S.L. 330.9 Art. 18Powers to address or remove impediments to resolvability: group treatment.

(1)The Resolution Committee shall:–

(a) where it is the group-level resolution authority, together with the European resolution authorities of subsidiaries; or

(b) where it is responsible for a subsidiary, together with the European resolution authority acting as the group-level resolution authority and the European resolution authorities of other subsidiaries, if any, after consulting the supervisory college and the European resolution authorities of the jurisdictions in which significant branches are located insofar as is relevant to the significant branch, consider the assessment required by regulation 16 within the resolution college and shall take all reasonable steps to reach a joint decision on the application of measures identified in accordance with regulation 17(4) in relation to all resolution entities and their subsidiaries that are entities as referred to in the definition of "entity" under regulation 2(1) and are part of the group.

(2) The Resolution Committee shall, in its capacity as the group-level resolution authority, in cooperation with the consolidating supervisor and the EBA in accordance with Article 25(1) of Regulation (EU) No 1093/2010, prepare and submit a report to the Union parent undertaking, to the European resolution authorities of subsidiaries, which will provide it to the subsidiaries within their remit, and to the European resolution authorities of jurisdictions in which significant branches are located. The report shall be prepared after consulting the Authority and the relevant European regulatory authorities, and shall analyse the substantive impediments to the effective application of the resolution tools and the exercising of the resolution powers in relation to the group and in relation to resolution groups where a group is composed of more than one resolution group. The report shall consider the impact on the group’s business model and recommend any proportionate and targeted measures that, in the Resolution Committee’s view, in its capacity as the group-level resolution authority, are necessary or appropriate to remove those impediments: Provided that, where an impediment to the resolvability of the group is due to a situation of a group entity referred to in the proviso of regulation 17(3), the Resolution Committee shall, in its capacity as the group-level resolution authority, notify its assessment of the said impediment to the Union parent undertaking, after consulting the European resolution authorities of the resolution entity and of its subsidiary institutions.

(3) Where the Resolution Committee is responsible for a subsidiary, it shall, after receiving a report from the European resolution authority acting as the group-level resolution authority in accordance with Article 18(2) of the BRRD, provide such a report to the subsidiary under its supervision.

(4) Within four months of the date of receipt of the report referred to in sub-regulation (2), the Union parent undertaking may submit observations and propose to the Resolution Committee in its capacity as the group-level resolution authority alternative measures to remedy the impediments identified in the report: Provided that, where the impediments identified in the report are due to a situation of a group entity referred to in the first proviso of regulation 17(3), the Union parent undertaking shall, within two weeks of the date of receipt of a notification made in accordance with the proviso of sub-regulation (2), propose to the Resolution Committee, in its capacity as the group-level resolution authority possible measures and the timeline for their implementation to ensure that the group entity complies with the requirements referred to in regulations 45E or 45F expressed as a percentage of the total risk exposure amount calculated in accordance with Article 92(3) of the CRR and, where applicable, with the combined buffer requirement, and with the requirements referred to in the said regulations 45E and 45F expressed as a percentage of the total exposure measure referred to in Articles 429 and 429a of the CRR: Provided further that, the timeline for the implementation of the measures proposed the first proviso shall take into account the reasons for the substantive impediment. The Resolution Committee shall, after consulting the Authority, assess whether those measures effectively address or remove the substantive impediment.

Provided further that, the Resolution Committee shall, in its capacity as the group-level resolution authority, communicate any measure proposed by the Union parent undertaking to the consolidating supervisor, the EBA, the European resolution authorities of the subsidiaries and the European resolution authorities of the jurisdictions in which significant branches are located insofar as is relevant to the significant branch.

(5) The Resolution Committee shall:–

(a) where it is the group-level resolution authority, together with the European resolution authorities of the subsidiaries; or

(b) where it is responsible for a subsidiary, together with the European resolution authority acting as the group-level resolution authority and the European resolution authorities responsible for the other subsidiaries, if any, after consulting the Authority and the European regulatory and resolution authorities of jurisdictions in which significant branches are located, do everything within their power to reach a joint decision within the resolution college regarding the identification of the substantive impediments, and if necessary, the assessment of the measures proposed by the Union parent undertaking and the measures required by the authorities in order to address or remove the impediments, which shall take into account the potential impact of the measures in Malta and in all the Member States where the group operates: Provided that, the joint decision shall be reached within four months of submission of any observations by the Union parent undertaking. Where the Union parent undertaking has not submitted any observations, the joint decision shall be reached within one month from the expiry of the four-month period referred to in sub-regulation (4):

Provided further that, the joint decision concerning the impediment to resolvability due to a situation referred to in the first proviso of sub-regulation 17(3), shall be reached within two weeks of the submission of any observations by the Union parent undertaking in accordance with sub-regulation (3):

Provided further that, the joint decision shall be reasoned and set out in a document which, where the Resolution Committee is the group-level resolution authority, shall be provided by the Resolution Committee to the Union parent undertaking: Provided further that, the Resolution Committee may request the EBA to assist the authorities referred to in this sub-regulation in reaching a joint decision in accordance with point (c) of the second paragraph of Article 31 of Regulation (EU) No 1093/2010.

(6) Where the Resolution Committee is the group-level resolution authority, in the absence of a joint decision within the period referred to in the first proviso to sub-regulation (5), the Resolution Committee shall make its own decision on the appropriate measures to be taken in accordance with regulation 17(4) at the group level. The decision shall be fully reasoned, shall take into account the views and reservations of European resolution authorities and shall be provided to the Union parent undertaking by the Resolution Committee in its capacity as the group-level resolution authority:

Provided that, if at the end of the relevant period referred to in sub-regulation (5), any of the resolution authorities mentioned in the said sub-regulation (5) have referred a matter mentioned in sub-regulation (9) to the EBA in accordance with Article 19 of Regulation

(EU) No 1093/2010, the Resolution Committee shall, in its capacity as the group-level resolution authority, defer its decision and await any decision that the EBA may take in accordance with Article 19(3) of the said Regulation, and shall take its decision in accordance with the decision of the EBA. The relevant period referred to in sub-regulation

(5) shall be deemed to be the conciliation period within the meaning of the said Regulation. The matter shall not be referred to the EBA after the end of the relevant period referred to in sub-regulation (5) or after a joint decision has been reached. In the absence of an EBA decision, the decision of the Resolution Committee in its capacity as the group-level resolution authority shall apply.

(6A) In the absence of a joint decision within the relevant period referred to in sub-regulation (5), the Resolution Committee, where it is the relevant resolution authority, shall make its own decision on the appropriate measures to be taken in accordance with sub-regulation 17(4) at the resolution group-level: Provided that, the decision referred to in this sub-regulation shall be fully reasoned and shall take into account the views and reservations of the European resolution authorities of other entities of the same resolution group and of the Resolution Committee in its capacity as the group-level resolution authority. The decision shall be provided to the resolution entity by the Resolution Committee: Provided further that, if, at the end of the relevant period referred to in sub-regulation (5), any of the resolution authorities mentioned in the said sub-regulation (5) have referred a matter mentioned in sub-regulation (9) to EBA in accordance with Article 19 of Regulation (EU) No 1093/2010, the Resolution Committee responsible for the resolution entity shall defer its decision and await any decision that EBA may take in accordance with Article 19(3) of the said Regulation, and shall take its decision in accordance with the decision of EBA. The relevant period referred to in sub-regulation (5) shall be deemed to be the conciliation period within the meaning of the said Regulation. EBA shall take its decision within one month. The matter shall not be referred to EBA after the end of the relevant period referred to in sub-regulation (5) or after a joint decision has been reached. In the absence of an EBA decision, the decision of the Resolution Committee shall apply.

(7) Where the Resolution Committee is responsible for a subsidiary that is not a resolution entity, in the absence of a joint decision, the Resolution Committee shall take a decision on the appropriate measures to be taken by subsidiaries at individual level in accordance with regulation 17(4). The decision shall be fully reasoned and shall take into account the views and reservations of the other European resolution authorities. The decision shall be provided to the subsidiary concerned and to the resolution entity of the same resolution group, to the European resolution authority of the said resolution entity and where different, to the European resolution authority acting as the group-level resolution authority:

Provided that, if at the end of the relevant period referred to in sub-regulation (5), any of the resolution authorities mentioned in the said sub-regulation (5) have referred a matter mentioned in sub-regulation (9) to the EBA in accordance with Article 19 of Regulation

(EU) No 1093/2010, the Resolution Committee responsible for the subsidiary shall defer its decision and await any decision that the EBA may take in accordance with Article 19(3) of the said Regulation, and shall take its decision in accordance with the decision of the EBA. The relevant period referred to in sub-regulation (5) shall be deemed to be the conciliation period within the meaning of the said Regulation. EBA shall take its decision within one month. The matter shall not be referred to the EBA after the end of the relevant period referred to in sub-regulation (5) or after a joint decision has been reached. In the absence of an EBA decision, the decision of the Resolution Committee shall apply.

(8) The joint decision referred to in the first proviso of sub-regulation (5) and any decision taken by European resolution authorities in the absence of a joint decision referred to in sub-regulation (6) and (7) shall be recognised as conclusive and applied by the Resolution Committee.

(9) In the absence of a joint decision on the taking of any measures referred to in paragraphs (g), (h) or (k) of regulation 17(5), the Resolution Committee may, within four months of the date of submission of any observations made by the Union parent undertaking in accordance with sub-regulation (4), and in accordance with Article 18(6) or (7) of the BRRD, request the EBA to assist the authorities mentioned in sub-regulation (5) in reaching an agreement in accordance with Article 19(3) of Regulation (EU) No 1093/2010. The four-month period shall be deemed to be the conciliation period within the meaning of Regulation (EU) No 1093/2010. The matter shall not be referred to the EBA after the end of the four-month period or after a joint decision has been reached. In the absence of an EBA decision within one month, the decisions of the European resolution authority acting as the group-level resolution authority taken in accordance with Article 18(6) of the BRRD and, or, of the European resolution authorities responsible for subsidiaries taken in accordance with Article 18(7) of the BRRD shall apply.