2009-01-01
The National Council of the Slovak Republic enacted this Act to establish a framework for providing temporary stabilisation aid to banks impaired by financial crises. The legislation defines eligible aid forms, including capital injections, temporary public ownership, and special guarantees, subject to strict approval procedures involving the Ministry of Finance, the National Bank of Slovakia, and the European Commission. Beneficiaries must adhere to rigorous conditions regarding capital raising, bail-in measures, remuneration caps, and the prohibition of dividend payments to ensure financial stability and prevent misuse of public funds.
The full text of Act No 276/2009 on measures to mitigate the effects of a global financial crisis on the banking sector (and amending certain laws), as amended by Act No 437/2015, and Act No 177/2018 The National Council of the Slovak Republic has adopted the Act: ARTICLE I Section 1 Subject matter of the Act (1) This Act regulates: (a) the terms and conditions under which aid may be provided to a bank1 in order to remedy serious operational deficiencies, 2 with a view to mitigating the extent to which the effects of a global financial crisis spill over from the banking sector to the Slovak economy, or to strengthening the conditions for maintaining the stability of the financial system as a whole (hereinafter ‘stabilisation aid’); (b) the procedures to be followed by the Slovak Government (hereinafter ‘the Government’), the Ministry of Finance of the Slovak Republic (hereinafter ‘the Ministry’), other public authorities, and Národná banka Slovenska in regard to the provision of stabilisation aid; (c) the monitoring of compliance with the terms and conditions for the provision of stabilisation aid. (2) This Act does not constitute a State aid scheme as defined in another act. 3 Section 2 Stabilisation aid (1) Stabilisation aid may be provided on a temporary basis to a bank whose financial situation has been impaired as a result of a financial crisis or other crisis situation, 3a and it may be provided by: (a) a cash contribution from state financial assets to the bank’s share capital, 4 for the purpose of purchasing financial instruments that are Common Equity Tier 1 items, Additional Tier 1 items, or Tier 2 items; 4a (b) by bringing the bank into temporary public ownership through the transfer of an ownership interest in the bank to an entity representing the State or to an entity in which the State has a participating interest of 100%; (c) the provision of a special guarantee for
(a) ensure further bank lending with the aim of supporting the economy by meeting existing demand for loans from persons or entities whose permanent residence, registered office or place of business is situated in a Member State of the European Union; (b) stabilise the financial situation of the bank:
(b) the full names of the members of the bank’s statutory body; (c) the method under Section 2(1) by which the stabilisation aid requested by the bank is to be provided; (d) the purpose under Section 2 (2) for which the stabilisation aid is requested; (e) a detailed reasoning of why the stabilisation aid is required, including a statement of the bank’s capital ratio as at the date of the application’s submission; (f) the amount of stabilisation aid requested; (g) in the case of an application for stabilisation aid under Section 2(1)(c), details of the shortterm loan or bond for which a special guarantee is to be provided; (h) the period for which the provision of the stabilisation aid is requested; (i) information about how the bank’s business activities and operations would be affected if the stabilisation aid were not provided; (j) a proposal for measures to be taken under Section 5(6); (k) a declaration that the information given in the application is complete, correct, up-to-date and true; (l) the date when and place where the application was drawn up, and the full names and signatures of the persons authorised to act on behalf of the bank; (m) if the bank is applying for stabilisation aid under Section 2(1)(a) or (b), information on the implementation of capital raising measures under 4(3) and the application of bail-in under Section 4(b); (n) if the Resolution Council is the applicant, information on whether the conditions for lodging an application under another act6a are met. (3) The following must be annexed to the application: (a) the bank’s most recent audited financial statements or most recent half-yearly financial statements; (b) a draft stabilisation plan for the bank, containing details of the how the stabilisation aid will be used in accordance with the purpose under Section 2(2) and measures for improving the bank’s financial situation (hereinafter a ‘stabilisation plan’); (c) if the bank is applying for stabilisation aid under Section 2(1)(a) or (b), a capital raising plan. (4) In the case of the annex under paragraph 3(a), the bank shall submit an original or a certified copy of the financial statements; if the annex is drawn up in a foreign language, the bank shall enclose also a translation in the Slovak language produced in accordance with another act. 7 (5) After receiving a complete application, the Ministry shall without delay request Národná banka Slovenska to give its opinion on the application; in producing its opinion, Národná banka Slovenska is not required to act in accordance with another act concerning proceedings in financial market supervision matters. 8 No later than two days after receiving the application, Národná banka Slovenska shall submit its opinion on the application to the Ministry. If the Ministry receives an application that is incomplete, it shall without delay ask the bank to remove the deficiencies and set it a time limit for doing so. If the bank does not remove the deficiencies within the time limit, the Ministry shall notify the bank that it has rejected the application. (6) In its opinion on an application, Národná banka Slovenska shall include:
(a) an assessment of the bank’s financial situation in relation to the application, including the conclusions of a financial trend and status analysis of the bank; (b) an opinion on the justification of the application in regard to the elements mentioned in paragraph 2(c) to (i);(c) an assessment of the proposal for measures to be taken under paragraph 2(j) and a draft stabilisation plan; (d) if the bank is applying for stabilisation aid under Section 2(1)(a) or (b), an assessment of the capital raising plan; (e) an analysis of the reasons for the capital shortfall and of the appropriateness and effectiveness of capital raising measures under Section 4a(3) and of bail-in under Section 4b; the analysis shall assess how large the capital shortfall will be, relative to amount of the bank’s risk-weighted assets, after capital raising measures are taken under Section 4a(3), and assess how the application of bail-in under Section 4b will affect the bank’s financial stability; (f) an opinion on whether the bank’s financial situation has been caused by a financial crisis or other crisis situation; (g) an opinion on whether the bank financial situation has been caused mainly by a global financial crisis; (h) an assessment of the bank’s systemic importance; (i) a recommendation on whether to provide or refuse stabilisation aid under Section 2(1)(a); a recommendation of Národná banka Slovenska to provide stabilisation aid is deemed to be a prior approval under another act; 9 (j) a proposal for the amount of consideration to be provided for the stabilisation aid (hereinafter ‘consideration’), if granted. Section 4 Decision-making process for stabilisation aid (1) If in its opinion referred to in Section 3(6), Národná banka Slovenska: (a) recommends providing stabilisation aid, the Ministry shall, within two days after receiving the opinion, submit for approval to the European Commission (hereinafter ‘the Commission’) a proposal for the provision of the stabilisation aid (hereinafter a ‘stabilisation aid proposal’); (b) recommends not providing stabilisation aid, the Ministry shall notify the bank that its application was rejected. (2) A stabilisation aid proposal under paragraph 1(a) shall include: (a) the elements mentioned in Section 3(2)(a) to (h); (b) a draft stabilisation plan; (c) if the bank requests stabilisation aid under Section 2(1)(a) or (b), a draft capital raising plan; (d) the opinion of Národná banka Slovenska referred to in Section 3(6). (3) If the Commission decides: (a) to approve a stabilisation aid proposal, the Ministry shall submit the proposal to the Government within two days after receiving the Commission’s decision; (b) to reject a stabilisation aid proposal, the Ministry shall notify the bank that its application was rejected.
(4) The stabilisation aid proposal submitted by the Ministry under paragraph 3(a) shall include: (a) the elements mentioned in Section 3(2)(a) to (h); (b) a draft stabilisation plan; (c) if the bank requests stabilisation aid under Section 2(1)(a) or (c), a draft capital raising plan; (d) the opinion of Národná banka Slovenska referred to in Section 3(6); (e) the decision of the Commission. (5) The Government shall decide whether to approve a stabilisation aid proposal within two days after the proposal was submitted. If the Government approves the proposal, the Ministry shall without delay issue the decision to approve stabilisation aid and notify Národná banka Slovenska and the Commission of its issuance. (6) If the Government does not approve a stabilisation aid proposal, the Ministry shall notify the bank that its application was rejected. (7) Besides including the elements stipulated by a general regulation on administrative proceedings, 10 a decision to approve stabilisation aid must state in what form the stabilisation aid is to be provided, the amount of the aid, the purpose of the aid in accordance with Section 2(2), and the period for which the aid is to be provided; annexed to the decision must be the bank’s stabilisation plan and, if the bank is applying for stabilisation aid under Section 2(1)(a) or (c), its capital raising plan. If, according to the opinion of Národná banka Slovenska under Section 3(6), the bank’s financial position is particularly acute, the stabilisation plan must also comply with the elements required of a restructuring plan under the European Union’s state aid framework. 10a If the stabilisation aid is to be provided pursuant to Section 2(1)(c), the decision shall further include details of the short-term loan or bond for which a special guarantee is to be provided. (8) Decisions to approve stabilisation aid are not subject to appeal or to judicial review. Section 4a Terms and conditions for the provision of stabilisation aid (1) After identifying a possible capital shortfall and before lodging an application for stabilisation aid under Section 2(1)(a) or (b), a bank shall submit a capital raising plan to the Ministry and to Národná banka Slovenska. (2) A capital raising plan shall include a plan for the implementation of capital raising measures under paragraph 3 and for the application of bail-in under Section 4b. (3) Capital raising measures may include: (a) the issuance of financial instruments supplementing Tier 1 capital, Additional Tier 1 capital, or Tier 2 capital; (b) the voluntary conversion of debt; (c) liability management exercises; (d) sales of assets; (e) securitisation of assets; (f) the suspension of dividend payments;
(g) other capital raising measures. (4) A bank shall implement the capital raising measures contained in its capital raising plan within six months after submitting the plan. (5) If a capital raising measure cannot be implemented within the deadline referred to in paragraph 4, the bank shall state this fact in the capital raising plan. Národná banka Slovenska shall consult the Commission about this fact. (6) The capital raising plan shall include information on any measures that the bank took before identifying the capital shortfall to obviate the need for capital raising, information on the effectiveness of these measures, and information on whether anyone has been discharged or nominated as the chair or a member of the management board with responsibility for the implementation of these measures. Section 4b (1) Before lodging an application for stabilisation aid under Section 2(1)(a) and (b), a bank shall apply bail-in. (2) For the purposes of this Act, ‘bail-in’ means the write-down or conversion of liabilities of a bank applying for stabilisation aid. (3) The objective of bail-in is: (a) to recapitalise a bank where it is reasonable to expect the restoration of the bank’s ability to comply with the conditions for its authorisation and to continue to carry out the activities for which it is authorised under other acts, 10b and to restore market confidence in the bank; (b) to convert to equity or reduce the principal amount of claims or debt instruments. (4) The procedure under another act10c and the European Union’s State aid framework10a apply mutatis mutandis to the implementation of voluntary debt conversion under Section 4a(3)(b) and bail-in under Section 4b. Section 4c (1) The Ministry may, after consulting with Národná banka Slovenska, submit to the Commission a proposal to provide stabilisation aid without the prior application of bail-in under Section 4b, if the opinion of Národná banka Slovenska under Section 3(6) indicates that the capital shortfall after the implementation of capital raising measures under Section 4a(3) is evidently disproportionate to the amount of the bank’s risk-weighted assets, or if bail-in would threaten the bank’s financial stability. (2) The Ministry shall state in the stabilisation aid proposal under paragraph 1 whether it considers it appropriate to require the bank to repeat the capital raising measures under Section 4a(3) before the stabilisation aid is provided. Section 5
Terms and conditions for the provision of stabilisation aid (1) A bank as the beneficiary of stabilisation aid shall: (a) pay consideration in the form of:
after the provision of the stabilisation aid began; this obligation must be approved by the bank’s General Meeting; (c) must not repurchase any of its own shares or call hybrids without prior approval by the European Commission; (d) must not buy back hybrid capital instruments, unless such a measure, possibly in combination with others, allows the bank to fully absorb its capital shortfall, and occurs sufficiently close to current market levels and at not more than 10% above the market price; any buyback is subject to prior approval by the Commission. (e) must reduce the salary or other remuneration for work performed by members of the its management board, members of its supervisory board, its authorised representatives, and its managers reporting directly to the management board, to 15 times the national average salary as published by the Statistical Office of the Slovak Republic for the year immediately preceding that in which the application for the stabilisation aid is lodged, 11 or to 10 times the average salary of the bank’s employees for the year immediately preceding that in which the application for the stabilisation aid is lodged; these restrictions on remuneration must apply for as long as the bank is in receipt of stabilisation aid; (f) must not make severance payments or pay retirement bonuses in excess of what is required by contract or by the provisions of another act; 11a (g) must not pay bonuses to members of its management board, members of its supervisory board, its managers reporting directly to the management board or its authorised representatives, during the period from when the application for stabilisation aid was lodged until the end of the period for which the stabilisation aid is provided; this obligation must be approved by the bank’s General Meeting; (h) to refrain from any action that would be in conflict with the approved purpose of stabilisation aid under Section 2(2). (7) If a bank in receipt of stabilisation aid under Section 2(1)(a) breaches a condition under paragraph 1(a) or (b) or fails to implement the measures under paragraph 6, the bank shall, within two months after identifying that breach or failure, repay in full, in the way stipulated in the stabilisation aid contract, the stabilisation aid it has received and shall pay two times the interest under paragraph 2 that the bank would have had to pay for the entire period for which the stabilisation aid was provided if it had not been obliged to repay the stabilisation aid under this paragraph. (8) If a bank in receipt of stabilisation aid under Section 2(1)(c) breaches a condition under paragraph 1(a) or (b) or fails to implement measures under paragraph 6, the bank shall pay three times the fee under paragraph 3 that the bank would have had to pay for the entire period for which the stabilisation aid was provided if it had not been obliged to repay the stabilisation aid under this paragraph. Section 6 Stabilisation aid contract (1) After issuing the decision under the second sentence of Section 4(5), the Ministry shall conclude a stabilisation aid contract with the bank without undue delay.
(2) A stabilisation aid contract must state or contain: (a) information identifying the contracting parties, including the registered office address and company identification number of each party; (b) the subject matter of the contract; (c) the approved form of the stabilisation aid, the amount of the aid, the purpose of the aid under Section 2(2), and the period for which the aid is provided; (d) in the case of stabilisation aid under Section 2(1)(a), specification of the financial instruments that are Common Equity Tier 1 items, Additional Tier 1 items and Tier 2 items; (e) in the case of stabilisation aid under Section 2(1)(b), specification of the ownership interest of the entity representing the State or the entity in which the State has a participating interest of 100%; (f) in the case of stabilisation aid under Section 2(1)(c), specification of the bond(s) or loan(s) for which a special guarantee is provided; (g) in the case of stabilisation aid under Section 2(1)(b), specification of the bond(s) or loan(s) for which a special guarantee is provided; (h) in the case of stabilisation aid under Section 2(1)(c), the bank’s undertaking to repay the stabilisation aid after the end of the period for which the aid is provided, and details of how the repayment is to be made, including how any repayment under Section 5(7) would be made; (i) the bank’s undertaking to pay consideration in accordance with Section 5(1)(a); (j) the bank’s undertaking adopt and implement measures in accordance with Section 5(6); (k) the bank’s undertaking to ensure that, if required by the Ministry, a representative of the Ministry is a member of the bank’s statutory or supervisory body throughout the period for which the stabilisation aid is provided; the appointment of this representative is subject to prior approval by Národná banka Slovenska; (l) the bank’s undertaking to submit to the Ministry written information on its operational and financial situation for each month, by no later than fifteen working days after the end of the respective month; (m) the bank’s undertaking to notify the Ministry without delay of any threat to the bank’s lending activity or reduction in its liquidity; (n) the bank’s undertaking to notify the Ministry of its financial situation for the first half of each year, by no later than 30 September of that year, and for each whole year, by no later than 30 April of the following year; (o) the bank’s undertaking to allow the Ministry to monitor, in accordance with Section 7, the bank’s compliance with the terms and conditions for the provision of stabilisation aid and its fulfilment of the obligations arising under the contract; (p) the bank’s undertaking to notify the Ministry in writing and without delay of the fact that a petition for a bankruptcy order or a petition for restructuring has been filed against the bank, or that the bank has entered into liquidation; (q) the bank’s undertaking to implement the stabilisation plan; (r) any additional terms and conditions for the provision of the stabilisation aid; (s) the fines applicable under the contract for non-compliance with its provisions, with the exception of breaches of contract that are subject to sanctions under Section 5(7) and (8); (t) the date when contract was concluded and the signatures of the contracting parties. (3) Annexed to the stabilisation aid contract must be the bank’s stabilisation plan and, if the bank is applying for stabilisation aid under Section 2(1)(a) or (b), its capital raising plan. In
the case of the stabilisation aid under Section 2(1)(b), the share transfer agreement under another act11b must also be annexed to the stabilisation aid contract. Section 7 Inspection (1) The Ministry shall inspect banks in receipt of stabilisation aid for their compliance with the terms and conditions under which the aid was provided and their performance of obligations arising under the stabilisation aid contract. The sanctions under Section 5(7) and (8) applicable to breaches of contract referred to in Section 5(1)(a) and (b) and to the failure to implement measures under Section 5(6) are imposed and enforced by the Financial Ministry. The imposition and enforcement of such sanctions are subject to a general regulation on administrative proceedings. 10 (2) The Ministry shall conduct its first inspection under paragraph 1 after two have months have passed since the conclusion of the stabilisation aid contract. (3) In conducting its inspection, the Ministry proceeds, mutatis mutandis, in accordance with another act. 12 (4) Where a bank is being inspected for its fulfilment of the obligation under Section 5(1)(a), the Ministry may invite staff members of Národná banka Slovenska to participate in the inspection on a contractual basis. Common and transitional provisions Section 8 (1) In meeting the conditions for the provision of stabilisation aid under Section 2(1)(a), the bank shall ensure that there are no pre-emption rights for its shareholders. 13 (2) For the repayment of stabilisation aid provided under Section 2(1)(a), the treatment of shares issued in connection with the aid is not subject to the procedure under another act. 14 (3) Special guarantees provided under Section 2(1)(c) are administered by the Ministry. The administration of special guaranties entails recording and accounting special guarantees, fulfilling the obligation attached to a special guarantee for a bank (hereinafter ‘implementing a special guarantee’), and enforcing the State’s claims in respect of special guarantees that have been implemented. (4) Where the Ministry implements a special guarantee, the bank shall conclude with the Ministry a written contract on repayable financial aid. A contract on repayable financial aid must state or contain: (a) information identifying the contracting parties, including the registered office address or permanent residence address, company identification number, and bank account details of each party; (b) the subject matter of the contract as stated in stabilisation aid contract;
(c) the amount of repayable financial aid corresponding to the special guarantee that has been implemented; (d) the date when the special guarantee was implemented; (e) the interest rate to be determined, mutatis mutandis, in accordance with Section 5(2); (f) the repayment method and repayment schedule for the repayable financial aid and the interest payable in accordance with subparagraph (e); (g) a charge agreement securing the State’s claim on assets of the bank, where the bank has assets upon which a charge may be created; (h) the bank’s undertaking to notify the Ministry of its financial situation for the first half of each year, by no later than 30 September of that year, and for each whole year, by no later than 30 April of the following year; (i) the undertaking of each contracting party to notify the other party of any change in its bank account details. (5) If, after the implementation of a special guarantee, the bank does not conclude the contract under paragraph 4 within six months, it shall repay the amount of the special guarantee in equal half-yearly instalments so that the whole amount of the special guarantee is paid no later than four years after its implementation; the bank shall concurrently pay interest at a rate two times higher than the six-month EURIBOR (euro interbank offered rate), plus four percentage points. Section 9 Proceedings under this Act are not subject to the provisions of another act on proceedings in matters of financial market supervision, 8 nor to a general regulation on administrative proceedings, 10 unless otherwise provided in Section 4(7) or Section 7(1) of this Act. Section 10 Stabilisation aid contracts may not be concluded after 31 December 2010. Section 10a Section 10 does not apply to the provision of stabilisation aid after 31 December 2015. ARTICLE XI This Act takes effect on the date of its publication. Act No 437/2015, Article VIII, took effect on 1 January 2016. Act No 177/2018, Article CIX, took effect on 1 September 2018.
Endnotes 1 Section 2(1) of Act No 483/2001 on banks (and amending certain laws). 2 Article 87(3)(b) of the Treaty establishing the European Community, as amended. Section 4(1)(b) of Act No 231/1999 on state aid, as amended. 3 Section 5(3) of Act No 231/1999, as amended. 3a Section 2(a) of Act No 371/2014 on resolution in the financial market (and amending certain laws), as amended by Act No 437/2015. 4 Act No 384/2011 on a special levy on selected financial institutions (and amending certain laws). 4a Article 28(1) to (4), Article 29(1) to (5), Article 31(1), Article 52(1) and Article 63 of 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), as amended. 5 For example: Section 24(1) of Act No 566/1992 on Národná banka Slovenska, as amended. 6 Section 30(5) of Act No 483/2001, as amended. 6a Sections 3 and 72 to 75 of Act No 371/2014, as amended by Act No 437/2015. 7 Act No 382/2004 on experts, interpreters and translators (and amending certain laws), as amended. 8 Act No 747/2004 on financial market supervision (and amending certain laws), as amended. 9 Section 28(1)(a) of Act No 483/2001, as amended. 10 Act No 71/1967 on administrative proceedings (the Code of Administrative Procedure), as amended. 10a Section 2(q) of Act No 371/2014. 10b Act No 483/2001, as amended. Act No 566/2001 on securities and investment services (and amending certain laws) (the Securities Act), as amended. Regulation (EU) No 575/2013, as amended. 10c Sections 58 to 64 and Sections 67 to 71 of Act No 371/2014, as amended. 11 Section 7(20) of Act No 483/2001, as amended by Act No 214/2006. 11a Sections 76 and 76a of the Labour Code, as amended. 11b Section 30 of Act No 566/2001, as amended by Act No 522/2008. 12 Act No 10/1996 on inspection in state administration, as amended. 13 Section 204a(5) of the Commercial Code. 14 Act No 92/1991 on conditions for the transfer of state property to other persons, as amended.