S.L. 330.9 Art. 62Consolidated application: procedure for determination.

(1) Before making a determination referred to in paragraph (b), (c), (d) or (e) of regulation 59(3) in relation to a subsidiary that issues relevant capital instruments, or eligible liabilities as referred to in regulation 59(1a), for the purposes of meeting the requirement referred to in regulation 45F on an individual basis, or relevant capital instruments that are recognised for the purposes of meeting the own funds requirements on an individual or consolidated basis, an appropriate authority complies with the following requirements:

(a) when considering whether to make a determination referred to in paragraphs (b), (c), (d) or (e) of regulation 59(3) after consulting the Resolution Committee, or a European regulatory authority acting as the resolution authority of the relevant resolution entity, it notifies, within twenty-four hours of consulting that authority:

(i) where the Authority is the consolidating supervisor, the Authority; or, where the Authority is not the consolidating supervisor, the European regulatory authority acting as the consolidating supervisor and, if different, the appropriate authority in the Member State where the consolidating supervisor is located;

(ii) the Resolution Committee or European Resolution authorities of other entities within the same resolution group, whichever is the case, that directly or indirectly purchased liabilities referred to in regulation 45F(2) from the entity that is subject to regulation 45F(1); and

(b) when considering whether to make a determination referred to in paragraph (c) of regulation 59(3), it notifies, without delay:

(i) where the Authority responsible for an institution or entity referred to in paragraphs (b),

(c) or (d) of the definition "entity" in regulation 2(1), that has issued the relevant capital instruments in relation to which the write down or conversion powers are to be exercised if that determination were made, the Authority, the European regulatory authorities responsible for the other institutions or entities referred to in paragraphs (b), (c) or (d) of the definition "entity" in regulation 2(1) that has issued the relevant capital instruments in relation to which the write down or conversion powers are to be exercised if that determination were made, if any, and if different, the overseas appropriate authorities in the Member States where those European regulatory authorities and the consolidating supervisor are located; or

(ii) where the Authority is not responsible for such institutions or entities, the European regulatory authorities responsible for the institutions or entities referred to in paragraphs (b), (c), or (d) of the definition "entity" in regulation 2(1) that have issued the relevant capital instruments in relation to which the write down or conversion power is to be exercised if that determination were made; and if different, the overseas appropriate authorities in the Member States where those European regulatory authorities and the consolidating supervisor are located.

(2) When making a determination referred to in regulation 59(3)(c), (d) or (e) in the case of an institution or of a group with cross-border activity, the appropriate authority shall take into account the potential impact of the resolution in Malta and in all the Member States where the institution or the group operate.

(3) The appropriate authority shall accompany a notification made pursuant to sub-regulation (1) with an explanation of the reasons why it is considering making the determination in question.

(4) Where a notification has been made pursuant to sub-regulation (1), the appropriate authority, after consulting the authorities notified in accordance with paragraph (a)(i) or (b) of sub-regulation (1), shall assess the following matters::

(a) whether an alternative measure to the exercise of the write down or conversion power in accordance with regulation 59(3) is available;

(b) if such an alternative measure is available, whether it can feasibly be applied;

(c) if such an alternative measure could feasibly be applied, whether there is a realistic prospect that it would address, in an adequate time-frame, the circumstances that would otherwise require a determination referred to in regulation 59(3) to be made.

(5) For the purposes of sub-regulation (4), alternative measures shall mean early intervention measures referred to in regulation 27, measures referred to in regulation 9(1) of the Banking Act

(Supervisory Review) Regulations, measures referred to in Schedule III of the Investment Services Act (Supervisory Review) Regulations or a transfer of funds or capital from the parent undertaking.

(6) Where, pursuant to sub-regulation (4), the appropriate authority, after consulting the authorities notified in terms of sub-regulation (1), assesses that one or more alternative measures are available, can feasibly be applied and would deliver the outcome referred to in sub-regulation (4)(c), it shall ensure that those measures are applied.

(7) Where, in a case referred to in sub-regulation (1)(a), and pursuant to sub-regulation (4), the appropriate authority, after consulting the authorities notified in terms of sub-regulation (1), assesses that no alternative measures are available that would deliver the outcome referred to in sub-regulation (4)(c), the appropriate authority shall decide whether the determination referred to in regulation 59(3) under consideration is appropriate.

(8) Where the appropriate authority decides to make a determination under regulation 59(3)(c), it shall immediately notify the overseas appropriate authorities of the Member States in which the affected subsidiaries are located and the determination shall take the form of a joint decision as set out in regulation 92(4) and (5). In the absence of a joint decision, no determination under regulation 59(3)(c) shall be made.

(9) Where an affected subsidiary is located in Malta, the Resolution Committee shall promptly implement a decision to write down or convert capital instruments made in accordance with this regulation, having due regard to the urgency of the circumstances.