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Banking Act 2009

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Shearman & Sterling LLP has created this consolidated legislation to show the changes HM Treasury proposes to make to U.K. legislation to correct EU law deficiencies in U.K. legislation and ensure that it remains effective after Brexit. Highlight Key As this piece of legislation is amended by two separate statutory instruments, we have differentiated by coloured highlights to show which statutory instrument has introduced a particular amendment. : draft The Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations : draft The Financial Markets and Insolvency (Amendment and Transitional Provision) (EU Exit) Regulations Banking Act 2009 PART 1 Special Resolution Regime CHAPTER 1 Introduction 1. Overview (1) The purpose of the special resolution regime for banks is to address the situation where all or part of the business of a bank has encountered, or is likely to encounter, financial difficulties. (2) The special resolution regime consists of— (a) the five stabilisation options, (b) the bank insolvency procedure (provided by Part 2), and (c) the bank administration procedure (provided by Part 3). (3) The five "stabilisation options" are— (a) transfer to a private sector purchaser (section 11), (b) transfer to a bridge bank (section 12), Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Contains public sector information licensed under the Open Government Licence v3.0. (c) (ba) transfer to an asset management vehicle (section 12ZA), the bail-in option (section 12A), and (d) transfer to temporary public ownership (section 13). (4) Each of the five stabilisation options is achieved through the exercise of one or more of the "stabilisation powers", which are— (za) the resolution instrument powers (sections 12A(2) and 48U to 48W), (5) the share transfer powers (sections 15, 16, 26 to 31 and 85 ), the property transfer powers (sections 33, 41A and 42 to 46), and (c) the third country instrument powers (sections 89H to 89J). Each of the following has a role in the operation of the special resolution regime— (a) the Bank of England, (b) the Treasury, (c) the Prudential Regulation Authority, and (d) the Financial Conduct Authority. (6) The Table describes the provisions of this Part. Sections Topic Sections 1 to 3 Introduction Sections 3A and 3B Pre-resolution powers Sections 4 to 6 Objectives and code Sections 6A to 6D Mandatory write-down, conversion etc of capital instruments Section 6E Valuation before mandatory write-down or stabilisation action Sections 7 to 10 Exercise of powers: general Sections 11 to 13 The stabilisation options Sections 14 to 32 Transfer of securities Sections 33 to 48A Transfer of property Sections 48B to 48WA Bail-in option Sections 48X and 48Y Replacement of provisional valuation Section 48Z Termination rights etc Sections 49 to 62 Compensation Section 62A Independent valuer Sections 62B to 62E Resolution administrator Sections 63 to 75 Incidental functions Sections 76 to 81A Treasury Sections 81B to 83 Groups Sections 83ZA to 83Z2 Information and enforcement Section 83A Banks not regulated by the PRA Sections 84 to 89 Building societies, &c. Section 89A Investment firms Sections 89B to 89G recognised central counterparties Sections 89H to 89J Third-country resolution actions Sections 89JA Resolution of UK branches of third-country institutions 2. Interpretation: "bank" LNDOCS01/1114476.6 2 (1) In this Part "bank" means a UK institution which has permission under Part 4A of the Financial Services and Markets Act 2000 to carry on the regulated activity of accepting deposits (within the meaning of section 22 of that Act, taken with Schedule 2 and any order under section 22). (2) But "bank" does not include— (a) a building society (within the meaning of section 119 of the Building Societies Act 1986), (b) a credit union within the meaning of section 31 of the Credit Unions Act 1979 or a credit union within the meaning of Article 2(2) of the Credit Unions (Northern Ireland) Order 1985, or (c) any other class of institution excluded by an order made by the Treasury. (3) In subsection (1) "UK institution" means an institution which is incorporated in, or formed under the law of any part of, the United Kingdom. (4) Where a stabilisation power is exercised in respect of a bank, it does not cease to be a bank for the purposes of this Part if it later loses the permission referred to in subsection (1). (5) An order under subsection (2)(c)— (a) shall be made by statutory instrument, and (b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament. (6) Section 84 applies this Part to building societies with modifications. (7) Section 89 allows the application of this Part to credit unions. (8) Section 89A applies this Part to investment firms with modifications. (9) Section 89B applies this Part to recognised central counterparties with modifications. (10) Section 89JA applies this Part to UK branches of third-country institutions with modifications. 3. Interpretation: other expressions (1) In this Part— "the PRA" means the Prudential Regulation Authority, "the FCA" means the Financial Conduct Authority, and "Additional Tier 1 instruments" means capital instruments that meet the conditions laid down in Article 52(1) of the capital requirements regulation (or which qualify as LNDOCS01/1114476.6 3 Additional Tier 1 instruments by virtue of Chapter 2 of Title I of Part Ten of that regulation), "the capital requirements regulation" means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26th June 2013 on prudential requirements for credit institutions and investment firms as it had effect on the day on which the Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/xxxx) were made , "client assets" means assets which an institution has undertaken to hold for a client (whether or not on trust, and whether or not the undertaking has been complied with), "financial assistance" has the meaning given by section 257, "Common Equity Tier 1 instruments" means capital instruments that meet the conditions laid down in Article 28(1) to (4), 29(1) to (5) or 31(1) of the capital requirements regulation (or which qualify as Common Equity Tier 1 instruments by virtue of Chapter 2 of Title I of Part Ten of that regulation), "critical functions", subject to subsection subsections (2 ) and (2A ), means activities, services or operations (wherever carried out) the discontinuance of which is likely in one or more EEA states — (a) to lead to the disruption of services that are essential to the economy of the United Kingdom , or (b) to disrupt financial stability in the United Kingdom , due to the size, market share, external and internal connectedness, complexity or crossborder activities of a bank or a group which includes a bank (with particular regard to the substitutability of those activities, services or operations), “FSCS” means the Financial Services Compensation Scheme (established under Part 15 of the Financial Services and Markets Act 2000) ; "eligible liabilities", of an undertaking, means liabilities and capital instruments that— (a) do not qualify as Common Equity Tier 1 instruments, Additional Tier 1 instruments or Tier 2 instruments, of the bank, and (b) are not excluded liabilities listed in section 48B(8), "extraordinary public financial support" has the meaning given in Article 2.1(28) of the recovery and resolution directive; “normal insolvency proceedings” means the collective insolvency proceedings which— (a) entail the partial or total divestment of a debtor and the appointment of a liquidator or administrator (or a similar officeholder), LNDOCS01/1114476.6 4 (b) are normally applicable to institutions under the law of any part of the United Kingdom, and (c) are either specific to those institutions or generally applicable to any natural or legal person; and, in particular, includes the bank insolvency procedure and the bank administration procedure ; "own funds" means own funds as defined in Article 4.1(118) of the capital requirements regulation (read with Title I of Part Ten of that regulation), "own funds requirements" means the requirements laid down in Articles 92 to 98 of the capital requirements regulation (read with Title I of Part Ten of that regulation), "the recovery and resolution directive" means Directive 2014/59/EU of the European Parliament and of the Council of 15th May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms, "relevant capital instruments" means Additional Tier 1 instruments and Tier 2 instruments, "Tier 2 instruments" means capital instruments or subordinated loans that meet the conditions laid down in Article 63 of the capital requirements regulation (or which qualify as Tier 2 instruments by virtue of Chapter 2 of Title I of Part Ten of that regulation). (2) For the purposes of the definition of "critical functions" in subsection (1)— (a) a delegated act adopted by virtue of Article 2(2) of the recovery and resolution directive applies as it applies for the purposes of the definition of "critical functions" in Article 2(2) of that directive, and (a) Article 6 of Commission Delegated Regulation (EU) 2016/778 (criteria relating to the determination of critical functions) applies, and (b) "group" means a parent undertaking within the meaning given by Article 4.1(15)(a) of the capital requirements regulation and its subsidiaries within the meaning given by Article 4.1(16) of that regulation. (2A) The Treasury may by regulations made by statutory instrument specify criteria for the determination of the activities, services and operations referred to in the definition of “critical functions”. (2B) The power conferred by subsection (2A) includes— (a) power to amend or revoke Article 6 of Commission Delegated Regulation (EU) 2016/778; and (b) power to amend or repeal subsection (2)(a).
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