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Commission Delegated Regulation (EU) 2016/860Show full title

Commission Delegated Regulation (EU) 2016/860 of 4 February 2016 specifying further the circumstances where exclusion from the application of write-down or conversion powers is necessary under Article 44(3) of Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms

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Changes over time for: Commission Delegated Regulation (EU) 2016/860 (without Annexes)

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Article 1U.K.Subject matter

1.This Regulation lays down rules specifying further the exceptional circumstances provided for in [F1section 48B of the Banking Act 2009 (including as applied by sections 81CA, 83A, 84, 89A and 89JA of that Act), where the Bank of England may in a resolution instrument or a property transfer instrument exclude any eligible liability or class of eligible liabilities from the application of any special bail-in provision].

F22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3Article 2U.K.Scope

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Article 3U.K.Definitions

For the purposes of this Regulation, the definitions provided for in Article 3 of Directive 2014/59/EU shall apply. For the purposes of this Regulation, the following definitions shall also apply:

(1)

‘Direct contagion’ means a situation where the direct losses of counterparties of the institution under resolution, resulting from the write-down of the liabilities of the institution, lead to the default or likely default for those counterparties in the [F4immediate future].

(2)

‘Indirect contagion’ means a situation where the write-down or conversion of institution's liabilities causes a negative reaction by market participants that leads to a severe disruption of the financial system with potential to harm the real economy.

(3)

[F5‘Institution’ has the meaning given in section 3A(8) of the Act.

(4)

‘The resolution authority’ means the Bank of England.

(5)

‘The Act’ means the Banking Act 2009.

(6)

‘Bail-in’ means special bail-in provision within the meaning of section 48B of the Act and ‘bail-in tool’ means the power to make such provision.

(7)

‘Conditions for early intervention’ means the conditions specified in section 71D of the Financial Services and Markets Act 2000.]

Textual Amendments

Article 4U.K.Common provisions

F61.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.A decision by the resolution authority to exclude a liability or class of liabilities from the application of the bail-in tool [F7under section 48B(10) of the Act] shall be based on a case-by-case analysis of the institution under resolution and shall not be automatic.

3.When considering exclusions pursuant to [F8section 48B(10) of the Act] and before completely excluding a liability or class of liabilities from bail-in, the resolution authority shall first consider the option to partially exclude that liability by limiting the extent of their write-down wherever possible.

4.In its determination as to whether a liability should be excluded pursuant to [F9section 48B(10) of the Act], the resolution authority shall assess whether the conditions therein are met at the time of the application of the bail-in tool to the institution. F10...

5.The decision to exclude a liability or class of liabilities from the application of bail-in pursuant to [F11section 48B(10) of the Act] shall be based on at least one of the resolution objectives [F12set out in section 4 of the Act].

6.The decision to exclude or partially exclude a liability or class of liabilities from the application of the bail-in tool [F13under section 48B(10) of the Act] which would imply the use of the [F14Consolidated Fund or the National Loans Fund], shall be duly justified, taking into account the need for expedience as warranted by the circumstances of the specific case.

7.Where the resolution authority has assumed that a liability or class of liabilities would credibly and feasibly contribute to loss absorption and recapitalisation, and that those liabilities would not meet the requirements for exclusion under [F15section 48B(10) of the Act], that resolution authority shall explain each of the following if it then decides to exclude or partially exclude a liability or class of liabilities pursuant to [F15section 48B(10) of the Act] which would involve passing losses onto the [F16Consolidated Fund or the National Loans Fund]:

(a)the exceptional circumstances which differ from those at the moment of resolution planning to the effect that those liabilities need to be excluded from bail-in at the moment of taking resolution action;

(b)why the need for exclusion and, in particular, the exceptional circumstances leading to it could not be foreseen in the course of resolution planning;

(c)if the need for exclusion was provided for in the resolution plan, how the resolution authority addressed this need to avoid it constituting an impediment to resolvability.

8.When deciding whether to exclude or partially exclude a liability or class of liabilities pursuant to [F17section 48B(10) of the Act on the ground set out in section 48B(12)(a) of the Act], if the exclusion would involve passing losses onto the [F18Consolidated Fund or the National Loans Fund], the resolution authority shall also explain:

(a)how/whether the requirements laid down in Articles 5 and 6 of this Regulation are satisfied; and

(b)why the need for exclusion could not be addressed by an appropriate method of valuation pursuant to [F19section 6E of the Act].

9.When deciding whether to exclude or partially exclude a liability or class of liabilities in order to preserve the continuity of critical functions and core business lines pursuant to [F20section 48B(10) of the Act on the ground set out in section 48B(12)(b) of the Act], if the exclusion would involve passing losses onto the [F21Consolidated Fund or the National Loans Fund] the resolution authority shall also explain:

(a)how/whether the requirements laid down in Article 7 of this Regulation are satisfied.

(b)why the liabilities to be excluded are more relevant for the continuity of clearly specified critical functions or core business lines than liabilities which are not to be excluded.

10.Where the resolution authority excludes or partially excludes a liability or class of liabilities in order to avoid widespread contagion pursuant to [F22section 48B(10) of the Act on the ground set out in section 48B(12)(c) of the Act], if the exclusion would involve passing losses onto the [F23Consolidated Fund or the National Loans Fund] the resolution authority shall also explain:

(a)how/whether the requirements laid down in Article 8 of this Regulation are satisfied;

(b)the reasons why the excluded liabilities have a higher likelihood of causing widespread contagion of the type described in [F24section 48B(12)(c) of the Act] than those not excluded.

11.Where the resolution authority excludes or partially excludes a liability or class of liabilities pursuant to [F25section 48B(10) of the Act on the ground set out in section 48B(12)(d) of the Act], if the exclusion would involve passing losses onto the [F26Consolidated Fund or the National Loans Fund] the resolution authority shall also explain how/whether the requirements laid down in Article 9 of this Regulation are satisfied.

Textual Amendments

Article 5U.K.Exclusion on grounds of impossibility to bail-in under [F27section 48B(12)(a) of the Banking Act 2009]

1.[F28The resolution authority] may only exclude a liability or class of liabilities from the exercise of the bail-in tool where the obstacles invoked for such exercise do not allow for it to take place within a reasonable time, despite every best effort of the resolution authority.

2.With regard to paragraph 1, [F29the resolution authority] shall, in particular, satisfy the following requirements before making a determination as to the exclusion referred to therein:

(a)the obligation of the resolution authority, to provide in the resolution plan, a description of the processes for ensuring availability within an appropriate time frame of the information required for the purposes of valuation pursuant to [F30section 6E of the Act];

(b)the obligation of the resolution authority to address any impediments to resolvability of the institution including the circumstances resulting in a potential exclusion which could be foreseen in the resolution planning process when those potential exclusions amount to impediments to resolvability.

Textual Amendments

Article 6U.K.Reasonable time

1.When seeking to exclude a liability or class of liabilities from bail-in [F31on the ground specified in section 48B(12)(a) of the Act], and in order to determine what constitutes ‘reasonable time’, the resolution [F32authority] shall determine the following:

(a)when the write-down amount has to be ultimately determined;

(b)by when all the tasks needed to bail-in those liabilities would need to be performed in order to meet the resolution objectives taking into account the situation at the time of the resolution action.

2.When determining the requirements laid down in paragraph 1, the resolution [F33authority] shall assess the following:

(a)the need to publish a bail-in decision and to determine the bail-in amount and its final allocation to the various classes of creditors;

(b)the consequences of delaying such a decision for market confidence, potential market reactions, such as liquidity outflows, and the effectiveness of resolution action, taking into account both of the following:

(i)

whether the distress and risk of failure of the institution is known to market participants;

(ii)

the visibility of the consequences of the distress or potential failure of the institution to market participants;

(c)the opening times of markets in as much as they may impact continuity of critical functions and contagion effects;

(d)the reference date(s) when capital requirements have to be complied with;

(e)the dates when payments of the institution are due, and the maturity of the liabilities concerned.

Textual Amendments

Article 7U.K.Exclusion on grounds of preservation of certain critical functions and core business lines under [F34section 48B(12)(b) of the Banking Act 2009]

1.[F35The resolution authority] may exclude liabilities or a class of liabilities on the basis of it being necessary and proportionate to preserve certain critical functions where they consider that liability or class of liabilities to be linked to a critical function for whose continuity that liability or class of liabilities should not be bailed-in, where either of the following elements is satisfied:

(a)the bail-in of the liability or class of liabilities would undermine the function due to the availability of funding or to a dependence on counterparties, such as hedging counterparties, on infrastructure or on service providers to the institution, which may be prevented from or unwilling to continue transactions with the institution following a bail-in;

(b)the critical function in question is a service provided by the institution to third parties which depends on the uninterrupted performance of the liability.

2.[F35The resolution authority] may only exclude liabilities which are required for risk management (hedging) purposes in the context of critical functions where both of the following conditions are satisfied:

(a)the risk management (hedging) is recognised for prudential purposes and is essential for maintaining operations related to critical functions;

(b)it would be impossible for the institution to replace an unwound risk management measure on reasonable terms within the time required for maintaining the critical function.

3.[F35The resolution authority] may only exclude liabilities for the purposes of maintaining a funding relationship where both of the following conditions are satisfied:

(a)the resolution authority assesses that the funding is essential for maintaining a critical function;

(b)in view of Article 6 of this Regulation, it would be impossible for the institution to replace the funding within the time required for maintaining the critical function.

4.[F35The resolution authority] shall not exclude a liability or class of liabilities solely on the basis of any of the following:

(a)its maturity;

(b)the expectation of an increase in funding costs which does not jeopardise the continuity of the critical function;

(c)the expectation of a future potential profit.

5.[F35The resolution authority] may exclude liabilities or a class of liabilities on the basis of it being necessary and proportionate to preserve a core business line where the exclusion of that liability is critical to maintaining the ability of the institution under resolution to continue key operations, services and transactions, and to achieve the resolution objectives set out in [F36section 4(3A) and (4) of the Act].

Textual Amendments

Article 8U.K.Exclusion on grounds of avoidance of widespread contagion under [F37section 48B(12)(c) of the Banking Act 2009]

1.When considering exclusions based on the risk of direct contagion pursuant to [F38section 48B(10) of the Act on the ground specified in section 48B(12)(c) of the Act], [F39the resolution authority] should assess, to the maximum extent possible, the interconnectedness of the institution under resolution with its counterparties.

The assessment referred to in the first subparagraph shall include all of the following:

(a)consideration of exposures to relevant counterparties with regard to the risk that bail-in of such exposures might cause knock-on failures;

(b)the systemic importance of counterparties which are at risk of failing, in particular with regard to other financial market participants and financial market infrastructure providers.

2.When considering exclusions based on the risk of indirect contagion pursuant to [F38section 48B(10) of the Act on the ground specified in section 48B(12)(c) of the Act], the resolution authority shall assess, to the maximum extent possible, the need and proportionality of the exclusion based on multiple objective relevant indicators. Indicators which may be relevant to the case include the following:

(a)number, size and interconnectedness of institutions with similar characteristics as the institution under resolution, insofar as that could give rise to widespread lack of confidence in the banking sector or the broader financial system;

(b)the number of natural persons directly and indirectly affected by the bail-in, visibility and press coverage of the resolution action, insofar as that has a significant risk of undermining overall confidence in the banking or broader financial system;

(c)the number, size, interconnectedness of counterparties affected by the bail-in, including market participants from the non-banking sector, and the importance of critical functions performed by these counterparties;

(d)the ability of the counterparties to access alternative service providers for functions which have been assessed as substitutable, given the specific situation;

(e)whether a significant number of counterparties would withdraw funding or cease making transactions with other institutions following the bail-in, or whether markets would cease functioning properly as a consequence of the bail-in of such market participants, in particular in the event of generalised loss of market confidence or panic;

(f)widespread withdrawal of short-term funding or deposits in significant amounts;

(g)the number, size or significance of institutions which are at risk of meeting the conditions for early intervention, or meeting the conditions of failing or likely to fail [F40specified in section 7(5C) of the Act];

(h)the risk of a significant discontinuance of critical functions or a significant increase in prices for the provision of such functions (as evident from changes in market conditions for such functions or their availability), or the expectation of counterparties and other market participants;

(i)widespread significant decreases in share prices of institutions or in prices of assets held by institutions, in particular where they can have an impact on the capital situation of institutions;

(j)general and widespread significant reduction in short or medium term funding available to institutions;

(k)significant impairment to the functioning of the interbank funding market, as apparent from a significant increase of margin requirements and decrease of collateral available to institutions;

(l)widespread and significant increases in prices for credit default insurance or deterioration in credit ratings of institutions or other market participants which are relevant for the financial situation of institutions.

Textual Amendments

Article 9U.K.Exclusion on grounds of avoidance of a decrease in value under [F41section 48B(12)(d) of the Banking Act 2009]

1.[F42The resolution authority] may exclude a liability or class of liabilities from a bail-in where such exclusion would avoid value destruction so that the holders of the non-excluded liabilities would be better off than they would be if the former were bailed-in.

2.In order to assess whether the condition in paragraph 1 is met, [F43the resolution authority] shall compare and evaluate the outcome for all creditors resulting from a potential bail-in and non-bail-in, in accordance with—

[F44(a)any regulatory technical standards referred to in section 6E(10)(a) and 62A(2A)(a) of the Act or any regulatory technical standards contained in a Commission Regulation adopted by the European Commission under Article 49(5) of Directive 2014/59/EU so far as they are [F45assimilated] law; and

(b)any technical standards made under section 6E(11) or 62A(2B) of the Act or article 158(3) of the Bank Recovery and Resolution (No. 2) Order 2014.]

Textual Amendments

Article 10U.K.Entry into force

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

F46...

Done at Brussels, 4 February 2016.

For the Commission

The President

Jean-Claude Juncker

Textual Amendments

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