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

• (c) the alternative funding means provided for in Regulation 168 are not immediately accessible on reasonable terms.

• (2) The resolution authority may lend monies from the Fund to another financing arrangement within the Union provided the circumstances specified in Article 106(1) of the Bank Recovery and Resolution Directive are applicable to that financing arrangement.

• (3) Following a request from another financing arrangement under Article 106 of the Bank Recovery and Resolution Directive, the resolution authority shall decide whether or not to lend monies from the Fund to that financing arrangement.

• (4) Any decision, under paragraph (3), shall be taken—

• (a) with the consent of the Minister, and

• (b) with due urgency.

• (5) Where the resolution authority decides to make a loan under paragraph (2), it shall agree the rate of interest, repayment period and other terms and conditions of that loan (and other loans made under Article 106 of the Bank Recovery and Resolution Directive) with the borrowing financing arrangement and the other financing arrangements which have decided to participate.

• (6) The loan of every participating financing arrangement shall have the same interest rate, repayment period and other terms and conditions, unless the resolution authority and all other participating financing arrangements agree otherwise.

• (7) The amount of monies from the Fund loaned by the resolution authority shall be in the same proportion as the amount of covered deposits in the State relative to the aggregate amount of covered deposits in the Member States of participating resolution financing arrangements.

• (8) The rates of contribution in accordance with paragraph (7) may be varied by agreement between the resolution authority and—

• (a) all participating financing arrangements, or

• (b) the bodies responsible for such participating financing arrangements.

Mutualisation of national financing arrangements in case of a group resolution.

• (2) For the purposes of paragraph (1), where the resolution authority is the group-level resolution authority, it shall, after consulting with the Union resolution authorities of institutions in other Member States that are part of the group, propose a financing plan as part of the group resolution scheme provided for in Regulation 155 or 156 where necessary before taking resolution action.

• (3) The financing plan under paragraph (2) shall include the following:

• (a) a valuation in accordance with Regulation 65 or 66 in respect of the affected group entities;

• (b) the losses to be recognised by each affected group entity at the moment the resolution tools are exercised;

• (c) for each affected group entity, the losses that would be suffered by each class of shareholders and creditors;

• (d) any contribution that deposit guarantee schemes would be required to make in accordance with Regulation 173(1);

• (e) the total contribution by resolution financing arrangements and the purpose and form of the contribution;

• (f) the basis for calculating the amount that each of the national resolution financing arrangements of the Member States where affected group entities are located is required to contribute to the financing of the group resolution in order to build up the total contribution referred to in subparagraph (e);

• (g) the amount that the resolution financing arrangement of each affected group entity is required to contribute to the financing of the group resolution and the form of those contributions;

• (h) the amount of borrowing that the resolution authorities or resolution financing arrangement of the Member States where the affected group entities are located will contract from institutions, financial institutions and other third parties under Article 105 of the Bank Recovery and Resolution Directive;

• (i) a timeframe for the use of the financing arrangements of the Member States where the affected group entities are located, which should be capable of being extended where appropriate.

• (4) The basis for apportioning the contribution referred to in paragraph (3)(e) shall be consistent with paragraph (5) and with the principles set out in the group resolution plan in accordance with Regulation 21(4)(g), (5) and (6), unless otherwise agreed in the financing plan.

• (5) Unless agreed otherwise in the financing plan, the basis for calculating the contribution of each national resolution financing arrangement shall in particular have regard to the following:

• (a) the proportion of the group’s risk-weighted assets held at institutions and entities, referred to in Article 1(1)(b), (c) and (d) of the Bank Recovery and Resolution Directive, established in the Member State of that resolution financing arrangement;

• (b) the proportion of the group’s assets held at institutions and entities, referred to in Article 1(1)(b), (c) and (d) of the Bank Recovery and Resolution Directive, established in the Member State of that resolution financing arrangement;

• (c) the proportion of the losses, which have given rise to the need for group resolution, which originated in group entities under the supervision of Union competent authorities in the Member State of that resolution financing arrangement;

• (d) the proportion of the resources of the group financing arrangements which, under the financing plan, are expected to be used to benefit group entities established in the Member State of that financing arrangement.

• (6) The resolution authority shall establish rules and procedures to ensure that the contributions from the monies in the Fund to the financing of group resolution can be provided immediately without prejudice to paragraph (2) and subject to Regulation 169.

• (7) Subject to Regulation 169, the resolution authority may, on behalf of the Fund and under the conditions set out in Regulation 168, contract borrowings or other forms of support, from institutions, financial institutions or other third parties in order to finance contributions towards a group resolution in accordance with that Regulation.

• (8) Subject to Regulation 169, the resolution authority may use the resources of the Fund to guarantee any borrowing contracted by the group financing arrangements in accordance with Article 107(7) of the Bank Recovery and Resolution Directive.

• (9) Any proceeds or benefits that arise from the use of the group financing arrangements shall be allocated to each national resolution financing arrangement in accordance with its contribution to the financing of the group resolution.

Use of deposit guarantee schemes in context of resolution.

• (a) when the bail-in tool is applied, the amount by which covered deposits would have been written down in order to absorb the losses in the institution pursuant to Regulation 85(1)(a), had covered deposits been included within the scope of bail-in and been written down to the same extent as creditors with the same level of priority, or

• (b) when one or more resolution tools other than the bail-in tool is applied, the amount of losses that covered depositors would have suffered, had covered depositors suffered losses in proportion to the losses suffered by creditors with the same level of priority.

• (2) The amount under paragraph (1) shall not be greater than either—

• (a) the amount of losses that the deposit guarantee scheme would have had to bear had the institution been wound up under normal insolvency proceedings, or

• (b) an amount equal to 50% of the target level of the deposit guarantee scheme pursuant to Article 10 of Directive 2014/49/EU.

• (3) Where it is determined by a valuation under Regulation 133 that the deposit guarantee scheme’s contribution to resolution was greater than the net losses it would have incurred had the institution been wound up under normal insolvency proceedings, the deposit guarantee scheme shall be entitled to the payment of the difference from the Fund in accordance with Regulation 134.

• (4) Where the bail-in tool is applied, the deposit guarantee scheme shall not be required to make any contribution towards the cost of recapitalising the institution or bridge institution pursuant to Regulation 85(1)(b).

• (5) The liability of the deposit guarantee scheme under paragraph (1) shall be determined by a valuation which complies with the conditions referred to in Regulation 65 or 66.

• (6) The contribution from the deposit guarantee scheme for the purpose of paragraph (1) shall be made in cash.

• (7) Where eligible deposits at an institution under resolution are transferred to another entity through the sale of business tool or the bridge institution tool, the depositors have no claim under Directive 2014/49/EU against the deposit guarantee scheme in relation to any part of their deposits at the institution under resolution that are not transferred, provided that the amount of funds transferred is equal to or more than the aggregate coverage level provided for in Article 6(1) of that Directive.

• (8) Notwithstanding paragraphs (1) to (7), where the available financial means of the deposit guarantee scheme introduced and recognised by the State pursuant to Article 4 of Directive 2014/49/EU are used in accordance with this Regulation and are subsequently reduced to less than two thirds of the target level of a deposit guarantee scheme under Article 10 of that Directive, the regular contribution to the deposit guarantee scheme shall be set at a level which allows the target level to be reached within 6 years.

Part 8 Penalties

Specific provisions.

• (a) a public statement that identifies the natural person, institution, financial institution, Union parent undertaking or other legal person responsible and the nature of the breach concerned;

• (b) subject to paragraph (2), in the case of a legal person, a monetary penalty of up to 10% of the total annual net turnover of that legal person in the preceding business year;

• (c) in the case of a natural person, a monetary penalty of up to €5,000,000;

• (d) a monetary penalty of up to twice the amount of the benefit derived from the contravention where—

• (i) that benefit can be determined, and

• (ii) twice the amount of the benefit derived from the contravention is greater than the maximum amount specified in subparagraph (b), in the case of a legal person, or subparagraph (c), in the case of a natural person;

• (e) a direction requiring the natural or legal person responsible to cease the conduct and to desist from a repetition of that conduct;

• (f) a temporary ban against a member of the management body, or senior management, of an institution or entity referred to in Regulation 2(1)(b), (c) or (d), or against any other natural person who is held responsible, from exercising functions in such institutions or entities.

• (2) Where a legal person is a subsidiary of a parent undertaking, the relevant turnover for the purposes of this Regulation shall be turnover resulting from the consolidated accounts of the ultimate parent undertaking in the preceding business year.

• (3) The contraventions referred to in paragraph (1) are the following:

• (a) failure to draw up, maintain and update recovery plans and group recovery plans under Regulation 11 or 14;

• (b) failure to notify an intention to provide group financial support to the competent authority under Regulation 37;

• (c) failure to provide all the information necessary for the development of resolution plans under Regulation 20;

• (d) failure of the management body of an institution or an entity referred to in Regulation 2(1)(b) to (i) to notify the competent authority when the institution or entity concerned is failing or likely to fail under Regulation 143(1).

Publication of administrative penalties.

• (a) the type and nature of the contravention, and

• (b) the identity of the natural or legal person on whom the penalty is imposed,

without undue delay after that person is informed of those penalties.

• (2) Where the Bank publishes penalties against which there is an appeal, the Bank shall, without undue delay, also publish on its official website, information on the appeal status and outcome thereof.

• (3) Where an administrative penalty has been imposed on a natural person, the Bank shall, before publishing the identity of or other personal data relating to that person, assess whether the publication of personal data would be disproportionate.

• (4) The Bank shall publish the administrative penalties referred to in paragraph (1) on an anonymous basis in any of the following circumstances:

• (a) where, following an assessment under paragraph (3), publication of identity or personal data would, in the opinion of the Bank, be disproportionate;

• (b) where, in the opinion of the Bank, publication would jeopardise the stability of financial markets;

• (c) where, in the opinion of the Bank, publication would jeopardise an ongoing criminal investigation;

• (d) where, in the opinion of the Bank, publication would cause disproportionate damage to the institutions or entities referred to in Regulation 2(1)(b) to (i) or natural persons involved.

• (5) Where the circumstances referred to in paragraph (4) are likely to cease within a reasonable period of time, publication may be postponed for such a period of time.

• (6) The Bank shall ensure that information published under paragraph (1) or (2) remains on its website for at least 5 years but personal data shall not be retained on the website of the Bank any longer than for the period necessary for the purposes of these Regulations.

• (7) Publication shall not occur where the publication involves the disclosure of confidential information the disclosure of which is prohibited by—

• (a) the Rome Treaty,

• (b) the ESCB Statute (within the meaning given by section 2 of the Act of 1942), or

• (c) the supervisory EU legal acts (within the meaning of section 33AK(10) of the Act of 1942).

Maintenance of central database by European Banking Authority.

Effective application of penalties and exercise of powers to impose penalties by Bank.

• (a) the gravity and the duration of the infringement;

• (b) the degree of responsibility of the natural or legal person responsible;

• (c) the financial strength of the natural or legal person responsible, (including, among other things, as indicated by the total turnover of the responsible legal person or the annual income of the responsible natural person);

• (d) the amount of profits gained or losses avoided by the natural or legal person responsible, insofar as they can be determined;

• (e) the losses for third parties caused by the infringement, insofar as they can be determined;

• (f) the level of cooperation of the natural or legal person responsible with the competent authority and the resolution authority;

• (g) previous infringements by the natural or legal person responsible;

• (h) any potential systemic consequences of the infringement.

Part 9 Criminal Offences

Chapter 1 Criminal offences: general

Offences by bodies corporate.

• (2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

Prosecution by Bank.

Chapter 2Criminal offences

Continuation of contravention of Regulation 123(1)(e).

Provision of false or misleading information.

Breach of confidentiality.

• (a) required to do so by an enactment, or

• (b) with the prior written consent of the resolution authority.

• (2) A person, other than the resolution authority, shall not publish the fact that the person or the resolution authority proposes—

• (a) to present a petition to wind up an institution,

• (b) to advertise such a petition, or

• (c) to take any other step or make any other publication concerning that person’s intention to cause an institution to be wound up,

other than—

• (i) where required to do so by an enactment, or

• (ii) with the prior written consent of the resolution authority.

• (3) A person that contravenes paragraph (1) or (2) commits an offence.

• (4) It is not a contravention of paragraph (1) or (2) for an institution to disclose a fact referred to in either of those paragraphs for the purposes of obtaining professional advice.

• (5) It is not a contravention of paragraph (1) or (2) for one of the parties listed in Regulation 146(1) to disclose a fact referred to in either of those paragraphs where such information is disclosed in a manner permitted by Regulation 145, 146(4) or 154.

Misleading or obstructing valuers, temporary administrators or special managers.

• (a) a person appointed as temporary administrator under Chapter 3 of Part 3;

• (b) a special manager appointed under Regulation 115;

• (c) a person appointed to carry out a valuation for the purposes of resolution under Regulation 65 or 66;

• (d) a person appointed to carry out a valuation of difference in treatment under Regulation 133.

• (2) The following persons shall give all such assistance to an appointee as he or she may reasonably require for the performance of his or her functions under these Regulations:

• (a) any entity in respect of which the appointee stands appointed;

• (b) any entity which is part of the same group as an entity to which the appointee stands appointed;

• (c) a director, manager, officer, employee or contractor of any entity mentioned in subparagraphs (a) or (b).

• (3) Where an appointee believes on reasonable grounds that a person mentioned in paragraph (2) may be able to produce a document that relates to a matter concerning the performance of any of the appointee’s functions, he or she may serve on the person a notice specifying or describing the document to be produced and requiring the person to produce the document for examination.

• (4) A person who—

• (a) obstructs or impedes an appointee in the performance of his or her functions under these Regulations, or

• (b) gives information to an appointee, in the performance of an appointee’s functions under these Regulations, that is false, misleading or inaccurate in a material respect, knowing it to be false, misleading or inaccurate in a material respect, or where he or she ought reasonably to have known the information was false, misleading or inaccurate in a material respect, on his or her own behalf, or on behalf of any other person or institution,

commits an offence.

Criminal offences.

• (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or to both, or

• (b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 3 years, or to both.

Part 10 Consequential Amendments

Chapter 1 Acts

Amendment of Central Bank Act 1942.

• (a) by inserting after section 5A(1)(aa) the following:

• “(ab) the functions of the resolution authority under the European Union (Bank Recovery and Resolution) Regulations ( S.I No. 289 of 2015 );”,

• (b) by inserting after section 32D(3) the following:

• “(3A) A levy prescribed in relation to the functions of the resolution authority under the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 ) is to be fixed so that the total amount of levy collected or recovered does not exceed the total costs incurred by the resolution authority, within the meaning of those Regulations, in performing its functions and exercising its powers under those Regulations.”,

• (c) in section 33AK(5) (as amended by section 1 of the Central Bank (Amendment) Act 2015 (No. 1 of 2015)) by substituting for paragraph (av) the following:

• “(av) to the ECB or a national competent authority in accordance with the SSM Regulation or the SSM Framework Regulation, or

• (aw) for any purpose connected to the functions of the Bank as a competent authority or resolution authority under Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014²⁷ .”,

• (d) by substituting for sections 33ANC (inserted by Regulation 153 of the European Union (Capital Requirements) Regulations 2014 ( S.I. No. 158 of 2014 )) and 33AND (inserted by Regulation 6 of the European Union (Single Supervisory Mechanism) Regulations 2014 (S.I. No.. 495 of 2014)) the following:

“Application of Part under Capital Requirements Directive.

33ANC. (1) This Part applies in relation to—

• (a) the commission or suspected commission by a financial holding company, mixed-financial holding company or mixed-activity holding company of a contravention of—

  • (i) a provision of the Capital Requirements Regulations or the Capital Requirements Regulation,

  • (ii) any direction given to a financial holding company, mixed-financial holding company or mixed-activity holding company under a provision of the Regulations referred to in subparagraph (i),

  • (iii) any requirement imposed on a financial holding company, mixed-financial holding company or mixed-activity holding company under a provision of the Regulations referred to in subparagraph (i) or under any direction given to a financial holding company, mixed-financial holding company or mixed-activity holding company under a provision of those Regulations, or

  • (iv) any obligation imposed on a financial holding company, mixed-financial holding company or mixed-activity holding company by this Part or imposed by the Bank pursuant to a power exercised under this Part,

  and

• (b) participation, by a person concerned in the management of a financial holding company, mixed-financial holding company or mixed-activity holding company, in the commission by the financial holding company, mixed-financial holding company or mixed-activity holding company of such a contravention.

• (2) For the purposes of subsection (1)—

  • (a) a reference in this Part to a regulated financial service provider or a financial service provider includes a reference to a financial holding company, mixed-financial holding company or mixed-activity holding company,

  • (b) a reference in this Part to a prescribed contravention includes a reference to a contravention, by a financial holding company, mixed-financial holding company or mixed-activity holding company, of a provision, direction, requirement or obligation referred to in subsection (1), and

  • (c) a reference in this Part to a person concerned in the management of a regulated financial service provider includes a reference to a person concerned in the management of a financial holding company, mixed-financial holding company or mixed-activity holding company.

• (3) Nothing in this section limits the application of this Part in relation to matters other than those referred to in subsection (1).

• (4) In this section—

(a)‘Capital Requirements Regulations’ means European Union (Capital Requirements) Regulations 2014 ( S.I. No. 158 of 2014 );

(b)‘Capital Requirements Regulation’ means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013²⁸ ;

(c)‘financial holding company’ has the meaning assigned to it in point (20) of Article 4(1) of the Capital Requirements Regulation;

(d)‘mixed-financial holding company’ has the meaning assigned to it in point (21) of Article 4(1) of the Capital Requirements Regulation;

(e)‘mixed-activity holding company’ has the meaning assigned to it in point (22) of Article 4(1) of the Capital Requirements Regulation.”.

Application of Part for SSM and SSM Framework Regulations.

33AND. This Part is subject to the provisions of the SSM Regulation and the SSM Framework Regulation.

Application of Part under Bank Recovery and Resolution Directive.

33ANE. (1) For the purposes of this section, ‘designated entity’ shall include the following:

• (a) a financial holding company;

• (b) a mixed financial holding company;

• (c) a mixed-activity holding company;

• (d) a parent financial holding company in a Member State;

• (e) a parent mixed financial holding company in a Member State;

• (f) a parent undertaking of an institution;

• (g) a Union branch;

• (h) a Union parent financial holding company;

• (i) a Union parent mixed financial holding company.

• (2) This Part applies in relation to—

• (a) the commission or suspected commission by a designated entity of a contravention of—

• (i) a provision of the Bank Recovery and Resolution Regulations,

• (ii) any direction given to a designated entity under a provision of the Regulations referred to in subparagraph (i),

• (iii) any requirement imposed on a designated entity under a provision of the Regulations referred to in subparagraph (i) or under any direction given to a designated entity under a provision of those Regulations, or

• (iv) any obligation imposed on a designated entity by this Part or imposed by the Bank pursuant to a power exercised under this Part,

and

• (b) participation, by a person concerned in the management of a designated entity in the commission by the designated entity of such a contravention.

• (3) For the purposes of this section—

• (a) a reference in this Part to a regulated financial service provider or a financial service provider includes a reference to a designated entity,

• (b) a reference in this Part to a prescribed contravention includes a reference to a contravention, by a designated entity of a provision, direction, requirement or obligation referred to in subsection (2), and

• (c) a reference in this Part to a person concerned in the management of a regulated financial service provider includes a reference to a person concerned in the management of a designated entity.

• (4) Nothing in this section limits the application of this Part in relation to matters other than those referred to in subsection (2).

• (5) In this section—

(a)‘Bank Recovery and Resolution Regulations’ means the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 );

(b)‘financial holding company’, ‘mixed financial holding company’, ‘mixed-activity holding company’, ‘parent financial holding company in a Member State’, ‘parent mixed financial holding company in a Member State’, “parent undertaking”, “Union branch’, “Union parent financial holding company’ and ‘Union parent mixed financial holding company’ have the meanings assigned to them, respectively, in the Bank Recovery and Resolution Regulations.”,

• (e) by inserting, after section 33BC(6) (as amended by Regulation 153 of the Capital Requirements Regulations the following:

• “(7) This section does not apply where Regulation 175 of the European Union (Bank Recovery and Resolution) Regulations ( S.I. No. 289 of 2015 ) applies.”,

and

• (f) in Part 2 of Schedule 2 (as amended by Regulation 9 of the European Union (Insurance Undertakings: Financial Statements) Regulations 2015 ( S.I. No. 266 of 2015 )) by substituting for items 56 to 58 the following:

“

56	S.I. No. 166 of 2015	European Union (European Social Entrepreneurship Funds) Regulations 2015	The whole instrument
57	S.I. No. 167 of 2015	European Union (European Venture Capital Funds) Regulations 2015	The whole instrument
58	S.I. No. 262 of 2015	European Union (Insurance Undertakings: Financial Statements) Regulations 2015	The whole instrument
59	S.I. No 266 of 2015	European Union (Credit Institutions: Financial Statements) Regulations 2015	The whole instrument
60	S.I. No. 289 of 2015	European Union (Bank Recovery and Resolution) Regulations 2015	The whole instrument

.”

Amendment of Irish Takeover Panel Act 1997.

• “(c) Rules made by the Panel in accordance with paragraph (a) shall not apply in the case of use of resolution tools, powers and mechanisms provided for in Part 4 of the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 ).”.

Amendment of Central Bank and Credit Institutions (Resolution) Act 2011.

• (a) in section 2(1)—

• (i) by substituting for the definition of “authorised credit institution” the following:

“ ‘authorised credit institution’ means a credit union;”,

• (ii) by substituting for the definition of “credit institution” the following:

“ ‘credit institution’ means a credit union;”,

• (iii) by inserting after the definition of “credit union” the following:

“ ‘designated credit institution’ means—

• (a) a bank authorised (or deemed to be authorised by the European Central Bank on application therefor) under section 9 of the Act of 1971,

• (b) a building society authorised (or deemed to be authorised by the European Central Bank on application therefor) under section 17 of the Building Societies Act (No. 17 of 1989), or

• (c) a credit union;”,

and

• (iv) by inserting after the definition of “Minister” the following:

“ ‘recognised credit institution’ means a person authorised in the State to accept deposits or other repayable funds from the public and to grant credit on its own account;”,

• (b) in section 45(2), by deleting “or are both building societies,”,

• (c) in section 49—

• (i) in subsection (5) by substituting “If the transferor is an authorised credit institution and a share account is included in the transfer of assets and liabilities —” for “If the transferor is an authorised credit institution that is either a credit union or a building society and a share account is included in the transfer of assets and liabilities —”,

• (ii) in subsection (5)(a) by substituting “where the transferee is a credit institution or a building society” for “where the transferee is a credit institution that is either a credit union or a building society”

• (iii) in subsection (6), by deleting paragraph (a), and

• (iv) by substituting for subsection (7)(a) the following:

• “(a) the Credit Union Act 1997 , or”,

• (d) in section 69(6)(a) by deleting “the Building Societies Act 1989 ,”, and

• (e) in Part 7—

• (i) by substituting “a designated credit institution” for “an authorised credit institution” in each place where it occurs, and

• (ii) by substituting “recognised credit institution” for “credit institution” in each place where it occurs.

Amendment of Central Bank (Supervision and Enforcement) Act 2013.

• (a) in paragraph (i) by substituting “(2);” for “(2).”, and

• (b) by inserting after paragraph (i) the following:

• “(j) a special manager or administrator, within the meaning of the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 ), appointed in accordance with those Regulations.”.

Amendment of Companies Act 2014.

“ ‘Bank Recovery and Resolution Regulations’ means the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 );”.

• (2) Section 93 of the Act of 2014 is amended by inserting after subsection (4) the following:

• “(5) This section shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (3) Section 191 of the Act of 2014 is amended—

• (a) in subsection (2)(b) by substituting “subsection (3) or (3A);” for “subsection (3);”, and

• (b) by inserting after subsection (3) the following:

• “(3A) Where section 1102(3) applies, the condition referred to in subsection (2)(b) is that the resolution is passed by not less than two-thirds of the votes cast by such members of the company concerned as, being entitled to do so, vote in person or by proxy at a general meeting of it.”.

• (4) Section 621 of the Act of 2014 is amended—

• (a) in subsection (2)—

• (i) in paragraph (g) by substituting “employees,” for “employees.”, and

• (ii) by inserting after paragraph (g) the following:

• “(h) where the company being wound up has been the subject of a resolution action pursuant to the Bank Recovery and Resolution Regulations, any reasonable expenses properly incurred by the resolution authority in connection with the use of the resolution tools or powers under those Regulations,

• (i) the—

  • (i) part of eligible deposits up to the coverage level in Article 6 of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014²⁹ , and

  • (ii) deposit guarantee scheme where it is subrogating to the rights and obligations of the part of the eligible deposits referred to in subparagraph (i).”,

• (b) by inserting after subsection (2) the following:

• “(2A) In a winding up there shall be paid in priority to all other debts, but after those listed in subsection (2)—

  • (a) the part of eligible deposits from natural persons and micro, small and medium-sized enterprises which exceed the coverage level in Article 6(1) of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014³⁰ , and

  • (b) deposits that would be eligible deposits from natural persons, micro, small and medium–sized enterprises were they not made through branches located outside the Union of institutions established within the Union.

• (2B) For the purposes of subsections (2)(i) and (2A) the following definitions shall apply:

(a)‘eligible deposits’ has the meaning given to it in the Bank Recovery and Resolution Regulations and shall include a share account held with a building society or credit union;

(b)‘deposit guarantee scheme’ has the meaning given to it in the Bank Recovery and Resolution Regulations;

(c)‘micro, small and medium-sized enterprises’ has the meaning given to it in the Bank Recovery and Resolution Regulations;

(d)‘institution’ has the meaning given to it in the Bank Recovery and Resolution Regulations.”,

and

• (c) in subsection (7), by substituting “Subject to subsection (2A), the foregoing” for “The foregoing”.

• (5) Section 622(6) of the Act of 2014 is amended by substituting “section 621(2) and (2A)” for “section 621(2)”.

• (6) Section 1023 of the Act of 2014 is amended by inserting after subsection (8) the following:

• “(9) Section 1022 and this section shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (7) Section 1029 of the Act of 2014 is amended by inserting after subsection (8) the following:

• “(9) Section 1028 and this section shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (8) Section 1035 of the Act of 2014 is amended by inserting after subsection (4) the following:

• “(5) Section 1034 and this section shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (9) Section 1036 of the Act of 2014 is amended by inserting after subsection (6) the following:

• “(7) This section shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (10) Section 1099 of the Act of 2014 is amended by inserting after subsection (2) the following:

• “(3) Sections 1100 to 1110 shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (11) Section 1102 of the Act of 2014 is amended by inserting after subsection (2) the following:

• “(3) Notwithstanding section 181(1) as it applies by virtue of subsections (1) and (2), for the purposes of the Bank Recovery and Resolution Regulations a general meeting of a company may, by a majority of two-thirds of the votes validly cast, issue a notice requiring a general meeting (or modify its constitution to prescribe that a notice requiring a general meeting is issued) at shorter notice than as set out in paragraph (1) to decide on a capital increase, provided that—

  • (a) the meeting does not take place within 10 calendar days of the issue of the relevant notice,

  • (b) the conditions of Regulation 39 or Chapter 3 of Part 3 of the Bank Recovery and Resolution Regulations are met, and

  • (c) the capital increase is necessary to avoid the occurrence of the conditions laid down in Regulations 62 and 63 of the Bank Recovery and Resolution Regulations arising.

• (4) For the purposes of subsection (3)—

  • (a) the notice obligations in section 1104(2) and (3), and

  • (b) the requirement regarding entry of a person by the record date in section 1105(2),

  do not apply.”.

• (12) Section 1111 of the Act of 2014 is amended by inserting after subsection (4) the following:

• “(5) This section shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

• (13) Section 1128 of the Act of 2014 is amended by substituting for section 1128 the following:

“1128.(1) Subject to subsection (2), this Chapter applies only if each of the merging companies, or, one at least, of them, is a PLC.

• (2) This Chapter shall not apply if each of the merging companies is—

  • (a) a PLC, or

  • (b) any other company to which Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011³¹ applies,

  any of which is the subject of the use of resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU of the European Parliament and of the Council³² .”.

• (14) The Act of 2014 is amended in section 1167 by designating the section as subsection (1) and inserting after subsection (1) the following:

• “(2) Section 84 and subsection (1)(b) shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.”.

Chapter 2 Statutory Instruments

Amendment of European Communities (Cross-Border Mergers) Regulations 2008.

“Non-application of Regulations to companies in certain circumstances.

3A.These Regulations shall not apply to a company or companies that are subject to the use of resolution tools, powers or mechanisms provided for in Title IV of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014³³ .”.

Amendment of European Communities (Financial Collateral Arrangements) Regulations 2010.

• “(8) Regulations 6 to 12 shall not apply to any restriction on the enforcement of financial collateral arrangements or any restriction on the effect of a security financial collateral arrangement, close out, netting or set-off provision that is imposed by virtue of Chapter 4, 7 or 8 of Part 4 of the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 ), or to any restriction that is imposed by virtue of similar powers in the law of the State to facilitate the orderly resolution of an entity referred to in paragraph (2)(c) or (d).”.

Amendment of European Communities (Reorganisation and Winding-up of Credit Institutions) Regulations 2011.

• (a) in Regulation 2(1) (as amended by section 5(3) of the Central Bank (Supervision and Enforcement) Act 2013 (No. 26 of 2013)) by—

• (i) by deleting the definitions of “authorised credit institution” and “credit institution”;

• (ii) by substituting for paragraph (b) of the definition of “administrative authority” the following:

• “(b) in relation to another Member State, the competent authority (within the meaning of point (40) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013³⁴ ) for that other Member State;”,

• (iii) by inserting after the definition of “another Member State” the following:

“ ‘authorised institution’ means—

• (a) the holder of a licence under section 9 of the Central Bank Act 1971 (No. 24 of 1971),

• (b) a building society incorporated or deemed to be incorporated under the Building Societies Act 1989 (No. 17 of 1989),

• (c) a trustee savings bank within the meaning of the Trustee Savings Banks Act 1989 (No. 21 of 1989), or

• (d) an investment firm authorised by the Bank under Regulation 11 of the MiFID I Regulations, or deemed to be authorised pursuant to Regulation 6 of the MiFID I Regulations;”,

• (iv) by substituting “ ‘Capital Requirements Directive’ means Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013³⁵ ;” for the definition of “Capital Requirements Directive”,

• (v) by inserting after the definition of “the Directive” the following:

“ ‘institution’ means—

• (a) an authorised institution,

• (b) a credit institution, as defined in the Capital Requirements Directive, that is authorised by a competent authority of another State for the purposes of that Directive, or

• (c) an investment firm, as defined in MiFID I, that is authorised by the competent authority of another Member State for the purposes of MiFID I;”,

‘investment firm’ means an ‘investment firm’ as defined in point (2) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013;”,

• (vi) by inserting after the definition of “Member State” the following:

“ ‘MiFID I Regulations’ means the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007 );”, and

• (vii) by substituting “ ‘regulated market’ means a regulated market as defined in Article 4(1), point (21) of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014³⁶ ;” for the definition of “regulated market”,

• (b) in Regulation 2(2) (as amended by section 5 (3) of the Central Bank (Supervision and Enforcement) Act 2013 (No. 26 of 2013) by substituting for subparagraphs (x) and (xi) the following:

• “(x) a transfer order or special management order (within the respective meanings given by the Central Bank and Credit Institutions (Resolution) Act 2011 (No. 27 of 2011)) that contains a declaration that it or part of it is made with the intention of preserving or restoring the financial position of an authorized credit institution (within the meaning given by section 2 of that Act);

• (xi) a direction given by the Bank under Part 7 of the Central Bank (Supervision and Enforcement) Act 2013 (No. 26 of 2013) that contains a declaration that it or part of it is made with the intention of preserving or restoring the financial position of a credit institution, where the direction is capable of affecting the rights of third parties existing before the direction comes into effect;

• (xii) the application of the resolution tools and the exercise of resolution powers provided for in Directive 2014/59/EC of the European Parliament and of the Council of 15 May 2014³⁷ .”,

• (c) in Regulation 2(3), by substituting “(xii)” for “(xi)”,

• (d) in Regulation 2(4) (as amended by section 19 (3) of the Irish Bank Resolution Corporation Act 2013 (No. 2 of 2013), by substituting for subparagraph (h) the following:

• “(h) the Irish Bank Resolution Corporation Act 2013 (No. 2 of 2013);

• (i) the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007 );

• (j) the European Union (Bank Recovery and Resolution) Regulations 2015 ( S.I. No. 289 of 2015 ).”,

• (e) in Regulation 4(1) by substituting for paragraphs (a) and (b) the following:

• “(a) credit institutions whose head offices are located in Member States,

• (b) the branches of those institutions located in those Member States, subject to the conditions and exemptions set out in Article 2 of the Capital Requirements Directive,

• (c) investment firms, as defined in point (2) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013, and their branches located in another Member State,

• (d) in the event of application of the resolution tools and exercise of the resolution powers provided for in Directive 2014/59/EU of the European Parliament and of the Council³⁸ , these Regulations shall also apply to the financial institutions, firms and parent undertakings falling within the scope of that Directive,

• (e) Regulations 8 and 10 shall not apply where Article 83 of the Directive referred to in subparagraph (d) applies, and

• (f) Regulation 40 shall not apply where Article 84 of the Directive referred to in subparagraph (d) applies.”,

• (f) by substituting for Regulation 30 the following:

“30.Without prejudice to Articles 68 and 71 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014, a netting agreement is governed solely by the law of the contract that governs the agreement.”,

• (g) in Regulation 31(1), by substituting “Without prejudice to Articles 68 and 71 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 and subject to paragraph (2),” for “Subject to paragraph (2),”,

• (h) by substituting “authorised institution” for “authorised credit institution” in each place where it occurs, and

• (i) by substituting “institution” for “credit institution” in each place where it occurs.

Amendment of European Union (Capital Requirements) Regulations 2014.

• (a) Regulation 61(4) to (17), and

• (b) Regulation 62.

Part 11 Final Provisions

Cooperation with European Banking Authority.

Service of notice or other document by competent authority.

Court hearings otherwise than in public.

Non application of competition rules.

Effect of transfer orders on legal proceedings.

• (a) does not affect any legal proceedings taken, investigation undertaken, or disciplinary or enforcement action undertaken by the competent authority or any other person, in respect of any matter in existence at the time the transfer was made or other thing was done, and

• (b) does not preclude the taking of any legal proceedings, or the undertaking of any investigation, or disciplinary or enforcement action, in respect of any contravention of an enactment or any misconduct which may have been committed before the transfer was made or the other thing was done.

Regulations made under Part 7.

• (a) shall consult with the Minister and for that purpose shall provide to the Minister a draft of the proposed regulations, and

• (b) may consult with such other persons as the resolution authority considers appropriate to consult in the circumstances.

• (2) Regulations made under Regulation 166(14) or 167(8) shall be laid before each House of the Oireachtas as soon as may be after they are made.

SCHEDULE

Regulations 10(2) and (4), 11(4), 20(1), 26(4) and 27(5)

Part 1 Information to be included in recovery plans

A recovery plan shall include the following information:

Part 2 Information that the resolution authority may request institutions to provide for the purposes of drawing up and maintaining resolution plans

The resolution authority may request institutions to provide for the purposes of drawing up and maintaining resolution plans at least the following information:

• (a) common or shared personnel, facilities and systems;

• (b) capital, funding or liquidity arrangements;

• (c) existing or contingent credit exposures;

• (d) cross guarantee agreements, cross-collateral arrangements, cross-default provisions and cross-affiliate netting arrangements;

• (e) risks transfers and back-to-back trading arrangements;

• (f) service level agreements;

Part 3 Matters that the resolution authority is to consider when assessing the resolvability of an institution or group

When assessing the resolvability of a group, references to an institution shall be deemed to include any institution or entity referred to in Regulation 2(1)(c) to (i) within a group.

When assessing the resolvability of an institution or group, the resolution authority shall consider the following:

GIVEN under my Official Seal,

9 July 2015.

MICHAEL NOONAN,

Minister for Finance.

Footnotes