EBA欧洲银行-EBA-GL-2015-07_EN_GL-on-failing-or-likely-to-fail_14页_266kb

EBA Guidelines on the Interpretation of Failing or Likely to Fail Institutions (EBA/GL/2015/07)

Core Content

These guidelines, issued by the European Banking Authority (EBA), provide a framework for the interpretation of the circumstances under which an institution may be considered as failing or likely to fail, as defined in Article 32(6) of Directive 2014/59/EU. The purpose of the guidelines is to promote convergence in supervisory and resolution practices across the European Union.

Main Objectives

• To provide objective elements that support the determination of an institution’s failure or likelihood of failure.
• To ensure consistent and effective application of supervisory and resolution measures.
• To guide competent and resolution authorities in their assessments based on supervisory review and evaluation (SREP) processes.

Key Information

1. Status and Reporting Requirements

• These guidelines are issued under Article 16 of the EBA Regulation (EU) No 1093/2010.
• Competent authorities and resolution authorities are required to notify the EBA by 06.10.2015 whether they comply or intend to comply with the guidelines.
• Notifications must be submitted to compliance@eba.europa.eu with the reference 'EBA/GL/2015/07'.
• If no notification is received by the deadline, the EBA will assume non-compliance.

2. Scope and Addressees

• The guidelines are addressed to competent authorities (as defined in Article 4(2)(i) of the EBA Regulation) and resolution authorities (Article 4(2)(iv) of the EBA Regulation).
• They also apply to institutions that determine themselves to be failing or likely to fail under Article 81(1) of Directive 2014/59/EU.
• In some Member States, the resolution authority may not be empowered to determine failure or likelihood of failure, and the relevant provisions do not apply.

3. Objective Elements for Determination

The guidelines outline the following objective elements that should be considered when determining whether an institution is failing or likely to fail:

• Capital position
• Liquidity position
• Other requirements for continuing authorisation, including governance arrangements and operational capacity

3.1 Capital Position

• An institution is considered failing or likely to fail if it:
  • Infringes own funds requirements (e.g., Article 104(1)(a) of Directive 2013/36/EU) and is likely to deplete all or a significant amount of its own funds.
  • Has assets less than liabilities.
• The assessment should consider:
  • The level and composition of own funds.
  • Asset quality reviews and valuations.
  • Macroeconomic developments and market indicators.
  • Significant non-temporary deterioration in market indicators.

3.2 Liquidity Position

• An institution is considered failing or likely to fail if it:
  • Infringes regulatory liquidity requirements (e.g., Article 105 of Directive 2013/36/EU).
  • Is unable to pay debts and liabilities as they fall due.
• The assessment should consider:
  • Significant adverse developments in liquidity.
  • Liquidity buffer and counterbalancing capacity.
  • Funding costs and contractual obligations.
  • Market perception and reputation risks.

3.3 Other Requirements for Continuing Authorisation

• The competent and resolution authorities should consider governance arrangements and operational capacity.
• Serious weaknesses in governance may include:
  • Significant misstatements in regulatory reporting.
  • Prolonged management deadlocks.
  • Material deficiencies in key governance areas.
• Operational capacity issues may include:
  • Inability to fulfill obligations to creditors.
  • Inability to make or receive payments.
  • Loss of market and depositor confidence.

Process for Determination

1. Determination by Competent Authority

• Usually carried out during the SREP process.
• The competent authority should base its determination on:
  • An overall SREP score of 'F'.
  • An overall SREP score of '4' combined with failure to comply with supervisory measures.

2. Determination by Resolution Authority

• The resolution authority should consider the objective elements from Title II when assessing the institution.
• It should also review the SREP outcomes provided by the competent authority.
• If the competent authority assigns an overall SREP score of '4', the resolution authority should be informed and the circumstances explained.

3. Consultation and Information Exchange

• Competent and resolution authorities should exchange information to ensure timely and accurate assessments.
• Before making a determination, they should discuss the results of their assessments.
• The resolution authority should request clarification from the competent authority on how the objective elements have been reflected in the SREP assessment.

Summary

These guidelines provide a structured and comprehensive approach to determining whether an institution is failing or likely to fail, based on objective elements related to capital, liquidity, governance, and operational capacity. They emphasize that such determinations should not be made automatically but should be based on expert judgment and a comprehensive assessment. The process involves consultation and information exchange between competent and resolution authorities, and the guidelines are to be applied in conjunction with the conditions in Article 32(1)(b) and (c) of Directive 2014/59/EU, which include the absence of alternative remedies and the necessity of resolution in the public interest.