S.L. 330.9 Art. 45HProcedure for determining the minimum requirement for own funds and eligible liabilities.

(1)The Resolution Committee where it is the resolution authority of the resolution entity together with the group-level resolution authority, where different from the former, and the

European resolution authorities responsible for the subsidiaries of a resolution group that are subject to the requirement referred to in regulation 45F on an individual basis, shall do everything within their power to reach a joint decision on:

(a) the amount of the requirement applied at the consolidated resolution group level for each resolution entity; and

(b) the amount of the requirement applied on an individual basis to each entity of a resolution group which is not a resolution entity.

Provided that, the joint decision shall ensure compliance with regulations 45E and 45F and it shall be fully reasoned and provided to:

(a) the resolution entity by the Resolution Committee or its European resolution authority;

(b) the entities of a resolution group which are not a resolution entity by the Resolution Committee or the relevant European resolution authorities of those entities;

(c) the Union parent undertaking of the group by the Resolution Committee or the European resolution authority of the resolution entity, when that Union parent undertaking is not itself a resolution entity from the same resolution group:

Provided further that, the joint decision taken in accordance with this regulation may provide that, where consistent with the resolution strategy and sufficient instruments complying with regulation 45F(2) have not been bought directly or indirectly by the resolution entity, the requirements referred to in regulation 45C(7) are partially met by the subsidiary in compliance with regulation 45F(2) with instruments issued to and bought by entities not belonging to the resolution group.

(2) The Resolution Committee and the European resolution authorities referred to in sub-regulation (1) shall, where more than one G-SII entity, that are part of the same G-SII, are resolution entities or third-country entities that would be resolution entities if they were established in the Union, discuss and, where appropriate and consistent with the G-SII’s resolution strategy, agree on:

(a) the application of Article 72e of the CRR; and

(b) any adjustment to minimise or eliminate the difference between the sum of the amounts referred to in paragraph (a) of regulation 45D(4) and point (a) of Article 12a of the said CRR for individual resolution entities or third-country entities, and the sum of the amounts referred to in paragraph (b) of regulation 45D(4) and point (b) of Article 12a of the said CRR:

Provided that, the adjustment mentioned above may be applied on condition that:

(a) the adjustment may be applied in respect of differences in the calculation of the total risk exposure amounts between the relevant Member States or third-countries by adjusting the level of the requirement; and

(b) the adjustment shall not be applied to eliminate differences resulting from exposures between resolution groups:

Provided further that, the sum of the amounts referred to in paragraph (a) of regulation 45D(4) and point (a) of Article 12a of the said CRR for individual resolution entities or third-country entities that would be resolution entities if they were established in the Union shall not be lower than the sum of the amounts referred to in paragraph (b) of regulation 45D(4) and point (b) of Article 12a of the said CRR.

(3) In the absence of such a joint decision within four months, a decision shall be taken in accordance with sub-regulations (4) to (6).

(4) (a) Where a joint decision is not taken within four months because of a disagreement concerning a consolidated resolution group requirement referred to in regulation 45E, a decision shall be taken on that requirement by the Resolution Committee or the European resolution authority responsible for the resolution entity after having duly taken into account:

(i) the assessment of entities of the resolution group that are not a resolution entity, performed by the relevant European resolution authorities;

(ii) the opinion of the group-level resolution authority, where different from the resolution authority of the resolution entity.

(b) The Resolution Committee or the European resolution authority of the resolution entity shall where, at the end of the four-month period, any of the European resolution authorities concerned has referred the matter to the EBA in accordance with Article 19 of Regulation (EU) No 1093/2010, 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:

Provided that, the decision of the EBA shall take into account paragraphs (a) and (b) of this sub-regulation. The four-month period shall be deemed to be the conciliation period within the meaning of Regulation (EU) No 1093/2010:

Provided further that, 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, and that in the absence of an EBA decision within one month of the referral of the matter, the decision of the Resolution Committee or of the relevant European resolution authority of the resolution entity shall apply.

(5) (a) Where a joint decision is not taken within four months because of a disagreement concerning the level of the requirement referred to in regulation 45F to be applied to any entity of a resolution group on an individual basis, the decision shall be taken by the Resolution Committee or the relevant European resolution authority of the said entity, where all of the following conditions are fulfilled:

(i) the views and reservations expressed in writing by the European resolution authority of the resolution entity have been duly taken into account; and

(ii) where the group-level resolution authority is different from the resolution authority of the resolution entity, the views and reservations expressed in writing by the group-level resolution authority have been duly taken into account.

(b) Where, at the end of the four-month period, the resolution authority of the resolution entity or the group-level resolution authority has referred the matter to EBA in accordance with Article 19 of Regulation

(EU) No 1093/2010, the resolution authorities responsible for the subsidiaries on an individual basis shall defer their decisions and await any decision that EBA may take in accordance with Article 19(3) of the said Regulation, and shall take their decisions in accordance with the decision of EBA:

Provided that, the four-month period shall be deemed to be the conciliation period within the meaning of Regulation (EU) No 1093/2010:

Provided further that, 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:

(c) The relevant European resolution authority of the resolution entity or the group-level resolution authority shall not refer the matter to the EBA for binding mediation where the level set by the resolution authority of the subsidiary:

(a) is within 2 per cent of the total risk exposure amount calculated in accordance with Article 92(3) of the CRR of the requirement referred to in regulation 45E; and

(b) complies with regulation 45C(7): Provided that, in the absence of an EBA decision within one month, the decisions of the resolution authorities of the subsidiaries shall apply:

Provided further that, the joint decision and any decisions taken in the absence of a joint decision shall be reviewed and where relevant, updated on a regular basis.

(6) Where a joint decision is not taken within four months because of a disagreement concerning the level of the consolidated resolution group requirement and the level of the requirement to be applied to the resolution group’s entities on an individual basis, the following shall apply:

(a) a decision shall be taken on the level of the requirement to be applied to the resolution group's subsidiaries on an individual basis in accordance with sub-regulation (5);

(b) a decision shall be taken on the level of the consolidate d resolution group requirement in accordance with sub-regulation (4).

(7) The joint decision referred to in sub-regulation (1) and any decisions taken by the resolution authorities referred to in sub-regulations (4), (5) and (6), in the absence of a joint decision shall be binding on the resolution authorities concerned: Provided that, the joint decision and any decisions taken in the absence of a joint decision shall be reviewed and where relevant, updated on a regular basis.

(8) The Resolution Committee, in coordination with the Authority shall require and verify that entities meet the requirement referred to in regulation 45(1), and shall take any decision pursuant to this regulation in parallel with the development and the maintenance of resolution plans.