Royal Decree of 5 March 2017 implementing the law of 25 April 2014 on the status and supervision of credit institutions and investment firms, concerning the establishment of resolution plans and group resolution plans and the assessment of resolvability

Title

2017011419

5 MARCH 2017. - Royal Decree implementing the law of 25 April 2014 on the status and supervision of credit institutions [...], concerning the establishment of resolution plans and group resolution plans and the assessment of resolvability <RD 2023-12-08/01, art. 2, 002; In force: 23-12-2023>(NOTE: Consultation of previous versions from 05-04-2017 and updated on 13-12-2023)

Source: Finances

Publication: 5 April 2017

Number: 2017011419

page: 48374

File number: 2017-03-05/12

Entry into force: 15 April 2017

CHAPTER 1. - Introductory provision and definitions Art. 1-2 CHAPTER 2. - Establishment of the resolution plan and the group resolution plan Art. 3 Art. 3 FUTURE LAW Art. 4-5 Art. 5 FUTURE LAW CHAPTER 3. - Assessment of resolvability Art. 6 Art. 6 FUTURE LAW CHAPTER 4. - Final provision Art. 7

Text

CHAPTER 1. - Introductory provision and definitions

Article 1. This Royal Decree partially transposes 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 of the European Parliament and of the Council and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council Text with EEA relevance.

Art. 2. For the purposes of applying this decree, the following definitions apply:
1° the law: the law of 25 April 2014 on the status and supervision of credit institutions; 2° establishment: a credit institution referred to in Article 1, § 3, first paragraph, of the law, or an investment firm referred to in Article 2 of the law of 20 July 2022 on the status and supervision of investment firms and containing various provisions which is subject to the initial capital requirement referred to in Article 13, § 2 of that law; 3° Regulation 2022/2554: Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014 and (EU) 2016/1011.

CHAPTER 2. - Establishment of the resolution plan and the group resolution plan

Art. [3](#Art. 3 DROIT FUTUR.). Without prejudice to the required content of a resolution plan as provided for in the European Banking Authority's guidelines in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission pursuant to that directive and in the guidelines and instructions of the Single Resolution Board, the resolution plan shall include at least the following elements, quantifying them whenever appropriate and possible:
1° a summary of the key elements of the plan;
2° a summary of significant changes in the institution since the last submission of information for a resolution procedure; 3° a demonstration of how critical functions and core business lines could be legally and economically separated from other functions to the extent necessary to ensure their continuity in the event of the institution's failure; 4° an estimate of the timeline for implementing each important aspect of the plan; 5° a detailed description of the resolvability assessment carried out in accordance with Article 230 of the law; 6° a description of all measures required under Article 232 of the law to reduce or remove impediments to resolvability identified during the assessment provided for in Article 230 of the law; 7° a description of the processes for determining the value and marketability of the institution's critical functions, core business lines and assets; 8° a detailed description of the arrangements to ensure that the information required in accordance with Article 5 is up-to-date and accessible to resolution authorities at all times; 9° an explanation, provided by the resolution authority, of how resolution options could be financed, excluding the following assumptions:
i) any extraordinary public financial support outside the intervention of resolution financing arrangements; ii) any urgent liquidity assistance from a central bank; or iii) any liquidity assistance from a central bank on non-conventional terms, in terms of collateral, maturity and interest rates; 10° a detailed description of the different resolution strategies that could be applied depending on the different possible scenarios and applicable timelines; 11° a description of critical interdependencies; 12° a description of options for preserving access to payment and clearing services and other infrastructures and an indication of the portability of client positions; 13° an analysis of the plan's impact on the institution's staff, including an assessment of related costs, and a description of the procedures envisaged for consulting staff during the resolution process, taking into account national social dialogue systems, where applicable; 14° a communication plan with the media and the public; 15° the requirements referred to in Articles 267/5/3 and 267/5/4 of the law, and a deadline by which this level must be reached in accordance with Article 418 of the law; 16° where a resolution authority applies Article 267/5, § 4, § 5 or § 7 of the law, a timeline for the resolution entity's compliance in accordance with Article 418 of the law; 17° a description of the main systems and operations enabling the continuous functioning of the institution's operational processes; 18° where applicable, any opinion expressed by the institution regarding the resolution plan.

Art. 3 FUTURE LAW.

Without prejudice to the required content of a resolution plan as provided for in the European Banking Authority's guidelines in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission pursuant to that directive and in the guidelines and instructions of the Single Resolution Board, the resolution plan shall include at least the following elements, quantifying them whenever appropriate and possible:
1° a summary of the key elements of the plan;
2° a summary of significant changes in the institution since the last submission of information for a resolution procedure; 3° a demonstration of how critical functions and core business lines could be legally and economically separated from other functions to the extent necessary to ensure their continuity and digital operational resilience in the event of the institution's failure; 4° an estimate of the timeline for implementing each important aspect of the plan; 5° a detailed description of the resolvability assessment carried out in accordance with Article 230 of the law; 6° a description of all measures required under Article 232 of the law to reduce or remove impediments to resolvability identified during the assessment provided for in Article 230 of the law; 7° a description of the processes for determining the value and marketability of the institution's critical functions, core business lines and assets; 8° a detailed description of the arrangements to ensure that the information required in accordance with Article 5 is up-to-date and accessible to resolution authorities at all times; 9° an explanation, provided by the resolution authority, of how resolution options could be financed, excluding the following assumptions:
i) any extraordinary public financial support outside the intervention of resolution financing arrangements; ii) any urgent liquidity assistance from a central bank; or iii) any liquidity assistance from a central bank on non-conventional terms, in terms of collateral, maturity and interest rates; 10° a detailed description of the different resolution strategies that could be applied depending on the different possible scenarios and applicable timelines; 11° a description of critical interdependencies; 12° a description of options for preserving access to payment and clearing services and other infrastructures and an indication of the portability of client positions; 13° an analysis of the plan's impact on the institution's staff, including an assessment of related costs, and a description of the procedures envisaged for consulting staff during the resolution process, taking into account national social dialogue systems, where applicable; 14° a communication plan with the media and the public; 15° the requirements referred to in Articles 267/5/3 and 267/5/4 of the law, and a deadline by which this level must be reached in accordance with Article 418 of the law; 16° where a resolution authority applies Article 267/5, § 4, § 5 or § 7 of the law, a timeline for the resolution entity's compliance in accordance with Article 418 of the law; 17° a description of the main systems and operations enabling the continuous functioning of the institution's operational processes, including the networks and information systems referred to in Regulation 2022/2554; 18° where applicable, any opinion expressed by the institution regarding the resolution plan.

Art. 4. The group resolution plan is established in accordance with Articles 440 and 441 of the law, without prejudice to the required content of a group resolution plan as provided for in the European Banking Authority's guidelines in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission pursuant to that directive and in the guidelines and instructions of the Single Resolution Board.

Art. 5. For the purposes of developing and updating resolution plans or group resolution plans, the resolution authority may require Belgian establishments or Belgian parent undertakings in the EEA to communicate at least the following information:
1° a detailed description of the organizational structure of the establishment or group entities, including a list of all legal persons; 2° identification of the direct holders of each legal person, with the percentage of its voting rights and other rights; 3° the location, territory of incorporation, licenses and key executives of each legal person; 4° the mapping of critical operations and core business lines of the establishment or group entities, indicating in particular the main assets and liabilities associated with these operations and activities, by legal person; 5° a detailed description of the commitments of the establishment or group entities and their legal persons, broken down, at a minimum, by types and quantities of short-term and long-term debt and whether they are secured, unsecured or subordinated commitments; 6° details of the debts of the establishment or group entities that are usable for bail-in; 7° identification of the processes necessary to determine from whom the establishment or group entities have constituted collateral, the identity of the holders of such collateral and the jurisdiction to which they belong; 8° a description of the off-balance sheet exposures of the establishment or group entities and their legal persons, including a mapping to its critical operations and core business lines; 9° the significant hedging operations of the establishment or group entities, including a mapping to their legal persons; 10° identification of the main or most critical counterparties of the establishment or group entities and an analysis of the consequences of a failure of these counterparties on the financial situation of the establishment or group entities; 11° each system on which the establishment or group entities execute a significant number or volume of transactions, including a mapping to the legal persons, critical operations and core business lines of the establishment or group entities; 12° each payment, clearing or settlement system of which the establishment or group entities are directly or indirectly members, including a mapping to the legal persons, critical operations and core business lines of the establishment or group entity; 13° a detailed inventory and description of the main IT management systems, particularly those used by the establishment or group entities for risk management, accounting and financial and regulatory reporting, including a mapping to the legal persons, critical operations and core business lines of the establishment or group entity; 14° identification of the owners of the systems referred to in point 13, the associated service level agreements, and all software, systems or licenses, including a mapping to their legal persons, critical operations and core business lines; 15° identification of the legal persons and a table of their mutual relationships, specifying the interconnections and interdependencies between them, particularly with regard to:

common or shared staff, facilities and systems;
capital, funding or liquidity arrangements;
existing or potential credit risks;
cross-guarantee arrangements, reciprocal guarantee contracts, cross-default provisions and inter-company netting agreements;
risk transfers and back-to-back trading agreements;
service level agreements.
16° identification of the competent authority and the resolution authority of each legal person; 17° identification of the member of the management body of the establishment or the Belgian parent undertaking in the EEA responsible for providing the information necessary to prepare the resolution plan or the group resolution plan, as well as the persons responsible, if different, for the different legal persons, critical operations and core business lines; 18° a description of the arrangements that the establishment or group entities have put in place to ensure that, in the event of resolution, the resolution authority will have all the information it deems necessary for the application of the resolution tools and powers; 19° all agreements that the establishment or group entities and their legal persons have concluded with third parties whose termination may be triggered by a decision of the authorities to apply a resolution tool, specifying the possible repercussions of the termination on the application of the resolution tool; 20° a description of any sources of liquidity that can be mobilized to support resolution; 21° information on encumbered assets, liquid assets, off-balance sheet activities, hedging strategies and recording practices; 22° the elements referred to in the guidelines defined by the European Banking Authority in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission pursuant to that directive and in the guidelines and instructions of the Single Resolution Board; 23° any other information that the resolution authority deems necessary for the establishment and updating of resolution plans or group resolution plans.

Art. 5 FUTURE LAW.

For the purpose of drawing up and updating resolution plans or group resolution plans, the resolution authority may require Belgian institutions or Belgian parent undertakings in the EEA to communicate at least the following information:
1° a detailed description of the organizational structure of the institution or group entities, including a list of all legal persons; 2° the identification of the direct holders of each legal person, with the percentage of their voting rights and other rights; 3° the location, territory of incorporation, licenses, and key executives of each legal person; 4° the mapping of the critical operations and core business lines of the institution or group entities, indicating in particular the main assets and liabilities associated with these operations and activities, by legal person; 5° a detailed description of the commitments of the institution or group entities and their legal persons, broken down, at a minimum, by types and quantities of short-term and long-term debts and whether they are secured, unsecured, or subordinated commitments; 6° details of the debts of the institution or group entities that are usable for bail-in; 7° the identification of the processes necessary to determine from whom the institution or group entities have constituted collateral, the identity of the holders of this collateral, and the jurisdiction to which they belong; 8° a description of the off-balance sheet exposures of the institution or group entities and their legal persons, including a mapping to their critical operations and core business lines; 9° the significant hedging operations of the institution or group entities, including a mapping to their legal persons; 10° the identification of the main or most critical counterparties of the institution or group entities, as well as an analysis of the consequences of a failure of these counterparties on the financial situation of the institution or group entities; 11° each system on which the institution or group entities execute a significant number or volume of transactions, including a mapping to the legal persons, critical operations, and core business lines of the institution or group entities; 12° each payment, clearing, or settlement system of which the institution or group entities are directly or indirectly members, including a mapping to the legal persons, critical operations, and core business lines of the institution or group entity; 13° a detailed inventory and description of the main IT management systems, particularly those used by the institution or group entities for risk management, accounting, and financial and regulatory reporting, including a mapping to the legal persons, critical operations, and core business lines of the institution or group entity; 14° the identification of the owners of the systems referred to in point 13, the associated service level agreements, and all software, systems, or licenses, including a mapping to their legal persons, critical operations, and core business lines, as well as the identification of critical third-party ICT service providers, as defined in Article 3, point 23), of Regulation 2022/2554; 14° /1 the results of the digital operational resilience tests of
institutions under Regulation 2022/2554; 15° the identification of legal persons and a table of their mutual relationships, specifying their interconnections and interdependencies, particularly concerning:

common or shared personnel, facilities, and systems;
capital, financing, or liquidity arrangements;
existing or potential credit risks;
cross-guarantee agreements, reciprocal guarantee contracts, cross-default provisions, and inter-subsidiary netting agreements;
risk transfers and back-to-back trading agreements;
service level agreements.
16° the identification of the competent authority and the resolution authority of each legal person; 17° the identification of the member of the management body of the institution or the Belgian parent undertaking in the EEA responsible for providing the information necessary to prepare the resolution plan or group resolution plan, as well as the persons responsible, if different, for the various legal persons, critical operations, and core business lines; 18° a description of the arrangements the institution or group entities have put in place to ensure that, in the event of resolution, the resolution authority will have all the information it deems necessary for the application of resolution tools and powers; 19° all agreements that the institution or group entities and their legal persons have concluded with third parties whose termination may be triggered by a decision of the authorities to apply a resolution tool, specifying the possible repercussions of the termination on the application of the resolution tool; 20° a description of any sources of liquidity mobilizable in support of resolution; 21° information on encumbered assets, liquid assets, off-balance sheet activities, hedging strategies, and recording practices; 22° the elements referred to in the guidelines defined by the European Banking Authority in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission in application of that directive, and in the guidelines and instructions of the Single Resolution Board; 23° all other information that the resolution authority deems necessary for the establishment and updating of resolution plans or group resolution plans.

CHAPTER 3. - Assessment of resolvability

Art. 6.§ 1. When assessing the resolvability of an institution under Article 230 or a group under Article 448 of the Law, the resolution authority shall examine at least the following elements:
1° the extent to which the institution can map core business lines and critical operations to legal persons; 2° the extent to which legal and organizational structures are consistent with core business lines and critical operations; 3° the extent to which arrangements are in place to provide core business lines and critical operations with essential personnel, infrastructure, funding, liquidity, and capital support to ensure their continuity; 4° the extent to which service contracts concluded by the institution are fully enforceable in the event of the institution's resolution; 5° the extent to which the institution's governance structure is sufficient to manage and ensure compliance with the institution's internal policies regarding its service level agreements; 6° the extent to which the institution has a transition process for services provided to third parties under service level agreements, in the event that it separates critical functions or core business lines; 7° the extent to which contingency plans and measures are in place to ensure continued access to payment and settlement systems; 8° the ability of IT management systems to provide resolution authorities with accurate and complete information on core business lines and critical operations, so as to accelerate decision-making; 9° the ability of IT management systems to continuously provide essential information for the effective resolution of the institution's failure, even in rapidly changing conditions; 10° the extent to which the institution has tested its IT management systems based on crisis scenarios defined by the resolution authority; 11° the extent to which the institution can ensure the continuity of its IT management systems for both the institution affected by the resolution and the new institution, in the event that critical operations and core business lines are separated from the rest of the operations and activities; 12° the extent to which the institution has put in place adequate processes capable of providing resolution authorities with the information necessary to identify depositors and amounts covered by deposit guarantee schemes; 13° where the group uses intragroup guarantees, the extent to which these guarantees are provided on market terms and the robustness of the risk management systems related to these guarantees; 14° where the group carries out back-to-back transactions, the extent to which these transactions are carried out on market terms and the robustness of the risk management systems related to these transactions; 15° the extent to which the use of intragroup guarantees or back-to-back booking transactions increases contagion within the group; 16° the extent to which the group's legal structure hinders the application of resolution tools due to the number of legal persons, the complexity of the group structure, or the difficulty in assigning business lines to specific group entities; 17° the amount and type of debts usable for bail-in of the
institution; 18° where the assessment involves a mixed financial holding company, the extent to which the resolution of the failure of group entities that are institutions or financial institutions is likely to have a negative impact on the non-financial part of the group; 19° the existence and robustness of service level agreements; 20° the extent to which third-country authorities have the necessary resolution tools to support resolution measures taken by Union resolution authorities, and the possibilities for coordinated action between Union and third-country authorities; 21° the possibility of using resolution tools in a manner that meets the objectives of resolution, taking into account the available tools and the institution's structure; 22° the extent to which the group structure allows the resolution authority to resolve the failure of the entire group or one or more group entities while avoiding any significant direct or indirect negative impact on the financial system, market confidence, or the economy, with a view to maximizing the overall value of the group; 23° the arrangements and means by which the resolution procedure could be facilitated in the case of groups with subsidiaries in different jurisdictions; 24° the credibility of using resolution tools in a manner that meets the objectives of resolution, taking into account the possible impact on creditors, counterparties, customers, and staff, and the measures that third-country authorities might take; 25° the extent to which the impact of the institution's resolution on the financial system and financial market confidence can be properly assessed; 26° the extent to which the institution's resolution could have significant direct or indirect negative effects on the financial system, market confidence, or the economy; 27° the extent to which contagion to other institutions or financial markets could be limited through the application of resolution tools and powers; 28° the extent to which the institution's resolution could have significant effects on the functioning of payment and settlement systems; 29° the elements referred to in the guidelines defined by the European Banking Authority in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission in application of that directive, and in the guidelines and instructions of the Single Resolution Board; § 2. For the application of paragraph 1, references to an institution shall also be deemed to refer to any entity referred to in Article 424, 2° and 3°, of the Law when the assessment concerns the resolvability of a group.

Art. 6 FUTURE LAW. § 1. When assessing the resolvability of an institution under Article 230 or a group under Article 448 of the Law, the resolution authority shall examine at least the following elements:
1° the extent to which the institution can map core business lines and critical operations to legal persons; 2° the extent to which legal and organizational structures are consistent with core business lines and critical operations; 3° the extent to which arrangements are in place to provide core business lines and critical operations with essential personnel, infrastructure, funding, liquidity, and capital support to ensure their continuity; 4° the extent to which service contracts, including contracts relating to the use of ICT services, concluded by the institution are robust and fully enforceable in the event of the institution's resolution; 4° /1 the digital operational resilience of the networks and information systems supporting the institution's critical functions and core business lines, taking into account reports on major ICT-related incidents and the results of digital operational resilience tests under Regulation 2022/2554; 5° the extent to which the institution's governance structure is sufficient to manage and ensure compliance with the institution's internal policies regarding its service level agreements; 6° the extent to which the institution has a transition process for services provided to third parties under service level agreements, in the event that it separates critical functions or core business lines; 7° the extent to which contingency plans and measures are in place to ensure continued access to payment and settlement systems; 8° the ability of IT management systems to provide resolution authorities with accurate and complete information on core business lines and critical operations, so as to accelerate decision-making; 9° the ability of IT management systems to continuously provide essential information for the effective resolution of the institution's failure, even in rapidly changing conditions; 10° the extent to which the institution has tested its IT management systems based on crisis scenarios defined by the resolution authority; 11° the extent to which the institution can ensure the continuity of its IT management systems for both the institution affected by the resolution and the new institution, in the event that critical operations and core business lines are separated from the rest of the operations and activities; 12° the extent to which the institution has put in place adequate processes capable of providing resolution authorities with the information necessary to identify depositors and amounts covered by deposit guarantee schemes; 13° where the group uses intragroup guarantees, the extent to which these guarantees are provided on market terms and the robustness of the risk management systems related to these guarantees; 14° where the group carries out back-to-back transactions, the extent to which these transactions are carried out on market terms and the robustness of the risk management systems related to these transactions; 15° the extent to which the use of intragroup guarantees or back-to-back
booking transactions increases contagion within the group; 16° the extent to which the group's legal structure hinders the application of resolution tools due to the number of legal persons, the complexity of the group structure, or the difficulty in assigning business lines to specific group entities; 17° the amount and type of debts usable for bail-in of the institution; 18° where the assessment involves a mixed financial holding company, the extent to which the resolution of the failure of group entities that are institutions or financial institutions is likely to have a negative impact on the non-financial part of the group; 19° the existence and robustness of service level agreements; 20° the extent to which third-country authorities have the necessary resolution tools to support resolution measures taken by Union resolution authorities, and the possibilities for coordinated action between Union and third-country authorities; 21° the possibility of using resolution tools in a manner that meets the objectives of resolution, taking into account the available tools and the institution's structure; 22° the extent to which the group structure allows the resolution authority to resolve the failure of the entire group or one or more group entities while avoiding any significant direct or indirect negative impact on the financial system, market confidence, or the economy, with a view to maximizing the overall value of the group; 23° the arrangements and means by which the resolution procedure could be facilitated in the case of groups with subsidiaries in different jurisdictions; 24° the credibility of using resolution tools in a manner that meets the objectives of resolution, taking into account the possible impact on creditors, counterparties, customers, and staff and the measures that third-country authorities might take; 25° the extent to which the impact of the institution's resolution on the financial system and financial market confidence can be properly assessed; 26° the extent to which the institution's resolution could have significant direct or indirect negative effects on the financial system, market confidence, or the economy; 27° the extent to which contagion to other institutions or financial markets could be limited through the application of resolution tools and powers; 28° the extent to which the institution's resolution could have significant effects on the functioning of payment and settlement systems; 29° the elements referred to in the guidelines defined by the European Banking Authority in connection with Directive 2014/59/EU, in the regulatory technical standards adopted by the European Commission in application of that directive, and in the guidelines and instructions of the Single Resolution Board; § 2. For the application of paragraph 1, references to an institution shall also be deemed to refer to any entity referred to in Article 424, 2° and 3°, of the Law when the assessment concerns the resolvability of a group.

CHAPTER 4. - Final provision

Art. 7. The Minister responsible for Finance is charged with the execution of this decree.

Signatures

Given in Brussels, 5 March 2017.
PHILIPPE
By the King:
The Minister of Finance,
J. VAN OVERTVELDT

Preamble

PHILIPPE, King of the Belgians,

To all, present and future, Greetings.

Having regard to the Law of 25 April 2014 on the status and supervision of credit institutions and securities firms, Articles 227, § 2 and 230, paragraph 3;

Having regard to Articles 441, § 2 and 448, § 5 of the same Law, inserted by the Royal Decree of 26 December 2015, and confirmed by the Law of 27 June 2016,

Having regard to Article 581 of the same Law, inserted by the Law of 25 October 2016;

Having regard to the opinion of the Resolution College of the National Bank of Belgium, given on 23 June 2016;

Having regard to the opinion of the Inspector of Finances, given on 19 October 2016;

Having regard to the agreement of the Minister of the Budget, given on 17 November 2016;

Having regard to the regulatory impact analysis carried out in accordance with Articles 6 and 7 of the Law of 15 December 2013 containing various provisions concerning administrative simplification;

Having regard to Opinion 60.602/2 of the Council of State, given on 28 December 2016, in application of Article 84, § 1, paragraph 1, 2°, of the coordinated laws on the Council of State of 12 January 1973;

On the proposal of the Minister of Finance and with the opinion of the ministers who have deliberated in Council,

We have decided and decide:

Modification Sheet

Royal Decree of 08-12-2023 published on 13-12-2023

Articles modified:
INTITULE; 2; 3; 5; 6

Report to the King

REPORT TO THE KING

Sire,

The decree that we have the honour to submit to the signature of Your Majesty aims to implement Articles 227, § 2, 230, paragraph 3, 441, § 2, 448, § 5 and 581 of the Law of 25 April 2014 on the status and supervision of credit institutions and securities firms (hereinafter the Law of 25 April 2014). These are provisions concerning the preparation of resolution plans and group resolution plans, on the one hand, and the assessment of the resolvability of institutions, on the other hand.

By implementing these articles, a limited number of 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 firms and amending Council Directive 82/891/EEC and the European Parliament and Council 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 the Regulations of the European Parliament and Council (EU) No 1093/2010 and (EU) No 648/2012 will be transposed into Belgian law (hereinafter Directive 2014/59/EU).

All remarks of the Council of State have been taken into account.

COMMENTARY ON THE ARTICLES

Article 1

In accordance with the opinion of the Council of State and Article 130, paragraph 2, of Directive 2014/59/EU, reference should be made to the transposition of this Directive.

Article 2

This article contains a definition of the Law of 25 April 2014, on the one hand, and of the institutions (credit institutions and securities firms) covered by this decree, on the other hand. For the rest, the definitions of the Law of 25 April 2014 apply.

Article 3

This article implements Article 227, § 2, 1° of the Law of 25 April 2014 and ensures the transposition of Article 10, paragraph 7 of Directive 2014/59/EU. It prescribes the minimum content of resolution plans. This article applies without prejudice to the mandatory content of resolution plans as defined by the guidelines of the European Banking Authority in relation to Directive 2014/59/EU, the regulatory technical standards adopted by the European Commission in application of this Directive and the guidelines and instructions of the Single Resolution Board.

Article 4

This article implements Article 441, § 2, 1° of the Law of 25 April 2014 and ensures the complete transposition of Article 12, paragraph 3 of Directive 2014/59/EU. Since the minimum content of group resolution plans is already largely regulated in Articles 440 and 441 of the Law of 25 April 2014, this article adds only one point to this rule: this article does not affect in any way the mandatory content of a group resolution plan as defined by the guidelines of the European Banking Authority in relation to Directive 2014/59/EU, the regulatory technical standards adopted by the European Commission in application of this Directive and the guidelines and instructions of the Single Resolution Board.

Article 5

This article implements Article 227, § 2, 2° and Article 441, § 2, 2° of the Law of 25 April 2014 and therefore ensures the transposition of Article 11, paragraph 1, second paragraph of Directive 2014/59/EU (which refers to Section B of the Annex to this Directive).

It is recalled that while the resolution authority can indeed request information for the purpose of drawing up and updating resolution plans and group resolution plans, it can in principle only do so vis-à-vis institutions of Belgian law or entities of groups of Belgian law. When the resolution authority wishes to exercise this competence in its capacity as a group-level authority vis-à-vis entities of groups of law of another Member State, it must for this purpose necessarily call upon the resolution authority competent in that Member State.

Article 6

This article implements Article 230, third paragraph and Article 448, § 5 of the Law of 25 April 2014 and therefore ensures the transposition of Article 15, paragraph 2, and Article 16, paragraph 2, of Directive 2014/59/EU (which refer to Section C of the Annex to this Directive). It defines the elements that the resolution authority must at least examine when it evaluates the resolvability of an institution or a group.

I have the honour to be,

Sire,

Your Majesty's

most respectful and faithful servant,

The Minister of Finance,

J. VAN OVERTVELDT

OPINION 60.602/2 OF 28 DECEMBER 2016 OF THE COUNCIL OF STATE, LEGISLATION SECTION, ON A PROJECT OF ROYAL DECREE "IMPLEMENTING THE LAW OF 25 APRIL 2014 ON THE STATUS AND SUPERVISION OF CREDIT INSTITUTIONS AND SECURITIES FIRMS, REGARDING THE PREPARATION OF RESOLUTION PLANS AND GROUP RESOLUTION PLANS AND THE ASSESSMENT OF RESOLVABILITY"

On 5 December 2016, the Council of State, Legislation Section, was invited by the Minister of Finance, responsible for the Fight against Tax Fraud, to give an opinion, within a period of thirty days, on a project of Royal Decree "implementing the Law of 25 April 2014 on the status and supervision of credit institutions and securities firms, regarding the preparation of resolution plans and group resolution plans and the assessment of resolvability".

The project was examined by the Second Chamber on 28 December 2016.

The Chamber was composed of Pierre Liénardy, Chamber President, Bernard Blero and Wanda Vogel, Councillors of State, and Anne-Catherine Van Geersdaele, Clerk.

The report was presented by Jean-Luc Paquet, First Auditor.

The concordance between the French version and the Dutch version was verified under the control of Pierre Vandernoot, Chamber President.

The opinion, the text of which follows, was given on 28 December 2016.

As the request for opinion is introduced on the basis of Article 84, § 1, paragraph 1, 2°, of the coordinated laws on the Council of State, the Legislation Section limits its examination to the legal basis of the project, the competence of the author of the act as well as the accomplishment of the prior formalities, in accordance with Article 84, § 3, of the aforementioned coordinated laws.

On these three points, the project calls for the following observations.

Examination of the project

It is necessary to mention in the first paragraph of the preamble that Articles 441, § 2, and 448, § 5, of the Law of 25 April 2014 "on the status and supervision of credit institutions and securities firms" were inserted by the Royal Decree of 26 December 2015, itself confirmed by the Law of 27 June 2016, and that Article 581 of the same Law of 25 April 2014 was inserted by the Law of 25 October 2016.
In accordance with Article 10 of the Royal Decree of 21 December 2013 "implementing Title 2, Chapter 2 of the Law of 15 December 2013 containing various provisions concerning administrative simplification", the preamble of decrees submitted to impact analysis must mention "the existence of the impact analysis carried out or, failing that, the reason for an exemption or exception referred to in Article 8 of the same Law".

It is therefore necessary to insert a new paragraph in the preamble drafted as follows:

"Having regard to the regulatory impact analysis carried out in accordance with Articles 6 and 7 of the Law of 15 December 2013 containing various provisions concerning administrative simplification;".

Since the project aims 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 firms and amending Council Directive 82/891/EEC and the European Parliament and Council 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 the Regulations of the European Parliament and Council (EU) No 1093/2010 and (EU) No 648/2012", it is necessary to state this in a new Article 1 in accordance with Article 130, paragraph 2, of this Directive.

The title of Chapter 1 will be reviewed accordingly (1).

In the French text, the author will ensure that the French version of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 is transposed as exactly as possible.
In Article 1, 2°, of the project, it is appropriate to insert the words "paragraph 1," after the words "Article 1, § 3,".
Article 3, second sentence, expresses a rule already established by Article 440, § 3, first paragraph, of the Law of 25 April 2014.

Provisions that merely recall a higher norm, by reproducing or paraphrasing it, do not in principle have their place in implementing rules, notably because the legal nature of the reproduced rules could become uncertain and this wrongly suggests that the authority reproducing the rules can modify them.

Consequently, the second sentence of Article 3 will be omitted.

In Article 4, 8°, of the project, it is necessary to replace the determiner "its" by "their" in each occurrence since the notion of legal persons relates both to that of institution and to that of group entity.

The same observation applies to nos. 9 and 19 of the same article.

In Article 4, 13°, the words "the compatibility of the financial information" must be replaced by the words "the accounting and financial information".

The Clerk,
A.-C. Van Geersdaele. The President,
P. Liénardy.

(1) See in the same sense Opinion 60.514/2 given on 14 December 2016 on a project of Royal Decree "implementing the Law of 25 April 2014 on the status and supervision of credit institutions and securities firms, regarding the exceptional financial support of the public authorities and the resolution instruments".