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27 JUNE 2016. - Act transposing various provisions of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment enterprises and amending Council Directive 82/891/EEC as well as the directives of the European Parliament and Council 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and regulations 2013/3

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1^er. - General provisions
Artikel 1. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. The purpose of this Act is to partially transpose Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment enterprises and amending Council Directive 82/891/EEC as well as the directives of the European Parliament and Council 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, regulations 2012/30/EU
CHAPTER 2. - Confirmation of arrests
Art. 3. Confirmed with effect on the date of their respective entry into force:
1° the Royal Decree of 18 December 2015 amending the Act of 25 April 2014 relating to the status and control of credit institutions;
2° the Royal Decree of December 26, 2015 amending the Act of April 25, 2014 relating to the status and control of credit institutions concerning the recovery and resolution of group failures.
CHAPTER 3. - Amendments to the Act of 25 April 2014 on the Status and Control of Credit Institutions
Art. 4. In section 3 of the Act of 25 April 2014 on the Status and Control of Credit Institutions, last amended by the Royal Decree of 26 December 2015 amending the Act of 25 April 2014 on the Status and Control of Credit Institutions concerning the Recovery and Resolution of Group Failures, a 55/1° is inserted as follows:
"55/1° Resolution Fund, the resolution fund referred to in Article 2 of the Act of 28 December 2011 on the Resolution Fund;".
Art. 5. Paragraph 2 of section 111 of the Act is supplemented as follows:
"The supervisory authority shall, in any case, require the credit establishment to update the recovery plan when the assumptions set out in the recovery plan differ from the circumstances that led to the taking of the measures referred to in Article 234, § 2.".
Art. 6. Section 112 of the Act is supplemented by a paragraph 2 which reads as follows:
"The supervisory authority may require credit institutions to keep detailed records of the financial contracts to which they are parties.".
Art. 7. Section 226 of the Act, as amended by the Royal Decree of December 26, 2015 amending the Act of April 25, 2014 on the Status and Control of Credit Institutions relating to the Recovery and Resolution of Group Failure, is supplemented by the following provisions:
Paragraph 2 is supplemented as follows:
"In particular, the resolution authority has the authority to require a credit institution to keep detailed records of the financial contracts to which it is a party. When the control authority has, in whole or in part, that information, it communicates to the resolution authority. ";
2° the article is supplemented by a paragraph 4 and a paragraph 5 as follows:
§ 4. The resolution authority suspends the development of the resolution plan as long as measures to reduce or remove obstacles to resolving are not approved in accordance with Articles 231 and 232.
§ 5. The resolution authority shall communicate the resolution plans and any amendments made to them to the control authority. ".
Art. 8. Article 227, § 1^er, paragraph 3 of the same law, the words "without prejudice to the interventions of the Resolution Fund," are inserted between the words "an exceptional financial support of the public authorities," and the words "no one".
Art. 9. In the last paragraph of section 230 of the Act, the words "without prejudice to the interventions of the Resolution Fund" are inserted between the words "exceptional financial support of public authorities," and the words "as well".
Art. 10. In section 231, paragraph 1^er, in the same law, the words ", the resolution authorities of which the branches of significant importance belong" are inserted between the words "the credit institution concerned" and "the control authority".
Art. 11. Section 232 of the Act is amended to read:
1st paragraph 1^er is completed as follows:
"When defining these other measures, the resolution authority must explain why the measures proposed by the credit institution would not remove obstacles to resolving, and how the other measures are proportioned to remedy them. The resolution authority takes into account the threat of these barriers to resolvability for financial stability and the impact of measures on the activity of the credit institution, its stability and its ability to contribute to the economy. After consultation with the supervisory authority and the Bank as a macroprudential authority, the resolution authority takes due account of the potential effect of these measures on the establishment of credit in question, on the domestic market of financial services and on financial stability in other Member States and in the Union as a whole. ";
2° Paragraph 3 is replaced by the following:
"The decision of the resolution authority must be sufficiently motivated, particularly with respect to the proportional application requirement referred to in paragraph 1^er, and is notified in writing to the credit facility. The latter submits in the month a plan for the implementation of this decision. ".
Art. 12. Section 234 of the Act is amended to read:
1° in paragraph 1^er, the words ", Directive 2013/36/EU, Title II of Directive 2014/65/EU or one of the requirements of Articles 3 to 7, 14 to 17 and 24, 25 and 26 of Regulation No. 600/2014," are inserted between the words "Regulation No. 575/2013" and ", or it has elements";
2° paragraph 2 is supplemented by the 11° and 12° as follows:
"11° impose the measures referred to in Article 116, § 2, paragraph 2, 3 and 5;
12° require the establishment to establish a plan to negotiate the restructuring of its debts, if any in accordance with the recovery plan. ";
3° the article is supplemented by a paragraph 5 as follows:
§ 5. The control authority shall promptly notify the resolution authority that it has been determined that the conditions set out in paragraph 1^er were gathered for a credit institution.".
Art. 13. In Article 243, § 1^erin the same Act, a paragraph 2 is inserted as follows:
"In the pursuit of the above objectives, the resolution authority strives to minimize the cost of resolution and to avoid the destruction of value, unless the achievement of these objectives requires it. ".
Art. 14. Section 244 of the Act is supplemented by a paragraph 5, which reads as follows:
§ 5. The adoption of a relief measure as referred to in section 234 or 236 is not necessary to take a resolution action.".
Art. 15. Article 247, § 1^erthe same law is supplemented by a paragraph 2 which reads as follows:
"In addition, valuation takes into account that, if one of the resolution instruments is applied:
1° the resolution authority and the Resolution Fund may recover from the credit facility subject to a resolution procedure any reasonable expenses that are properly disclosed in accordance with section 272;
2° the resolution financing device may charge interest or fees in respect of any loan or guarantee provided to the credit institution subject to a resolution procedure, in accordance with Article 6/1 of the Resolution Fund Act of 28 December 2011.
Art. 16. Section 248 of the Act, as amended by the Royal Decree of 18 December 2015, amending the Act of 25 April 2014 on the Status and Control of Credit Institutions, is supplemented by a paragraph 4, which reads as follows:
§ 4. The valuation is an integral part of the decision to take a resolution action or exercise the power to depreciate or convert the relevant equity instruments. The valuation itself is not the subject of a separate right of appeal but may be appealed in conjunction with this decision, pursuant to Chapter IX of this title.".
Art. 17. In section 255 of the Act, as amended by the Act of 18 December 2015, on various financial provisions, establishing an administrative department with autonomous accounting "Social activities", and making a provision for equality of women and men, the following amendments are made:
Paragraph 5 is replaced by the following:
§ 5. The King may, by order deliberately in the Council of Ministers, taken on the advice of the resolution authority, or initiative after the advice of the resolution authority, provide exceptional public financial support through financial stabilization instruments, in order to participate in the resolution of the failure of a credit institution, including by acting directly to avoid its liquidation, with a view to achieving the objectives of the resolution referred to in Article 243, 1 §^er.
The State's financial stabilization instruments are:
1° the public support instrument in equity, by which a credit institution referred to in paragraph 1^er is recapitalized in exchange for Class 1 core equity instruments or additional Category 1 or Category 2 equity instruments;
2° the temporary investment instrument in public property, by which the shares of a credit institution referred to in paragraph 1^er are transferred to a company wholly owned by the State or to a person authorized by the King."
2° the article is supplemented by paragraphs 6 and 7 as follows:
§ 6. The State's financial stabilization instruments are used as a last resort, with the aim of preserving financial stability, and only after the instruments of resolution referred to in paragraphs 1 have been assessed and exploited to the extent possible.^er and 2. This assessment is conducted by the King, after consultation with the resolution authority. State financial stabilization instruments can only be used when satisfied with the following conditions:
1° the resolution authority has established that the conditions for triggering a resolution procedure referred to in Article 244 § 1^er are gathered in the head of the credit institution concerned;
2° the King and the resolution authority, after consultation with the Bank, note in his capacity as the central bank, and the control authority, that
- the application of resolution instruments does not prevent significant negative effects on financial stability; or
- the application of resolution instruments does not protect the public interest; or
- only with respect to the temporary investment instrument in public property, the application of the resolution instruments does not protect the public interest, although a grant of equity was previously granted to the institution through the aid instrument in equity;
3° the value of the instruments converted or depreciated pursuant to the internal swelling instrument or the instrument for the depreciation or conversion of the instruments of equity, is greater than 8% of the total liabilities, including equity, from the establishment to resolution, as it results from the valuation carried out under sections 246 to 249; and
4° the rules of the European Union concerning State aids are respected.
§ 7. The Bank, in its capacity as resolution authority, shall, at the request of the King, exercise the powers of resolution conferred upon it if their exercise is necessary to implement the instruments of financial stabilization of the State.
The King ensures that enterprises held directly or indirectly by the State under a State financial stabilization instrument are managed on a commercial and professional basis.
As soon as the commercial and financial conditions permit, the participations held directly or indirectly by the State under a State financial stabilization instrument are transferred to the private sector.".
Art. 18. In section 257 of the Act, a paragraph 3 is added as follows:
§ 3. Any public announcement of the sale of the credit institution, which would be required under section 17, paragraph 1, of Regulation (EU) No 596/2014 of the European Parliament and of the Council of April 16, 2014 on market abuse, may be postponed in accordance with section 17, paragraph 4 or 5, of the said regulation.".
Art. 19. In section 260 of the Act, a paragraph 4 is added as follows:
§ 4. The legal body of administration and the effective management of the establishment-relais maintain access to critical functions for the purposes of section 261, 263 or 264. ".
Art. 20. In section 265 of the Act, a paragraph 3 and a paragraph 4 are added as follows:
§ 3. Without prejudice to Article 272, § 1^erany consideration paid by the asset management structure for the assets, rights or commitments acquired from the credit institution subject to a resolution procedure is the credit institution subject to a resolution procedure. The counterparty may be paid in the form of a debt instrument issued by the asset management structure.
§ 4. When the instrument of the establishment-relais has been applied, an asset management structure may, after the application of the instrument of the establishment-relais, acquire assets, rights or commitments from the establishment-relais.".
Art. 21. In article 267/2, § 3 of the same law, inserted by the Royal Decree of 18 December 2015 amending the Act of 25 April 2014 on the Status and Control of Credit Institutions, the words "financing devices referred to in Article 386" are replaced by the words "of the Resolution Fund".
Art. 22. In article 267/6, § 2 of the same law, inserted by the Royal Decree of 18 December 2015 amending the Act of 25 April 2014 on the Status and Control of Credit Institutions, the words "the financing arrangements referred to in Article 386" are replaced by the words "the Resolution Fund".
Art. 23. In section 269 of the Act, a paragraph 3 is added as follows:
§ 3. When applying the resolution instruments referred to in paragraph 1^er, and without prejudice to Chapter VII of this Title, shareholders or creditors of the credit institution subject to a resolution procedure and other third parties whose assets, rights or commitments are not transferred shall not have any right to the assets, rights or commitments transferred. ".
Art. 24. The following amendments are made to section 272 of the Act:
1° in paragraph 1^er, the portion of the sentence preceding the enumeration is replaced by the following:
"The resolution authority and the Resolution Fund may recover any reasonable expenses that they have properly exposed in connection with the application of the resolution instruments, with the exercise of the resolution powers, with the interventions of the Resolution Fund or with the application of the State's financial stabilization instruments, according to one or more of the following terms:"
2° paragraph 1^er Paragraph 2 is replaced by the following:
"The receivables of the resolution authority and the resolution fund for the costs incurred by the credit establishment in the context of the resolution procedure for the failure of a credit institution are privileged on the generality of the personal property of the credit institution.".
Art. 25. Section 280 of the Act, as amended by the Act of 18 December 2015, on various financial provisions, establishing an administrative department with self-contained accounting for `Social activities', and providing a provision for equality of women and men, is added to paragraph 5 and paragraph 6, as follows:
§ 5. In case of suspension under paragraph 1^er, 3°, a right of termination may be exercised before the end of the period referred to in paragraph 1^er, 1°, if the resolution authority has issued a notice that the rights and commitments covered by the contract are not transferred to another entity, or that they are not subject to depreciation or conversion on application of the internal bail instrument under section 267/1, § 1^er1°.
§ 6. When the resolution authority exercises the power referred to in paragraph 1^er, 3°, and in the absence of a notice under paragraph 5, the termination rights may be exercised at the expiry of the period referred to in paragraph 1^er1°, under the following conditions:
1° if the rights and obligations covered by the contract have been transferred to another entity, a counterparty may only exercise these rights of termination when the subsequent prosecution or occurrence of a fact leading to enforcement against the receiving entity;
2° if the credit institution subject to a resolution procedure retains the rights and obligations covered by the contract, and that the resolution authority has not applied to this contract the internal relief instrument in accordance with Article 267/1, § 1^er, 1°, a counterparty may exercise the right of termination in accordance with the terms of this contract at the expiry of the suspension period. ".
Art. 26. In section 284 of the Act, the words "financing devices referred to in section 386" are replaced by the words "of the Resolution Fund".
Art. 27. Section 292 of the Act is supplemented by the 8th and 9th grades as follows:
"8° the European Commission, the European Central Bank, the European Financial Market Authority, the European Insurance and Pension Authority and the European Banking Authority;
9° where the establishment subject to the resolution procedure meets the definition of an institution within the meaning of Article 2, point (b), of Directive 98/26/EC, the operators of the systems to which it participates.".
Art. 28. Section 293 of the Act is supplemented by the words "and the extent that the resolution authority intends to take, including, where appropriate, the appointment of a special administrator".
Art. 29. Section 294 of the Act is supplemented by the following sentence:
"This notification includes a copy of the instruction or act by which the powers in question are exercised and indicates the date on which the resolution action takes effect."
Art. 30. Section 295 of the Act, as amended by the Act of 18 December 2015, on various financial provisions, establishing an administrative department with self-accounting "Social activities", and providing a provision for equality of women and men, is supplemented by a paragraph 2 which reads as follows:
"When the shares or other titles of ownership or debt instruments of the credit institution are not allowed to negotiate on a regulated market, the resolution authority shall ensure that documents certifying the existence of the resolution measure are forwarded to the shareholders and creditors of the credit institution subject to a resolution procedure that are identified in the registers or databases of the credit institution concerned at the disposal of the credit institution concerned."
Art. 31. In Book XI of the same Act, inserted by the Royal Decree of 26 December 2015 amending the Act of 25 April 2014 on the Status and Control of Credit Institutions concerning the Recovery and Resolution of Group Failures, a Title III/1 is inserted as follows:
"Titre III/1. Intra-group financial support
Art. 438/1. § 1^er. Belgian mother credit institutions, Belgian mother credit institutions in the EEA and Belgian legal entities referred to in Article 424, 3° and 4°, as well as Belgian subsidiaries that are credit institutions or financial institutions under the consolidated supervision of the parent company, may be parties to a group financial support agreement to any party to the agreement that meets the conditions referred to in Article 234,^er, this Act or section 27 of the 2014/59/EU directive.
§ 2. A group financial support agreement:
1° may be concluded only at a time when none of the parties to the agreement fulfils the conditions referred to in Article 234, § 1^eror Article 27 of Directive 2014/59/EU;
2° shall prevent an entity of the group from carrying out an activity in a Member State;
3° can only prevent, on a case-by-case basis, and in accordance with the Group's policies, group financial support is provided to an entity in the group that is experiencing financial difficulties, as long as it is not a risk to the group as a whole.
§ 3. The Group Financial Support Agreement may:
1° concern one or more affiliates of the group and provide financial support from the parent company to subsidiaries, subsidiaries to the parent company, between the affiliates of the group that are parties to the agreement, or any combination of these entities;
2° provide financial support in the form of a loan, the granting of guarantees, the provision of assets that may be used as a guarantee, or any combination of these forms of financial support, in one or more transactions, including between the recipient of the support and a third party.
§ 4. If, under the agreement, an entity of the group undertakes to provide financial support to another entity of the group, the agreement may include a mutual agreement under which the entity of the beneficiary group undertakes to provide financial support to the entity of the group that provides support.
§ 5. The rights, actions or prosecutions resulting from the agreement may only be exercised by the parties to the agreement, excluding third parties.
Art. 438/2. A group financial support agreement shall respect at least the following principles:
1° the agreement shall include the basis for calculating the consideration to be paid for any transaction carried out under the agreement;
2° the counterparty is fixed at the time of financial support;
3° by becoming a party to the agreement and by determining the counterparty for the provision of financial support, each party must act at the best of its interests, taking into account, inter alia, any direct or indirect benefit that a party may draw from the provision of financial support;
4° each party that provides the support shall be notified of all relevant information by any beneficiary party before determining the counterparty and before making any decision to grant financial support;
5° the consideration for the provision of financial support may take into account information that is not accessible to market actors and whose support party has the fact that it is part of the same group as the beneficiary party; and
6° the rules for calculating the counterparty for the provision of financial support must not necessarily take into account any predictable temporary impact on market prices due to events outside the group.
Art. 438/3. An entity of a Belgian legal group may provide financial support in accordance with Article 438/1 only if each of the following conditions is met:
1° Financial support aims to preserve or restore the financial stability of the entire group or of any of its entities;
2° there is a reasonable prospect that the support provided largely addresses the financial difficulties of the entity of the beneficiary group;
3° Financial support best serves the interests of the entity providing it;
4° Financial support is granted on conditions, including a counterparty as referred to in section 438/2;
5° there is a reasonable prospect, based on the information available to the legal body of administration of the entity of the group that provides financial support at the time the decision is made to grant financial support, that the entity of the beneficiary group will pay the consideration of the support received and, if the support is granted in the form of a loan, that it will refund it. If the support is granted in the form of a guarantee or any form of security, the same conditions apply to the undertaking resulting from the performance of the guarantee or security for the beneficiary;
6° the provision of financial support does not compromise the liquidity or solvency of the entity of the group providing it;
7° the provision of financial support does not pose a threat to financial stability in Belgium;
8° the entity of the group that provides support shall, at the time the support is provided, meet the requirements of this Act with respect to equity or liquidity and all requirements imposed under sections 149 and 150 of that Act, and the provision of financial support shall not cause the entity of the group to breach these requirements, unless authorized by the supervisory authority;
9° the entity of the group that provides support shall, at the time the support is provided, meet the requirements for the major risks set out in Regulation No. 575/2013, the applicable legislation and regulations and the regulations made under section 98, and the provision of financial support shall not cause the entity of the group to breach these requirements, unless authorized by the supervisory authority;
10° the provision of financial support does not compromise the solvency of the entity of the group that provides it.
Art. 438/4. § 1^er. The Belgian parent credit establishment in the EEA shall submit to the supervisory authority, in its capacity as a consolidated monitoring authority, an application for authorization for any proposed draft agreement under section 438/1 or for any amendment to an agreement for which the supervisory authority has given its authorization. This request indicates which entities of the group intend to be parties. The supervisory authority, as a consolidated monitoring authority, shall forthwith communicate the application to the competent authorities of each subsidiary that intends to be a party to the agreement.
§ 2. The supervisory authority, in its capacity as a consolidated monitoring authority, grants, in accordance with the procedure provided for in Article 438/5, authorization if the terms of the draft agreement are consistent with the prerequisites for financial support provided for in Article 438/3. It may prohibit the conclusion of the draft agreement if it is found to be incompatible with the conditions referred to in Article 438/3.
Art. 438/5. § 1^er. The supervisory authority, in its capacity as a consolidated monitoring authority, shall do everything in its power to arrive at a joint decision, jointly with the other competent authorities, within four months of receipt of the application referred to in Article 438/4, § 1^er, on the compatibility of the terms of the draft agreement or amendments with the conditions for providing financial support defined in section 483/3. They take into account the potential effect, including the tax consequences for the Member States concerned, of the implementation of the agreement in all Member States where the group is present. This common decision is documented in a document setting out all the reasons behind it and is communicated by the supervisory authority, as a consolidated monitoring authority, to the applicant.
The supervisory authority, in its capacity as a consolidated monitoring authority, may request the EBA to assist it in reaching a common decision in accordance with section 31, point (c), of Regulation No. 1093/2010.
§ 2. Failing a joint decision of the supervisory authority, in its capacity as a consolidated monitoring authority, and other competent authorities within the time limit referred to in paragraph 1^er, the following terms and conditions apply:
1° the supervisory authority, in its capacity as a consolidated monitoring authority, shall make a written decision on the application that sets out all the reasons behind it. This decision takes into account the opinions and reservations expressed by the other competent authorities during the four-month period. The supervisory authority shall notify the applicant and other competent authorities of the decision;
2° if, within the time limit referred to in paragraph 1^er, another competent authority has seized the EBA in accordance with Article 19 of Regulation No. 1093/2010, the control authority differs its decision pending an EBA decision and makes a decision in accordance with the EBA decision.
Art. 438/6. The supervisory authority, in its capacity as a consolidated monitoring authority, shall forthwith transmit to the relevant resolution authorities the group financial support agreements it has authorized, as well as any amendments made thereto.
Art. 438/7. § 1^er. If the supervisory authority, in its capacity as the competent authority responsible for the control of a Belgian credit institution that is a subsidiary of a parent company in the EEA in another Member State, receives a notification referred to in Article 20, paragraph 2, of Directive 2014/59/EU, it shall do all in its power to achieve, with the consolidated monitoring authority and other competent authorities, a joint decision referred to in Article 20, paragraph 5, of the EU.
The supervisory authority may request the EBA to assist it in reaching a common decision in accordance with section 31, point (c), of Regulation No. 1093/2010.
§ 2. In the absence of a common decision referred to in paragraph 1^er, the following terms and conditions apply:
1° the supervisory authority shall transmit its notices and reservations regarding the decision that the consolidated monitoring authority shall take in accordance with Article 20, paragraph 6, of Directive 2014/59/EU;
2° the supervisory authority may refer the EBA pursuant to Article 19 of Regulation No. 1093/2010, until the time limit referred to in Article 20, paragraph 7, of Directive 2014/59/EU, and as long as no common decision has been taken.
Art. 438/8. § 1^er. Any draft agreement or amendment authorized by the competent authorities is subject to the approval of the shareholders of each entity of the group that intends to be a party to the agreement. The agreement is valid and enforceable only for parties whose shareholders have approved it, as long as this authorization has not been revoked.
A financial support agreement of the group is valid for an entity of the group only if the shareholders of the group have authorized the legal board of directors to make a decision that the entity of the group provides or receives financial support in accordance with the terms of the agreement and the conditions set out in this title, and if the authorization of the shareholders has not been revoked.
§ 2. The legal body of administration of each entity that is a party to the agreement shall report annually to the shareholders of the execution of the agreement and the implementation of any decision made under it.
Art. 438/9. The legal body of administration of the entity of the Belgian legal group that provides this financial support takes the decision to provide group financial support under the agreement. This decision is motivated, indicates the objective of the planned financial support and specifies how the provision of financial support complies with the conditions set out in section 438/3.
The legal body of administration of the entity of the Belgian legal group beneficiary of this financial support takes the decision to accept group financial support under the agreement.
Art. 438/10. § 1^er. Before providing effective support under a group financial support agreement, the legal body of administration of an entity of a Belgian legal group that plans to provide this support notifies its intention:
1° to the control authority;
2°, if applicable, to the consolidated monitoring authority;
3° to the competent authority of the entity of the beneficiary group of financial support; and
4th at the EBA.
This notification includes the reasoned decision of the legal body of administration in accordance with Article 438/9 and the terms of the financial support envisaged, including a copy of the group financial support agreement.
§ 2. Within five working days of the date of receipt of a full notification referred to in paragraph 1^er, the control authority may authorize the provision of financial support, prohibit or restrict it by reason of decision, if it considers that the conditions set out in section 438/3 are not met.
The decision shall be notified without delay:
1° to the consolidated monitoring authority, if it does not confuse itself with the control authority;
2° to the competent authority of the entity of the support group; and
3° to the EBA.
If the supervisory authority acts as a consolidated monitoring authority, it shall promptly inform other members of the college of competent authorities and members of the College of Resolution Authorities.
§ 3. If the supervisory authority does not prohibit or restrict financial support within the period specified in paragraph 2, or has authorized such support before the end of the reporting period, financial support may be provided in the manner provided to the supervisory authority.
§ 4. The decision of the legal body of administration of the entity of a Belgian legal group to provide financial support is communicated:
1° to the control authority;
2°, if applicable, to the consolidated monitoring authority;
3° to the competent authority of the entity of the beneficiary group of financial support; and
4th at the EBA.
If the supervisory authority acts as a consolidated supervisory authority, it shall promptly inform the other members of the college of competent authorities and members of the College of Resolution Authorities.
§ 5. The supervisory authority, as a consolidated monitoring authority, may request a review of the group recovery plan in accordance with section 434 or, if the recovery plan has been developed at the individual level, require the entity of the group in accordance with section 114 to submit a revised recovery plan, if:
1° the control authority restricts or prohibits the financial support of the group under paragraph 2 of this section;
2° the group recovery plan in accordance with Article 425, § 2, refers to intragroup financial support; and
3° the control authority of the entity of the group for which the support is restricted or prohibits the application to the control authority, in its capacity as a consolidated monitoring authority.
Art. 438/11. § 1^er. If the supervisory authority, in its capacity as the responsible authority of a Belgian legal entity of the supporting group, receives a notification referred to in Article 25, paragraph 3, of the 2014/59/EU directive and has objections to the decision of the competent authority to prohibit or restrict it, it may, within two days, refer the EBA and request its assistance in accordance with Article 31, point c3/2010, of Regulation No.
§ 2. If the competent authority restricts or prohibits group financial support for a Belgian legal entity of the group under Article 25, paragraph 2, of Directive 2014/59/EU, and if the group recovery plan refers to intragroup financial support, the supervisory authority, in its capacity as competent authority of the Belgian legal entity of the supporting group, may:
1° requesting the consolidated monitoring authority to review the group recovery plan referred to in Article 8 of Directive 2014/59/EU; or
2° If the recovery plan has been developed at the individual level, require the entity of the group concerned to submit a revised recovery plan under section 114.
Art. 438/12. Group entities disclose whether or not they have entered into a group financial support agreement under section 438/1. In this regard, they specify, where appropriate, the general terms and conditions of the agreement and the names of the entities of the group that are parties to it. This information is updated at least once a year. Sections 431 to 434 of Regulation No. 575/2013 find to apply.".
Art. 32. In Book XI of the same Act, inserted by the Royal Decree of 26 December 2015 amending the Act of 25 April 2014 on the Status and Control of Credit Institutions concerning the Recovery and Resolution of Group Failure, a Title III/2 is inserted as follows:
"TITRE III/2. Coordination of group recovery measures
Art. 438/13. Where the conditions for the imposition of measures under section 234, 235 or 236 are met with respect to a Belgian parent company in the EEA, the supervisory authority, as a consolidated supervisory authority, shall notify the EBA and consult with other competent authorities of the college of competent authorities.
When deciding whether the measures provided for in section 234, 235 or 236 for the parent company in the EEA concerned, the supervisory authority shall take into account the impact of these measures on the entities of the group in other Member States. The supervisory authority shall notify the decision to other competent authorities within the Competent Authority College and the EBA.
Art. 438/14. § 1^er. Where the conditions for the imposition of measures under section 234, 235 or 236 are met with respect to a Belgian subsidiary of a parent company in the EEA in another Member State, the supervisory authority, when it intends to apply a measure in accordance with section 234 or 236, shall notify the EBA and consult the consolidated supervisory authority.
After such notification and consultation, the supervisory authority shall take into account any assessment of the consolidated monitoring authority when it decides to apply measures under section 234, 235 or 236. The supervisory authority shall notify the decision to the Consolidated Supervisory Authority and other competent authorities within the Competent College of Authorities, and to the EBA.
§ 2. When the supervisory authority, in its capacity as a consolidated monitoring authority, receives a notification, as referred to in Article 30, paragraph 3, of Directive 2014/59/EU, concerning a foreign affiliate of a Belgian parent company in the EEA, it may assess the likely impact of the imposition of relief measures on the credit establishment concerned, on the Belgian group or on the entities of the group in other Member States. The supervisory authority shall notify the competent authority within three days of receipt of the notification.
Art. 438/15. If the supervisory authority envisages, for a Belgian credit institution forming part of a group, applying one or more measures provided for in Article 234, 235 or 236, and if the foreign competent authorities also consider, for one or more other foreign credit institutions within the same group, applying one or more measures referred to in Article 27 or 29 of Directive 2014/59/EU, the following shall apply:
1° the audited supervisory authority with the foreign competent authorities if it is no longer appropriate to appoint a special commissioner for all the entities of the group concerned, rather than to coordinate the application of the relief measures to several credit institutions, in order to facilitate the implementation of solutions to restore the financial position of the credit institutions concerned. The evaluation takes the form of a common decision of the consolidated monitoring authority and other competent authorities, which is taken within five days from the date of notification by the consolidated monitoring authority that the conditions for the imposition of relief measures concerning the parent company in the EEA are met. The joint decision is motivated and communicated to the parent company in the EEA by the consolidated monitoring authority;
2° the control authority may request the EBA to assist in reaching an agreement in accordance with Article 31 of Regulation (EU) No 1093/2010;
3° in the absence of a common decision within five days, the supervisory authority may, with respect to the Belgian credit institutions of this group, make its own decision on the application of Article 234, 235 or 236.
Art. 438/16. Where the supervisory authority is not in agreement with a decision to take relief measures that is notified to it by a foreign competent authority in accordance with Article 30, paragraph 1 or paragraph 3 of Directive 2014/59/EU, or in the absence of a common decision in accordance with Article 438/15, the supervisory authority may refer the EBA in accordance with Article 30, paragraph 6, of Directive 2014/59/EU.
Art. 438/17. § 1^er. Each decision of the supervisory authority taken under this chapter is motivated, taking into account the opinions and reservations expressed by other competent authorities and the potential effects of the decision on financial stability in the Member States concerned. The supervisory authority shall communicate these decisions, as the case may be, to the Belgian parent company in the EEA or to the Belgian subsidiaries concerned.
§ 2. If a competent foreign authority concerned has seized the EBA of a matter in accordance with Article 30, paragraph 7, second paragraph, of Directive 2014/59/EU, the supervisory authority shall differ its decision pending a decision of the EBA pursuant to Article 19, paragraph 3, of Regulation No. 1093/2010. The supervisory authority shall make a decision, if any, in consultation with the other competent authorities, in accordance with the EBA decision. The EBA may no longer be seized after the expiry of the five-day period referred to in section 438/15 or the adoption of a joint decision. In the absence of a decision by the EBA within three days, individual decisions made in accordance with Article 438/13, Article 438/14 or Article 438/15, 3° shall apply.".
Art. 33. Article 440, § 3, paragraph 1^er the same law, inserted by the Royal Decree of December 26, 2015 amending the Act of April 25, 2014 relating to the status and control of credit institutions concerning the recovery and resolution of group failures, the words "without prejudice to the interventions of a funding arrangement referred to in section 100 of the 2014/59/EU directive," are inserted between the words "exceptional financial support of the public authorities," and the words "no no".
Art. 34. In article 448, § 6 of the same law, inserted by the Royal Decree of December 26, 2015 amending the Act of April 25, 2014 relating to the status and control of credit institutions concerning the recovery and resolution of group failures, the words ", without prejudice to the interventions of a financing device referred to in article 100 of the 2014/59/EU directive," are inserted between the words "exceptional financial support of public authorities" and the words ".
CHAPTER 4. - Amendments to the Act of 28 December 2011 establishing a financial stability contribution and amending the Royal Decree of 14 November 2008 enforcing the Act of 15 October 2008 on measures to promote financial stability and, in particular, establishing a State guarantee on the credits granted and other transactions carried out in the context of financial stability, with regard to the protection of deposits, insurance on the life and capital of registered cooperative companies,
Art. 35. The title of the Act of 28 December 2011 establishing a financial stability contribution and amending the Royal Decree of 14 November 2008 enforcing the Act of 15 October 2008 on measures to promote financial stability and, in particular, establishing a State guarantee relating to the credits granted and other transactions carried out in the context of financial stability, with regard to the protection of deposits, life insurances and capital of registered cooperative companies amending
"Resolution Fund Act."
Art. 36. In the same Act, a chapter 1/1 is inserted as follows:
"CHAPITRE 1/1. - Definitions
Art. 1/1. § 1^er. For the purposes of this Act and the decrees and regulations made for its execution, it shall be understood by:
1° companies subject to the Single Resolution Fund, Belgian credit institutions and Belgian law firms covered by the consolidated monitoring of their parent company by the European Central Bank in accordance with MSU Regulation;
2° non-subjected companies to the Single Resolution Fund, branches established in Belgium of credit or investment establishments of a third country, as well as Belgian legal stock exchange companies that are not covered by the consolidated monitoring of their parent company by the European Central Bank in accordance with MSU Regulation;
3° stock exchange company, a stock exchange company whose initial capital must amount to 730,000 euros under the law of April 25, 2014;
4° investment enterprise of a third country, a company under the law of a third country that is, in accordance with the law under its jurisdiction, entitled to provide in its State of origin services and activities of a stock exchange company;
5° Resolution authority, the National Bank of Belgium or the Single Resolution Council according to the range of competences provided by or under Regulation No. 806/2014;
6° insured deposits, insured deposits as defined in Article 3, 68° of the Act of 25 April 2014;
7° the Resolution Fund, the Resolution Fund, as defined in Article 2;
8° the Single Resolution Fund, the Single Resolution Fund as defined in Part III, Part V, Chapter 2 of Regulation No. 806/2014;
9° the College of Resolution, the College of Resolution of the National Bank of Belgium established in Article 21ter of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
10° the Act of 25 April 2014, the Act of 25 April 2014 on the Status and Control of Credit Institutions;
11° Regulation No. 806/2014, Regulation (EU) No. 806/2014 of the European Parliament and Council of 15 July 2014 establishing uniform rules and procedures for the resolution of credit institutions and certain investment companies within the framework of a single resolution mechanism and a single banking resolution fund, and amending Regulation (EU) No. 1093/2010;
12° MSU Regulation, Regulation (EU) No 1024/2013 of 15 October 2013 entrusting the European Central Bank with specific missions related to prudential supervision policies of credit institutions.
§ 2. In the absence of a relevant definition in paragraph 1^erthe definitions referred to in section 3 of the Act of April 25, 2014 apply.".
Art. 37. In the same Act, the title of Chapter 2 is replaced by the following:
"Resolution Fund."
Art. 38. Section 2 of the Act is replaced by the following:
"Art. 2. A fund named "Resolution Fund" is established within the Caisse des Dépôts et Consignations.
The purpose of the Resolution Fund is to ensure the missions of national resolution funds, as defined in Article 6/1, § 1^er, for non-subjected enterprises to the Single Resolution Fund and to collect and transfer to the Single Resolution Fund contributions from undertakings subject to the Single Resolution Fund. The Resolution Fund is authorized to delegate to the Single Resolution Fund, at its request, the collection of contributions due to it.
Must adhere to it:
1st Single Resolution Fund business; and
2° non-subjected companies to the Single Resolution Fund.
The King regulates the organization and operation of the fund referred to in paragraph 1^er".
Art. 39. Section 3 of the Act, as amended by the Tax and Financial Provisions and Sustainable Development Provisions Act of 17 June 2013, is replaced by the following:
"Art. 3. The Resolution Fund is financed by the annual contributions of its members.
The contribution to the Resolution Fund is due by the companies referred to in Article 2, paragraph 3, 1 and 2°.
The contribution to the Resolution Fund owed by Article 2, paragraph 3, 1° funds the Single Resolution Fund. It is determined by the resolution authority that sets out the terms of payment. The Resolution Fund provides these contributions to the Single Resolution Fund.
The contribution to the resolution fund owed by Article 2, paragraph 3, 2° funds the Resolution Fund. It is determined by the Resolution College which sets out the terms of payment, taking into account the target level determined in Article 6/2, § 2. By order made on the advice of the Resolution College, the King may specify the methodology for calculating the contribution to the Resolution Fund. The Resolution Fund provides the Consolidated Resolution Fund to the Consolidated Resolution Fund. ".
Art. 40. In section 4 of the Act, the following amendments are made:
1st paragraph 1^er is replaced by the following;
"In cases where they are called to testify in court or before a parliamentary commission of inquiry, the Caisse des dépôts et consignations chargée de la gestion du Fonds de résolution as well as the missions relating to the Single Resolution Fund and any person who is required to cooperate in the management or control of the Resolution Fund may not disclose to any person or authority the confidential information they hold on the basis of these functions. ".
2° Paragraph 2 is replaced by the following:
"It is an exception to the prohibition under paragraph 1^er for communications of information to the control authority and the resolution authority as part of the necessary collaboration with these authorities. ".
Art. 41. Section 6 of the Act is replaced by the following:
"The amounts paid to the Consolidated Revenue Fund by the Resolution Fund are the intervention reserve for the pre-financing of the resolution system.
The pre-financing intervention reserve for the resolution system funds the tasks referred to in section 6/1 of this Act. It is made up of all contributions to the resolution fund that non-subjected undertakings make to the Single Resolution Fund, which are deducted from the payments made by the Resolution Fund for these missions.
In its annual report, the Caisse des dépôts et consignations provides a general overview of the Resolution Fund and the evolution of the Response Reserve for the pre-financing of the resolution system.".
Art. 42. In the same law, an article 6/1 is inserted, as follows:
"Art. 6/1. § 1^er. The Resolution Fund mobilizes its support reserve for the pre-financing of the resolution system only as part of a resolution procedure for a non-substantiated enterprise at the request of the Resolution College, for the following purposes only or combined:
1° guarantee the assets or liabilities of a non-substantiated company to the Single Resolution Fund subject to a resolution procedure, its subsidiaries, a business-replacement or an asset management structure;
2° grant loans to a non-substantiated company to the Single Resolution Fund subject to a resolution procedure, its subsidiaries, a business-replacement or an asset management structure;
3° acquire assets of a non-substantiated company to the Single Resolution Fund subject to a resolution procedure;
4° provide contributions to a business and asset management structure;
5° compensation to shareholders or creditors of a non-substantiated company to the Single Resolution Fund in accordance with Article 284 of the Act of 25 April 2014; and
6° provide a contribution to a non-substantiated company to the Single Resolution Fund subject to a resolution procedure, in place of depreciation or conversion of receivables from certain creditors, when the internal bailout instrument is applied and the Resolution College decides to exclude certain creditors from the scope of the internal bailout.
The pre-financing intervention reserve for the resolution mechanism may be used to take the measures referred to in paragraph 1 with respect to the purchaser under the instrument for the assignment of activities, as defined in sections 256 to 259 of the Act of 25 April 2014.
The response reserve for the pre-financing of the resolution mechanism of the Resolution Fund is not used to recapitalize or directly absorb the losses of a non-substantiated company to the Single Resolution Fund subject to a resolution procedure, its subsidiaries, or its parent company.
When it results indirectly from the use of the intervention reserve for the pre-financing of the resolution mechanism of the Resolution Fund a transfer of the losses of a non-substantiated enterprise to the Single Resolution Fund subject to a resolution procedure, its subsidiaries, or its parent house, the conditions referred to in paragraph 2 apply.
§ 2. The Resolution Fund provides a contribution under paragraph 1^er, 6° only when the following conditions are met:
1° the value of the instruments converted or depreciated in accordance with the internal swelling instrument or the instrument for the depreciation or conversion of the instruments of equity or by any other means, is greater than 8% of the total liabilities, including equity, from the establishment to resolution, as it results from the valuation carried out under sections 246 to 249 of the Act of 25 April 2014; and
2° the contribution of the Resolution Fund does not exceed 5% of the total liabilities, including equity, from the settlement to resolution, as a result of the valuation carried out under sections 246 to 249 of the Act of 25 April 2014.
In exceptional circumstances, where the 5% threshold referred to in the first paragraph is met, and provided that all unsecured and non-privileged liabilities, other than eligible deposits, have been depreciated or converted in full, the Resolution College may mobilize alternative funding or request the Resolution Fund to mobilize its pre-financing support reserve to finance the mission referred to in paragraph 1^er6°.
§ 3. By derogation from paragraph 2, the Resolution Fund may also provide a contribution under paragraph 1^er6° when the following conditions are met:
1° the value of the instruments converted or depreciated in application of the internal swelling instrument or instrument for the depreciation or conversion of the instruments of equity or by any other means, is at least 20% of the total amount of exposure to the risk of the establishment in resolution, as defined in section 92, paragraph 3 of Regulation No. 575/2013;
2° the pre-financing intervention reserve for the resolution system is at least equal to 3% of the insured deposits of non-subjected enterprises to the Single Resolution Fund; and
3° the total assets of the establishment in consolidated resolution is less than 900 billion euros.
§ 4. The contribution provided by the Resolution Fund under paragraph 1^er, 6° is intended either to cover losses that have not been absorbed by eligible commitments and to reduce to zero the value of the net assets of the establishment subject to the resolution procedure, or to acquire shares or other property titles or equity instruments of the establishment subject to the resolution procedure, in order to recapitalize this institution."
Art. 43. In the same Act, an article 6/2 is inserted as follows:
"Art. 6/2. § 1^er. Contributions made by the Resolution Fund under Article 6/1, § 1^er financed
1° first from the intervention reserve for the pre-financing of the resolution device;
2° where the pre-financing reserve for the resolution is exhausted, from ex post-extraordinary contributions, as defined in paragraph 5, raised over a three-year period; and
3° where the reserve of intervention for the pre-financing of the resolution system is exhausted, and that the ex post-extraordinary contributions, as defined in paragraph 5, raised over a three-year period, are insufficient, by means of alternative financing referred to in article 6/3, § 1^er.
§ 2. The pre-financing intervention reserve for the resolution system reaches a target level of 1% of the deposits covered by non-subjected companies to the Single Resolution Fund by December 31, 2024. At the request of the Resolution College, the Resolution Fund extends this period of four years if in the context of the tasks referred to in Article 6/1, § 1^er, the Resolution Fund has made cumulative payments greater than 0.5 per cent of non-subject business deposits to the Single Resolution Fund.
The collection of contributions to the resolution fund from non-subjected enterprises to the Single Resolution Fund is suspended when the target level is reached. If, as a result of a response from the Resolution Fund, the response reserve for the pre-financing of the resolution mechanism is below the target level, the collection of contributions to the Resolution Fund from non-subjected companies to the Single Resolution Fund is resumed. Contributions are set to a level to reach the target level within a maximum of six years.
The King may, by order deliberately in the Council of Ministers, taken on the advice of the College of Resolution, increase the target level of the intervention reserve for the pre-financing of the resolution device referred to in paragraph 1. This order is repealed in full right when it has not been confirmed by law within twelve months of its publication to the Belgian Monitor.
§ 3. The Resolution College may decide that a portion of the contribution to the resolution fund from non-subjected companies to the Single Resolution Fund is replaced by an irrevocable payment commitment entirely guaranteed by non-third-party low-risk assets and made available to the Resolution Fund. The total irrevocable payment commitments do not exceed 30% of the total amount of the intervention reserve for the pre-financing of the resolution. The King may, by order made on the advice of the College of Resolution, determine the conditions under which an irrevocable payment undertaking may be accepted.
§ 4. Without prejudice to sections 245 and 255 to 267 of the Act of 25 April 2014, the amounts collected by the Resolution Fund, either from the institution subject to the resolution procedure or from the establishment-relais, as well as interest, investment income and other gains made by the Resolution Fund in the course of the missions referred to in Article 6/1, § 1^er are assigned to the intervention reserve for the pre-financing of the resolution device.
§ 5. Where the pre-financing intervention reserve of the resolution device does not cover the losses, costs or other costs incurred in the missions referred to in Article 6/1, § 1^er, the Resolution Fund shall, at the request of the Resolution College, collect ex post-extraordinary contributions from non-subject enterprises to the Single Resolution Fund.
The amount due by each non-substantiated undertaking to the Single Resolution Fund under the ex post-extraordinary contribution is determined by the Resolution College.
The total of ex post-extraordinary contributions received in a year does not exceed the three-fold annual amount of contributions collected under section 3, paragraph 4 in the preceding year or in the last year in which they were collected.
The Resolution College may, at the request of a company not subject to the Single Resolution Fund, defer, in whole or in part, the payment by that undertaking from its ex post-extraordinary contribution in the event that such payment would compromise the liquidity or solvency of that undertaking. This postponement is not granted for a period of more than six months, but may be renewed at the request of the establishment. The deferred payment pursuant to this subsection shall be made at a later date if it does not compromise the liquidity or solvency of that undertaking. ".
Art. 44. In the same law, an article 6/3 is inserted as follows:
"Art. 6/3. § 1^er. The Resolution Fund may, at the request of the Resolution College, provide alternative funding in the form of borrowing or other forms of support from credit institutions, or other third parties where
1° the reserve of intervention for the pre-financing of the resolution device does not cover the losses, costs or other costs incurred in the course of a mission referred to in Article 6/1, § 1^er; and
2° Ex post extraordinary contributions are not immediately mobilizable or sufficient to carry out this mission.
§ 2. At the request of the Resolution College, the Resolution Fund may apply for borrowing from another funding mechanism of the European Union and other Member States of the European Economic Area that exercise one or more competences comparable to those referred to in Article 6/1, § 1^er when:
1° the reserve of intervention for the pre-financing of the resolution device does not cover the losses, costs or other costs incurred in the course of the exercise by the Resolution Fund of a mission referred to in Article 6/1, § 1^er;
2° Extraordinary ex post contributions are not immediately mobilizable or sufficient to carry out this mission; and
3° alternative financing means referred to in Article 6/2, § 3 shall not be immediately mobilized under reasonable conditions.
§ 3. The Resolution Fund can grant a loan to another funding mechanism of the European Union and other Member States of the European Economic Area that exercise one or more competences comparable to those referred to in Article 6/1, § 1^er which makes the request. A loan to another funding arrangement is financed from the intervention reserve for the pre-financing of the resolution.
The decision to grant a loan is notified:
1° to the Minister of Finance who may object within 48 hours if the Minister considers that the proposed loan has a significant budgetary impact; and
2° to the College of Resolution which may oppose it within 48 hours if it considers that the grant of this loan significantly alters its ability to carry out its tasks as defined in Article 12ter of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
The amount lent by the Resolution Fund is proportional to the amount of deposits provided by non-subjected enterprises to the Single Resolution Fund, reported to the cumulative amount of deposits provided in member States of the funding arrangements for the resolution of participants participating in the loan. This contribution rate may vary with the agreement of all participating funding devices.
A loan granted to a financing device for the resolution of another Member State shall be deducted from the target level to be attained defined in Article 6/2, § 2.".
Art. 45. Section 7 of the Act, as amended by the Tax and Financial Provisions and Sustainable Development Provisions Act of 17 June 2013, is replaced by the following:
"Art. 7. The College of Resolution shall annually communicate to the Resolution Fund the amount of the contribution to the Resolution Fund from each undertaking subject to the Single Resolution Fund and each undertaking not subject to the Single Resolution Fund.
The Resolution Fund shall communicate to the Resolution College the level of its response reserve for the pre-financing of the resolution system before 1^er September of each year, and after each significant change."
Given in Brussels, 27 June 2016.
PHILIPPE
By the King:
Minister of Finance,
J. VAN OVERTVELDT
Seal of the state seal:
Minister of Justice,
K. GEENS
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(1) Note
House of Representatives (www.lachambre.be):
Documents: 54-1831
Full report: 16 June 2016.