Royal Decree of 6 March 2015 determining the organisation and operation of the Resolution Board

Titre

2015003075

22 FEVRIER 2015. - Royal Decree determining the modalities of organisation and operation of the Resolution Board, the conditions under which the Resolution Board exchanges information with third parties and the measures taken to prevent the occurrence of conflicts of interest(NOTE: Consultation of versions prior to 06-03-2015 and updated on 19-02-2026)

Source: Finances

Publication: 6 March 2015

Numéro: 2015003075

page: 15435

Dossier numéro: 2015-02-22/07

Entrée en vigueur : 6 March 2015

1 archived version

1 implementing decree

Table des matières

CHAPITRE Ier. - General provisions and definitions Art. 1-2 CHAPITRE II. - Operation of the Resolution Board Art. 3-8, 8/1 CHAPITRE III. - Exchange of information between the Resolution Board and third parties Art. 9-12 CHAPITRE IV. - Independence and conflicts of interest of members of the Resolution Board Art. 13-14 CHAPITRE V. - Final provisions Art. 15-16

Texte

CHAPITRE Ier. - General provisions and definitions

Article 1st. This decree ensures the partial transposition 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 as well as the directives of the European Parliament and of the Council 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 of the Council (EU) No 1093/2010 and (EU) No 648/2012.

Art. 2.For the application of this decree, the following terms are understood as:
1° law of 22 February 1998: the law of 22 February 1998 laying down the organic statute of the National Bank of Belgium; 2° the National Bank of Belgium: the body referred to in the law of 22 February 1998, hereinafter "the Bank"; 3° law of 25 April 2014: the law of 25 April 2014 on the status and supervision of credit institutions; 4° supervisory authority: the supervisory authority within the meaning of the law of 25 April 2014 as well as all competent authorities and consolidated supervision authorities within the meaning of that law; 5° the Resolution Board: the Resolution Board as established by Article 21ter, § 1 of the law of 22 February 1998; 6° Single Resolution Board: the Single Resolution Board established by 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; 7° Regulation No 1024/2013: 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 institutions; 8° Regulation No 806/2014: 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; [1 8° /1 Regulation No 2021/23: Regulation (EU) No 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) No 2015/2365, as well as Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and 2017/1132/EU;]1 9° business day: a day within the meaning of Article 3, 70°, of the law of 25 April 2014.

(1)<AR 2026-02-08/03, art. 1, 002; En vigueur : 19-02-2026>

CHAPITRE II. - Operation of the Resolution Board

Art. 3.Within the framework of the exercise of resolution instruments and powers [1 pursuant to Article 12ter, § 1 and § 1/1 of the law of 22 February 1998]1:
the Resolution Board determines the general orientations and priorities in resolution policy and draws up an annual resolution action plan; the Resolution Board may adopt any measures aimed at clarifying, in particular by means of circulars or recommendations, the application of legal or regulatory provisions on resolution; the Resolution Board may, on its own initiative or at the request, provide an opinion to the various authorities exercising regulatory power in the field of resolution; the Resolution Board performs the tasks assigned to the national resolution authority under European regulations and directives and, in particular, under Regulation (EU) No 806/2014 [1 and Regulation No 2021/23]1.

(1)<AR 2026-02-08/03, art. 2, 002; En vigueur : 19-02-2026>

Art. 4.The Resolution Board remains validly constituted when one or more of its members hold several of the functions or qualities mentioned in Article 21ter, § 2, 1° to 5°, of the law of 22 February 1998.
When a function or quality referred to in Article 21ter, § 2, 1° to 5°, of the law of 22 February 1998 is exercised jointly or partially by several members of the Bank's Executive Committee, the Bank's Executive Committee determines which of the members exercising that function or quality is a member of the Resolution Board.
[1 As provided for by Article 18 of the law of 22 February 1998, the Resolution Board is chaired by the Governor and, in the event of his inability to act, by the Deputy Governor. In the event of the inability of the Governor and the Deputy Governor, the Director designated by the Bank as responsible for resolution will chair the Resolution Board. ]1

(1)<AR 2026-02-08/03, art. 3, 002; En vigueur : 19-02-2026>

Art. 5.Unless prevented, the Resolution Board meets at least four times a year and whenever circumstances require or three of its members request it, in which cases the President convenes the members of the Resolution Board following the procedure defined in paragraph 2.
The Resolution Board determines the dates of its meetings. When circumstances require the holding of an extraordinary meeting, or when three members of the Resolution Board have requested it, the President of the Resolution Board convenes the members of the Resolution Board in writing at least one week before the meeting. In case of urgency, this period may be reduced to one hour. [1 ...]1. The President of the Resolution Board sets the agenda for the meetings of the Resolution Board. Unless in an emergency, a draft agenda is communicated to the members of the Resolution Board at least three business days before the meeting. Members of the Resolution Board may request that points be added to this agenda. The final agenda is communicated the day before the meeting. Except in cases of urgency and unless unanimous agreement is reached by the members present, no decision may be taken on points not included on the agenda. In case of urgency, the agenda established by the President of the Resolution Board may be communicated to the members of the Resolution Board at the beginning of the meeting and modified during the meeting. [1 ...]1 The urgency and the justification for the urgency are established by the President of the Resolution Board.

(1)<AR 2026-02-08/03, art. 4, 002; En vigueur : 19-02-2026>

Art. 6.Decisions of the Resolution Board are taken by a simple majority [1 of votes cast, abstentions not being taken into account]1. Each member has one vote. In the event of a tie, the vote of the President of the Resolution Board is decisive.
Except in cases of urgency, the Resolution Board cannot rule in the absence of a majority of its members.
[1 The Resolution Board may take decisions by written procedure or by means of telecommunication techniques allowing for interactive deliberation. All members or some of them may participate in the meeting by one of these telecommunication techniques. A member is considered present if he attends the meeting physically or participates in real time via voice telecommunication or any other telecommunication technique allowing for interactive deliberation. ]1 [1 In the case of a written procedure, the President of the Resolution Board submits the text of the draft decision in writing to the members, either by letter with acknowledgment of receipt, or electronically with technical confirmation of sending. During this electronic sending, a confirmation of receipt is also requested. In addition, an attempt will be made to warn each member by telephone of the sending of the communication. The communication indicates the deadline members have to express their written agreement on the proposal. During this period, any member may request to deliberate orally on the decision proposal via the telecommunication procedure, or to convene a meeting of the Resolution Board. By derogation from the first paragraph, the proposal is considered approved by the Resolution Board if, within the period mentioned in the communication, the members have unanimously given their written agreement. The absence of a written response upon expiration of the deadline is considered as tacit approval of the proposal. ]1 [1 The President of the Resolution Board convenes members prior to a decision-making via telecommunication techniques. The meeting may take place in the absence of one or more members of the Resolution Board, subject to compliance with the quorum requirements referred to in Article 6, paragraph 2 and provided that they have been duly convened, in accordance with Article 5, paragraph 2, and are unable to participate in the meeting. The decision is adopted in accordance with paragraph 1, provided that the voice telecommunication procedure allows for real-time communication and collegial deliberation between the members of the Resolution Board participating in the meeting. Each of the contacted members may request the convening of a physical meeting of the Resolution Board or request the application of the written procedure referred to in the previous paragraph ]1. A record of the decisions taken by the Resolution Board is drawn up.

(1)<AR 2026-02-08/03, art. 5, 002; En vigueur : 19-02-2026>

Art. 7.[1 The Resolution Board adopts in an internal regulation the acts necessary for the preparation of the meetings of the Resolution Board, the organisational modalities relating to the holding of the secretariat of the Resolution Board and the conditions under which certain Bank staff members or external experts may be invited to a meeting of the Resolution Board to clarify one or more points. ]1

(1)<AR 2026-02-08/03, art. 6, 002; En vigueur : 19-02-2026>

Art. 8.The Bank makes available to the Resolution Board the material and human resources necessary for the exercise of its missions.
[1 The operation of the Resolution Board is supported by the department of the Bank designated for this purpose which is organised in such a way as to allow the Resolution Board to exercise its missions independently and to manage a crisis quickly and effectively, if necessary via a specific strengthening of its resources in case of crisis.
The department of the Bank assigned to the Resolution Board is responsible inter alia for carrying out the preparatory work for the decision-making of the Resolution Board, as well as for its secretariat. The provisions of the internal regulation of the Resolution Board specify the tasks of this department. ]1

(1)<AR 2026-02-08/03, art. 7, 002; En vigueur : 19-02-2026>

Art. 8/1. [1 The Governor, or the Deputy Governor in the event of the Governor's inability to act, signs the documents:

implementing the decisions of the Resolution Board, including those implementing the decisions of the Single Resolution Board pursuant to Article 29 of Regulation No 806/2014;
addressed to members of the Government or to the President of other administrative authorities
In the event of the inability of the Governor and the Deputy Governor, the Director designated by the Bank as responsible for resolution is authorised to sign the documents referred to in the first paragraph. ]1

(1)<Inséré par AR 2026-02-08/03, art. 8, 002; En vigueur : 19-02-2026>

CHAPITRE III. - Exchange of information between the Resolution Board and third parties

Art. 9.The Resolution Board collaborates with the supervisory authority.
The Resolution Board communicates, regularly or upon request, the information necessary for the exercise of the missions of the supervisory authority. It may, likewise, request the supervisory authority for the confidential information it holds which is necessary for the exercise of its own missions.
The internal regulation of the Resolution Board determines the procedures to be followed when the Resolution Board consults the supervisory authority and identifies the minimum information that must be exchanged between the services allocated to the Resolution Board and the other services of the Bank, as well as the channels through which this information flows.
[1 ...]1.

(1)<AR 2026-02-08/03, art. 9, 002; En vigueur : 19-02-2026>

Art. 10. The Resolution Board notifies the Minister of Finance without delay of any disposal decision within the meaning of Article 268, § 2, of the law of 25 April 2014, which it intends to take as well as a summary of the reasons justifying this decision. The Resolution Board answers the questions of the Minister of Finance relating to this decision.

Art. 11.[1 When the Resolution Board requires a credit institution, or another entity referred to in Article 439, § 1st, of the law of 25 April 2014, to provide it with information pursuant to Articles 226, § 2, 276, § 1st, or 439, § 2 of the same law, it formulates its request precisely and sets a reasonable deadline, taking into account the nature of the information to be provided but also the urgency of the situation. The Resolution Board may require the institution concerned that the information it requires pursuant to Article 276, § 1st, of the law of 25 April 2014 be transmitted exclusively, to the exclusion of any communication to third parties. ]1

(1)<AR 2026-02-08/03, art. 10, 002; En vigueur : 19-02-2026>

Art. 12.[1 The communication of the summary of the key elements of the resolution plan to the credit institution or the Belgian parent undertaking in the EEA, referred to in Article 226, § 3, or 439, § 3, of the law of 25 April 2014, is carried out by the Resolution Board addressed to the presidents of the executive committee and the board of directors of the credit institution or, where applicable, the Belgian parent undertaking in the EEA. The Resolution Board may communicate this summary orally only.]1

(1)<AR 2026-02-08/03, art. 11, 002; En vigueur : 19-02-2026>

CHAPITRE IV. - Independence and conflicts of interest of members of the Resolution Board

Art. 13. In the framework of the exercise of the missions of the Resolution Board, its members act with full independence and objectivity in the general interest as specified by the law of 25 April 2014. They do not solicit or follow any instructions from State bodies or other public or private entities.
During their term of office and for one year after leaving office, members of the Resolution Board do not accept any mission on behalf of an institution subject to the supervision of the Bank pursuant to Article 12bis of the law of 22 February 1998 or of the European Central Bank pursuant to Regulation No 1024/2013, or remunerated by such an institution.

Art. 14.At the beginning of each meeting, any member of the Resolution Board whose participation in the meeting of the Resolution Board would give rise to a conflict of interest for one or more specific points on the agenda is required to inform the President. [1 In the event of a conflict of interest on the part of the President, he must inform the Deputy Governor or, in his absence, the Director designated by the Bank as responsible for resolution.]1 In the event of such a conflict of interest, the member abstains from participating in the deliberations and voting concerning the agenda point or points concerned.

(1)<AR 2026-02-08/03, art. 12, 002; En vigueur : 19-02-2026>

CHAPITRE V. - Final provisions

Art. 15.This decree enters into force on the day of its publication in the Belgian Monitor.

Art. 16. The Minister who has Finances in his portfolio is charged with the execution of this decree.

Signatures

Given in Brussels, on 22 February 2015.
PHILIPPE
By the King:
The Minister of Finance,
J. VAN OVERTVELDT

Préambule

PHILIPPE, King of the Belgians,
To all, present and future, Greetings.
Having regard to the Constitution, Article 108; Having regard to Article 21ter, § 4 of the law of 22 February 1998 laying down the organic statute of the National Bank of Belgium, inserted by the law of 25 April 2014; Having regard to the opinion of the Inspector of Finances, given on 3 December 2014; Having regard to the agreement of the Minister of Budget, given on 5 December 2014; Having regard to the opinion of the European Central Bank, given on 21 January 2015; Having regard to the urgency motivated by the fact that Directive 2014/59/EU must be transposed into Belgian law at the latest by 31 December 2014; Having regard to opinion 56.932/2 of the Council of State, given on 30 December 2014, pursuant to Article 84, § 1st, paragraph 1st, 3°, of the laws on the Council of State, coordinated on 12 January 1973; Having regard to the exception regarding the accomplishment of the regulatory impact analysis, referred to in Article 8, § 2, 2°, of the law of 15 December 2013 laying down various provisions concerning administrative simplification; On the proposal of the Minister of Finance and with the opinion of the ministers who have deliberated in Council, We have decreed and decree:

Fiche des modifications

Royal Decree of 08-02-2026 published on 19-02-2026

Articles modified:
2; 3; 4; 5; 6; 7; 8; 8/1; 9; 11; 12; 14

Rapport au Roi

REPORT TO THE KING

Sire,

This draft aims to determine the organizational and operational arrangements of the Resolution Board, the conditions under which the Resolution Board exchanges information with third parties, and the measures taken to prevent conflicts of interest.

The Resolution Board is a new body of the National Bank of Belgium, hereinafter the Bank, created to ensure the transposition of Directive 2014/59/EU, which requires each Member State to have a resolution authority responsible for preparing for the resolution of banking crises that may arise in the future and empowered to use resolution instruments such as the sale of business, bridge institution, asset separation, and bail-in of credit institutions.

Article 21ter of the Law of 22 February 1998 fixing the organic statute of the National Bank of Belgium, hereinafter the Organic Law, establishes the Resolution Board, competent for the exercise of resolution missions. It consists of 13 members: the Governor and the Deputy Governor of the Bank, its directors responsible for the prudential supervision of banks and securities companies, prudential policy and financial stability, and the resolution of credit institutions, the President of the FSMA, the President of the Management Committee of the Federal Public Service Finance, the senior official of the Resolution Fund, 4 members appointed by the King, and a magistrate appointed by the King.

The urgency is justified by the need to ensure the transposition of Directive 2014/59/EU by 31 December 2014.

COMMENTARY ON THE ARTICLES

Article 1

Article 1 takes into account a remark made by the Council of State by mentioning that this Royal Decree partially transposes Directive 2014/59/EU.

Article 2

Article 2 provides the preliminary definitions necessary for the proper understanding of the Decree.

Article 3

Article 3 clarifies the aspects inherent to the functioning of the Resolution Board. Article 12ter of the Organic Law defines the role of the latter as the exercise of resolution instruments and powers in accordance with the Law of 25 April 2014 on the status and supervision of credit institutions, hereinafter the Banking Law. These are specified in particular in Articles 226 to 232 and 242 to 311 of said Law.

To facilitate the exercise of these powers, Article 3 specifies that the Resolution Board determines the general guidelines and general priorities in resolution policy and establishes an annual resolution action plan. The annual action plan must reflect the general guidelines and priorities. In particular, it must contain a plan for the development of resolution plans that must be established pursuant to Article 226 of the Banking Law. Particular attention must also be paid to the impact that international developments will have on the exercise of the Resolution Board's missions. This refers in particular to the implementation of the Single Resolution Mechanism or to the involvement of the Resolution Board in European resolution colleges provided for by Directive 2014/59/EU. Furthermore, the first annual action plan must also take into account the report that the Resolution Board must submit to the Minister of Finance, no later than 31 December 2015, pursuant to Article 417 of the Banking Law.

Obviously, the annual action plan cannot fully account for the occurrence of banking crises, which by nature remain unpredictable. The occurrence of such a crisis would quickly lead to a modification of resolution priorities, which would necessarily render the annual action plan partially obsolete.

Reflecting the need for regulated entities to be able to rely on a clear and well-defined line of conduct from the authority, Article 3 also specifies that the Resolution Board may issue circulars or recommendations aimed at clarifying the application of legal and regulatory provisions in the field of resolution. The development of the resolution dimension is new, both within the Belgian legal framework and the European framework. If the legal framework is now defined, the practice of resolution authorities is under development and is of an evolving nature. This is why it may be necessary for the Resolution Board to clarify the application of legal provisions to take into account developments arising from practice in Belgium as well as in a European context, to reflect best practices developed within the European Banking Authority or within the Single Resolution Mechanism.

Article 3 also provides that the Resolution Board may provide an opinion to various authorities on any draft legislative or regulatory act relating to the resolution missions entrusted to it. The preparation of this opinion and its communication to the concerned authorities will ensure the development of a coherent resolution framework, in line with European practices and developments.

Finally, Article 3 provides that the Resolution Board shall perform the tasks assigned to the resolution authority under European acts and, in this context, fully cooperate with the Single Resolution Board, according to the division of tasks provided for in Article 7 of 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. The Organic Law designating the Bank as the resolution authority and instituting the Resolution Board as the competent body of the Bank in matters of resolution, the provisions of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 targeting national resolution authorities apply directly to the Bank and its Resolution Board.

Articles 4, 5 and 6

Articles 4, 5 and 6 supplement the Organic Law regarding aspects related to the functioning of the Resolution Board, notably its Article 18 which specifies that the Governor of the Bank presides over the Resolution Board and is replaced, in case of impediment, by the Deputy Governor.

Article 4 deals with the composition of the Resolution Board. Its first paragraph clarifies, as necessary, that the Resolution Board remains validly composed when one or more members of the Resolution Board hold multiple functions or qualities referred to in Article 21ter, § 2, 1° to 5° of the Organic Law.

The second paragraph of Article 4 provides for the case where one of the functions or qualities referred to in Article 21ter, § 2, 1° to 5° of the Organic Law is exercised jointly by several members. This would be the case, for example, if the director in charge of the prudential supervision of banks is different from the one in charge of the prudential supervision of securities companies, or if the director in charge of prudential policy is different from the one in charge of financial stability. In such a case, it is for the Management Committee of the Bank to determine which of the members of the management committee jointly or partially in charge of these functions or qualities is a member of the Resolution Board.

Article 5 sets out the organizational arrangements for the meetings of the Resolution Board and its convocation. It is provided that the Resolution Board shall meet at least four times a year. Additional meetings may be organized when at least three members of the Resolution Board request it or when circumstances require it, for example because it is necessary to respond to a request within a shorter period than three months - which could occur, inter alia, in the context of the application of Article 114, § 3, second paragraph of the Banking Law. These additional meetings are subject to a convocation by the President of the Resolution Board. This convocation must be sent in writing at least one week before the date of the meeting.

In case of urgency, the convocation period may be reduced to 1 hour. Such a short period may be necessary when the supervisory authority communicates to the resolution authority, pursuant to Article 244, § 1, 1° of the Banking Law, that the failure of a credit institution is presumed or established. Time being a crucial factor in the ability to manage a crisis, it is necessary that the Resolution Board be able to meet very quickly. The possibility of a one-hour deadline has been set, taking into account the fact that the physical presence of all members is not necessary and that the Resolution Board can rule by using a voice telecommunication system. To accelerate the procedure, it is provided that the President of the Resolution Board may, in such a situation, convene members by using a voice telecommunication system.

The third and fourth paragraphs of Article 5 deal with the agenda. The latter is fixed by the President of the Resolution Board who sends a draft agenda to its members at least three working days before the meeting. Members of the Resolution Board may request that points be added to the draft agenda. The final agenda is communicated the day before the meeting. Unless there is unanimous agreement of the members, no decision may be taken on points not included in the agenda.

These deadlines may be impossible to respect in an emergency situation. In such a situation, the agenda may be communicated by the President of the Resolution Board only at the beginning of the meeting to the members of the Resolution Board, or even modified or amended during the meeting.

Finally, the last paragraph of Article 5 imposes a procedural requirement in cases of urgency. In these cases, the urgency and the justification for the urgency must be established by the President of the Resolution Board.

Article 6 sets out the modalities concerning the adoption of decisions of the Resolution Board. Consisting the principle prevailing in deliberative bodies, it is provided that decisions of the Resolution Board are taken by a simple majority of its members present, each member having one vote. The vote of the President of the Resolution Board, that is to say the Governor of the Bank, or in case of impediment of the Governor, the Deputy Governor, is decisive in case of a tie. The holding of multiple functions or qualities referred to in Article 21ter, § 2, 1° to 5° of the Organic Law by one of the members of the Resolution Board does not result in a cumulation of votes for that member.

The draft Decree provides for a quorum condition, the Resolution Board being unable to rule in the absence of the majority of its members. However, to facilitate rapid decision-making in sometimes difficult circumstances, no quorum condition is provided for in cases of urgency. In a crisis situation, the functioning of the Resolution Board must be guaranteed, even in the absence of some of its members, it being understood that the members must have been duly convened.

Moreover, there is no right of veto. The French law, for example, provides for such a veto for the government representative sitting on the Resolution Board of the Prudential Supervision and Resolution Authority. It will be recalled that in Belgium, pursuant to Article 268, § 2 of the Banking Law, the Minister of Finance may oppose any disposal decision of the resolution authority within 48 hours if he considers that the envisaged act has a direct fiscal impact or systemic implications.

Always to facilitate decision-making in cases of urgency, the draft Decree provides for the possibility for the Resolution Board to rule by written procedure or by using a voice telecommunication system.

In case of written procedure, the President of the Resolution Board submits the text of the draft decision in writing with acknowledgment of receipt. This sending can also be done by fax, email or any other written method. When using these communication methods, the technical confirmation of sending serves as proof of receipt. Moreover, each member is personally notified of the sending of the communication, preferably by telephone.

Depending on the circumstances, the use of a voice telecommunication system may concern one, several or all members of the Resolution Board. The President of the Resolution Board calls each of the members participating in the meeting at the beginning of the meeting via a voice telecommunication system. It is provided that the meeting may take place in the absence of one or more members provided that they have been duly convened and are unable to participate in the meeting. Despite technological advances, it may happen that some members are not reachable, for example because they are on board an airplane. Such a situation should not, however, prevent the holding of a meeting of the Resolution Board in the event of an emergency.

Article 7

Article 7 requires equipping the Resolution Board with an internal rules of procedure. This regulation must, pursuant to Article 20 of the Organic Law, be adopted by the Board of Governors, on the proposal of the Management Committee of the Bank. It determines, inter alia, the acts necessary for the preparation of the meetings of the Resolution Board, including the modalities for the distribution of documents, the modalities according to which a delegation of powers or signature may be granted, the organizational modalities of the secretariat of the Resolution Board, as well as the conditions under which Bank staff or external experts may be heard by the Resolution Board.

Article 8

Article 8 specifies that the Bank makes available to the Resolution Board the material and human resources necessary for the exercise of its missions. In accordance with Article 12ter, § 2, of the Organic Law and according to the modalities established by the King, the operating costs of the Resolution Board are borne by the credit institutions likely to be subject to resolution measures pursuant to the Banking Law.

The services thus allocated to the Resolution Board are organized in such a way as to allow it to exercise its missions independently and in particular to manage crises affecting credit institutions quickly and efficiently. The qualification used in the article ("the services allocated to the Resolution Board"), and more widely in the draft Decree, does not presume in any way the organizational form that these must take.

Articles 9, 10, 11 and 12

Articles 9 to 12 specify the conditions under which the Resolution Board exchanges information with third parties as well as with the other bodies and services of the Bank.

Article 9 deals with exchanges with the supervisory authority as well as with the other bodies and services of the Bank. As specified under Article 2, the term "supervisory authority" must be understood according to the definition given in the Banking Law, as being the Bank or the European Central Bank (according to the distribution of competences provided for in the supervision of credit institutions by or pursuant to 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 institutions) as well as all competent authorities and consolidated supervision authorities within the meaning of this Law.

Cooperation between, on the one hand, the services of the Resolution Board and, on the other hand, the other services of the Bank constitutes a key element allowing to identify and address conflicts of competence that could arise between missions related to prudential supervision and those related to resolution. In theory, two categories of conflicts of interest could arise.

Firstly, the problem related to what is called in English "regulatory forbearance". This behavior would consist, in the head of the supervisory authority, in delaying, in a non-optimal manner, the exercise of resolution powers in the hope that the situation of a struggling credit institution will recover. The Banking Law addresses this risk by introducing, in its Article 244, § 1, 1°, the possibility for the resolution authority to establish, after consulting the supervisory authority, the finding that the failure of a credit institution is foreseeable or established. The second type of conflict of interest concerns the balance necessary to be found in any measure between, on the one hand, the capacity of a credit institution to resist shocks and, on the other hand, the difficulty for the resolution authority to resolve a banking crisis related to an institution. One can indeed easily imagine measures that would facilitate resolution while making a credit institution more vulnerable to shocks or, conversely, measures that would increase the resistance of an institution but make the resolution of a crisis affecting it more difficult. It should be noted, however, that if such conflicts can appear, they remain limited in the head of the Bank insofar as, on the one hand, prudential supervision is directly exercised by the European Central Bank, within the framework of the Single Supervisory Mechanism, with regard to credit institutions qualified as significant within the meaning of Regulation (EU) No 1024/2013 cited above or with regard to which the European Central Bank will decide to exercise itself the competences in matters of prudential supervision and where, on the other hand, the Single Resolution Board will ensure the missions in matters of resolution with regard to these credit institutions pursuant to Regulation (EU) No 806/2014 cited above.

Finding this balance, that is to say resolving the potential conflicts of interest that could arise between the purposes of the different missions entrusted to the Bank, requires the implementation of coordination structures to establish the balance of the different interests present while respecting the specific competences of each of the bodies of the Bank. This is the objective of this article. Its first three paragraphs concern the relations of the Resolution Board with the supervisory authority. The last paragraph deals with the relations between the services of the Resolution Board and the other services of the Bank, in particular the services in charge of the prudential supervision of credit institutions.

The first paragraph of Article 9 establishes the principle according to which the Resolution Board collaborates with the supervisory authority. Pursuant to this principle, it is expected from each of the respective bodies that they impose on their respective services to implement this cooperation.

The second paragraph of Article 9 specifies the exchange of confidential information between the Resolution Board and the supervisory authority. It will be recalled, as necessary, that pursuant to the Organic Law, the members of the Resolution Board and its services are subject to the same obligations regarding professional secrecy as other members of the bodies and staff of the Bank.

The third paragraph of Article 9 specifies that the internal rules of procedure of the Resolution Board must specify the procedure to be followed when the Resolution Board consults the supervisory authority. The exercise of the missions of the Resolution Board requires, in fact, that it consults the supervisory authority on a series of decisions. It is recalled, for example, that the Resolution Board must consult the supervisory authority, even in the absence of an emergency situation, in order to establish the resolution plan of a credit institution, to assess its resolvability, when the existence of significant obstacles to resolvability is noted, when the measures proposed by the credit institution do not allow to eliminate or sufficiently reduce the obstacles noted to resolvability, and before taking measures intended to eliminate these obstacles. The Resolution Board must also consult the supervisory authority when it considers that the failure of a credit institution is established or foreseeable.

These consultation obligations are accompanied by the transmission of information, for example relating to the content of the resolution plans of the various credit institutions or to the derogations that the Resolution Board may have granted pursuant to Article 229, § 2 of the Banking Law.

Conversely, the exercise of the missions of the Resolution Board requires that it has a series of prudential information. One thinks, for example, to the recovery plan of each credit institution, to the modifications of the legal or organizational structure of a credit institution, of its activities or of its financial situation likely to have a significant impact on the resolution plan or which impose to modify it, to the taking of recovery measures by the supervisory authority, or still to the determination of the presumed or established failure situation of a credit institution.

These information constitute a minimal base of data to be transmitted regardless of the circumstances. They are nevertheless not exhaustive, insofar as the Resolution Board may communicate to the supervisory authority any information it deems appropriate to transmit to it and vice versa.

If the exchange of information must take place at the level of the bodies of the Bank, between the Resolution Board and the Management Committee, it is also necessary that the services of the Bank can communicate and collaborate upstream of this exchange. Adequate consultation channels must be established so that communication can take place between, on the one hand, the services of the Resolution Board and, on the other hand, the departments in charge of the prudential supervision of credit institutions, as well as the other departments of the Bank, where an exchange of information is necessary.

Finally, another measure aimed at preventing conflicts of competence between the various bodies of the Bank is introduced in the fourth paragraph of Article 9. This paragraph provides, on the one hand, that the services of the Resolution Board may be heard by the Bank's Management Committee, at the latter's request. On the other hand, it introduces the possibility for the Resolution Board to request the services responsible for supervision and prudential policy. This double faculty offers the possibility of identifying and managing potential conflicts of competence sufficiently early by integrating the constraints specific to the exercise of each of the two respective missions of supervision and resolution. This possibility remains subject to the prior agreement of the respective bodies to which the concerned services belong.

All the mechanisms provided for in Article 9 must therefore allow for an exchange of information between the various bodies and services of the Bank, mutual consultation, and the rapid identification of potential conflicts of competence.

Article 10 deals with the exchange of information with the Minister of Finance. This exchange remains subject to the rules governing professional secrecy provided for in Articles 35, 36/13, and 36/14 of the Organic Law. These articles only allow the transmission of confidential information to the Minister of Finance in the form of summary or aggregated data making the identification of natural or legal persons impossible, or in cases of necessity. Under these articles, the communication of the resolution plan of a specific credit institution to the Minister of Finance is prohibited outside of a situation of necessity. It is also the existence of these rules that justified the formalization, under Article 417 of the Banking Law, of a report concerning the progress of the establishment of resolution plans and the removal of resolvability obstacles, which the Resolution Board must transmit to the Minister of Finance by December 31, 2015 at the latest.

Article 10 therefore deals only with the specific case of disposal decisions, which may be opposed by the Minister of Finance within a period of forty-eight hours in application of Article 268, § 2 of the Banking Law. The Article imposes on the Resolution Board the obligation to notify its draft decision without delay to the Minister of Finance. The Minister of Finance may, at his discretion, refer the matter to the Council of Ministers. The forty-eight-hour period only begins to run from the moment the decision is notified by the Resolution Board to the Minister of Finance. The Article further imposes on the Resolution Board the obligation to transmit to the Minister of Finance a summary of the reasoning that led to the envisaged disposal decision. Finally, it imposes on the Resolution Board the obligation to answer any questions the Minister of Finance may have regarding this decision.

Articles 11 and 12 deal with the exchange of information with credit institutions. Article 226, § 2 of the Banking Law provides that the Resolution Board may require a credit institution to provide all information necessary for the preparation of a resolution plan. Article 276, § 1 of the same law allows the Resolution Board to require the provision of information necessary to decide on the adoption of a resolution measure or to exercise the power to write down or convert own funds. These information may be of a quantitative nature, such as data extracted from the credit institution's accounting, or of a qualitative nature, such as the description of a process, an analysis of the critical nature of certain operations, or an assessment of certain resolution options. In light of the principle of proportionality, Article 11 indicates that the Resolution Board must formulate a precise request and set a reasonable deadline, taking into account the complexity of the information to be provided as well as the urgency of the situation. The Resolution Board may also request that the information required under Article 276, § 1 of the Banking Law be transmitted to it exclusively, i.e., without being communicated to third parties, in order to guarantee, through the confidentiality of the transmitted data, the confidentiality of ongoing work. This provision ensures the highest degree of confidentiality for the work of the Resolution Board, the communication of which could, in certain cases, cause major damage to the credit institution.

Article 226, § 3 of the Banking Law provides for the communication of a summary of the key elements of the resolution plan to the credit institution. This communication is carried out by the Resolution Board or its services to the board of directors of the credit institution only. If necessary, it can be done exclusively orally to absolutely preserve the confidentiality of the plan. This is the object of Article 12.

Articles 13 and 14

Articles 13 and 14 define measures intended to prevent the occurrence of conflicts of interest on the part of the members of the Resolution Board and thus constitute essential conditions for the proper functioning of the Resolution Board. By conflict of interest, one should understand a situation of interference between the public interest defended by the Resolution Board and public or private interests, which is likely to influence or appear to influence an independent, impartial, and objective decision-making process.

The first paragraph of Article 13 is inspired by Regulation (EU) No 1024/2013 cited above (Article 19) and Regulation (EU) No 806/2014 cited above (Article 48). It imposes on the members of the Resolution Board an independence condition similar to that imposed on the members of the Supervisory Board of the Single Supervisory Mechanism and the members of the Single Resolution Board.

The second paragraph of Article 13 prohibits members of the Resolution Board from exercising missions on behalf of a credit institution, or remunerated by it, during the exercise of their mandate and for one year after leaving office. This is necessary to guarantee the independence of the members of the Resolution Board, given that the members of the Resolution Board have access to extremely sensitive information regarding the functioning and organization of credit institutions.

This provision is without prejudice to the application of legal provisions otherwise provided for in matters of incompatibility. It is recalled, if necessary, that Article 25 of the Organic Law provides that members of the legislative Chambers, the European Parliament, Community and Regional Parliaments, persons who have the status of Minister or Secretary of State or member of a Community or Regional government, and members of the cabinets of a member of the Federal Government or a Community or Regional government cannot hold the position of member of the Resolution Board. Furthermore, under Article 26, § 2 of the same law, members of the Resolution Board cannot also be members of the administrative, management, or supervisory bodies of an institution subject to the supervision of the Bank, nor exercise a managerial function therein.

Article 14 imposes on any member of the Resolution Board the obligation to inform the President of the Resolution Board at the beginning of a meeting of a conflict of interest situation relating to one of the items on the agenda of the meeting.

Articles 15 and 16

Articles 15 and 16 repeat the final provisions concerning the entry into force of the Decree and its execution.

The opinion 56.932/2 of December 30, 2014, from the Council of State has been taken into account.

I have the honor to be,

Sire,

Of Your Majesty

the most respectful and most faithful servant,

The Minister of Finance,

J. VAN OVERTVELDT

OPINION 56.932/2 OF DECEMBER 30, 2014 FROM THE COUNCIL OF STATE, LEGISLATION SECTION, ON A DRAFT ROYAL DECREE 'DETERMINING THE MODALITIES OF ORGANIZATION AND OPERATION OF THE RESOLUTION BOARD, THE CONDITIONS UNDER WHICH THE RESOLUTION BOARD EXCHANGES INFORMATION WITH THIRD PARTIES, AND THE MEASURES TAKEN TO PREVENT THE OCCURRENCE OF CONFLICTS OF INTEREST'

On December 19, 2014, the Council of State, Legislation Section, was invited by the Minister of Finance to communicate an opinion, within a period of five working days, on a draft Royal Decree 'determining the modalities of organization and operation of the Resolution Board, the conditions under which the Resolution Board exchanges information with third parties, and the measures taken to prevent the occurrence of conflicts of interest'.

The draft was examined by the Second Chamber on December 30, 2014.

The Chamber was composed of Pierre Liénardy, Chamber President, President, Pierre Vandernoot, Chamber President, Martine Baguet, Councillor of State, and Colette Gigot, Clerk.

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

The opinion, the text of which follows, was given on December 30, 2014.

Pursuant to Article 84, § 1, first paragraph, 3°, of the coordinated laws on the Council of State, the request for opinion must specifically indicate the reasons justifying its urgent nature.

The letter states as follows:

"Urgency is justified by the need to ensure the transposition of Directive 2014/59/EU by December 31, 2014."

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

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

Examination of the draft

Preamble

The first paragraph of the preamble must be completed by the mention of the insertion of Article 21ter, § 4, of the Law of February 22, 1998 'fixing the organic status of the National Bank of Belgium' by the Law of February 27, 2014.

Furthermore, several provisions of the draft, particularly Articles 2, 3rd and 4th indents, 10, 12, and 13, do not find sufficient legal basis in Article 21ter, § 4, of the Law of February 22, 1998. They draw their legal basis from the general power of execution of the King enshrined in Article 108 of the Constitution.

This latter provision will be mentioned in a new first paragraph.

The wording of paragraph 7, becoming paragraph 8, will be improved as follows:

"Having regard to the exception regarding the accomplishment of the regulatory impact analysis, referred to in Article 8, § 2, 2°, of the Law of December 15, 2013 containing various provisions concerning administrative simplification;" (1).

( (1) See Article 10 of the Royal Decree of December 21, 2013 'implementing Title 2, Chapter 2 of the Law of December 15, 2013 containing various provisions concerning administrative simplification'.)

Dispositive

New Article 1 (2)

Pursuant to Article 130, paragraph 2, of Directive 2014/59/EU of the European Parliament and of the Council of May 15, 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', it is appropriate to insert a new Article 1 stating that the draft Decree partially transposes this directive (3).

( (2) The author of the draft will ensure that the first two articles of the text do not escape the division of the Decree into chapters, which will be numbered in Arabic numerals. Principles of legislative technique - Guide to drafting legislative and regulatory texts, www.raadvst-consetat.be, tab "Legislative Technique", recommendations nos 63 and 64.

(3) Ibid., recommendation no 94.)

Article 1

(becoming Article 2)

It is appropriate to insert a definition of the notion of "resolution board" by reference to Article 21ter, § 1, of the Law of February 22, 1998 which establishes it.
In point 10, it is not consistent to define a receipt according to two methods depending on whether it concerns the sending of a written document, in which case the proof relates to the receipt of the document by its recipient, whereas if it concerns the transmission of a document by fax or electronically, the proof only concerns "the technical confirmation of sending".

The second part of the definition will be aligned with the first.

Article 9

The draft text provides that: "[the] Resolution Board shall notify without delay to the Minister of Finance, who may refer it to the Council of Ministers, any disposal decision within the meaning of Article 268, § 2, of the Banking Law, which it envisages to take [...]".

The Legislation Section does not see the meaning of the words "who may refer it to the Council of Ministers"; this is a purely optional provision devoid of any normative effect.

This relative proposal will be omitted.

The Clerk,
C. Gigot.
The President,
P. Liénardy.