

• (5) Regulation 128 shall apply to the exercise of any of the powers referred to in paragraph (1) by the resolution authority.

• (6) Where a proposed resolution order has been made under paragraph (1)(vi), the procedures specified in Regulations 105 to 114 shall apply, and the Court and resolution authority may exercise any of the powers specified in those Regulations which are necessary to give effect to the transfer.

Cooperation with third-country authorities.

• (a) in respect of cooperation with a third country unless and until an international agreement as referred to in Article 93(1) of the Bank Recovery and Resolution Directive enters into force with the relevant third country, and

• (b) following the entry into force of an international agreement provided for in Article 93(1) of the Bank Recovery and Resolution Directive with the relevant third country to the extent that the subject matter of this Regulation is not governed by that agreement.

• (2) Where the European Banking Authority has concluded a non-binding framework arrangement with a third-country authority pursuant to Article 97(2) of the Bank Recovery and Resolution Directive, the resolution authority or the competent authority, where appropriate, shall conclude a non-binding cooperation arrangement with that third-country authority in line with the European Banking Authority framework agreement.

• (3) This Regulation shall not prevent the State or the Bank from concluding bilateral or multilateral arrangements with third countries, in accordance with Article 33 of Regulation (EU) No 1093/2010.

• (4) Cooperation arrangements concluded between the resolution authority and resolution authorities of third countries in accordance with this Regulation may, among other provisions, include provisions on the following matters:

• (a) the exchange of information necessary for the preparation and maintenance of resolution plans;

• (b) consultation and cooperation in the development of resolution plans, including principles for the exercise of powers under Regulations 158 and 160 and similar powers under the law of the relevant third countries;

• (c) the exchange of information necessary for the application of resolution tools and exercise of resolution powers and similar powers under the law of the relevant third countries;

• (d) early warning to, or consultation with, parties to the cooperation arrangement before taking any significant action under this Regulation or relevant third-country law affecting the institution or group to which the arrangement relates;

• (e) the coordination of public communication in the case of joint resolution actions;

• (f) procedures and arrangements for the exchange of information and cooperation under subparagraphs (a) to (e), including, where appropriate, through the establishment and operation of crisis management groups.

• (5) The resolution authority and the competent authority shall notify the European Banking Authority in writing of any cooperation arrangements entered into with relevant third-country authorities in accordance with this Regulation.

Exchange of confidential information.

• (a) that third-country authority is subject to requirements and standards of professional secrecy considered to be at least equivalent, in the opinion of all the authorities concerned, to those imposed by Article 84 of the Bank Recovery and Resolution Directive;

• (b) the information is necessary for the performance by the relevant third-country authority of its resolution powers under national law (including under any enactment or rule of law) which are comparable to those under this Regulation;

• (c) subject to paragraph (2) and subparagraph (a), the resolution authority, competent authority or Minister believes on reasonable grounds that the information will not be used for any other purpose.

• (2) In so far as the exchange of information relates to personal data, the handling and transmission of such personal data to third-country authorities shall be governed by the applicable Union and national data protection law.

• (3) Where confidential information originates in another Member State, the resolution authority, the competent authority and the Minister shall not disclose that information to relevant third-country authorities unless the following conditions are met:

• (a) the Union resolution authority or, where relevant, the Union competent authority of the Member State where the information originated (referred to in this paragraph as the “originating authority”) has agreed to that disclosure;

• (b) the information is disclosed only for the purposes permitted by the originating authority.

• (4) For the purposes of this Regulation, information is considered to be confidential where it is subject to confidentiality requirements under Union law.

Part 7 Financing Arrangements

Requirement to establish resolution financing arrangements.

• (2) The Fund shall be used only in accordance with the resolution objectives and the principles set out in Regulations 61 and 64.

• (3) The Fund shall be managed and administered by the resolution authority.

• (4) Notwithstanding Regulation 169, where monies standing to the credit of the Fund are placed on deposit with the Bank, the Bank may pay interest on the monies at a rate determined by it.

• (5) The resolution authority shall have the power to—

• (a) raise ex-ante contributions as referred to in Regulation 166 with a view to reaching the target level specified in Regulation 165;

• (b) subject to Regulation 169, raise ex-post extraordinary contributions as referred to in Regulation 167 where the contributions specified in subparagraph (a) are insufficient;

• (c) subject to Regulation 169, contract borrowings and other forms of support as referred to in Regulation 168.

Use of Fund.

• (a) to guarantee the assets or the liabilities of an institution under resolution, its subsidiaries, a bridge institution, an asset management vehicle or, where the sale of business tool is applied, a purchaser;

• (b) to make loans to an institution under resolution, its subsidiaries, a bridge institution, an asset management vehicle or, where the sale of business tool is applied, a purchaser;

• (c) to purchase assets of an institution under resolution;

• (d) to make contributions to a bridge institution, an asset management vehicle or, where the sale of business tool is applied, a purchaser;

• (e) to pay compensation to shareholders or creditors in accordance with Regulation 134;

• (f) to make a contribution to an institution under resolution, in lieu of the write-down or conversion of liabilities of certain creditors, where the bail-in tool is applied and the resolution authority decides to exclude certain creditors from the scope of bail-in in accordance with Regulation 80(9) to (15);

• (g) to lend to other financing arrangements on a voluntary basis in accordance with Regulation 171;

• (h) to take any combination of the actions referred to in subparagraphs (a) to (g).

• (2) The Fund shall not be used directly to absorb the losses of an institution or an entity referred to in Regulation 2(1)(b) to (i) or to recapitalise such an institution or an entity.

• (3) In the event that the use of the Fund for the purposes set out in paragraph (1) indirectly results in part of the losses of an institution or an entity referred to in Regulation 2(1)(b) to (i) being passed on to the Fund, the principles governing the use of the Fund set out in Regulation 80 shall apply.

Target level.

“initial period” means the period from the commencement of these Regulations to 31 December 2024;

“target level” means the level required under paragraph (2).

• (2) The resolution authority shall ensure that during the initial period, the available financial means of the Fund reaches at least 1% of the amount of covered deposits of all institutions authorised in the State.

• (3) The available financial means of the Fund shall consist of the following:

• (a) contributions raised from institutions in accordance with Regulations 166 and 167;

• (b) irrevocable payment commitments pledged in accordance with Regulation 166(5);

• (c) amounts received from an institution under resolution, bridge institution, asset management vehicle or purchaser, or any other interest or earnings on investments;

• (d) amounts owed to the Fund by the resolution financing arrangements of other Member States in respect of loans provided under Regulation 171(2).

• (4) During the initial period, contributions to the Fund raised in accordance with Regulation 166 shall be spread out in time as evenly as possible until the target level is reached.

• (5) By way of exception to paragraph (4), the resolution authority may increase or decrease the aggregate level of contributions in a given period to take account of the phase of the business cycle and the impact pro-cyclical contributions may have on the financial position of contributing institutions.

• (6) Where, at any time before 31 December 2024, the Fund has made cumulative disbursements in excess of 0.5% of covered deposits of all institutions authorised in the State, the resolution authority may extend the initial period by a maximum of 4 years.

• (7) Where, at any time after the initial period, the available financial means of the Fund fall below the target level, the resolution authority shall resume raising regular contributions in accordance with Regulation 166 until the target level is reached.

• (8) Where, at any time after the initial period, the available financial means of the Fund fall to less than two-thirds of the target level, the resolution authority shall set the level of regular contributions such that the target level will be reached in no more than 6 years.

• (9) The resolution authority, when setting the level of the regular contributions under paragraphs (7) and (8), shall take due account of the phase of the business cycle and the impact pro-cyclical contributions may have on the financial position of contributing institutions.

Ex-ante contributions.

• (2) Union branches operating in the State shall be considered to be institutions for the purpose of this Part.

• (3) The resolution authority shall determine an aggregate annual target for contributions referred to in paragraph (1) in order to reach the target level specified in Regulation 165.

• (4) For each institution, the resolution authority shall prescribe an annual contribution based on—

• (a) the aggregate annual target, and

• (b) the allocation methodology described in paragraphs (7) and (8).

• (5) Each institution shall meet its annual contribution level through—

• (a) levy payments, or

• (b) payment commitments, to the extent permitted by the resolution authority in accordance with paragraph (9).

• (6) The resolution authority shall prescribe the timing and method for levy payments and payment commitments.

• (7) Subject to paragraph (8), the annual contribution of each institution shall be in the same proportion as the amount of that institution’s liabilities (excluding own funds and covered deposits) relative to the aggregate liabilities (excluding own funds and covered deposits) of all institutions authorised in the State.

• (8) The level of an institution’s annual contribution shall be adjusted to reflect the risk profile of that institution, in accordance with the criteria adopted under Article 103(7) of the Bank Recovery and Resolution Directive.

• (9) The resolution authority may permit institutions to meet up to 30% of their annual contribution through payment commitments, provided that—

• (a) those payment commitments are irrevocable, and

• (b) those payment commitments are fully backed by collateral considered adequate by the resolution authority that is unencumbered by any third party rights and at the free disposal of, and allocated for, the exclusive use by the resolution authority.

• (10) Payment commitments raised under paragraph (9) shall be counted towards the target level set out in Regulation 165(2).

• (11) The resolution authority shall verify that required annual contributions have been met and shall take appropriate measures to prevent evasion and avoidance of payment obligations.

• (12) The resolution authority may recover as a simple contract debt in any court of competent jurisdiction from a person by whom the contribution is payable any amount due and owing to the resolution authority in respect of annual contributions under this Regulation.

• (13) Contributions raised under this Regulation and Regulation 167 shall only be used for the purposes specified in Regulation 164(1).

• (14) Subject to Regulation 199, the resolution authority shall make regulations prescribing the matters referred to in paragraphs (4) to (6) and (9) to (11) and those regulations shall be consistent with any delegated acts adopted under Article 103 of the Bank Recovery and Resolution Directive.

Extraordinary ex-post contributions.

• (2) Extraordinary ex-post contributions shall be set at a level not exceeding 3 times the aggregate annual target for contributions determined in accordance with Regulation 166.

• (3) Extraordinary ex-post contributions shall be allocated between institutions in accordance with the rules set out in Regulation 166(7) and (8).

• (4) Regulation 166(5), (6), (11), (12) and (13) shall be applicable to the contributions raised under this Regulation.

• (5) Subject to paragraph (6), the resolution authority may defer, in whole or in part, an institution’s payment of extraordinary ex-post contributions to the Fund where the payment of those contributions would jeopardise the liquidity or solvency of the institution concerned.

• (6) A deferral under paragraph (5) shall not be granted for a period greater than 6 months but may be renewed upon the request of the institution.

• (7) The contributions deferred pursuant to paragraph (5) shall be paid when such a payment no longer jeopardises the liquidity or solvency of the institution concerned.

• (8) Subject to Regulation 199, the resolution authority may make regulations prescribing the rate of extraordinary ex-post contributions, or a method of calculating the rate of extraordinary ex-post contributions, payable to the Fund by an institution.

Alternative funding means.

• (a) the amounts raised in accordance with Regulation 166 are not sufficient to cover the losses, costs or other expenses incurred by the Fund, and

• (b) the extraordinary ex-post contributions provided for in Regulation 167 are not immediately accessible or sufficient.

No liability of resolution authority to Fund.

Insufficiency in Fund.

• (a) the available financial means of the Fund are not sufficient to cover the costs to the Fund of a particular resolution action in the State, and

• (b) the extraordinary ex-post contributions referred to in Regulation 167 are not immediately accessible, including for reasons relating to the financial position of the institution or institutions concerned,

the Minister may, on the written request of the resolution authority, advance to the Fund such sums as he or she thinks proper to enable payments out of the Fund to be made expeditiously.

• (2) The payments of sums referred to in paragraph (1) shall be made on such terms as to repayment, interest and other matters as may be determined by the Minister after consulting the resolution authority.

• (3) All sums paid out of the Fund in repayment of an advance under this Regulation or in pursuance of any term or condition subject to which an advance was made under this Regulation shall be placed to the credit of the account of the Exchequer and shall form part of the Central Fund and be available in any manner in which the Central Fund is available.

• (4) All monies from time to time required by the Minister to meet sums which may become payable by him or her under this Regulation shall be advanced out of the Central Fund or the growing produce thereof.

Borrowing between financing arrangements.

• (a) the amounts raised under Regulation 166 are not sufficient to cover the losses, costs or other expenses incurred by the Fund,

• (b) the extraordinary ex-post contributions provided for in Regulation 167 are not immediately accessible, and