Suspension of the joint decision process on the resolution plan and the resolvability assessment
1. When the resolution authority of the CCP, in cooperation with the resolution college, identifies material impediments to resolvability, or assents to an opinion on identified material impediments expressed by any resolution college members or observers on the resolution plan and the resolvability assessment, it shall submit a report to the resolution college members and observers in accordance with Article 16(1) of Regulation (EU) 2021/23. The resolution authority of the CCP shall thereby indicate the suspension of the joint decision process in accordance with Article 16(2) of that Regulation.
2. The resolution authority of the CCP shall recommence the joint decision process on the resolution plan, including the performance of the resolvability assessment, upon completion of the joint decision processes referred to in Article 17(3) and (4) of Regulation (EU) 2021/23 on measures to address or remove material impediments to resolvability either proposed by the CCP in accordance with Article 16(3) of that Regulation or on alternative measures from the resolution authority pursuant to Article 16(4) of that Regulation.
Planning of the steps of joint decision processes on identification of material impediments to resolvability and on measures to address or remove such impediments
1. Prior to the start of the joint decision processes on the identification of material impediments to resolvability, and measures to address or remove such impediments in accordance with Article 17(2), (3) and (4) of Regulation (EU) 2021/23, the resolution college members shall agree on a timetable of steps to be followed in that process (‘joint decision timetable for the identification of material impediments’).
In case of a failure to agree on the joint decision timetable for the identification of material impediments, the resolution authority of the CCP shall set that timetable after considering the views and any reservations expressed by the resolution college members.
2. The joint decision timetable for the identification of material impediments shall include the following steps:
(a)
preparation and circulation of the report on the material impediments identified in accordance with Article 16(1) of Regulation (EU) 2021/23 by the resolution authority of the CCP in consultation with the competent authority of the CCP;
(b)
submission of the report pursuant to Article 16(1) of Regulation (EU) 2021/23 from the resolution authority of the CCP to the CCP and the resolution college;
(c)
the date when the CCP submits to the resolution authority of the CCP its observations and alternative measures to remedy the material impediments, if any, in accordance with Article 16(3) of Regulation (EU) 2021/23;
(d)
dialogue between the resolution authority of the CCP and the resolution college members and observers on any relevant observations or alternative measures to remedy the material impediments proposed by the CCP pursuant to Article 16(3) of Regulation (EU) 2021/23;
(e)
development of the draft joint decisions on the identification of material impediments to resolvability and measures to address or remove such impediments pursuant to Article 17(1), points (a), (b) and (c), of Regulation (EU) 2021/23;
(f)
finalisation of the joint decisions on the identification of material impediments to resolvability and measures to address or remove such impediments pursuant to Article 17(1), points (a), (b) and (c), of Regulation (EU) 2021/23;
(g)
communication to the CCP of the joint decisions on the identification of material impediments to resolvability and measures to address or remove such impediments pursuant to Article 17(1), points (a), (b) and (c), of Regulation (EU) 2021/23.
3. The joint decision timetable for the identification of material impediments shall be reviewed and updated by the resolution authority of the CCP in order to reflect the extension of the joint decision process where the CCP submits observations and proposes any alternative measures to address or remove material impediments to resolvability in accordance with Article 16(3) of Regulation (EU) 2021/23.
4. When drafting the joint decision timetable for the identification of material impediments, the resolution authority of the CCP shall have regard to the terms and conditions for the participation of observers as set out in the resolution college written arrangements and procedures and in Article 4(4) of Regulation (EU) 2021/23.
5. The resolution authority of the CCP shall communicate to the CCP those aspects of the joint decision timetable for the identification of material impediments that envisage the involvement of the CCP.
Consultation and communication of report to CCP
1. The resolution authority of the CCP shall prepare a draft report on material impediments to resolvability in accordance with Article 16(1) of Regulation (EU) 2021/23 and shall transmit it to the competent authority of the CCP and to ESMA.
2. Comments and views received on the draft report shall be considered by the resolution authority of the CCP for the purposes of the finalisation of the report.
3. Upon finalisation, the report shall be provided to the CCP and to the resolution college.
4. The resolution authority of the CCP shall communicate to the resolution college the start of the four-month period pursuant to Article 16(3) of Regulation (EU) 2021/23 for the CCP to propose measures to address material impediments to resolvability.
Submission of observations of the CCP and consultation with the authorities
1. Where the CCP proposes to the resolution authority of the CCP, within 4 months of the date of receipt of the report in accordance with Article 16(3) of Regulation (EU) 2021/23, alternative measures to remedy the material impediments to resolvability, the resolution authority of the CCP shall forward those measures to the other resolution college members and observers without undue delay and, in any case, within 10 working days.
2. When circulating the alternative measures submitted by the CCP, the resolution authority of the CCP shall set a deadline for the submission of comments by the resolution college members.
3. Where resolution college members do not provide their comments by the deadline referred to in paragraph 2, the resolution authority of the CCP shall presume that those members do not have any comments on the alternative measures submitted by the CCP and shall proceed accordingly.
4. The resolution authority of the CCP shall circulate, without undue delay, any comments submitted by a resolution college member to all the other resolution college members and shall discuss with them the proposed measures submitted by the CCP to address material impediments to resolvability.
5. The resolution authority of the CCP and resolution college members shall duly discuss and consider the potential impact of the proposed measures on the CCP, on all the Member States where the CCP operates, and on the Union as a whole.
Drafting joint decisions on identification of material impediments to resolvability and measures to address or remove such impediments
1. The resolution authority of the CCP shall, taking into account the outcome of the dialogue referred to in Article 27(5) of this Regulation, prepare draft joint decisions on the identification of material impediments to resolvability and measures to address or remove such impediments.
2. Each draft joint decision shall set out all of the following items:
(a)
the name of the CCP to which the joint decision relates and applies;
(b)
the names of the resolution authority of the CCP and the resolution college members reaching the joint decision;
(c)
the names of the observers where those observers were involved in the joint decision process in accordance with the terms and conditions for the participation of observers as set out in the written arrangements and procedures of the resolution college;
(d)
a summary of views expressed by the authorities consulted in the joint decision process;
(e)
the references to the applicable Union and national law relating to the preparation, finalisation and application of the joint decision;
(f)
the date of the joint decision;
(g)
the identification of the material impediments to resolvability;
(h)
the assessment of the measures proposed by the CCP pursuant to Article 16(3) of Regulation (EU) 2021/23;
(i)
the measures identified pursuant to Article 16(4) of Regulation (EU) 2021/23, and listed in Article 16(7) of that Regulation agreed by the resolution authority of the CCP and the resolution college members and the time period within which the respective entities are to address those measures;
(j)
where the measures proposed by the CCP are not accepted or are partially accepted by the resolution authority of the CCP, an explanation of how the measures proposed by the CCP are assessed as not fit to remove the material impediments to resolvability and how the measures referred to in point (i) would effectively reduce or remove such impediments.
Reaching joint decisions on the identification of the material impediments to resolvability and on the measures to address or remove such impediments
1. The resolution authority of the CCP shall send draft joint decisions on the identification of the material impediments to resolvability and on the measures to address or remove such impediments described in Article 17(1), points (a), (b) and (c), of Regulation (EU) 2021/23 to the resolution college members and observers without undue delay, setting a deadline for the resolution college members with voting rights to provide their written agreement to those joint decisions, in accordance with Article 8(6) of this Regulation.
2. Upon receipt of the draft joint decisions, resolution college members with voting rights who do not disagree with them shall transmit their written agreement to the resolution authority of the CCP within the deadline referred to in paragraph 1.
3. Each final joint decision shall consist of the joint decision document drafted in accordance with Article 28 of this Regulation, the written agreements referred to in paragraph 2 of this Article and the agreement of the resolution authority of the CCP. It shall be provided to all resolution college members.
4. The resolution authority of the CCP shall communicate the joint decisions on the identification of the material impediments to resolvability and on measures to address or remove such impediments to the resolution college members.
Communication of the joint decisions on the identification of the material impediments to resolvability and on measures to address or remove such impediments to the CCP
1. The resolution authority of the CCP shall communicate the joint decisions on the identification of the material impediments to resolvability and on measures to address or remove such impediments to the management body of the CCP in a timely manner and, in any event, by the deadline set in the joint decision timetable for the identification of material impediments. The resolution authority of the CCP shall inform the resolution college members and observers of the communication.
2. Where some of the measures taken in accordance with Article 16(7) of Regulation (EU) 2021/23 are addressed to entities other than the CCP, the resolution authority of the CCP shall ensure that it, or the competent authorities of those entities, provide the management bodies of those entities under their jurisdiction with the respective parts of the joint decision on measures to address material impediments to resolvability, in a timely manner and, in any event, by the deadline set in the joint decision timetable for the identification of material impediments.
3. Where necessary, the resolution authority of the CCP may discuss with the CCP details of the content and the application of the joint decisions on the identification of the material impediments to resolvability and on measures to address or remove such impediments described in Article 17(1), points (a), (b) and (c), of Regulation (EU) 2021/23.
Monitoring the application of the joint decisions
1. The resolution authority of the CCP shall communicate the outcome of the discussion, if any, referred to in Article 30(3) of this Regulation to the resolution college.
2. The resolution authority of the CCP shall communicate the outcome of the discussion, if any, referred to in Article 30(2) of this Regulation to the resolution authority of any other CCP, central securities depositaries or credit institutions which is part of the same group or with which the CCP has an interoperability link.
3. The resolution authority of the CCP and, where relevant, resolution college members, shall monitor the application of the joint decisions on the identification of the material impediments to resolvability and on measures to address or remove such impediments that are relevant to each of the entities referred to in paragraph 2 for which they are respectively responsible, as the case may be.
Process in the absence of a joint decision on measures to address material impediments to resolvability
In the absence of a joint decision on measures to address material impediments to resolvability as referred to in Article 17(8) of Regulation (EU) 2021/23, the decision taken by the resolution authority of the CCP shall be communicated in writing without undue delay to the resolution college by means of a document containing all of the following:
(a)
the name of the resolution authority of the CCP taking the decision;
(b)
the name of the CCP and entities to which the decision relates and applies;
(c)
references to the applicable Union and national law relating to the preparation, finalisation and application of the decision;
(d)
the date of the decision;
(e)
the identification of the material impediments to resolvability;
(f)
the measures identified pursuant to Article 16(7) of Regulation (EU) 2021/23 decided by the resolution authority of the CCP and the deadline within which those measures are to be addressed;
(g)
where the measures proposed by the CCP are not accepted, or are partially accepted, by the resolution authority of the CCP, an explanation as to how the measures proposed by the CCP are assessed as not fit to remove the material impediments to resolvability and how the measures set out in point (f) of this paragraph would effectively reduce or remove the material impediments to resolvability;
(h)
the names of the resolution college members involved in the joint decision process on the identification of the material impediments to resolvability and on measures to address or remove such impediments, along with a summary of the views expressed by those members and information on the issues leading to disagreement;
(i)
comments of the resolution authority of the CCP on the views expressed by the resolution college members, in particular on issues leading to disagreement;
(j)
the possibility for any of the resolution college members with voting rights to refer those issues to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010.
Entry into force and application
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
