Reorganisation [EU]

Table of Contents

Reorganisation and winding-up of credit institutions

Directive 2001/24/EC — a single bankruptcy procedure for banks with branches in more than one EU country

It aims to ensure that, where a credit institution (generally a bank) with branches in other EU countries fails, a single bankruptcy procedure is applied to all creditors and investors.

Kèy Points

The directive:

— applies the principle of home country control. This means that the law of the EU country where the failed credit institution has its registered office applies to the entire bankruptcy proceedings;
— requires all relevant parties, including known creditors to be informed of the bankruptcy proceedings and re-organisation measures. This includes publication in the Official Journal of the European Union and at least 2 national newspapers in each host country (i.e. those in which the bank has its headquarters and its branches);
— provides that, as regards the winding-up proceedings, the applicable law is that of the home country. It should in particular cover such matters as:
— the respective powers of credit institutions and liquidators,
— the effects of the bankruptcy proceedings on any lawsuits brought by individual creditors, and
— the allocation of costs and expenses.
— clarifies the impact of the bankruptcy proceedings and applicable law in relation to certain contracts and other legal rights that may be affected by the proceedings such as employment contracts and property rights;
— requires all persons required to receive or divulge information in connection with the bankruptcy proceedings to guarantee professional secrecy.

Application & Background

It entered into force on 5 May 2001. EU countries had to incorporate it in national law by 5 May 2004.

Winding-up of credit institutions

ACT

Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ L 125, 5.5.2001, pp. 15–23)

The successive amendments and corrections to Directive 2001/24/EC have been incorporated in to the original document. This consolidated version is of documentary value only.

Establishing bank resolution funds

Communication (COM(2010) 254 final) — Bank Resolution Funds

It describes the intentions of the European Commission concerning the establishment of bank resolution funds.

Key Points

What is the role of bank resolution funds?

Resolution funds should contribute to financing the orderly resolution of distressed banks. In order to do this, they could implement measures such as:
financing bridge banks (i.e. institutions set up by a national regulator or central bank to operate a failed bank until a buyer can be found for its operations);
financing a total or partial transfer of assets and/or liabilities from the ailing entity;
financing a good bank/bad bank split.

Resolution funds may also be used to cover administrative costs, legal and advisory fees.
However, they must not play the role of insurance against failure or be used to bail-out failing banks.

How can bank resolution funds be financed?

The Commission considers that financing arrangements for a fund should procure the necessary resources whilst incentivising appropriate behaviour.

3 points could form the basis for calculating contributions to bank resolution funds:

banks’ assets could represent an indicator of the amount which might need to be spent in handling the bank’s resolution. Their assets are already subject to risk-weighted prudential capital requirements in the form of capital charges. A levy could be established based on the assets. However, this could therefore amount to an additional capital requirement and would have to be considered carefully in the context of the wider reforms to capital standards under way;
banks’ liabilities could also represent indicators of the amount which might need to be spent in handling the bank’s resolution. Costs of bank resolution are most likely to arise from the need to support certain liabilities (excluding equity and insured liabilities – e.g. deposits). However, liabilities could be less effective proxies for the degree of risk;
profits and bonuses could be used as a reference in order to determine the amount of levies

Financing arrangements should meet the following criteria:
avoid any possible arbitrage;
reflect the appropriate risks;
take into account the systemic nature of certain financial entities;
be based on the possible amounts that could be spent if resolution becomes necessary;
avoid competition distortions.

What means of governance should be used for bank resolution funds?

Bank resolution funds should remain separate from the national budget and be dedicated only to resolution costs.
The management of these funds should be entrusted to the authorities responsible for the resolution of financial entities acting as independent executive bodies.

The use of resolution funds should also respect the EU state aid rules.

The Commission intended to adopt legislative proposals for crisis management and resolution funds by early 2011.
How can bank resolution funds be integrated into a new financial stability framework?

The Commission proposed strengthening capital requirements and to reform financial supervision within the EU. It sought to strengthen deposit guarantee schemes and the corporate governance of financial institutions.

The Commission also sought to implement preventive measures in order to mitigate the risks of bank failures and to reduce the implicit guarantees associated with institutions deemed ‘too big to fail’.

The Commission also planned to adopt in October 2010 a roadmap on a European framework for crisis management. The aim of the proposed plan is to make common tools, which enable prompt and effective action to be taken in the event of banking failures, available to EU countries. These measures should not lead to costs for taxpayers.

Tools are proposed to complement the action of resolution funds:
recovery and resolution plans;
debt to equity conversions.

Defining a common approach to bank resolution funds

A European and global approach should be defined as regards the creation of bank resolution funds.
Under this new measure, national authorities will continue to be responsible for day-to-day supervision, and this should be underpinned by a solid intra-EU rules which is ready to address possible crises.

The first step in this common approach was to establish a system based on a harmonised network of national funds linked to a set of coordinated crisis management arrangements. This system was to be re-examined by 2014 with a view to creating EU integrated crisis management and supervisory arrangements, as well as an EU resolution fund in the longer term.

Developments since 2010

Following the publication of this communication, the European Commission issued a series of legislative proposals to address bank resolution. In 2014, the EU adopted:

Directive 2014/49/EU on deposit guarantee schemes to protect depositors of credit institutions.
Directive 2014/59/EU which lays down rules for the recovery and restructuring of credit institutions and investment firms.
Regulation (EU) No 806/2014 on the EU’s Single Resolution Mechanism and Single Resolution Fund. This sets out the rules and procedures for the resolution of failing banks and investment firms.

To mitigate the bank failures caused by the October 2008 financial crisis, EU countries’ governments provided state aid to assist the financial sector. This aid has considerably affected taxpayers and has increased EU countries’ public debt. The creation of resolution funds should prevent future recourse to state aid to resolve financial institutions’ failures.

MAIN DOCUMENT

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the European Central Bank — Bank Resolution Funds (COM(2010) 254 final, 26.5.2010)

Recovery and resolution of central counterparties

Regulation (EU) 2021/23 on a framework for the recovery and resolution of central counterparties

It lays down rules and procedures for the recovery and resolution of central counterparties (CCPs)*.
These are designed to ensure CCPs have measures to recover from financial distress or can continue their main tasks if they are failing, or likely to fail, while winding up other activities through normal insolvency procedures.
The overall aim is to preserve financial stability and minimise the costs to taxpayers of any CCP failure.

Key Points

Each European Union (EU) Member State has the following responsibilities.

Appointing one or more resolution authorities. These:
may be national central banks, ministries or public authorities with administrative powers;
have the expertise, resources, operational capacity and extensive powers to act quickly and flexibly.
Designating a single ministry with overall responsibility for exercising the functions entrusted to the ministries under the legislation.

Applying penalties for breaches of the regulation.
Resolution authorities establish, manage and chair a resolution college. This includes the relevant authorities and provides a framework to:

share information;
draw up resolution plans;
assess a CCP’s resolvability and possible obstacles;
coordinate public information about resolution plans and strategies.
The European Securities and Markets Authority (ESMA):

drafts various regulatory technical standards that will be adopted by the European Commission;
creates the ESMA Resolution Committee that will promote the drawing up and coordination of resolution plans and develop methods for the resolution of failing CCPs;
cooperates with the European Insurance and Occupational Pensions Authority and the European Banking Authority;
maintains a central database of national penalties applied for breaches of the legislation.

Competent authorities, resolution authorities and ESMA:

cooperate closely to carry out the tasks set out in the regulation;
base decisions on principles such as:
proportionality in view of the CCP’s legal form, size, complexity and liquidity,
the need for efficacy and timeliness, the need to keep down costs and, as far as possible, avoid use of public finance.

Recovery planning requires CCPs to draw up and maintain a recovery plan. These:

set out actions, with or without a default, to restore financial soundness;
include measures to address all possible risks, absorb losses and replenish financial resources;
contain indicators based on a CCP’s risk profile;
do not assume access to public finance or central bank liquidity;
consider the interests of all stakeholders;
ensure clearing members do not have unlimited exposure to the CCP.

It also requires the competent authority, supervisory college and resolution authority to assess the recovery plans and consider any changes.

Resolution planning requires the following.

The resolution authority of the CCP has to draw up a resolution plan that:
sets out how it would use its resolution powers to absorb losses and ensure the continuity of the CCP’s critical functions;
takes account of the impact of the plan on clearing members, financial markets and the financial system;
does not assume access to public finance or central bank help;
makes prudent assumptions about finance that might be available.
CCPs under resolution have to cooperate with the resolution authority and provide all the necessary information;

The resolution college has to agree on the plan, including any changes, within 4 months of receiving it.
Assessing resolvability requires the resolution authority, coordinating with the resolution college, to:

assess whether a CCP is resolvable, to enable it to continue operating its critical functions;
identify any obstacles to resolvability and instruct the CCP to take action to remove them.

Early intervention measures enable a competent authority to instruct a CCP it considers could be facing financial problems to:

take corrective action;
remove some or all of senior management or board members.
Resolution authorities take special account of the following when implementing their plans.

Objectives:

continuity of the CCP’s critical functions;
avoidance of damage to the financial system;
protection of public funds.

Conditions:
CCP actual or likely failure;
absence of alternative private sector solution;
importance of protecting the public interest.

Valuation:
two assessments to ensure a fair, prudent and realistic appreciation of the CCP’s assets, liabilities, rights and obligations.

Safeguards:
shareholders, clearing members and other creditors should not lose more than if the resolution authority had not intervened (‘No creditor worse off’ principle);
clients and indirect clients have the right to compensation clearing members may receive;
anyone affected by a crisis prevention order or resolution action has a right of appeal.
Resolution authorities can apply the following measures, individually or collectively.

Position and loss allocation. Terminating contracts, reducing a CCP’s payment obligations to non-defaulting clearing members or requiring the latter to make a cash contribution to the CCP.
Write-down and conversion. Reducing or converting the size of instruments of ownership, debt or other unsecured liabilities, requiring a CCP to provide and implement a business reorganisation plan.
Sale of business. Selling ownership or any assets, rights, obligations or liabilities of a CCP in the resolution procedure.
Bridge CCP. Transferring temporarily to another CCP (‘bridge CCP’) ownership or any assets, rights, obligations or liabilities of a CCP in the resolution procedure.

Alternative funding. Contracting to borrow or obtain other forms of financing to address temporary cash flow problems.
Member States may, if a CCP failure threatens a systemic crisis, inject cash or take it into public ownership (government stabilisation tools), provided the measures are temporary and comply with EU State aid rules.

The regulation amends the following:

Regulations (EU) No 1095/2010 (see summary), (EU) No 648/2012 (see summary), (EU) No 600/2014 (see summary), (EU) No 806/2014 (see summary) and (EU) 2015/2365 (see summary);
Directives 2002/47/EC (see summary), 2004/25/EC (see summary), 2007/36/EC (see summary), 2014/59/EU (see summary) and (EU) 2017/1132 (see summary).

Under the review procedure:

ESMA assesses its staffing and resources needs by 12 February 2024;
the Commission submits a report on the legislation to the European Parliament and the Council of the European Union by 12 February 2026.

Application

It entered into force on 11 February 2021 and applies from 12 August 2022 with the exception of a few articles that apply earlier.

Central counterparties are an essential part of the financial system as they manage a significant amount of counterparty risk and act as a link between multiple banks, other financial counterparties and corporations.

The adoption of the European market infrastructure regulation, Regulation (EU) No 648/2012, ensured CCPs helped increase market transparency following the 2008 financial crisis.

For further information, see:
Recovery and resolution of central counterparties (CCPs) (European Commission).

KEY TERMS
Central counterparty. An entity that interposes itself between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer.

MAIN DOCUMENT

Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132 (OJ L 22, 22.1.2021, pp. 1–102).

RELATED DOCUMENTS
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ L 169, 30.6.2017, pp. 46–127).

Successive amendments to Directive (EU) 2017/1132 have been incorporated in the original text. This consolidated version is of documentary value only.

Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (OJ L 337, 23.12.2015, pp. 1–34).

See consolidated version.

Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, pp. 84–148).

See consolidated version.

Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, pp. 1–59).

See consolidated version.

Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, pp. 84–119).

See consolidated version.

Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ L 184, 14.7.2007, pp. 17–24).

See consolidated version.

Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ L 142, 30.4.2004, pp. 12–23).

See consolidated version.

Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (OJ L 168, 27.6.2002, pp. 43–50).

Reorganisation [EU]

Reorganisation and winding-up of credit institutions

Kèy Points

Application & Background

ACT

Establishing bank resolution funds

Key Points

How can bank resolution funds be financed?

Defining a common approach to bank resolution funds

Developments since 2010

MAIN DOCUMENT

Recovery and resolution of central counterparties

Key Points

Application

MAIN DOCUMENT

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