«ECB-PUBLIC MEMORANDUM OF UNDERSTANDING BETWEEN THE SINGLE RESOLUTION BOARD AND THE EUROPEAN CENTRAL BANK IN RESPECT OF COOPERATION AND INFORMATION ...»
MEMORANDUM OF UNDERSTANDING
BETWEEN THE SINGLE RESOLUTION BOARD
AND THE EUROPEAN CENTRAL BANK
IN RESPECT OF
COOPERATION AND INFORMATION EXCHANGE
MEMORANDUM OF UNDERSTANDING BETWEEN THE SINGLE RESOLUTION BOARD AND THE EUROPEAN
CENTRAL BANK IN RESPECT OF COOPERATION AND INFORMATION EXCHANGEECB-PUBLIC
TABLE OF CONTENTS
1. Purpose and key principles
2. Scope of cooperation
4. Legal nature
5. Institutional representation
6. Communication between the Participants
6.1. Communication between the Participants, contacts and language
6.2 External communication
7. Arrangements for cooperation and the exchange of information in the different phases
7.1. Cooperation for resolution related activities
7.2. Provision of information
8. Cooperation relating to other activities
8.1. Cooperation in on-site inspections in accordance with Article 36 of the SRM Regulation
8.2. Annual SRB work program
8.3. Calculation of contributions
8.4. Order of priority of claims
8.5. Cooperation related to the ECB common procedures
9. Exchange of information related to the establishment, suspension and termination of close cooperation between the ECB and national competent authorities of Member States whose currency is not the euro
10. Cooperation with regard to non-participating Member States
11. Cooperation with third-country authorities
12. Permissible use of information and confidentiality
13. Data protection
14. Knowledge exchange
15. Settlement of disputes
16. Review and amendment
17. Publication of this MoU
18. Effect and termination ECB-PUBLIC Memorandum of Understanding on Cooperation and information exchange This Memorandum of Understanding (MoU) is made BETWEEN the Single Resolution Board (SRB), with its headquarters at Rue de la Science 27, 1049 Brussels, Belgium AND the European Central Bank (ECB), with its headquarters at Sonnemannstraβe 22, 60640 Frankfurt am Main, Germany (hereinafter jointly the ‘Participants’ and individually, the ‘Participant’)
(1) The SRB fulfils the tasks of a resolution authority as part of the Single Resolution Mechanism (SRM) in accordance with Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (hereinafter the ‘SRM Regulation’). The main aims of the SRM are to ensure effective and uniform resolution rules and equal conditions of resolution financing across participating Member States under a centralised power of resolution.
(2) The ECB fulfils the tasks of a banking supervisory authority in the context of the Single Supervisory Mechanism (SSM) in accordance with Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions2 (hereinafter the 'SSM Regulation’).
(3) The ECB is competent to authorise and withdraw authorisations of all credit institutions within the SSM as well as to assess notifications of acquisition of qualifying holdings in those credit institutions subject to Articles 14 and 15 and Article 4(1)(c) of the SSM Regulation.
(4) Supervision and resolution are two complementary aspects of the establishment of the internal market for financial services whose application at the same level is regarded as mutually 1 OJ L 225, 30.7.2014, p. 1.
2 OJ L 287, 29.10.2013, p. 63.
dependent. In order to ensure parallelism with the SSM, the SRM applies to Member States participating in the SSM. The scope of application of the SRM Regulation is linked to the scope of the application of the SSM Regulation. The scope of entities falling under the direct responsibility of the SRB is influenced by the ECB decisions classifying supervised entities in participating Member States as significant or less significant as well as by the ECB decisions granting or withdrawing authorisations to take up the business of a credit institution.
(5) In the exercise of their respective responsibilities, the SRB and the ECB will cooperate closely in resolution planning, early intervention and resolution phases in accordance with the SRM Regulation. The SRB will be responsible for resolution planning, including the assessment of resolvability and the determination of the minimum requirement for own funds and eligible liabilities (hereinafter the ‘MREL’). At the same time, the ECB will be responsible for requesting recovery plans from institutions and for their assessment. In early intervention, the leading role lies with the ECB to use its supervisory powers to remedy the deterioration of an institution’s financial and economic situation before that institution reaches a point at which the SRB has no other alternative than to resolve it by applying the resolution tools, unless normal insolvency proceedings are credible and feasible.
(6) In accordance with Article 30(7) of the SRM Regulation, where necessary the SRB will conclude an MoU with the ECB describing in general terms how they will cooperate under Article 30(2) and (4) of the SRM Regulation in the performance of their respective tasks under Union law.
(7) Article 34(5) of the SRM Regulation provides that the SRB may conclude an MoU with the ECB on a procedure concerning the exchange of information. In order to ensure the smooth functioning of the SRM, it is essential that the SRB and the ECB cooperate closely and exchange all information necessary for the performance of their respective tasks.
(8) The ECB and the SRB should collaborate to avoid an unnecessary increase in the reporting burden of the institutions. Any duplication in the collection of data should be avoided. Therefore, the SRB may require institutions to provide all information necessary for the performance of its tasks after making full use of all the information available to the ECB or to National Competent Authorities. For example, the SRB should be able to obtain, including on a continuous basis, any information necessary for the exercise of its functions, in particular information on capital, liquidity, assets and liabilities.
(9) This MoU covers the cooperation and the exchange of information between the Participants with respect to all institutions directly supervised by the ECB. In addition, it covers all other cross-border groups or entities under direct responsibility of the SRB insofar as the ECB is exclusively competent to carry out tasks in accordance with Article 4(1)(a) and (c) of the SSM Regulation for prudential purposes. The MoU allows for further cooperation and information exchange, provided that this is commonly agreed by both Participants.
(10) This MoU does not prevent the exchange of information within the SSM and SRM. Information received from the SRB by the ECB can be shared with the national competent authorities involved in the respective joint supervisory team and information received from the ECB by the SRB can be shared with the national resolution authorities involved in the respective internal resolution team.
THE PARTICIPANTS HAVE REACHED THE FOLLOWING UNDERSTANDING:
Paragraph 1 Purpose and key principles 1.1 The purpose of this MoU is to establish the general terms for cooperation, including the exchange of information, between the Participants in order to ensure and enhance efficient, effective and timely cooperation between them in the performance of their respective resolution tasks and supervisory tasks under Union law.
In the exercise of their respective responsibilities under the SRM Regulation 3 and the SSM 1.2 Regulation4, the Participants cooperate closely in all relevant phases relating to the recovery and resolution of Entities, in particular in the recovery planning and resolution planning activities, early intervention and resolution phases.
1.3 The Participants provide each other with all information necessary for the performance of their respective tasks. They undertake to ensure that they provide each other access to information needed and available to them in their functions as supervisory and resolution authority respectively.
In particular, the Participants therefore cooperate closely in order to verify whether some or all of the information required by the SRB is already available at the ECB because of its supervisory function. Where such information is available, the ECB provides that information to the SRB.
3 Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014, OJ L 225, p. 1.
4 Council Regulation (EU) No 1024/2013 of 15 October 2013, OJ L 287, p. 63.
observer in its meetings for items relating to the tasks and responsibilities of the SRB. Such items shall be as follows: deliberations on recovery plans, group financial support, a rapidly deteriorating financial condition of an institution as defined in Article 27(1) 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 firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council 6 (hereinafter the ‘BRRD’), and any deliberations regarding measures provided in Article 13 of the SRM Regulation and a failing or likely to fail determination. The Supervisory Board may also invite the Chair of the SRB if the ECB has been informed of the SRB’s intention to make an assessment of the condition referred to in Article 18(1)(a) of the SRM Regulation. Where deemed appropriate, the SRB may appoint another representative to attend a meeting in the place of the Chair of the SRB.
5.2 The ECB will send the meeting documentation for the items which the Chair of the SRB has been invited to attend to the SRB at the same time as the documentation is sent to the Members of the Supervisory Board. The relevant excerpts from the minutes of the meeting will be provided to the SRB for information after the meeting at the same time as the minutes are sent to the Members of the Supervisory Board.
5.3 The ECB may invite a representative of the SRB to participate as an observer in substructures established by the ECB in accordance with Article 13m.2 of the Rules of Procedure of the ECB7 whenever the mandate of any such substructures is relevant for the tasks and responsibilities of the SRB.
5.4 In accordance with Article 14(3) of the Rules of Procedure of the SRB in its Plenary Session, a representative of the ECB may be invited upon the ECB’s request or upon direct invitation of the Chair of the SRB to participate as observer in a relevant committee or working group established in accordance with Article 14(1) of the Rules of Procedure of the SRB in its Plenary Session. The Chair of the SRB may invite a representative of the ECB whenever the mandate of any such substructure is relevant for the tasks and responsibilities of the ECB.
6.1.3 Where highly sensitive information and information on Entities or Other Institutions or personal data is involved, information is exchanged via secure communication channels in accordance with the applicable confidentiality rules.
6.1.4 The working language between ECB and SRB is the English language. Both Participants will use the English language when sending documents to each other, unless this is impossible for reasons of urgency or the document to be forwarded is not in English and a translation is not available at that point in time. In that case, documents are transmitted in their original language, and if possible and available, accompanied by a provisional English summary of the key aspects of the document.
This rule applies unless otherwise specifically agreed between the Participants for one or more individual cases.
6.2 External communication 6.2.1 The Participants strive to cooperate, if appropriate, in external communication with interest groups and the media on matters related to recovery and resolution within their respective responsibilities.
The Communication Services of the SRB and the ECB will be responsible for coordinating external communication. Both Participants will provide a list of relevant units and responsible persons as well as general contact points responsible for external communication.
6.2.2 The Participants will inform each other, as early and fully as possible, before issuing any public statements relating to the recovery or resolution of Entities.
Paragraph 7 Arrangements for cooperation and the exchange of information in the different phases
7.1. Cooperation for resolution related activities For an efficient functioning of both the supervisory and resolution functions it is essential that the annual work cycle of both Participants on recovery planning and resolution planning is aligned to the maximum extent possible.
7.1.1 In the recovery planning and resolution planning phase, cooperation between the Participants
includes, but may be not limited to, the following:
(a) the ECB informs the SRB of any change in its supervisory competence pursuant to Article 6(4) and 6(5)(b) of the SSM Regulation at least one month prior to the date on which it will assume direct supervision over an Entity or Other Institution;