39 Amendments of Antonio Maria RINALDI related to 2023/0112(COD)
Amendment 54 #
Proposal for a directive
Recital 10
Recital 10
Amendment 62 #
Proposal for a directive
Recital 11
Recital 11
(11) The assessment of whether the resolution of an institution or entity is in the public interest should also reflect, to the extent possible, the difference between, on the one hand, funding provided through industry-funded safety nets (resolution financing arrangements or DGSs) and, on the other hand, funding provided by Member States from taxpayers’ money. Funding provided by Member States bears a higher risk of moral hazard and a lower incentive for market discipline. As the public interest assessment is an ad hoc decision, it also lacks transparency and has negative consequences for the level playing field in the internal market. Therefore, when assessing the objective of minimising reliance on extraordinary public financial support, resolution authorities should find funding through the resolution financing arrangements or the DGS preferable toand funding through an equal amount of resources from the budget of Member States.
Amendment 68 #
Proposal for a directive
Recital 12
Recital 12
Amendment 78 #
Proposal for a directive
Recital 17
Recital 17
(17) In light of the experience acquired in the implementation of Directive 2014/59/EU, Regulation (EU) No 806/2014 and Directive 2014/49/EU of the European Parliament and of the Council31 , it is necessary to specify further the conditions under which measures of a preventive precautionary nature that qualify as extraordinary public financial support may exceptionally be granted. To minimise distortions of competition arising from differences in nature of DGSs in the Union, interventions of DGSs in the context of preventive measures complying with Directive 2014/49/EU that qualify as extraordinary public financial support should exceptionally be allowed where the beneficiary institution or entity does not meet any of the conditions for being deemed ashas been not declared failing or likely to fail. It should be ensured that precautionary measures are taken sufficiently early. The European Central Bank (ECB) currently bases its consideration that an institution or entity is solvent, for the purposes of precautionary recapitalisation, on a forward-looking assessment for following 12 months of whether the institution or entity can comply with the own funds requirements set out in Regulation (EU) No 575/2013 of the European Parliament and of the Council32 or in Regulation (EU) 2019/2033 of the European Parliament and of the Council33 , and the additional own funds requirement laid down in Directive 2013/36/EU or Directive (EU) 2019/2034. That practice should be laid downrevised in Directive 2014/59/EU. Moreover, measures to provide relief for impaired assets, including asset management vehicles or asset guarantee schemes, can prove effective and efficient in addressing causes of possible financial distresses faced by institutions and entities and preventing their failure and could therefore constitute relevant precautionary measures. It should be therefore specified that such precautionary measures can take the form of impaired asset measures. __________________ 31 Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149). 32 Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1). 33 Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014 (OJ L 314, 5.12.2019, p. 1).
Amendment 80 #
Proposal for a directive
Recital 18
Recital 18
(18) To preserve market discipline, protect public funds and avoid distortions of competition, precautionary measures should remain the exception and only be applied to address situations of serious disturbance in the market or to preserve financial stability. Moreover, precautionary measures should not be used to address incurred or likely losses unless an exception to the burden-sharing requirement is made under Union State aid framework. The most reliable instrument to identify incurred or likely to be incurred losses is an asset quality review by the ECB, the European Supervisory Authority (European Banking Authority) (EBA), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council34 or national competent authorities. Competent authorities should use such a review to identify incurred or likely to be incurred losses where such review can be carried out within a reasonable timeframe. Where that is not possible, competent authorities should identify incurred or likely to be incurred losses in the most reliable way possible under the prevailing circumstances, based on on-site inspections where appropriate. __________________ 34 Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12).
Amendment 83 #
Proposal for a directive
Recital 19
Recital 19
(19) Precautionary recapitalisation is aimed at supporting viable institutions and entities identified as likely to encounter temporary difficulties in the near future and to prevent their situation from deteriorating further. To avoid that public subsidies are granted to businesses that are already unprofitable when the support is granted, precautionary measures granted in the form of acquisition of own funds instruments or other capital instruments or through impaired asset measures should not exceed the amount necessary to cover capital shortfalls as identified in the adverse scenario of a stress test or equivalent exercise. To ensure that public financing is ultimately discontinued, those precautionary measures should also be limited in time and contain a clear timeline for their termination (exit strategy). Perpetual instruments, including Common Equity Tier 1 capital, should only be used in exceptional circumstances and be subject to certain quantitative limits because by their nature they are not well suited for compliance with the condition of temporariness.
Amendment 85 #
Proposal for a directive
Recital 20
Recital 20
(20) Precautionary measures should be limited to the amount that the institution or entity would need to maintain its solvency in the case of an adverse scenario event as determined in a stress test or equivalent exercise. In the case of precautionary measures in the form of impaired asset measures, the receiving institution or entity should be able to use that amount to cover losses on the transferred assets or in combination with an acquisition of capital instruments, provided that the overall amount of the shortfall identified is not exceeded. It is also necessary to ensure that such precautionary measures in the form of impaired asset measures comply with existing State aid rules and best practices, that they restore the institution or entity's long-term viability, that State aid is limited to the minimum necessary and that distortions of competition are avoided. For those reasons, the authorities concerned should in case of precautionary measures in the form of impaired asset measures take into account the specific guidance, including the AMC Blueprint35 and the Communication on Tackling Non- Performing Loans36 . Those precautionary measures in the form of impaired asset measures should always be subject to the overriding condition of temporariness. Public guarantees granted for a specified period in relation to the impaired assets of the institution or entity concerned are expected to ensure better compliance with the temporariness condition than transfers of such assets to a publicly supported entity. To ensure the market exit of institutions and entities that prove not to be viable, despite the support received, it is necessary to lay down that non- compliance by the institution or entity concerned with the terms of the support measures specified at the time such measures were granted is to result in the institution or entity concerned being considered failing or likely to fail. __________________ 35 COM(2018) 133 final. 36 COM(2020) 822 final.
Amendment 91 #
Proposal for a directive
Recital 29
Recital 29
(29) The level of the MREL for resolution entities is the sum of the amount of the losses expected in resolution and the recapitalisation amount that enable the resolution entity to continue to comply with its conditions for authorisation and enabling it to pursue its activities for the appropriate period. Certain preferred resolution strategies entail the transfer of assets, rights and liabilities to a recipient and market exit, in particular the sale of business tool. In those cases, the objectives pursued by the recapitalisation component might not apply to the same extent, because the resolution authority will not be required to ensure that the resolution entity restores compliance with its own funds requirements after resolution action. Nevertheless, the losses in such cases are expected to exceed the resolution entity’s own funds requirements. It is therefore appropriate to lay down that the level of the MREL of those resolution entities continues to include a recapitalisation amount that is adjusted in a way that is proportionate to the resolution strategy.
Amendment 93 #
Proposal for a directive
Recital 30
Recital 30
(30) Where the resolution strategy envisages the use of resolution tools other than bail-in, the recapitalisation needs of the entity concerned will generally be smaller after resolution than in case of open bank bail-in. The calibration of the MREL in such a case should take that aspect into account when estimating the recapitalisation requirement. Therefore, when adjusting the level of the MREL for resolution entities the resolution plan of which envisages the sale of business tool or the bridge institution tool and its exit from the market, resolution authorities should take into account the features of those tools, including the expected perimeter of the transfer to the private purchaser or to the bridge institution, the types of instruments to be transferred, the expected value and marketability of those instruments and the design of the preferred resolution strategy, including the complementary use of the asset separation tool. Since the resolution authority has to decide on a case by case basis on any possible use in resolution of funds from DGS and since such decision cannot be assumed with certainty ex ante, the resolution authorities should not consider the potential contribution of the DGS in resolution when calibrating the level of the MREL.
Amendment 96 #
Proposal for a directive
Recital 31
Recital 31
Amendment 140 #
Proposal for a directive
Recital 44
Recital 44
(44) The contribution of the DGS in resolution should be subject to certain limits. First, it should be ensured that any loss which the DGS may bear as a result of an intervention in resolution does not exceed the loss that the DGS would bear in insolvency if it paid out covered depositors and subrogated to their claims over the institution’s assets. That amount should be determined on the basis of the least cost test, in accordance with the criteria and methodology set out in Directive 2014/49/EU, taking into account all relevant factors, including the time value of money as well as delays in the recovery of funds and the recovery rates expected in insolvency proceedings, based on national specificities. Those criteria and methodology should also be used when determining the treatment that the DGS would have received had the institution entered normal insolvency proceedings when carrying out the ex-post valuation for the purposes of assessing compliance with the ‘no creditor worse off’ principle and determining any compensation owed to the DGS. Second, the amount of the DGS’s contribution aimed at covering the difference between the assets and liabilities to be transferred to a purchaser or to a bridge institution should not exceed the difference between the transferred assets and the transferred deposits and liabilities with the same or a higher priority ranking in insolvency than those deposits. That would ensure that the contribution of the DGS is only used for the purposes of avoiding the imposition of losses on depositors, where appropriate, and not for the protection of creditors that rank below deposits in insolvency. Nevertheless, the sum of the contribution of the DGS to cover the difference between assets and liabilities with the contribution of the DGS towards the own funds of the recipient entity should not exceed the cost of repaying covered depositors as calculated under the least cost test.
Amendment 213 #
Proposal for a directive
Article 1 – paragraph 1 – point 12
Article 1 – paragraph 1 – point 12
Directive 2014/59/EU
Article 27 – paragraph 1a – point d
Article 27 – paragraph 1a – point d
Amendment 214 #
Proposal for a directive
Article 1 – paragraph 1 – point 12
Article 1 – paragraph 1 – point 12
Directive 2014/59/EU
Article 27 – paragraph 1 a – point f a (new)
Article 27 – paragraph 1 a – point f a (new)
(fa) the requirement for the management body to contact potential purchasers and to put in place a digital platform for sharing the information that is necessary for the marketing of the institution or entity referred to in Article 1(1), points (b), (c) or (d) with potential purchasers or with advisors and valuers in order to prepare for the resolution of that institution or entity, subject to the conditions laid down in Article 39(2) and the confidentiality provisions laid down in Article 84.
Amendment 228 #
Proposal for a directive
Article 1 – paragraph 1 – point 15
Article 1 – paragraph 1 – point 15
After having received the notification referred to in the first subparagraph, resolution authorities shall assess, in close cooperation with competent authorities, what constitutes a reasonable timeframe for the purposes of the assessment of the condition referred to in Article 32(1), point (b), taking into account the speed of the deterioration of the conditions of the institution or entity referred to in Article 1(1), points (b), (c) or (d), the risk that a prolonged process increases the overall costs for customers and the economy, the need to implement effectively the resolution strategy and any other relevant considerations. Resolution authorities shall communicate that assessment to competent authorities as early as possible.
Amendment 244 #
Proposal for a directive
Article 1 – paragraph 1 – point 16
Article 1 – paragraph 1 – point 16
Directive 2014/59/EU
Article 31 – paragraph 2 – point d
Article 31 – paragraph 2 – point d
(d) to protect depositors, while minimising losses for deposit guarantee schemes, and to protect investors covered by Directive 97/9/EC;;
Amendment 249 #
Proposal for a directive
Article 1 – paragraph 1 – point 16 a (new)
Article 1 – paragraph 1 – point 16 a (new)
Directive 2014/59/EU
Article 31 – paragraph 2 a (new)
Article 31 – paragraph 2 a (new)
(16a) in Article 31 the following paragraph 2a is added: "2a. Subject to different provisions of this Directive, the resolution objectives are of equal significance, and resolution authorities shall balance them as appropriate to the nature and circumstances of each case. For the purposes of Article 32(5), the objectives of preserving financial stability and protecting depositors pursuant to points (b) and (d) of paragraph 2, respectively, shall be deemed to be more significant than other resolution objectives.";
Amendment 255 #
Proposal for a directive
Article 1 – paragraph 1 – point 17 – point a
Article 1 – paragraph 1 – point 17 – point a
Directive 2014/59/EU
Article 32 – paragraph 2 – subaparagraph 1
Article 32 – paragraph 2 – subaparagraph 1
Amendment 261 #
Proposal for a directive
Article 1 – paragraph 1 – point 17 – point c
Article 1 – paragraph 1 – point 17 – point c
Directive 2014/59/EU
Article 32 – paragraph 5 – subparagraph 1
Article 32 – paragraph 5 – subparagraph 1
For the purposes of paragraph 1, point (c), a resolution action shall be treated as in the public interest where, pursuant to the second subparagraph of Article 31(3), that resolution action is necessary for the achievement of, and is proportionate to, one or more of the resolution objectives referred to inin that Article 31, and where winding up of the institution under normal insolvency proceedings would not meet those resolution objectives more effectivelyto the same extent. Member States shall ensure that when carrying out the assessment referred to in the first subparagraph, pursuant to Articles 10(1) and 45c(2), the resolution authority, in order to assess the appropriateness of the resolution for the institution, considers the following elements: (a) the prevalence of deposits and the absence of debt instruments in the funding model; (b) the access to the capital markets for eligible liabilities; (c) the extent to which the institution relies on Common Equity Tier 1 capital to meet its capital requirements.
Amendment 277 #
Proposal for a directive
Article 1 – paragraph 1 – point 17 – point c
Article 1 – paragraph 1 – point 17 – point c
Directive 2014/59/EU
Article 32 – paragraph 5 – subparagraph 2
Article 32 – paragraph 5 – subparagraph 2
Member States shall ensure that when carrying out the assessment referred to in the first subparagraph, the resolution authority, based on the information available to it at the time of that assessment, considers and compares all extraordinary public financial support that can reasonably be expected to be granted to the institution, both in the event of resolution and in the event of winding up in accordance with the applicable national law.;
Amendment 287 #
Proposal for a directive
Article 1 – paragraph 1 – point 18
Article 1 – paragraph 1 – point 18
Directive 2014/59/EU
Article 32b – paragraph 4
Article 32b – paragraph 4
4. Member States shall ensure that the withdrawal of the authorisation of the institution or entity referred to in Article 1(1), points (b), (c) or (d) declared when the conditions mentioned in paragraph 3 are met is a sufficient condition for a relevant national administrative or judicial authority to be able to initiate without delay the procedure to wind up the institution or entity in an orderly manner in accordance with the applicable national law. ’:
Amendment 290 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – title
Article 32c – title
Amendment 294 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 1 – introductory part
Article 32c – paragraph 1 – introductory part
1. Member States shall ensure that extraordinary public financial support outside of resolution action or the winding up according to the applicable procedures may be granted to an institution or entity as referred to in Article 1(1), points (b), (c) or (d), on an exceptional basis only in one of the following cases and provided that the extraordinary public financial support complies with the conditions and requirements established in the Union State aid framework:
Amendment 298 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 1 – point a – introductory part
Article 32c – paragraph 1 – point a – introductory part
(a) where, to remedy a serious disturbance in the economy of a Member State or to preserve financial stability, the extraordinary public financial support takes any of the following formextraordinary support measures:
Amendment 303 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 1 – point b
Article 32c – paragraph 1 – point b
(b) where the extraordinary public financial support takes the form of an intervention by a deposit guarantee scheme to preserve the financial soundness and long-term viability of the credit institution in compliance with the conditions set out in Articles 11a and 11b of Directive 2014/49/EU, provided that none of the circumstances referred to in Article 32(4) are present;
Amendment 311 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 1 – point c
Article 32c – paragraph 1 – point c
(c) where the extraordinary public financial support takes the form of an intervention by a deposit guarantee scheme in the context of the winding up of an institution pursuant to Article 32b and in accordance with the conditions set out in Article 11(5) of Directive 2014/49/EU;
Amendment 319 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
By way of derogation from paragraph 2, point (d), the support measures referred to in paragraph 1, point (a) can be used to offset losses that the institution or entity is likely to incur in the near future where an exception to the burden-sharing requirement is made under Union State aid framework.
Amendment 320 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 2 – subparagraph 2
Article 32c – paragraph 2 – subparagraph 2
For the purposes of the first subparagraph, point (a), an institution or entity shall be deemed to be solvent where the competent authority has concluded that no breach has occurred, or is likely to occur in the 12 following months, of any of the requirements referred to in Article 92(1) of Regulation (EU) No 575/2013, Article 104a of Directive 2013/36/EU, Article 11(1) of Regulation (EU) 2019/2033, Article 40 of Directive (EU) 2019/2034 or the relevant applicable requirements under Union or national law. The competent authority may deem an institution or entity to be solvent where it determines that a breach of these requirements is temporary in nature, taking into account the specific circumstances of each case, and provided that the institution or entity can demonstrate a reasonable plan to remedy the breach within an appropriate timeframe as determined by the competent authority.
Amendment 328 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 2 – subparagraph 5
Article 32c – paragraph 2 – subparagraph 5
By way of derogation from paragraph 1, point (a)(iii), acquisition of Common Equity Tier 1 instruments shall be exceptionally permitted where the nature of the shortfall identified is such that the acquisition of any other own funds instruments or other capital instruments would not make it possible for the institution or entity concerned to address its capital shortfall established in the adverse scenario in the relevant stress test or equivalent exercise. The amount of acquired Common Equity Tier 1 instruments shall not exceed 2% of the total risk exposure amount of the institution or entity concerned calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013.
Amendment 330 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive 2014/59/EU
Article 32c – paragraph 2 – subparagraph 6
Article 32c – paragraph 2 – subparagraph 6
Amendment 358 #
Proposal for a directive
Article 1 – paragraph 1 – point 31 – point -a (new)
Article 1 – paragraph 1 – point 31 – point -a (new)
Directive 2014/59/EU
Article 45c – paragraph 2 – subparagraph 2
Article 45c – paragraph 2 – subparagraph 2
(-a) the second subparagraph of paragraph 2 is replaced by the following: " Where the resolution plan provides that the entity is to be wound up under normal insolvency proceedings or other equivalent national procedures, the resolution authority limits the requirement referred to in Article 45(1) for that entity, so that it does not exceed an amount sufficient to absorb losses in accordance with point (a) of the first subparagraph, except in extraordinary cases of the need for additional buffer. The buffer in any case shall be lower than the recapitalisation amount as referred to in paragraph 3."
Amendment 370 #
Proposal for a directive
Article 1 – paragraph 1 – point 32
Article 1 – paragraph 1 – point 32
Directive 2014/59/EU
Article 45ca – paragraph 1 – introductory part
Article 45ca – paragraph 1 – introductory part
1. When applying Article 45c to a resolution entity whose preferred resolution strategy envisages primarily the use of the sale of business tool or the bridge institution tool and its exit from the market, the resolution authority shallmay set thea recapitalisation amount provided in Article 45c(3), that may be higher or equal to zero, in a proportionate way on the basis of the following criteria, as relevant:
Amendment 376 #
Proposal for a directive
Article 1 – paragraph 1 – point 32
Article 1 – paragraph 1 – point 32
Directive 2014/59/EU
Article 45ca – paragraph 1 – point a
Article 45ca – paragraph 1 – point a
(a) the resolution entity’s size, business model, funding model and risk profile, and the depth of the market in which the resolution entity operatability to access the capital markets for eligible liabilities;
Amendment 386 #
Proposal for a directive
Article 1 – paragraph 1 – point 32
Article 1 – paragraph 1 – point 32
Directive 2014/59/EU
Article 45ca – paragraph 1 – point ea (new)
Article 45ca – paragraph 1 – point ea (new)
(e a) whether any contribution by a deposit guarantee scheme is expected to be made pursuant to Article 109.’
Amendment 394 #
Proposal for a directive
Article 1 – paragraph 1 – point 32
Article 1 – paragraph 1 – point 32
Directive 2014/59/EU
Article 45ca – paragraph 2
Article 45ca – paragraph 2
Amendment 422 #
Proposal for a directive
Article 1 – paragraph 1 – point 53 – point a
Article 1 – paragraph 1 – point 53 – point a
Directive 2014/59/EU
Article 103 – paragraph 3
Article 103 – paragraph 3
3. The available financial means to be taken into account in order to reach the target level specified in Article 102 may include irrevocable payment commitments which are fully backed by collateral of low risk assets unencumbered by any third party rights, at the free disposal and earmarked for the exclusive use by the resolution authorities for the purposes specified in Article 101(1). The share of irrevocable payment commitments shall not exceed 530 % of the total amount of contributions raised in accordance with this Article. Within that limit, the resolution authority shall determine annually the share of irrevocable payment commitments in the total amount of contributions to be raised in accordance with this Article.;
Amendment 468 #
Proposal for a directive
Article 1 – paragraph 1 – point 56 – point a
Article 1 – paragraph 1 – point 56 – point a
Directive 2014/59/EU
Article 109 – paragraph 1 – point b – point i
Article 109 – paragraph 1 – point b – point i
(i) the amount necessary to cover the difference between the value of the covered deposits and of the liabilities with the same or a higher priority ranking than deposits and the value of the assets of the institution under resolution which are to be transferred to a recipient; and
Amendment 472 #
Proposal for a directive
Article 1 – paragraph 1 – point 56 – point a
Article 1 – paragraph 1 – point 56 – point a
Directive 2014/59/EU
Article 109 – paragraph 1 – subparagraph 2 – point b
Article 109 – paragraph 1 – subparagraph 2 – point b
(b) where relevant, an amount necessary to ensure the capital neutrality of the transfer for the recipient. The decision of the resolution authority to exclude eligible deposits from the application of the write-down or conversion powers shall give rise to a rebuttable presumption that such an exclusion meets the requirements laid down in Article 44(3). Paragraph 12 of Article 44 shall not apply to such an exclusion.
Amendment 482 #
Proposal for a directive
Article 1 – paragraph 1 – point 56 – point b
Article 1 – paragraph 1 – point 56 – point b
Directive 2014/59/EU
Article 109 – paragraph 2b – subparagraph 1
Article 109 – paragraph 2b – subparagraph 1
The contribution of the deposit guarantee scheme pursuant to paragraph 1, second subparagraph, shall count towards the thresholds laid down in Article 44(5), point (a), and in Article 44(8), point (a).
Amendment 486 #
Proposal for a directive
Article 1 – paragraph 1 – point 56 – point b
Article 1 – paragraph 1 – point 56 – point b
Directive 2014/59/EU
Article 109 – paragraph 2b – subparagraph 3
Article 109 – paragraph 2b – subparagraph 3