(1)

Within the framework of Article 6 of Regulation (EU) No 1024/2013, the European Central Bank (ECB) carries out the exclusive task to supervise credit institutions with the aim to ensure a consistent application of supervisory standards, to foster financial stability and to ensure a level playing field.

(2)

Pursuant to Article 4(1)(a) of Regulation (EU) No 1024/2013, the ECB is exclusively competent to withdraw authorisations of credit institutions established in the participating Member States.

(3)

Pursuant to Article 4(1)(c) of Regulation (EU) No 1024/2013, the ECB is exclusively competent to assess notifications of the acquisition and disposal of qualifying holdings in credit institutions, except in the case of a bank resolution.

(4)

Pursuant to Article 4(1)(b) of Regulation (EU) No 1024/2013, the ECB is exclusively competent to carry out, for prudential supervisory purposes, the tasks which the competent authority of the home Member State has under the relevant Union law for significant credit institutions established in a participating Member State, which wish to establish a branch or provide cross-border services in a non-participating Member State. In addition, under Article 17(1) of Regulation (EU) No 1024/2013 and under Article 11(1) and (3) of Regulation (EU) No 468/2014 of the European Central Bank (ECB/2014/17) (3), any significant supervised entity wishing to establish a branch within the territory of another participating Member State must notify the national competent authority of the participating Member State where the significant supervised entity has its head office, of its intention. Under Article 11(3) of Regulation (EU) No 468/2014 (ECB/2014/17), where no decision to the contrary is taken by the ECB within two months of receipt of that notification, the branch may be established and commence its activities.

(5)

Pursuant to Article 4(1)(b) and (d) of Regulation (EU) No 1024/2013 in conjunction with Article 34(1)(d) of Directive 2013/36/EU of the European Parliament and of the Council (4), the ECB is exclusively competent to carry out the task, which the competent authority of the home Member State has under relevant Union law, of granting consent to a (significant) credit institution that has declared its intention to jointly and severally guarantee the commitments entered into by its subsidiary financial institution, which intends to carry out activities listed in Annex I of Directive 2013/36/EU in a participating Member State or in another Member State, either by establishing a branch or by providing services.

(6)

The ECB, as the competent authority, is required to adopt a substantial number of decisions on passporting, acquisitions of qualifying holdings and withdrawals of authorisations of credit institutions each year. To facilitate the decision-making process, a delegation decision is necessary in relation to the adoption of such decisions which the ECB has to take on a regular basis and which entail only limited discretion. The Court of Justice of the European Union has recognised delegation of authority to be necessary to enable an institution required to adopt a considerable number of decisions to perform its duties. Similarly, it has recognised the need to ensure that decision-making bodies are able to function as a principle inherent to all institutional systems (5).

(7)

Delegation of decision-making powers should be limited and proportionate, and the scope of the delegation should be clearly defined.

(8)

Decision (EU) 2017/933 (ECB/2016/40) specifies the procedure to be followed for adopting delegation decisions concerning supervision and the persons who may be delegated decision-making powers. That Decision does not affect the ECB's exercise of its supervisory tasks and is without prejudice to the Supervisory Board's competence to propose complete draft decisions to the Governing Council.

(9)

Where the criteria for the adoption of a delegated decision, as laid down in this Decision, are not met, decisions should be adopted in accordance with the non-objection procedure set out in Article 26(8) of Regulation (EU) No 1024/2013 and further specified in Article 13g of Decision ECB/2004/2 (6). Furthermore, the non-objection procedure should also be used if the heads of work units have concerns regarding the fulfilment of assessment criteria due to the complexity of the assessment.

(10)

ECB supervisory decisions may be subject to administrative review pursuant to Article 24 of Regulation (EU) No 1024/2013 and as further specified in Decision ECB/2014/16 (7). In the event of such administrative review, the Supervisory Board should take into account the opinion of the Administrative Board of Review and submit a new draft decision to the Governing Council for adoption under the non-objection procedure,

(1)

‘passporting decision’ means a decision of the ECB on the establishment of a branch by a significant supervised entity in a participating Member State or in another Member State based on national law transposing Article 35(3) of Directive 2013/36/EU, in conjunction with Article 17(1) of Regulation (EU) No 1024/2013 and Articles 11 and 17 of Regulation (EU) No 468/2014 (ECB/2014/17).

For the purposes of this Decision, a passporting decision also includes a decision of the ECB, in accordance with national law transposing Article 34(1)(d) of Directive 2013/36/EU, which grants consent to the declaration of a parent undertaking or undertakings to jointly and severally guarantee the commitments entered into by their subsidiary financial institution that intends to carry out activities listed in Annex I of Directive 2013/36/EU in a participating Member State or in another Member State, either by establishing a branch or by providing services;

(2)

‘branch’ means a branch as defined in point (17) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (8);

(3)

‘qualifying holding decision’ means a decision of the ECB on the acquisition of qualifying holdings in a supervised entity (target entity) pursuant to national law transposing Article 22 of Directive 2013/36/EU in conjunction with Article 15 of Regulation (EU) No 1024/2013;

(4)

‘credit institution’ means a credit institution as defined in point 1 of Article 4(1) of Regulation (EU) No 575/2013;

(5)

‘withdrawal decision’ means a decision of the ECB on the withdrawal of the authorisation as credit institution based on national law transposing Article 18 of Directive 2013/36/EU in conjunction with Article 14(5) of Regulation (EU) No 1024/2013;

(6)

‘delegation decision’ and ‘delegated decision’ have the same meaning as in points (2) and (4) of Article 3 of Decision (EU) 2017/933 (ECB/2016/40), respectively;

(7)

‘heads of work units’ means the heads of work units of the ECB to whom the power to adopt passporting, qualifying holding and withdrawal decisions is delegated;

(8)

‘non-objection procedure’ means the procedure set out in Article 26(8) of Regulation (EU) No 1024/2013, and further specified in Article 13g of Decision ECB/2004/2;

(9)

‘negative decision’ means a decision that does not or does not fully grant the authorisation as requested by the applicant, including negative decisions pursuant to Article 34(1)(d) and Article 35(3) of Directive 2013/36/EU. A decision with ancillary provisions such as conditions or obligations shall be considered as a negative decision unless such ancillary provisions: (a) ensure that the applicant fulfils the relevant legal requirements referred to in Articles 4(2) and 5(2) and Article 6(3) and (4) and have been agreed in writing; or (b) merely restate one or more of the existing requirements that the applicant has to comply with pursuant to provisions referred to in Articles 4(2) and 5(2) and Article 6(3) and (4) or require information on the fulfilment of one or more of such requirements;

(10)

‘significant supervised entity’ means a significant supervised entity as defined in point (16) of Article 2 of Regulation (EU) No 468/2014 (ECB/2014/17);

(11)

‘supervised entity’ means a supervised entity as defined in point (20) of Article 2 of Regulation (EU) No 468/2014 (ECB/2014/17);

(12)

‘group’ means a group of undertakings which consists of a parent undertaking and its subsidiaries, or undertakings linked to each other by a relationship within the meaning of Article 22 of Directive 2013/34/EU of the European Parliament and of the Council (9), including any sub-group thereof;

(13)

‘national competent authority’ means a national competent authority as defined in point (2) of Article 2 of Regulation (EU) No 1024/2013;

(14)

‘ECB guide’ means a document, adopted by the Governing Council upon a proposal from the Supervisory Board, which is published on the ECB's website and which gives guidance on the ECB's understanding of legal requirements.

(1)

To address the considerable number of decisions that the European Central Bank (ECB) is to adopt for the performance of its supervisory tasks, a procedure for the adoption of specific delegated decisions has been established.

(2)

A delegation decision is effective upon the adoption of a decision by the Executive Board nominating one or more heads of work units to take decisions on the basis of a delegation decision.

(3)

The importance of the delegation decision and the number of addressees to whom delegated decisions need to be sent should be taken into account by the Executive Board in nominating heads of work units.

(4)

The Chair of the Supervisory Board has been consulted on the heads of work units to whom the power to adopt decisions on passporting, acquisition of qualifying holdings and withdrawal of authorisations of credit institutions should be delegated,

(a)

the Director General or a Deputy Director General of Directorate General Microprudential Supervision I, if supervision of the relevant supervised entity or group is carried out by Directorate General Microprudential Supervision I;

(b)

the Director General or a Deputy Director General of Directorate General Microprudential Supervision II, if supervision of the relevant supervised entity or group is carried out by Directorate General Microprudential Supervision II.

(1)

In the light of the experience gained since the establishment of the Administrative Board of Review, it is necessary to clarify certain aspects of its Operating Rules, which are laid down in Decision ECB/2014/16 (2), and where appropriate to adapt them, in particular with respect to the role of alternates.

(2)

The European Central Bank (ECB) has developed a methodology for the apportionment of costs incurred by the applicants and by the ECB in the context of the internal administrative review of decisions of the ECB under Regulation (EU) No 1024/2013 by the Administrative Board of Review. This methodology should be included in the Operating Rules.

(3)

Therefore, Decision ECB/2014/16 should be amended accordingly,

1.

Article 3 is amended as follows:

2.

in Article 4, paragraph 3 is replaced by the following:

3.

in Article 7, paragraph 5 is replaced by the following:

4.

in Article 16, paragraph 1 is replaced by the following:

5.

in Article 17, paragraph 2 is replaced by the following:

6.

Article 21 is amended as follows:

7.

the text set out in the Annex to this Decision is added as an Annex to Decision ECB/2014/16.