The Bank Recovery and Resolution (No. 2) Order 2014

CHAPTER 1 Authorisation of agreement for group financial support where the PRA or FCA is the consolidating supervisor

Application and interpretation of Chapter 1

83.—(1) This Chapter applies where, in relation to a relevant group—

(a) the PRA or FCA is the consolidating supervisor; and

(b) the PRA or FCA (or each of them) receives from the EEA parent undertaking an application for authorisation of a group financial support agreement (“the application”).

(2) In this Chapter—

“conditions for early intervention” means the conditions referred to in Article 27.1 of the recovery and resolution directive (early intervention measures) for which a competent authority is to have at its disposal the measures specified in sub-paragraphs (a) to (h) of that Article;

“conditions for financial support” means the conditions laid down in Chapter 3 of Title 2 of the recovery and resolution directive (intra-group financial support);

“financial support” includes—

(a)

a loan, a guarantee, the provision of assets for use as collateral or any combination of these forms of support; and

(b)

provision for support (in any form) in one or more transactions or in a transaction entered into by the group institution which is the intended recipient of the support and any other person;

“group entity” means a relevant parent undertaking or group subsidiary which proposes to enter into the group financial support agreement;

“group financial support agreement” means an agreement—

(a)

which is proposed for the provision of financial support to a group institution which, at any time after the agreement has been concluded, meets the conditions for early intervention; and

(b)

the parties to which include a relevant parent undertaking and one or more group subsidiaries set up in any country other than the EEA State in which the relevant parent undertaking is set up;

“group institution” means a group entity which is an institution;

“group subsidiary” means an undertaking which is—

(a)

a subsidiary of a relevant parent undertaking; and

(b)

an institution or financial institution;

“relevant competent authority” means a competent authority, other than the consolidating supervisor, which has authorised a group entity; and

“relevant parent undertaking” means a parent institution in an EEA State, an EEA parent institution, a financial holding company, a mixed financial holding company or a mixed activity holding company.

Review of group financial support agreement and decision on authorisation

84.—(1) The appropriate regulator must review the group financial support agreement jointly with the relevant competent authorities.

(2) The purpose of the review is to determine whether—

(a) the terms of the agreement are compatible with the conditions for financial support, including whether they make provision to ensure that financial support would be given in accordance with those conditions; and

(b) any group institution already meets the conditions for early intervention.

(3) The matter referred to in paragraph (2)(a) is to be determined having regard to the potential impact of the agreement, if it is concluded, on the financial stability of any EEA State in which a group entity conducts business.

(4) The appropriate regulator must refuse the application and prohibit the conclusion of the group financial support agreement if it is determined on review that—

(a) the terms of the agreement are not compatible with the conditions for financial support; or

(b) a group institution already meets the conditions for early intervention.

(5) The appropriate regulator must otherwise grant the application.

Duty to transmit a copy of application

85.—(1) The appropriate regulator must send a copy of the application or, where paragraph (2) has effect in relation to any information, of the application without that information, without delay to each relevant competent authority.

(2) This article does not require any information contained in the application to be disclosed if its disclosure would be contrary to section 348 of FSMA.

Joint decision with other competent authorities

86.—(1) The appropriate regulator must endeavour to reach a joint decision on the outcome of the review within four months beginning with the date on which it receives the application (“the four month period”).

(2) Where a joint decision cannot be reached within the four month period, the appropriate regulator must decide the outcome of the review having regard to the views and reservations of the relevant competent authorities.

(3) The appropriate regulator must give the EEA parent undertaking and each relevant competent authority written notice of a decision on the outcome of the review, including a reasoned account of the decision.

References to EBA

87.—(1) Where, before the end of the four month period, a relevant competent authority has referred to EBA in accordance with Article 19 of the EBA Regulation any matter relating to the review of the group financial support agreement, the appropriate regulator must—

(a) defer a decision on the outcome of the review for one month beginning with the date on which the four month period ends; and

(b) ensure that the decision conforms with any decision taken by EBA before the end of that month under Article 19.3 of the EBA Regulation.

(2) For the purposes of a reference to EBA of a matter to which this article refers the four month period is deemed to be the conciliation phase referred to in Article 19.2 of the EBA Regulation.

Requesting the assistance of EBA

88.  The appropriate regulator may ask EBA to assist the competent authorities in accordance with Article 31(c) of the EBA Regulation to reach a joint decision on the outcome of the review.

Duty to transmit a copy of authorised agreement

89.  The appropriate regulator must send a copy of the group financial support agreement, if it is authorised, to the Bank and to the resolution authority for each group entity which proposes to enter into the agreement and is set up in another EEA State.

Amendment of authorised agreement

90.—(1) This article applies where—

(a) the parties to an agreement authorised under this Chapter wish to amend the agreement; and

(b) rules made by the PRA or FCA under FSMA require the amendment to be authorised before it is made.

(2) If the EEA parent undertaking submits to the appropriate regulator an application for authorisation of the amendment (“the amendment application”), the appropriate regulator must treat the amendment application as if it were an application for authorisation of a group financial support agreement.

(3) Articles 84 to 89 apply for that purpose, but have effect in relation to the amendment application as if—

(a) each reference to a group financial support agreement were a reference to the amendment set out in the amendment application; and

(b) each reference to the application were a reference to the amendment application.