EUROPE publie un projet d'accord intergouvernemental (IGA), daté du vendredi 21 février, que les dix-huit pays de l'Eurozone négocient en la présence des autres États membres. Imposé par l'Allemagne au Conseil de l'UE mais rejeté à ce stade par le Parlement européen, cet accord assoira juridiquement le Fonds unique de résolution bancaire (SRF), doté à terme de 55 milliards d'euros par le biais de contributions de l'industrie, et qui pourra contribuer au financement de la résolution d'une banque défaillante. Il prévoit notamment la façon dont les États membres alloueront les contributions bancaires à des compartiments nationaux au sein du Fonds SRF ainsi que le rythme de mutualisation de ces compartiments nationaux sur une période provisoire avant que le fonds n'entre totalement dans le champ communautaire (EUROPE 11029). L'accord intergouvernemental devrait être ficelé dans les prochains jours, peut-être lors d'une réunion spéciale en marge de l'Eurogroupe du lundi 10 mars. (MB)
AGREEMENT ON THE TRANSFER AND MUTUALISATION OF CONTRIBUTIONS TO THE SINGLE RESOLUTION FUND
THE CONTRACTING PARTIES, the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Grand Duchy of Luxembourg, Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, and the Republic of Latvia [plus the non euro area Member States that are contracting parties];
COMMITTED TO achieving the establishment of an integrated financial framework in the European Union of which the Banking union is a fundamental part;
RECALLING the Decision of the representatives of the euro area Member States meeting within the Council of the European Union of 18 December 2013, related to the negotiation and conclusion of an intergovernmental agreement concerning the Single Resolution Fund established according to Regulation (xx SRM), as well as the Terms of Reference attached thereto;
WHEREAS:
The European Union has in the past years adopted a number of legal acts fundamental for the achievement of the internal market in the field of financial services and for guaranteeing the financial stability of the euro area and of the Union as a whole, as well as for the process towards deeper economic and monetary union.
In June 2009, the European Council called for the establishment of a "European single rule book applicable to all financial institutions in the Single Market". The Union has thus established a single set of harmonised prudential rules which banks throughout the EU must respect, through Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 and Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.
The Union has further set up the European Supervisory Authorities (ESAs) to which a number of tasks on micro-prudential supervision are allocated. They are the European Banking Authority (EBA), the European Insurance and Occupational Pensions Authority (EIOPA) and the European Securities and Markets Authority (ESMA). This was accompanied by the establishment of the European Systemic Risk Board to which some functions of macro-prudential supervision have been allocated.
The Union legislator has established a Single Supervisory Mechanism through Regulation 1024/2013, conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, conferring upon the European Central Bank (ECB), acting jointly with the national competent authorities, powers of supervision over the credit institutions established in the Member States whose currency is the euro and in the other Member States that decide to establish a close cooperation arrangement with the ECB for supervision purposes (the participating Member States).
Through Directive (xx BRRD) establishing a framework for the recovery and resolution of credit institutions and investment firms, the Union legislator harmonises national laws and regulations on the resolution of credit institutions and certain investment firms, including the establishment of national resolution financing arrangements.
The European Council Of 13/14 December 2012 stated that "In a context where bank supervision is effectively moved to a single supervisory mechanism, a single resolution mechanism will be required, with the necessary powers to ensure that any bank in participating Member States can be resolved with the appropriate tools". The European Council of 13/14 December 2012 further stated that "The single resolution mechanism should be based on contributions by the financial sector itself and include appropriate and effective backstop arrangements. This backstop should be fiscally neutral over the medium term, by ensuring that public assistance is recouped by means of ex post levies on the financial industry". The Union has, in this context, adopted Regulation (xx SRM) 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 Bank Resolution Fund. Regulation (xx SRM) creates a centralised system of decision for resolution, endowed with the adequate financing means through the establishment of a Single Resolution Fund. Regulation (xx SRM) applies to the entities located in the participating Member States.
Regulation (xx SRM) establishes, in particular, a Single Resolution Fund as well as the modalities for its use. Directive (xx BRRD) and Regulation (xx SRM) lay down the general criteria to determine the fixing and calculation of ex ante and ex post contributions of credit institutions necessary for the financing of the Single Resolution Fund, as well as the obligation of Member States to levy them at national level. Nonetheless, the participating Member States who raise the contributions on the credit institutions located in their respective territories according to Directive (xx BRRD) and Regulation (xx SRM), remain competent to transfer the said contributions towards the Single Resolution Fund. The obligation to transfer the contributions raised at national level towards the Single Resolution Fund does not derive from the law of the Union. Such obligation will be established by this Agreement that lays down the conditions upon which the parties, in accordance with their respective constitutional requirements, jointly agree to transfer the contributions that they raise at national level to the Fund.
The competence of each of the participating Member States to transfer contributions raised at national level should be exercised in a manner such that they respect the principle of sincere cooperation enshrined in Article 4(3) of the Treaty on European Union, according to which Member States shall, inter alia, facilitate the achievement of the Union's tasks and refrain of any measure which could jeopardise the attainment of the Union's objectives. For that reason, participating Member States should ensure that financial resources are uniformly channelled towards the Single Resolution Fund, hence guaranteeing its proper functioning.
Accordingly, the Contracting Parties have concluded the present agreement whereby, inter alia, they establish their obligation to transfer the contributions raised at national level towards the Single Resolution Fund, pursuant to uniform criteria, modalities and conditions, notably, the allocation during a transitional period of the contributions they raise at national level to different compartments corresponding to each of them, as well as the progressive mutualisation of the use of the compartments in a manner such that the compartments will cease to exist at the end of that transitional period.
The content of the present Agreement is limited to those specific elements concerning the Single Resolution Fund that remain within the competence of Member States. This Agreement does not affect common rules laid down by the law of the Union nor does it alter their scope. It is rather designed as complementary to the Union legislation on banking resolution and as supportive and intrinsically linked to the achievement of Union policies, in particular the establishment of the internal market in the field of financial services.
National laws and regulations implementing Directive (xx BRRD), including those related to the establishment of national financing arrangements, have start tote-be applied as from 1 January 2015. The provisions concerning the establishment of the Fund under Regulation (xx SRM) will be, in principle, applicable since 1 January 2016. As a consequence, the Contracting Parties will raise contributions earmarked to the national resolution arrangement they are held to establish up to the date of application of Regulation (xx SRM), date at which they will start raising the contributions earmarked to the Fund. In order to reinforce the financial capacity of the Fund since its inception, the Contracting Parties commit to transfer to the Fund the contributions they have raised by virtue of Directive (xx BRRD) up to the date of application of Regulation (xx SRM).
It is acknowledged that there may exist situations where the means available in the Single Resolution Fund are not sufficient to face a particular resolution action, and where the ex post contributions that should be raised in order to cover the necessary additional amounts are not immediately accessible. Pursuant to the statement of the Eurogroup and of the Council (Ecofin) of 18 December 2013, in order to ensure continuous sufficient financing during the transitional period, the Contracting Parties concerned by a particular resolution action should provide bridge financing from national sources or the ESM in line with agreed procedures, including the setting up of possibilities for temporary transfers between national compartments. The Contracting Parties should have in place procedures allowing to address any request for bridge financing in a timely manner. A common backstop will be developed during the transitional period. Such a backstop will facilitate borrowings by the Single Resolution Fund. The banking sector will ultimately be liable for repayment by means of contributions, in all participating Member States, including ex post contributions. These Arrangements will ensure equivalent treatment across all the Contracting Parties participating in the Single Supervision Mechanism and the Single Resolution Mechanism, including Contracting Parties joining at a later stage, in terms of rights and obligations and both in the transition period and in the steady state. Said arrangements will respect a level playing field with Member States that do not participate in the Single Supervision Mechanism and in the Single Resolution Mechanism.
The capacity of the Single Resolution Board to contract alternative funding means for the Fund, in accordance with Article 69 of Regulation (xx SRM), should be enhanced in a manner that it allows to optimise the cost of funding and to preserve the creditworthiness of the Fund. The Contracting Parties will accordingly take the necessary steps to develop the appropriate methods and modalities permitting to enhance the borrowing capacity of the Single Resolution Board that should be in place by the date of application of Regulation (xx SRM) and of this Agreement.
This Agreement should be ratified by all the Member States of the European Union whose currency is the euro and by the non-euro area Member States that participate in the Single Supervisory Mechanism and in the Single Resolution Mechanism.
Member States of the European Union whose currency is not the euro that are not Contracting Parties should accede this Agreement with full rights and obligations, in line with those of the Contracting Parties, as from the date when they effectively adopt the euro as currency or, otherwise, as from the date of entry into force of the European Central Bank decision on close cooperation referred to in Article 7(2) of Regulation 1024/2013.
On xx/yy 2014, the representatives of the Governments of the Member States of the European Union authorized the Contracting Parties to request the European Commission and the Single Resolution Board to perform the tasks provided for in this Agreement.
Article 13 of Regulation (xx/SRM) as adopted on yy12014 establishes general principles governing resolution, pursuant to which the shareholders of the institution under resolution bear first losses and the creditors of the institution under resolution bear losses after the shareholders in accordance with the order of priority of their claims. Article 24 of Regulation (xx/SRM) lays down accordingly a bail-in instrument that requires that, a) a contribution to loss absorption and recapitalisation equal to an amount not less than 8% of the total liabilities including own funds of the institution under resolution, measured at the time of resolution action in accordance with the valuation provided for in Article 17 of Regulation (xx/SRM), has been made by shareholders and the holders of other instruments of ownership, the holders of relevant capital instruments and other eligible liabilities through write down, conversion or otherwise; and that b) the contribution from the Fund does not exceed 5% of the total liabilities including own funds of the institution under resolution, measured at the time of resolution action in accordance with the valuation provided for in Article 17 of Regulation (xx/SRM), unless all unsecured, non-preferred liabilities, other than eligible deposits, have been written down or converted in full. Moreover, Articles 16, 48 and Si of Regulation (xx/SRM) as adopted on yy/2014 establish a number of procedural rules on decision making of the Single Resolution Board and the institutions of the Union. The above mentioned elements of Regulation (xx/SRM) constitute an essential basis for the consent of the Contracting Parties to be bound by the provisions of this Agreement.
The Contracting Parties acknowledge that the relevant provisions of the Vienna Convention on Law of Treaties as well as international customary law shall apply in respect of any fundamental change of circumstances, that has taken place against their will, that affects the essential basis of the consent of the Contracting Parties to be bound by the provisions of this Agreement, as referred to in recital (16). The Court of Justice of the European Union should be granted the power to determine the existence of any fundamental change of circumstances and the consequences deriving from it, whilst bearing in mind the effectiveness and integrity of the Single Resolution Mechanism.
The determination whether the institutions of the Union, the Single Resolution Board and the national resolution authorities apply the bail-in tool in a manner which is compatible with the law of the Union belongs to the Court of Justice of the European Union in accordance with the legal remedies laid down in the EU Treaties, namely articles 258, 259, 260, 263, 265 and 266 TFEU.
As an instrument of international public law, the rights obligations laid down in this Agreement are subject to the principle of reciprocity. Accordingly, the consent by each of the Contracting Parties to be bound by this Agreement depends upon the equivalent performance of the rights and obligations incumbent on each of the Contracting Parties. As a consequence, the breach by any of the Contracting Parties of its obligation to transfer the contributions towards the Fund should entail the exclusion of the entities authorised in their territories from access to the Fund. The Single Resolution Board and the Court of Justice of the European Union should be granted the power to determine and declare whether the Contracting Parties have breached their commitment to transfer the contributions, in accordance with the procedures laid down in this Agreement. The Contracting Parties recognise that in case of breach of the obligation to transfer the contributions the only legal consequence will be the exclusion from finance under the Fund of the Contracting Party that has committed the breach and that the obligations of the other Contracting Parties under the Agreement shall remain unaffected.
This Agreement lays down a mechanism whereby the participating Member States commit to reimburse jointly, promptly and with interest to each Member State of the European Union that is not participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism for the amount that non-participating Member State has paid in own resources corresponding to the use of the general budget of the Union in cases of non-contractual liability and costs related thereto, in respect of the exercise of powers by the institutions of the Union under Regulation (xx SRM). The liability of each participating Member State under this arrangement should be separated and individual, and not joint and several, and hence each of the participating Member States should respond only for the part of their obligation of reimbursement as determined in accordance with this Agreement.
Disputes concerning the interpretation and application of this Agreement arising between the Contracting Parties, including those concerning compliance with the obligations laid down therein, should be submitted to the jurisdiction of the Court of Justice of the European Union in accordance with Article 273 of the Treaty on the Functioning of the European Union (TFEU). Member States of the European Union whose currency is not the euro that are not parties to this Agreement should be able to submit to the Court of Justice of the European Union any dispute on the interpretation and enforcement of the provisions on compensation for non-contractual liability and costs related thereto laid down in this Agreement.
In case the close cooperation with the European Central Bank of a Contracting Party, whose currency is not the euro, is terminated in accordance with Article 7 of Regulation 1024/2013, a fair partition of the cumulated contributions from the Contracting Party concerned must be decided taking into account the interests of both the Contracting Party concerned and the Single Resolution Fund. Decisions of the Board concerning the recoupment of contributions to the Fund made by the Contracting Party whose close cooperation with the European Central Bank is being terminated during the period of close cooperation, or the failure to adopt such decision within the deadlines specified in this Agreement, may be subject to the review of the Court of Justice of the European Union in accordance with Articles 263 and 265 TFEU.
While fully respecting the procedures and requirements of the Treaties on which the Union is founded, the Contracting Parties' objective is to incorporate the substance provisions of this Agreement, in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union as soon as possible into the legal framework of the Union.
HAVE AGREED UPON THE FOLLOWING PROVISIONS:
TITLE I - PURPOSE AND SCOPE
ARTICLE 1
By this Agreement, the Contracting Parties commit to,
transfer the contributions raised at national level in accordance with Directive (xx BRAD) and Regulation (xx SRM) to the Single Resolution Fund established by the latter (the Fund),
allocate, during a transitional period starting at the date of application of this Agreement as determined under Article 9(2) and elapsing at the moment when the Fund reaches the target funding level fixed in Article 65 of Regulation (xx SRM) but not later than [10] years after the date of application of this Agreement (the transitional period), the said contributions to different compartments corresponding to each Contracting Party. The use of the compartments shall be subject to a progressive mutualisation in a manner such that they will cease to exist at the end of the transitional period, thereby supporting the effective operations and functioning of the Fund.
This Agreement shall apply to the Contracting Parties whose institutions are subject to the Single Supervisory Mechanism and the Single Resolution Mechanism, in accordance with the relevant provisions of, respectively, Regulation 1024/2013, conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (Regulation 1024/2013) and of Regulation (xx SRM) (the Contracting Parties participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism).
TITLE II - CONSISTENCY AND RELATIONSHIP WITH THE LAW OF THE UNION
ARTICLE 2
This Agreement shall be applied and interpreted by the Contracting Parties in conformity with the Treaties on which the European Union is founded and with European Union law, in particular Article 4(3) of the Treaty on European Union and the Union legislation concerning the resolution of institutions.
This Agreement shall apply insofar as it is compatible with the Treaties on which the European Union is founded and with European Union law. It shall not encroach upon the competences of the Union to act in the field of the internal market.
For the purposes of this Agreement, the relevant definitions set out in Article 3 of Regulation (xx SRM) shall apply.
TITLE III - TRANSFER OF CONTRIBUTIONS AND COMPARTMENTS
ARTICLE 3
Transfer of contributions
The Contracting Parties jointly commit to irrevocably transfer to the Fund the contributions that they raise from the institutions authorised in each of their territories by virtue of Articles 66 and 67 of Regulation (xx SRM), and in accordance with the criteria laid down therein and in the delegated and implementing acts to which they refer. The transfer of contributions shall take place in accordance with the conditions laid down under Articles 4 to 7 of this Agreement.
The Contracting Parties shall transfer the ex ante contributions corresponding to every year by 30 June of that year at the latest. The initial transfer of ex ante contributions to the Fund will take place by 30 June 2016 at the latest or, if the Agreement has not entered into force by that date, six months after its date of entry into force at the latest. Contributions raised by the Contracting Parties in accordance with Articles 94 and 95 Directive (xx BRRD) before the date of application of this Agreement shall be transferred to the Fund by 31 January 2016 at the latest or, if the Agreement has not entered into force by that date, one month after its date of entry into force at the latest.
The Contracting Parties shall transfer ex post contributions immediately after their collection.
ARTICLE 4
Compartments
During the transitional period contributions raised at national level shall be transferred to the Fund in a manner such that they are allocated to compartments corresponding to each Contracting Party.
The size of the compartments of each Contracting Party shall be equal to the totality of contributions payable by the institutions authorized in each of their territories pursuant to Articles 65 and 66 of Regulation (xx SRM) as well as to the delegated and implementing acts therein referred.
The Single Resolution Board shall, at the date of entry into force of this Agreement, draw a list for information purposes only detailing the size of the compartments of each Contracting Party. Such list shall be updated every year of the transitional period.
ARTICLE 5
Functioning of the compartments
Where in accordance with the relevant provisions of Regulation (xx SRM) recourse to the Fund is decided the Single Resolution Board shall have the power to dispose of the compartments of the Fund in the following manner:
In the first place, costs shall be borne by the compartments corresponding to the Contracting Parties where the institution or the group under resolution are established or authorised. When a group is under resolution, costs shall be distributed between the different compartments corresponding to the Contracting Parties where the parent undertaking and subsidiaries are established or authorised in proportion to the relative amount of contributions that each of the entities of the group under resolution has provided to their respective compartments with respect to the aggregate amount of contributions that all the entities of the group have provided to their national compartments.
In case a Contracting Party where the parent undertaking or subsidiary are established or authorised considers that the application of this criterion for distribution of costs referred to in the above subparagraph leads to a large asymmetry between the distribution of costs between compartments and the risk profile of the entities concerned by resolution, it may request to the Single Resolution Board to consider additionally the criteria laid down under Article 98(3b) of Directive (xx BRRD).
During the first year of the transitional period, recourse shall be had to the financial means available within the compartments corresponding to the Contracting Parties referred to in the previous subparagraph up to the cost that each national compartment is due to contribute according to the criteria for distribution of costs laid down in the previous subparagraph. During each subsequent year of the transitional period, the availability of the financial means in the compartments corresponding to these relevant Contracting Parties shall decrease by [10] percentage points. The referred decrease per year of the availability of funds in the compartments corresponding to the relevant Contracting Parties shall be spread evenly in a [2,5] percentage points each quarter.
In the second place, if financial means available in the compartments of the Contracting Parties concerned referred to in point a) are not sufficient to comply with the mission of the Fund as referred to in Article 71 of Regulation (xx SRM), recourse shall be had to the available financial means in the compartments of the Fund corresponding to all the Contracting Parties.
In case of a group resolution, the allocation of financial means so made available between the compartments of the Contracting Parties concerned shall follow the same key for the distribution of costs among them, as laid down under point a). If any of the Contracting Parties subject to group resolution does not need the totality of the financial means available under this point b), the available financial means non needed under this point b) shall be distributed to the compartments corresponding to the other Contracting Parties concerned by group resolution.
The financial means available in the compartments of all the Contracting Parties shall be supplemented, to the same degree specified in the following subparagraph, by the remaining financial means in the national compartments corresponding to the Contracting Parties concerned by resolution referred to in letter a).
During the first year of the transitional period, the use of all the national compartments of the Contracting Parties shall be limited to DM of the total financial means available in each of them. During each subsequent year of the transitional period, the availability of the total financial means existing in all the national compartments of the Contracting Parties shall be increased by [10] percentage points. The referred increase per year of the availability of funds in all the national compartments of the Contracting Parties shall be spread evenly in a [2,5]% each quarter.
In the third place, if the financial means used in accordance with point b) are not sufficient to comply with the mission of the Fund as referred to in Article 71 of Regulation (xx SRM), recourse shall be had to any further financial means in the compartments corresponding to the Contracting Parties concerned referred to in point a).
In case of group resolution, recourse shall be had to the compartments of the Contracting Parties concerned that have not provided enough financial means under points a) to b) of this paragraph in relation to the resolution of entities authorised in their territories. Contributions by each compartment shall be determined according to the criteria for distribution of costs laid down in point a)
In the fourth place, and without prejudice to the powers of the Single Resolution Board mentioned under point e), if financial means referred to in point c) are not sufficient to cover the costs of a particular resolution action, the Contracting Parties referred to in letter a) shall transfer to the Fund the extraordinary ex post contributions from the institutions authorized in their respective territories, raised in accordance with the criteria laid down in Article 67 of Regulation (xx SRM).
In the case of group resolution, ex post contributions shall be transferred by the Contracting Parties concerned that have not provided enough financial means under points a) to c) of this paragraph in relation to the resolution of entities authorised in their territories.
If the financial means referred to in point 0 are not sufficient to cover the costs of a particular resolution action, and as long as extraordinary ex post contributions referred to in point d) are not immediately accessible, the Single Resolution Board may exercise its power to contract for the Fund borrowings or other forms of support in accordance with Article 69 of Regulation (xx SRM), or its power to make temporary transfers between compartments in accordance with Article 5a of this Agreement.
In case the Board decides to exercise the powers mentioned in the previous subparagraph, the Contracting Parties referred to in point d) shall transfer to the Fund the extraordinary ex post contributions in order to reimburse the borrowings or other form of support or the temporary transfer between compartments.
Returns of investments of the amounts transferred to the Fund, in accordance with Article 70 of Regulation (xx SRM) shall be allocated to each of the compartments pro rata on the basis of their respective available financial means, excluding any claims or irrevocable payment commitments for the purposes of Article 71 of Regulation (xx SRM) attributable to each compartment. Returns of investments of the resolution operations that the Fund may undertake, in accordance with Article 71 of Regulation (xx SRM), shall be allocated to each of the compartments pro rata on the basis of their respective contribution to a particular resolution action.
All the compartments shall be merged and shall cease to exist after the elapsing of the transitional period.
ARTICLE 5-a
Transfer of additional ex ante contributions and target funding level
The Contracting Parties shall ensure that, where appropriate, they replenish the Fund through ex ante contributions, to be paid within the periods laid down in Article 65(2), (3) and 5(a) of Regulation (XX SRM) in an amount equivalent to that required to achieve the target funding level specified in Article 65(1) of Regulation (xx SRM).
During the transitional period, the transfer of contributions related to replenishment shall be distributed between the compartments in the following manner:
The Contracting Parties concerned by resolution shall transfer contributions to the part of their compartment that has not yet been subject to mutualisation in accordance with Article 5(1)(a) and (b).
All the Contracting Parties shall transfer contributions to the part of their respective compartments subject to mutualisation in accordance with Article 5(1)(a) and (b).
ARTICLE 5a
Temporary transfer between compartments
Without prejudice to the obligations laid down under Article 5(1), points a) to d), the Contracting Parties concerned by resolution may, during the transitional period, request to the Single Resolution Board to temporarily make use of the part of the financial means available in the compartments of the Fund not yet mutualised corresponding to the other Contracting Parties. In such a case, the Contracting Parties concerned shall subsequently transfer to the Fund, before the transitional period has elapsed, extraordinary ex post contributions in an amount equivalent to the one received by their compartments, plus the interest accrued, so that the other compartments are refunded.
The amount temporarily transferred from each of the compartments to the recipient ones shall be pro rata to their size, as determined under Article 4(2) and shall not exceed 50% of the available financial means under each compartment not yet subject to mutualisation. In case of group resolution, the allocation of financial means so made available between the compartments of the Contracting Parties concerned shall follow the same key for the distribution of costs among them, as laid down under Article 5(1)(a).
Decisions of the Single Resolution Board on the request for the temporary transfer of financial means between compartments referred to in paragraph 1 shall be taken by simple majority of the members of its plenary session, as specified in Article 48(1) of Regulation (xx SRM). In its decision on temporary transfer, the Single Resolution Board shall specify the rate of interest, the period for refunding and other terms and conditions concerning the transfer of financial means between compartments.
The decision of the Single Resolution Board agreeing on a temporary transfer of financial means referred to in paragraph 3 may only enter into force if no objection has been expressed by any of the Contracting Parties from which compartments the transfer has been made within a period of 4 calendar days since the date of adoption of the decision. During the first [5] years of the transitional period, the right of objection of a Contracting Party may only be exercised if:
it may require the financial means from the national compartment that corresponds to it to finance a resolution operation in the near term or that the temporary transfer would jeopardise the conduct of a resolution action within its territory,
or that,
the temporary transfer would take more than the comp or that the [10%] of its part of the national compartment not yet subject to mutualisation in accordance with Article 5(1)(a) and (b),
or that,
it considers that the Contracting Party whose compartment benefits from the temporary transfer is not able to provide adequate and sufficient guarantees of refunding,
The Contracting Party intending to object shall duly substantiate the occurrence of any of the above circumstances.
In case objections are raised in accordance with the above subparagraphs, the decision on temporary transfer of the Board shall be adopted excluding the financial means of the compartments of the objecting Contracting Parties.
If a credit institution of a Contracting Party from which compartment financial means have been transferred by virtue of this Article is subject to resolution, that Contracting Party may request the Board to transfer from the Fund to its compartment an amount equivalent to that initially transferred from that compartment. The Board shall, upon such a request, agree immediately on the transfer.
In such a case, the Contracting Parties that initially benefited from the temporary use of financial means shall be held liable to transfer to the Fund the amounts allocated to the Contracting Party concerned pursuant to the above subparagraph, in accordance with the terms and conditions to be specified by the Board.
The Single Resolution Board shall specify general criteria determining the conditions upon which the temporary transfer of financial means among compartments envisaged in this article shall take place,
ARTICLE 5b
Contracting Parties whose currency is not the euro
In case that at a date subsequent to the one of application of this Agreement under Article 9(2) a decision is adopted by the Council of the European Union abrogating the derogation of a Contracting Party whose currency is not the euro, as defined in Article 139(1) TFEU or their exemption, as referred to in Protocol (No 16) on certain provisions related to Denmark annexed to the European Union Treaties or if, in the absence of any such decision, a Contracting Party whose currency is not the euro becomes part of the Single Supervisory Mechanism and of the Single Resolution Mechanism, it shall transfer towards the Fund an amount of contributions raised in its territory equivalent to the part of the total target funding level for its national compartment calculated in accordance with Article 4(2), thus equal to that which would have been transferred by the Contracting Party concerned if it had participated in the Single Supervisory Mechanism and the Single Resolution Mechanism since the date of application of this Agreement referred to in Article 9(2).
Any amount disbursed by the resolution financial arrangement of the Contracting Parties referred to in paragraph 1 in respect of resolution actions within its territory shall be deducted from those to be transferred by that Contracting Party towards the Fund by virtue of paragraph 1. In such a case, the Contracting Party in question shall remain bound to transfer towards the Fund an amount equivalent to that which would have been necessary to achieve the target funding level of its resolution financing arrangement, in accordance with Article 93 of Directive (xx/BRRD) and within the deadlines therein provided.
The Single Resolution Board shall determine, in agreement with the Contracting Party concerned, the exact amount of contributions to be transferred by it, pursuant to the criteria laid down in paragraphs 1 and 2.
The costs of any resolution action initiated in the territory of the Contracting Parties whose currency is not the euro before the date on which they become part of the euro or before the date of entry into force of the decision of the European Central Bank on close cooperation referred to in Article 7(2) of Regulation 1024/2013 shall not be borne by the Single Resolution Fund.
If the European Central Bank, in its comprehensive assessment of the credit institutions referred to in Article 7(2)(b) of Regulation 1024/2013, considers that any of the credit institutions of the Contracting Parties concerned is failing or likely to fail, resolution costs of resolution actions of those credit institutions shall not be borne by the Single Resolution Fund.
In case the close cooperation of a Contracting Party whose currency is not the euro with the European Central Bank is terminated in accordance with Article 7 of Regulation 1024/2013, the Board shall decide within a deadline of [3] months since the adoption of decision on termination on close cooperation, in agreement with that Contracting Party, on the conditions for the recoupment of contributions that the Contracting Party concerned has transferred to the Fund and any conditions thereto associated.
Recoupments shall include the part of the compartment corresponding to the Contracting Party concerned not subject to mutualisation. If during the transitional period recoupments of the non mutualised part are not adequate to permit the funding of the establishment by the Contracting Party concerned of its national financial arrangement in accordance with Directive (xx BRRD), recoupments shall also include the totality or a fraction part of the part of the compartment corresponding to that Contracting Party subject to mutualisation or otherwise, after the transitional period, the totality or a fraction of the contributions transferred by the Contracting Party concerned during the close cooperation in an amount commensurate to permit the funding of the said national financial arrangement.
When assessing the amount of financial means to be recouped from the mutualised part or otherwise, after the transitional period, from the Fund, the following additional criteria shall be taken into account:
i) The manner in which termination of close cooperation with the European Central Bank has taken place, whether voluntarily in accordance with Article 7(6) of Regulation 1024/2013, or not.
ii) The existence of resolution actions on-going by the date of termination.
iii) The economic cycle.
Recoupments shall be distributed during a limited period of time commensurate to the duration of the close cooperation. The contributions made from the Fund to resolution actions during the period of close cooperation shall be deducted from recoupments.
Termination of close cooperation with the European Central Bank shall not affect the rights and obligations of the Contracting Parties stemming from resolution actions that have taken place during the period in which those Contracting Parties are subject to this Agreement and that are related to:
- the transfer of ex post contributions, under Article 5(1)(d).
- the replenishment of the Fund, under Article 5-a.
- the temporary transfer between compartments, under Article 5a.
ARTICLE 6
Respect of the general principles and objectives of resolution
The use of the Fund on a mutual basis and the transfer of contributions to the Fund shall be contingent upon the permanence of a legal framework on resolution whose principles are equivalent to those Regulation (xx/SRM) as laid down in the following rules, and without changing them:
The procedural rules on the adoption of the resolution scheme as laid down under Article 16 of Regulation (xxx SRM);
The Single Resolution Board's decision-making rules as laid down in Articles 48 and 51 of Regulation (xx SRM);
General principles concerning resolution as laid down in Article 13 of Regulation (xx SRM), notably the principles that the shareholders of the institution under resolution bear first losses and that the creditors of the institution under resolution bear losses after the shareholders in accordance with the order of priority of their claims, enshrined in letters a) and b) of paragraph (1) thereof;
The rules on the resolution tools referred to under Article 19(2) of Regulation (xx SRM), notably those concerning the application of the bail-in tool laid down under Article 24 thereof and in Articles 37 and 38 of Directive (xx BRRD) and the specific thresholds that they establish related to the imposition of losses on shareholders and on creditors and the contribution of the Fund to a particular resolution action.
In case the rules concerning the resolution instruments provided in Regulation (xx SRM) as adopted on xx/yy, referred to in paragraph 1, are repealed, or otherwise amended in way that alters the principles referred to in paragraph 1, any Contracting Party may, on the basis of Article 11, request to the Court of Justice of the European Union to rule on whether their rights and obligations under the Agreement have been materially affected and the consequences ensuing from it, in accordance with the general principles of international public law.
The procedure referred to in paragraph 2 shall not prejudge or affect recourse to legal remedies provided for under Articles 258, 259, 260, 263, 265 and 266 TFEU.
ARTICLE 7
Compliance
Contracting Parties shall take the necessary measures in their national legal orders to ensure compliance with their obligation to jointly transfer the contributions in accordance with this Agreement.
Without prejudice to the power of the Court of Justice of the European Union under Article 11 of this Agreement, the Single Resolution Board established by Regulation (xx SRM), acting on its own initiative or at the request of any Contracting Party, may consider whether a Contracting Party has failed to comply with its obligation to transfer the contributions to the Fund, as established in this Agreement.
In case the Single Resolution Board finds that a Contracting Party has failed to comply with its obligation to transfer the contributions, it shall set a deadline for that the Contracting Party concerned takes the necessary measures to put an end to the breach. In case the Contracting Party concerned does not take the necessary measures to put an end to the breach within the deadline fixed by the Single Resolution Board, the use of compartments of all the Contracting Parties as laid down in Article 5(1)b) shall be excluded in relation to the resolution of institutions authorised in the Contracting Party concerned. This exclusion shall cease to apply as from the moment when the Single Resolution Board determines that the Contracting Party concerned has taken the necessary measures to put an end to the breach.
Decisions of the Single Resolution Board under this Article shall be taken by simple majority of the Executive Director and the members referred to in Article 39(1)(b) of Regulation (xx/SRM).
TITLE IV - GENERAL AND FINAL PROVISIONS
ARTICLE 8
Ratification, approval or acceptance and entry into force
This Agreement shall be subject to ratification, approval or acceptance by its signatories in accordance with their respective constitutional requirements. The instruments of ratification, approval or acceptance shall be deposited with the General Secretariat of the Council of the European Union (the Depositary). The Depositary shall notify the other signatories of each deposit and the date thereof.
This Agreement shall enter into force on the first day of the second month following the date when instruments of ratification, approval or acceptance have been deposited by signatories participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism that represent no less than 90% of the aggregate of the weighted votes of all Member States participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism, as determined by Protocol (No 36) on transitional provisions annexed to the EU Treaties.
ARTICLE 9
Application
This Agreement shall apply amongst the Contracting Parties that have ratified it provided that Regulation (xx SRM) has previously entered into force.
Subject to the above paragraph, and provided that this Agreement has entered into force in accordance with Article 8(2), it shall apply as from 1 January 2016 amongst the signatories participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism that have ratified it by that date. If the Agreement has not entered into force by 1 January 2016 it shall apply as from its date of entry into force, amongst the signatories participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism that have ratified, approved or accepted it by that date.
It shall apply to the signatories participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism that have not ratified, approved or accepted it by the date of application referred to in paragraph 2, as from the first day of the month following the deposit of their respective instrument of ratification, approval or acceptance.
This Agreement shall not apply to the signatories that have ratified it but that do not participate in the Single Supervisory Mechanism and in the Single Resolution Mechanism by the date of application of the Agreement referred to in paragraph 2. These signatories shall however be part of the special agreement referred to in Article 11(2) as from the date of application of this Agreement referred to in paragraph 2 for the purposes of submitting to the Court of Justice of the European Union any dispute concerning the interpretation and enforcement of Article 12.
It shall apply to these Contracting Parties as from the date when the decision abrogating their derogation, as defined in Article 139(1) of the Treaty on the Functioning of the European Union or their exemption, as referred to in Protocol (No 16) on certain provisions related to Denmark annexed to the European Union Treaties, takes effect or, in the absence thereof, as from the date of entry into force of the European Central Bank decision on close cooperation referred to in Article 7(2) of Regulation 1024/2013.
Subject to Article 5b, this Agreement shall cease to apply to the Contracting Parties that have established the closed cooperation with the European Central Bank referred to in Article 7(2) of Regulation 1024/2013 as from the date of termination of that close cooperation in accordance to Article 7(8) of Regulation 1024/2013.
ARTICLE 10
Accession
This Agreement shall be open to accession by Member States of the European Union other than the Contracting Parties. Subject to Article 5b, paragraphs 1 to 3, accession shall be effective upon depositing the instrument of accession, approval or acceptance with the Depositary, which shall notify to the other Contracting Parties thereof. Following authentication by the Contracting Parties, the text of this Agreement in the official language of the acceding Member State that is also an official language and a working language of the institutions of the Union, shall be deposited in the archives of the Depositary as an authentic text of this Agreement.
ARTICLE 11
Dispute settlement
Where a Contracting Party disagrees with another Contracting Party on the interpretation of any of the provisions of this Agreement or when it considers that another Contracting Party has failed to comply with its obligations under this Agreement, it may bring the matter before the Court of Justice of the European Union. The judgment of the Court of Justice of the European Union shall be binding on the parties to the proceedings.
If the Court of Justice of the European Union finds that a Contracting Party has failed to comply with its obligations under this Agreement, the Contracting Party concerned shall take the necessary measures to comply with the judgment within a period to be decided by the Court of Justice of the European Union. In case the Contracting Party concerned does not take the necessary measures to put an end to the breach within the deadline fixed by the Court of Justice of the European Union, the use of compartments of all the Contracting Parties as laid down in Article 5(1)0 shall be excluded in relation to institutions authorised in the Contracting Party concerned.
This Article constitutes a special agreement between the Contracting Parties within the meaning of Article 273 of the TFEU.
Member States of the European Union whose currency is not the euro that have not ratified this Agreement may notify to the Depositary their intention to be part to the special agreement referred to in paragraph 2 for the purposes of submitting to the Court of Justice of the European Union any dispute concerning the interpretation and enforcement of Article 12. The Depositary shall communicate the notification by the Member State concerned to the Contracting Parties, upon which communication the Member State concerned shall become party to the special agreement referred to in paragraph 2 for the purposes described in this paragraph.
ARTICLE 12
Compensation
The Contracting Parties commit to reimburse jointly, promptly and with interest to each Member State of the European Union that is not participating in the Single Supervisory Mechanism and in the Single Resolution Mechanism ("non-participating Member State") for the amount that non-participating Member State has paid in own resources corresponding to the use of the general budget of the Union in cases of non-contractual liability and costs related thereto, in respect of the exercise of powers by the institutions of the Union under Regulation (xx SRM).
The amount that each of the non-participating Member States is deemed to have contributed to the non contractual liability and costs related thereto shall be determined pro rata on the basis of their respective gross national income determined in accordance with Article 2(7) of Council Decision 2007/436 of 7 June 2007 on the system of the European Communities' own resources or with any ensuing Union act amending or repealing it.
Compensation costs shall be distributed among the Contracting Parties pro rata on the basis of the weight of their respective gross national income, as determined in accordance with Article 2(7) of Council Decision 2007/436 of 7 June 2007 on the system of the European Communities' own resources or with any ensuing Union act amending or repealing it.
The non-participating Member States shall be reimbursed on the first working day of December of the year that follows the payments from the Union budget to settle the non-contractual liability and costs related thereto.
Any interest shall be calculated in accordance with [the provisions on interest for amounts made available belatedly applicable to the Union's own resources]. Amounts shall be converted between national currencies and the euro at an exchange rate determined in accordance with Article 10(3), first subparagraph, of Council Regulation 1150/2000 of 22 May 2000 implementing Decision 2007/436/EC, Euratom on the system of the European Communities own resources.
The Commission shall coordinate any reimbursement action by the Contracting Parties, in accordance with the criteria laid down under paragraphs 1 to 3. The Commission's coordination role shall include calculating the basis on which payments are to be made, issuing notices to the Contracting Parties requiring payments to be made and calculating interest.
ARTICLE 13
Review
Within two years, at the most, of the date of entry into force of this Agreement, and every 18 months thereafter, the Single Resolution Board shall assess and present to the European Parliament and the Council a report on the implementation of this Agreement and in particular on the proper functioning of the mutual use of the Fund and its impact on financial stability and the internal market.
Within ten years, at most, of the date of entry into force of this Agreement, on the basis of an assessment of the experience with its implementation contained in the reports drawn by the Single Resolution Board in accordance with the previous paragraph, the necessary steps shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, with the aim of incorporating the substance of this Agreement into the legal framework of the European Union.
Done at Brussels on mdyy/2014, in a single original, whose Dutch, English, Estonian, Finnish, French, German, Greek, Irish, Italian, Latvian, Maltese, Portuguese, Slovak, Slovenian, Spanish and Swedish texts [plus the official languages of the non euro area Member States wishing to be contracting parties, to be further determined] are equally authentic, which shall be deposited in the archives of the Depositary which shall transmit a duly certified copy to each of the Contracting Parties.