Decision (EU) 2016/810 of the European Central BankShow full title

Article 1 Definitions

For the purposes of this Decision, the following definitions apply:

(1)

‘benchmark net lending’ means the amount of eligible net lending that a participant needs to exceed in the period 1 February 2016 to 31 January 2018 in order to qualify for an interest rate on the participant's TLTRO-II borrowing that is lower than the initial rate applied and which is calculated in accordance with the principles and the detailed provisions set out in Article 4 and Annex I, respectively;

(2)

‘benchmark outstanding amount’ means the sum of a participant's eligible loans outstanding as at 31 January 2016 and the participant's benchmark net lending which is calculated in accordance with the principles and the detailed provisions set out in Article 4 and Annex I, respectively;

(3)

‘bid limit’ means the maximum amount that may be borrowed by a participant in any TLTRO-II calculated in accordance with the principles and the detailed provisions set out in Article 4 and Annex I, respectively;

(4)

‘borrowing allowance’ means the overall amount that may be borrowed by a participant in all TLTROs-II and calculated in accordance with the principles and the detailed provisions set out in Article 4 and Annex I, respectively;

(5)

‘credit institution’ means a credit institution as defined in point (14) of Article 2 of Guideline (EU) 2015/510 of the European Central Bank (ECB/2014/60)(1);

(6)

‘eligible loans’ means loans to non-financial corporations and households (including non-profit institutions serving households) resident, as defined in point (4) of Article 1 of Council Regulation (EC) No 2533/98(2), in Member States whose currency is the euro, except loans to households for house purchases, as further detailed in Annex II;

(7)

‘eligible net lending’ means gross lending in the form of eligible loans net of repayments of outstanding amounts of eligible loans during a specific period, as further detailed in Annex II;

(8)

‘first reference period’ means the period 1 February 2015 to 31 January 2016;

(9)

‘monetary financial institution’ (MFI) means a monetary financial institution as defined in point (a) of Article 1 of Regulation (EU) No 1071/2013 of the European Central Bank (ECB/2013/33)(3);

(10)

‘MFI code’ means a unique identification code for an MFI in the list of MFIs maintained and published by the European Central Bank (ECB) for statistical purposes in accordance with Article 4 of Regulation (EU) No 1071/2013 (ECB/2013/33);

(11)

‘outstanding amounts of eligible loans’ means outstanding eligible loans on the balance sheet, excluding eligible loans securitised or otherwise transferred without derecognition from the balance sheet, as further detailed in Annex II;

(12)

‘participant’ means a counterparty eligible for Eurosystem monetary policy open market operations in accordance with Guideline (EU) 2015/510 (ECB/2014/60), which submits bids in TLTRO-II tender procedures either on an individual basis or on a group basis as lead institution, and which is subject to all rights and obligations associated with its participation in the TLTRO-II tender procedures;

(13)

‘relevant NCB’ means, with reference to a particular participant, the NCB of the Member State in which the participant is established;

(14)

‘second reference period’ means the period 1 February 2016 to 31 January 2018.

Article 2 The second series of targeted longer-term refinancing operations

1. The Eurosystem shall conduct four TLTROs-II in accordance with the indicative calendar for TLTROs-II published on the ECB's website.

2. Each TLTRO-II shall mature four years after the respective settlement date, on a day that coincides with the settlement date of a Eurosystem main refinancing operation, in accordance with the indicative calendar for TLTROs-II published on the ECB's website.

3. TLTROs-II shall be:

(a) liquidity-providing reverse transactions;

(b) executed in a decentralised manner by the NCBs;

(c) executed through standard tenders; and

(d) executed in the form of fixed rate tender procedures.

4. The standard conditions under which the NCBs are prepared to conduct credit operations shall apply in respect of TLTROs-II, unless otherwise specified in this Decision. These conditions shall include the procedures for conducting open market operations, the criteria for determining the eligibility of counterparties and collateral for the purposes of Eurosystem credit operations and the sanctions applicable in the event of non-compliance with counterparty obligations. Each of these conditions is laid down in the general and temporary legal frameworks applicable to refinancing operations and as implemented in NCBs' contractual and/or regulatory national frameworks.

5. In the event of a conflict between this Decision and Guideline (EU) 2015/510 (ECB/2014/60) or any other ECB legal act laying down the legal framework applicable to longer-term refinancing operations and/or any national measures implementing it at national level, this Decision shall prevail.

Article 3 Participation

1. Institutions may participate in TLTROs-II on an individual basis if they are eligible counterparties for Eurosystem monetary policy open market operations.

2. Institutions may participate in TLTROs-II on a group basis by forming a TLTRO-II group. Participation on a group basis is relevant for the purposes of calculating the applicable borrowing allowance and the benchmarks as laid down in Article 4 and the associated reporting obligations as laid down in Article 7. Participation on a group basis shall be subject to the following restrictions:

(a) an institution shall not be a member of more than one TLTRO-II group;

(b) an institution participating in TLTROs-II on a group basis may not participate on an individual basis;

(c) the institution appointed as lead institution shall be the only member of the TLTRO-II group that may participate in TLTRO-II tender procedures; and

(d) the composition and the lead institution of a TLTRO-II group shall remain unchanged for all TLTROs-II, subject to paragraphs 6 and 7 of this Article.

3. In order to participate in TLTROs-II through a TLTRO-II group, the following conditions shall be fulfilled.

(a) With effect from the last day of the month preceding the application referred to in point (d) of this paragraph, each member of a given group shall:

(i)

have a close link to another member of the group within the meaning of ‘close link’ as defined in Article 138 of Guideline (EU) 2015/510 (ECB/2014/60) and references therein to ‘counterparty’, ‘guarantor’, ‘issuer’ or ‘debtor’ shall be understood as referring to a group member; or

(ii)

hold required reserves with the Eurosystem in accordance with Regulation (EC) No 1745/2003 of the European Central Bank (ECB/2003/9)(4) indirectly through another member of the group or be used by another member of the group in order to indirectly hold required reserves with the Eurosystem.

(b) The group shall appoint one member as the lead institution for the group. The lead institution shall be an eligible counterparty for Eurosystem monetary policy open market operations.

(c) Each member of the TLTRO-II group shall be a credit institution established in a Member State whose currency is the euro, and shall fulfil the criteria laid down in points (a), (b) and (c) of Article 55 of Guideline (EU) 2015/510 (ECB/2014/60).

(d) Subject to point (e), the lead institution shall apply for group participation to its NCB in accordance with the indicative calendar for TLTROs-II published on the ECB's website. The application shall include:

(i)

the name of the lead institution;

(ii)

a list of the MFI codes and names of all the institutions to be included in the TLTRO-II group;

(iii)

an explanation of the basis for a group application, including a list of the close links and/or indirect reserve holding relationships between the members of the group, identifying each member by its MFI code;

(iv)

in the case of group members which meet the conditions stipulated in point (ii) of point (a): written confirmation from the lead institution certifying that each member of its TLTRO-II group has formally decided to be a member of the TLTRO-II group in question and agrees not to participate in TLTROs-II as an individual counterparty or as a member of any other TLTRO-II group, together with appropriate evidence that the written confirmation from the lead institution was executed by duly authorised signatories. A lead institution may make the necessary confirmation in respect of its TLTRO-II group members where there are agreements in place, such as those for the indirect holding of minimum reserves pursuant to Article 10(2) of Regulation (EC) No 1745/2003 (ECB/2003/9), which expressly state that the relevant group members participate in Eurosystem open market operations exclusively through the lead institution. The relevant NCB, in cooperation with the NCBs of the relevant group members, may check the validity of the written confirmation concerned; and

(v)

in the case of a group member to which point (i) of point (a) applies: (1) written confirmation from the relevant group member of its formal decision to be a member of the TLTRO-II group in question and not to participate in TLTROs-II as an individual counterparty or as a member of any other TLTRO-II group; and (2) appropriate evidence, confirmed by the NCB of the relevant group member, that this formal decision was taken at the highest decision-making level of the member's corporate structure, such as the Board of Directors or equivalent in accordance with any applicable law.

(e) A TLTRO group recognised for the purposes of TLTROs pursuant to Decision ECB/2014/34 may participate in TLTROs-II as a TLTRO-II group provided that its lead institution submits a written notification to that effect to the relevant NCB in accordance with the indicative calendar for TLTROs-II published on the ECB's website. The notification shall include:

(i)

a list of members of the TLTRO group who have formally decided to be members of the TLTRO-II group in question and not to participate in TLTRO-II as individual counterparties or as members of any other TLTRO-II group. In the case of group members which meet the conditions stipulated in point (ii) of point (a), the lead institution may provide the necessary notification where there are agreements in place, as referred to in point (iv) of point (d), which expressly state that the relevant group members participate in Eurosystem open market operations exclusively through the lead institution. The relevant NCB, in cooperation with the NCBs of the relevant group members, may check the validity of that list; and

(ii)

appropriate evidence, as may be requested by the lead institution's NCB, that it was executed by duly authorised signatories.

(f) The lead institution shall obtain confirmation from its NCB that the TLTRO-II group has been recognised. Prior to issuing its confirmation, the relevant NCB may request any additional information relevant for its assessment of the potential TLTRO-II group from the lead institution. In its assessment of a group application, the relevant NCB shall also take into account any assessments by the NCBs of group members that may be necessary, such as the verification of documentation provided in accordance with points (d) or (e) as applicable.

For the purposes of this Decision, credit institutions subject to consolidated supervision, including branches of the same credit institution, shall also be regarded as suitable applicants for TLTRO-II group recognition, and shall be required to meet the conditions laid down in this Article mutatis mutandis. This facilitates the formation of TLTRO-II groups among such institutions, where they are part of the same legal entity. For the purpose of confirming the formation, or a change in the composition, of a TLTRO-II group of this nature, paragraph 3(d)(iv) and paragraph 6(b)(ii)(4) shall apply respectively.

4. If one or more of the institutions included in the application for TLTRO-II group recognition do not fulfil the conditions of paragraph 3, the relevant NCB may partially reject the application of the proposed group. In such a case, the institutions submitting the application may decide to act as a TLTRO-II group with the composition limited to those group members that fulfil the necessary conditions or to withdraw the application for TLTRO-II group recognition.

5. In exceptional cases, where there are objective reasons, the Governing Council may decide to deviate from the conditions set out in paragraphs 2 and 3.

6. Without prejudice to paragraph 5, the composition of a group recognised in accordance with paragraph 3 may change in the following circumstances:

(a) A member shall be excluded from the TLTRO-II group if it no longer meets the requirements of point (a) or (c) of paragraph 3. The relevant group member's NCB shall inform the lead institution of the group member's failure to meet those requirements.

In such cases, the lead institution concerned shall notify the relevant NCB of the change in status of its group member.

(b) If, in relation to the TLTRO-II group, additional close links or indirect holdings of required reserves with the Eurosystem are established after the last day of the month preceding the application referred to in point (d) of paragraph 3, the TLTRO-II group composition may change to reflect the addition of a new member provided that:

(i)

the lead institution applies to its NCB for recognition of the change in the TLTRO-II group's composition;

(ii)

the application referred to in point (i) includes:

(1)

the name of the lead institution;

(2)

the list of MFI codes and names of all the institutions that are intended to be included in the new composition of the TLTRO-II group;

(3)

an explanation of the basis for the application, including details of the changes to the close links and/or indirect reserve holding relationships between the members of the group, identifying each member by its MFI code;

(4)

in the case of group members to which point (ii) of paragraph 3(a) applies: written confirmation from the lead institution certifying that each member of its TLTRO-II group has formally decided to be a member of the TLTRO-II group in question and not to participate in TLTROs-II as an individual counterparty or as a member of any other TLTRO-II group. A lead institution may make the necessary certification in respect of its TLTRO-II group members where there are agreements in place, such as those for the indirect holding of minimum reserves pursuant to Article 10(2) of Regulation (EC) No 1745/2003 (ECB/2003/9), which expressly state that the relevant group members participate in Eurosystem open market operations exclusively through the lead institution. The relevant NCB, in cooperation with the NCBs of the relevant group members, may check the validity of that written confirmation; and

(5)

in the case of group members to which point (i) of paragraph 3(a) applies, written confirmation from each additional member of its formal decision to be a member of the TLTRO-II group in question and not to participate in TLTROs-II as an individual counterparty or as a member of any other TLTRO-II group, and written confirmation from each member of the TLTRO-II group, included in both the old and the new composition, of its formal decision to agree to the new composition of the TLTRO-II group, together with appropriate evidence, confirmed by the NCB of the relevant group member, as detailed in point (v) of paragraph 3(d); and

(iii)

the lead institution has obtained confirmation from its NCB that the changed TLTRO-II group has been recognised. Prior to issuing its confirmation, the relevant NCB may request any additional information relevant for its assessment of the new TLTRO-II group composition from the lead institution. In its assessment of a group application, the relevant NCB must also take into account any necessary assessment of the NCBs of group members, such as the verification of documentation provided in accordance with point (ii).

(c) If, in relation to the TLTRO-II group, a merger, acquisition or division involving the TLTRO-II group members takes place after the last day of the month preceding the application referred to in point (d) of paragraph 3 and that operation does not result in any change in the set of eligible loans, the TLTRO-II group composition may change to reflect the merger, acquisition or division, as applicable, provided that the conditions listed in point (b) are met.

7. Where changes in the composition of a TLTRO-II group have been accepted by the Governing Council in accordance with paragraph 5, or changes in the composition of TLTRO-II groups have taken place in accordance with paragraph 6, unless otherwise decided by the Governing Council, the following shall apply:

(a) in respect of the changes to which paragraph 5 or paragraph 6(b) applies, the lead institution may participate in a TLTRO-II on the basis of the new composition of its TLTRO-II group for the first time six weeks after that lead institution submits the successful application for recognition of the new group composition to its NCB; and

(b) an institution that is no longer a member of a TLTRO-II group shall not participate in any further TLTRO-II either individually or as member of another TLTRO-II group, unless it submits a new application to participate in accordance with paragraphs 1, 3 or 6.

8. If a lead institution loses its eligibility as a counterparty for Eurosystem monetary policy open market operations, its TLTRO-II group shall no longer be recognised and such lead institution shall be obliged to repay all amounts borrowed under TLTROs-II.

Article 4 Borrowing allowance, bid limit and benchmarks

1. The borrowing allowance applicable to an individual participant shall be calculated on the basis of the loan data in respect of the outstanding amounts of eligible loans of the individual participant. The borrowing allowance applicable to a participant which is the lead institution of a TLTRO-II group shall be calculated on the basis of the aggregated loan data in respect of outstanding amounts of eligible loans of all members of the TLTRO-II group.

2. Each participant's borrowing allowance shall equal 30 % of its total amount of eligible loans outstanding as at 31 January 2016 less any amount previously borrowed by that TLTRO-II participant under the first two TLTROs conducted in September and December 2014 pursuant to Decision ECB/2014/34 and still outstanding on the settlement date of a TLTRO-II having regard to any legally binding notification for early repayment submitted by the participant in accordance with Article 6 of Decision ECB/2014/34 or any legally binding notification for mandatory early repayment provided by the relevant NCB in accordance with Article 7 of Decision ECB/2014/34. The relevant technical calculations are outlined in Annex I.

3. If a member of a TLTRO group recognised for the purposes of TLTROs pursuant to Decision ECB/2014/34 is not willing to be a member of the respective TLTRO-II group, for the purposes of calculating the TLTRO-II borrowing allowance for that credit institution as an individual participant, that institution shall be deemed to have borrowed under TLTROs conducted in September and December 2014 an amount equal to the amount borrowed by the lead institution of the TLTRO group in these two operations and still outstanding on the settlement date of a TLTRO-II multiplied by the share of eligible loans of the member to those of the TLTRO group as at 30 April 2014. This latter amount will be subtracted from the amount that the respective TLTRO-II group is deemed to have borrowed under TLTROs conducted in September and December 2014 for the purpose of calculating the TLTRO-II borrowing allowance of the lead institution.

4. Each participant's bid limit shall equal its borrowing allowance less the amounts borrowed under previous TLTROs-II. This amount shall be considered to represent a maximum bid limit for each participant and the rules applicable to bids exceeding the maximum bid limit, as laid down in Article 36 of Guideline (EU) 2015/510 (ECB/2014/60), shall apply. The relevant technical calculations are outlined in Annex I.

5. A participant's benchmark net lending shall be determined on the basis of eligible net lending in the first reference period, as follows:

(a) for participants who report positive or zero eligible net lending in the first reference period, the benchmark net lending shall be zero;

(b) for participants who report negative eligible net lending in the first reference period, the benchmark net lending shall be equal to the eligible net lending for the first reference period.

The relevant technical calculations are outlined in Annex I. The benchmark net lending for participants that have been granted banking licences after 31 January 2015 shall be zero unless the Governing Council, in circumstances where it is objectively justified, decides otherwise.

6. A participant's benchmark outstanding amount shall be determined as the sum of the eligible loans outstanding as at 31 January 2016 and the benchmark net lending. The relevant technical calculations are outlined in Annex I.

Article 5 Interest

1. Subject to paragraph 2, the interest rate applicable to the amount borrowed under each TLTRO-II shall be the rate on the main refinancing operation prevailing at the time of the tender allotment in respect of the relevant TLTRO-II.

2. The interest rate applicable to the amounts borrowed by participants whose eligible net lending in the second reference period exceeds their benchmark net lending shall also be linked to the interest rate on the deposit facility prevailing at the time of the allotment of each TLTRO-II in accordance with the detailed provisions and calculations set out in Annex I. The interest rate shall be communicated to participants before the first early repayment date in June 2018 according to the indicative calendar for TLTROs-II published on the ECB's website.

3. Interest shall be settled in arrears on the maturity of each TLTRO-II, or on early repayment as provided for in Article 6, as applicable.

4. If, due to the exercise of remedies available to an NCB in accordance with its contractual or regulatory arrangements, a participant is required to repay the TLTRO-II outstanding amounts before the applicable interest rate is communicated to that participant, the interest rate applicable to the amounts borrowed by that participant under each TLTRO-II shall be the rate on the main refinancing operation prevailing at the time of the tender allotment in respect of the relevant TLTRO-II.

Article 6 Early repayment

1. Starting 24 months after the settlement of each TLTRO-II, participants shall, on a quarterly basis, have the option of terminating or reducing the amount of the TLTRO-II concerned before maturity.

2. Early repayment dates shall coincide with the settlement date of a Eurosystem main refinancing operation, as specified by the Eurosystem.

3. In order to benefit from the early repayment procedure, a participant shall notify the relevant NCB that it intends to repay under the early repayment procedure on the early repayment date, at least one week in advance of that early repayment date.

4. The notification referred to in paragraph 3 shall become binding on the participant concerned one week before the early repayment date to which it refers. Failure by the participant to settle, in full or in part, the amount due under the early repayment procedure by the repayment date may result in the imposition of a financial penalty. The applicable financial penalty shall be calculated in accordance with Annex VII to Guideline (EU) 2015/510 (ECB/2014/60) and shall correspond to the financial penalty applied for failures to comply with the obligations to adequately collateralise and settle the amount the counterparty has been allotted as regards reverse transactions for monetary policy purposes. The imposition of a financial penalty shall be without prejudice to the NCB's right to exercise the remedies provided for on the occurrence of an event of default set out in Article 166 of Guideline (EU) 2015/510 (ECB/2014/60).

Article 7 Reporting requirements

1. Each participant in TLTROs-II shall submit to the relevant NCB the data identified in the reporting template set out in Annex II as follows:

(a) data relating to the first reference period for the purposes of establishing the participant's borrowing allowance, bid limits and benchmarks (hereinafter referred to as the ‘first report’); and

(b) data relating to the second reference period for the purposes of determining the applicable interest rates (hereinafter referred to as the ‘second report’).

2. The data shall be provided in accordance with:

(a) the indicative calendar for TLTRO's-II published on the ECB's website;

(b) the guidelines set out in Annex II; and

(c) the minimum standards for accuracy and compliance with concepts specified in Annex IV to Regulation (EU) No 1071/2013 (ECB/2013/33).

3. Terms used in the report submitted by participants shall be interpreted in accordance with the definitions of those terms in Regulation (EU) No 1071/2013 (ECB/2013/33).

4. Lead institutions of TLTRO-II groups shall submit reports reflecting aggregated data in respect of all members of the TLTRO-II group. In addition, the lead institution's NCB, or the NCB of a member of a TLTRO-II group may, in coordination with the lead institution's NCB, require the lead institution to submit disaggregated data for each individual group member.

5. Each participant shall ensure that the quality of the data submitted pursuant to paragraphs 1 and 2 is evaluated by an external auditor in accordance with the following rules:

(a) the auditor may evaluate the data in the first report as part of the audit of the participant's annual financial statements and the results of the auditor's evaluation shall be submitted by the deadline specified in the indicative calendar for TLTROs-II published on the ECB's website;

(b) the results of the auditor's evaluation in respect of the second report shall be submitted together with that second report unless, in exceptional circumstances, a different deadline is approved by the relevant NCB; in this case, the interest rate applicable to the amounts borrowed by the participant who requested the extension shall be communicated only after the results of the auditor's evaluation are submitted; if, following the relevant NCB's approval, the participant decides to terminate or reduce the amount of its TLTROs-II before it submits the results of the auditor's evaluation, the interest rate applicable to the amounts to be repaid by that participant shall be the rate on the main refinancing operation prevailing at the time of the tender allotment in respect of the relevant TLTRO-II;

(c) the auditor's evaluations shall focus on the requirements set out in paragraphs 2 and 3. In particular, the auditor shall:

(i)

evaluate the accuracy of the data provided by verifying that the set of the participant's eligible loans including, in the case of a lead institution the eligible loans of its TLTRO-II group members, satisfies the eligibility criteria;

(ii)

check that the data reported complies with the guidelines detailed in Annex II and with the concepts introduced by Regulation (EU) No 1071/2013 (ECB/2013/33);

(iii)

check that the data reported are consistent with data compiled pursuant to Regulation (EU) No 1071/2013 (ECB/2013/33); and

(iv)

check whether controls and procedures are in place to validate the integrity, accuracy and consistency of the data.

In the case of participation on a group basis, the results of the auditor's evaluations shall be shared with the NCBs of the other TLTRO-II group members. At the request of the participant's NCB, detailed results of the evaluations conducted pursuant to this paragraph shall be provided to that NCB and, in the case of group participation, subsequently shared with the NCBs of the group members.

The Eurosystem may provide further guidance on the manner in which the auditor's evaluation is to be conducted in which case the participants shall ensure that such guidance is applied by the auditors in their evaluation.

6. Following a change in the TLTRO-II group composition or a corporate reorganisation, such as a merger, acquisition or division, that affects the set of the participant's eligible loans, a revised first report shall be submitted in accordance with the instructions received from the participant's NCB. The relevant NCB shall assess the impact of the revision and undertake appropriate action. Such action may include a requirement to repay amounts borrowed which, taking into account the change to the TLTRO-II group composition or the corporate reorganisation, exceed the relevant borrowing allowance. The participant concerned (which may include a newly established entity following the corporate reorganisation) shall provide any additional information requested by the relevant NCB to assist in the assessment of the impact of the revision.

7. The data provided by the participants pursuant to this Article may be used by the Eurosystem for the implementation of the TLTRO-II framework, as well as for the analysis of the framework's effectiveness and other Eurosystem analytical purposes.

Article 8 Non-compliance with reporting requirements

1. Where a participant fails to submit a report or comply with audit requirements, or where errors are identified in the data reported, the following shall apply:

(a) If a participant fails to submit the first report by the relevant deadline, its borrowing allowance shall be set at zero.

(b) If a participant fails to submit the second report by the relevant deadline or to comply with the obligations set out in Article 7(5) or (6), the interest rate on the main refinancing operation prevailing at the time of the tender allotment in respect of the relevant TLTRO-II shall be applicable to the amounts borrowed by that participant under TLTROs-II.

(c) If a participant, either in connection with the audit referred to in Article 7(5) or otherwise, identifies errors in the data submitted in the reports, including inaccuracies or incompleteness, it shall notify the relevant NCB thereof within the shortest time frame possible. Where the relevant NCB has been notified of such errors, or where such errors otherwise come to its attention: (i) the participant shall provide any additional information requested by the relevant NCB to assist in the assessment of the impact of the error concerned; and (ii) the relevant NCB may take appropriate action, which may include an adjustment to the interest rate applied to the participant's borrowings under TLTROs-II and a requirement to repay the amounts borrowed which, due to the error, exceed the participant's borrowing allowance.

2. Paragraph 1 shall be without prejudice to any sanction that may be imposed pursuant to Decision ECB/2010/10 of the European Central Bank(5) in respect of the reporting obligations laid down in Regulation (EU) No 1071/2013 (ECB/2013/33).

Article 9 Entry into force

This Decision shall enter into force on 3 May 2016.

Done at Frankfurt am Main, 28 April 2016.

The President of the ECB

Mario Draghi