Changes from report parliamentary committee draft to plenary report

AddedMember States shall ensure that any person or entity referred to in paragraph 1 shall be subject to civil liability in the event of an infringement of this Article.

Added3. Member States shall ensure that the persons referred to in paragraph 1, points (a), (b), (c), (g), (i) and (j) have internal rules in place to ensure compliance with the confidentiality requirements laid down in paragraphs 1 and 2, including rules to secure secrecy of information between persons directly involved in the resolution process.

Added4. Paragraphs 1 to 3 of this Article shall not prevent:

Added(a) employees and experts of the bodies or entities referred to in points paragraph 1, points (a) to (i), from sharing information among themselves within each body or entity;

Added(b) resolution authorities and supervisory authorities, including their employees and experts, from sharing information with each other and with other Union resolution authorities, other Union supervisory authorities, competent ministries, central banks, insurance guarantee schemes, authorities responsible for normal insolvency proceedings, authorities responsible for maintaining the stability of the financial system in Member States through the use of macroprudential rules, persons charged with carrying out statutory audits of accounts, EIOPA, or, subject to Article 77, third-country authorities that carry out functions that are equivalent to the functions carried out by resolution authorities, or, subject to strict confidentiality requirements, to a potential acquirer for the purposes of planning or carrying out a resolution action.

Added5. Member States may authorise the exchange of information with any of the following:

Added(a) subject to strict confidentiality requirements, any other person where necessary for the purposes of planning or carrying out a resolution action;

Added(b) parliamentary enquiry committees in their Member State, courts of auditors in their Member State and other entities in charge of enquiries in their Member State, under appropriate conditions;

Added(c) national authorities responsible for overseeing payment systems, the authorities responsible for normal insolvency proceedings, the authorities entrusted with the public duty of supervising other financial sector entities, the authorities responsible for the supervision of financial markets, credit institutions and investment firms and inspectors acting on their behalf, the authorities of Member States responsible for maintaining the stability of the financial system in Member States through the use of macroprudential rules, the authorities responsible for protecting the stability of the financial system, and persons charged carrying out statutory audits.

Added6. Paragraphs 1 to 5 of this Article shall be without prejudice to national law concerning the disclosure of information for the purpose of legal proceedings in criminal or civil cases.

Added7. EIOPA shall, by [PO – add 18 months after entry into force], issue guidelines in accordance with Article 16 of Regulation (EU) No 1094/2010 to specify how information should be provided in summary or collective form for the purposes of paragraph 2.

AddedEx-ante judicial approval and rights to challenge decisions

Added1. Member States may require that a decision to take a crisis prevention measure or a crisis management measure is subject to ex-ante judicial approval, provided that in respect of a decision to take a crisis management measure, in accordance with national law, the procedure relating to the application for approval and the court’s consideration is expeditious.

Added2. Member States shall provide in national law for a right of appeal against a decision to take a crisis prevention measure or a decision to exercise any power, other than a crisis management measure, under this Directive.

Added3. Member States shall ensure that all persons affected by a decision to take a crisis management measure, have the right to appeal against that decision.

AddedMember States shall ensure that the review of a crisis management measure is expeditious and that national courts use the economic assessments of the facts carried out by the resolution authority as a basis for their own assessment.

Added4. The right to appeal referred to in paragraph 3, shall be subject to the following requirements:

Added(a) the lodging of an appeal shall not entail any automatic suspension of the effects of the challenged decision;

Added(b) the decision of the resolution authority shall be immediately enforceable and shall give rise to a rebuttable presumption that a suspension of its enforcement would be against the public interest.

AddedWhere it is necessary to protect the interests of third parties acting in good faith who have acquired shares, other instruments of ownership, assets, rights or liabilities of an undertaking under resolution by virtue of the use of resolution tools as referred to in Article 26(3) or through the exercise of resolution powers by a resolution authority, the annulment of a decision of a resolution authority shall not affect any subsequent administrative acts or transactions concluded by the resolution authority concerned which were based on the annulled decision. In that case, remedies for a wrongful decision or action by the resolution authorities shall be limited to compensation for the loss suffered by the applicant as a result of the annulled decision or act.

AddedRestrictions on other proceedings

Added1. Without prejudice to Article 62(2), point (b), Member States shall ensure with respect to an undertaking under resolution or an insurance or reinsurance undertaking or an entity referred to in Article 1(1), points (b) to (e), in relation to which the conditions for resolution referred to in Article 19(1) or Article 20(3) have been determined to be met, that normal insolvency proceedings shall not be commenced except at the initiative of the resolution authority and that a decision placing an insurance or reinsurance undertaking or an entity referred to in Article 1(1), points (b) to (e), into normal insolvency proceedings shall be taken only with the consent of the resolution authority.

Added2. For the purposes of paragraph 1, Member States shall ensure that:

Added(a) supervisory authorities and resolution authorities are notified without delay of any application for the opening of normal insolvency proceedings in relation to an insurance or reinsurance undertaking or an entity referred to in Article 1(1), points (b) to (e), irrespective of whether that undertaking or entity is under resolution or whether a decision has been made public in accordance with Article 63, paragraphs 3 and 4;

Added(b) the application for the opening of normal insolvency proceedings is not determined unless the notifications referred to in point (a) have been made and either of the following occurs:

Added(i) the resolution authority has notified the authorities responsible for normal insolvency proceedings that it does not intend to take any resolution action in relation to the insurance or reinsurance undertaking or the entity referred to in Article 1(1), points (b) to (e);

Added(ii) a period of seven days beginning with the date on which the notifications referred to in point (a) were made has expired.

Added3. Without prejudice to any restriction on the enforcement of security interests imposed pursuant to Article 48, Member States shall ensure that, if necessary for the effective application of the resolution tools referred to in Article 26(3) and the resolution powers referred to in Chapter IV of Title III, resolution authorities may request a court to apply a stay for an appropriate period of time in accordance with the objective pursued, on any judicial action or proceeding in which an undertaking under resolution is or becomes a party.

AddedGeneral principles regarding decision-making involving more than one Member State

AddedMember States shall ensure that, when making decisions or taking action pursuant to this Directive which may have an impact in one or more other Member States, their authorities have regard to the following general principles:

Added(a) when taking resolution action, decision-making shall be efficient and resolution costs shall be kept as low as possible;

Added(b) decisions shall be made and action shall be taken in a timely manner and with due urgency when required;

Added(c) resolution authorities, supervisory authorities and other authorities shall cooperate with each other to ensure that decisions are made and action is taken in a coordinated and efficient manner;

Added(d) the roles and responsibilities of relevant authorities within each Member State are defined clearly;

Added(e) due consideration shall be given to the interests, potential impact of any decisions, actions or inactions and negative effects on policy holders, financial stability, fiscal resources, insurance guarantee schemes and negative economic and social effects in all the Member States where the ultimate parent undertaking and its subsidiaries operate or where they carry out significant cross-border activities;

Added(f) due consideration shall be given to the objectives of balancing the interests of the various Member States involved and of avoiding unfairly prejudicing or unfairly protecting the interests of particular Member States;

Added(g) resolution authorities, when taking resolution actions, shall take into account and follow the group resolution plans referred to in Article 11, unless the resolution authorities consider, taking into account the circumstances of the case, that the resolution objectives referred to in Article 18 will be achieved more effectively by taking actions which are not provided for in the resolution plans;

Added(h) a proposed decision or action shall be transparent whenever that decision or action is likely to have implications on the policy holders, real economy, financial stability, fiscal resources, and, where relevant, insurance guarantee schemes and financing arrangements of any Member State concerned.

AddedResolution colleges

Added1. Group resolution authorities shall establish resolution colleges to carry out the tasks referred to in Articles 10, 11, 14, 16, 70 and 71, and, where appropriate, to ensure cooperation and coordination with third-country resolution authorities.

AddedIn particular, resolution colleges shall provide a framework for the group resolution authority, the other resolution authorities and, where appropriate, supervisory authorities and group supervisors concerned, to perform the following tasks:

Added(a) exchanging information that is relevant for the development of group resolution plans and for the application to groups of resolution powers;

Added(b) developing group resolution plans pursuant to Articles 10 and 11;

Added(c) assessing the resolvability of groups pursuant to Article 14;

Added(d) exercising powers to address or remove impediments to the resolvability of groups pursuant to Article 16;

Added(e) deciding on the need to establish a group resolution scheme as referred to in Article 70 or 71;

Added(f) reaching the agreement on a group resolution scheme proposed in accordance with Article 70 or 71;

Added(g) coordinating public communication of group resolution strategies and schemes;

Added(h) coordinating the use of any insurance guarantee schemes or financing arrangements.

AddedIn addition, resolution colleges may be used as a forum to discuss any issues relating to cross-border group resolution.

Added2. The following shall be members of the resolution college:

Added(a) the group resolution authority;

Added(b) the resolution authorities of each Member State in which a subsidiary covered by group supervision is established;

Added(c) the resolution authorities of Member States where a parent undertaking of one or more undertakings of the group that is an entity as referred to in Article 1(1), points (b), (d) or (e), are established;

Added(d) the group supervisor and the supervisory authorities of the Member States where the resolution authority is a member of the resolution college;

Added(e) the competent ministries, where the resolution authorities which are members of the resolution college are not the competent ministries;

Added(f) where relevant, the authority that is responsible for the insurance guarantee scheme of a Member State, where the resolution authority of that Member State is a member of the resolution college;

Added(g) EIOPA, subject to paragraph 4.

Added(h) the resolution authorities in Member States where the insurance or reinsurance undertakings of the group carry out significant cross-border activities.

AddedFor the purposes of point (g), EIOPA shall contribute to promoting and monitoring the efficient, effective and consistent functioning of resolution colleges and convergence across resolution colleges. EIOPA shall be invited to attend the meetings of the resolution college for that purpose. EIOPA shall not have any voting rights.