Legal provisions of COM(2010)368 - Deposit Guarantee Schemes [recast] - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)368 - Deposit Guarantee Schemes [recast]. |
|---|---|
| document | COM(2010)368  |
| date | April 16, 2014 |
Contents
- Article 1 - Subject matter and scope
- Article 2 - Definitions
- Article 3 - Relevant administrative authorities
- Article 4 - Official recognition, membership and supervision
- Article 5 - Eligibility of deposits
- Article 6 - Coverage level
- Article 7 - Determination of the repayable amount
- Article 8 - Repayment
- Article 9 - Claims against DGSs
- Article 10 - Financing of DGSs
- Article 11 - Use of funds
- Article 12 - Borrowing between DGSs
- Article 13 - Calculation of contributions to DGSs
- Article 14 - Cooperation within the Union
- Article 15 - Branches of credit institutions established in third countries
- Article 16 - Depositor information
- Article 17 - List of authorised credit institutions
- Article 18 - Exercise of the delegation
- Article 19 - Transitional provisions
- Article 20 - Transposition
- Article 21 - Repeal
- Article 22 - Entry into force
- Article 23 - Addressees
Article 1 - Subject matter and scope
2. This Directive shall apply to:
| (a) | statutory DGSs; |
| (b) | contractual DGSs that are officially recognised as DGSs in accordance with Article 4(2); |
| (c) | institutional protection schemes that are officially recognised as DGSs in accordance with Article 4(2); |
| (d) | credit institutions affiliated to the schemes referred to in points (a), (b) or (c) of this paragraph. |
3. Without prejudice to Article 16(5) and (7), the following schemes shall not be subject to this Directive:
| (a) | contractual schemes that are not officially recognised as DGSs, including schemes that offer an additional protection to the coverage level laid down in Article 6(1); |
| (b) | institutional protection schemes (IPS) that are not officially recognised as DGSs. |
Member States shall ensure that schemes referred to in points (a) and (b) of the first subparagraph have in place adequate financial means or relevant financing arrangements to fulfil their obligations.
Article 2 - Definitions
| (1) | ‘deposit guarantee schemes’ or ‘DGSs’ means schemes referred to in point (a), (b) or (c) of Article 1(2); |
| (2) | ‘institutional protection schemes’ or ‘IPS’ means institutional protection schemes as referred to in Article 113(7) of Regulation (EU) No 575/2013; |
| (3) | ‘deposit’ means a credit balance which results from funds left in an account or from temporary situations deriving from normal banking transactions and which a credit institution is required to repay under the legal and contractual conditions applicable, including a fixed-term deposit and a savings deposit, but excluding a credit balance where:
|
| (4) | ‘eligible deposits’ means deposits that are not excluded from protection pursuant to Article 5; |
| (5) | ‘covered deposits’ means the part of eligible deposits that does not exceed the coverage level laid down in Article 6; |
| (6) | ‘depositor’ means the holder or, in the case of a joint account, each of the holders, of a deposit; |
| (7) | ‘joint account’ means an account opened in the name of two or more persons or over which two or more persons have rights that are exercised by means of the signature of one or more of those persons; |
| (8) | ‘unavailable deposit’ means a deposit that is due and payable but that has not been paid by a credit institution under the legal or contractual conditions applicable thereto, where either:
|
| (9) | ‘credit institution’ means a credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No 575/2013; |
| (10) | ‘branch’ means a place of business in a Member State which forms a legally dependent part of a credit institution and which carries out directly all or some of the transactions inherent in the business of credit institutions; |
| (11) | ‘target level’ means the amount of available financial means which the DGS is required to reach in accordance with Article 10(2), expressed as a percentage of covered deposits of its members; |
| (12) | ‘available financial means’ means cash, deposits and low-risk assets which can be liquidated within a period not exceeding that referred to in Article 8(1) and payment commitments up to the limit set out in Article 10(3); |
| (13) | ‘payment commitments’ means payment commitments of a credit institution towards a DGS which are fully collateralised providing that the collateral:
|
| (14) | ‘low-risk assets’ means items falling into the first or second category referred to in Table 1 of Article 336 of Regulation (EU) No 575/2013 or any assets which are considered to be similarly safe and liquid by the competent or designated authority; |
| (15) | ‘home Member State’ means a home Member State as defined in point (43) of Article 4(1) of Regulation (EU) No 575/2013; |
| (16) | ‘host Member State’ means a host Member State as defined in point (44) of Article 4(1) of Regulation (EU) No 575/2013; |
| (17) | ‘competent authority’ means a national competent authority as defined in point (40) of Article 4(1) of Regulation (EU) No 575/2013; |
| (18) | ‘designated authority’ means a body which administers a DGS pursuant to this Directive, or, where the operation of the DGS is administered by a private entity, a public authority designated by the Member State concerned for supervising that scheme pursuant to this Directive. |
2. Where this Directive refers to Regulation (EU) No 1093/2010, a body which administers a DGS or, where the operation of the DGS is administered by a private entity, the public authority supervising that scheme, shall, for the purpose of that Regulation, be considered to be a competent authority as defined in Article 4(2) of that Regulation.
3. Shares in Irish or United Kingdom building societies apart from those of a capital nature covered in point (b) of Article 5(1) shall be treated as deposits.
Article 3 - Relevant administrative authorities
2. Competent authorities, designated authorities, resolution authorities and relevant administrative authorities shall cooperate with each other and exercise their powers in accordance with this Directive.
The relevant administrative authority shall make the determination referred to in point (8)(a) of Article 2(1) as soon as possible and in any event no later than five working days after first becoming satisfied that a credit institution has failed to repay deposits which are due and payable.
Article 4 - Official recognition, membership and supervision
This shall not preclude the merger of DGSs of different Member States or the establishment of cross-border DGSs. Approval of such cross-border or merged DGSs shall be obtained from the Member States where the DGSs concerned are established.
2. A contractual scheme as referred to in point (b) of Article 1(2) of this Directive may be officially recognised as a DGS if it complies with this Directive.
An IPS may be officially recognised as a DGS if it fulfils the criteria laid down in Article 113(7) of Regulation (EU) No 575/2013 and complies with this Directive.
3. A credit institution authorised in a Member State pursuant to Article 8 of Directive 2013/36/EU shall not take deposits unless it is a member of a scheme officially recognised in its home Member State pursuant to paragraph 1 of this Article.
4. If a credit institution does not comply with the obligations incumbent on it as a member of a DGS, the competent authorities shall be notified immediately and, in cooperation with the DGS, shall promptly take all appropriate measures including if necessary the imposition of penalties to ensure that the credit institution complies with its obligations.
5. If the measures taken under paragraph 4 fail to secure compliance on the part of the credit institution, the DGS may, subject to national law and the express consent of the competent authorities, give not less than one month’s notice of its intention to exclude the credit institution from membership of the DGS. Deposits made before the expiry of that notice period shall continue to be fully covered by the DGS. If, on expiry of that notice period, the credit institution has not complied with its obligations, the DGS shall exclude the credit institution.
6. Deposits held on the date on which a credit institution is excluded from membership of the DGS shall continue to be covered by that DGS.
7. The designated authorities shall supervise DGSs referred to in Article 1 on an ongoing basis as to their compliance with this Directive.
Cross-border DGSs shall be supervised by representatives of the designated authorities of the Member States where the affiliated credit institutions are authorised.
8. Member States shall ensure that a DGS, at any time and upon the DGS’s request, receives from their members all information necessary to prepare for a repayment of depositors, including markings under Article 5(4).
9. DGSs shall ensure the confidentiality and the protection of the data pertaining to depositors’ accounts. The processing of such data shall be carried out in accordance with Directive 95/46/EC.
10. Member States shall ensure that DGSs perform stress tests of their systems and that the DGSs are informed as soon as possible in the event that the competent authorities detect problems in a credit institution that are likely to give rise to the intervention of a DGS.
Such tests shall take place at least every three years and more frequently where appropriate. The first test shall take place by 3 July 2017.
Based on the results of the stress tests, EBA shall, at least every five years, conduct peer reviews pursuant to Article 30 of Regulation (EU) No 1093/2010 in order to examine the resilience of DGSs. DGSs shall be subject to the requirements of professional secrecy in accordance with Article 70 of that Regulation when exchanging information with EBA.
11. DGSs shall use the information necessary to perform stress tests of their systems only for the performance of those tests and shall keep such information no longer than is necessary for that purpose.
12. Member States shall ensure that their DGSs have in place sound and transparent governance practices. DGSs shall produce an annual report on their activities.
Article 5 - Eligibility of deposits
| (a) | subject to Article 7(3) of this Directive, deposits made by other credit institutions on their own behalf and for their own account; |
| (b) | own funds as defined in point (118) of Article 4(1) of Regulation (EU) No 575/2013; |
| (c) | deposits arising out of transactions in connection with which there has been a criminal conviction for money laundering as defined in Article 1(2) of Directive 2005/60/EC; |
| (d) | deposits by financial institutions as defined in point (26) of Article 4(1) of Regulation (EU) No 575/2013; |
| (e) | deposits by investment firms as defined in point (1) of Article 4(1) of Directive 2004/39/EC; |
| (f) | deposits the holder of which has never been identified pursuant to Article 9(1) of Directive 2005/60/EC, when they have become unavailable; |
| (g) | deposits by insurance undertakings and by reinsurance undertakings as referred to in Article 13(1) to (6) of Directive 2009/138/EC of the European Parliament and of the Council (15); |
| (h) | deposits by collective investment undertakings; |
| (i) | deposits by pension and retirement funds; |
| (j) | deposits by public authorities; |
| (k) | debt securities issued by a credit institution and liabilities arising out of own acceptances and promissory notes. |
2. By way of derogation from paragraph 1 of this Article, Member States may ensure that the following are included up to the coverage level laid down in Article 6(1):
| (a) | deposits held by personal pension schemes and occupational pension schemes of small or medium-sized enterprises; |
| (b) | deposits held by local authorities with an annual budget of up to EUR 500 000. |
3. Member States may provide that deposits that may be released in accordance with national law only to pay off a loan on private immovable property whether made by the credit institution or another institution holding the deposit are excluded from repayment by a DGS.
4. Member States shall ensure that credit institutions mark eligible deposits in a way that allows an immediate identification of such deposits.
Article 6 - Coverage level
2. In addition to paragraph 1, Member States shall ensure that the following deposits are protected above EUR 100 000 for at least three months and no longer than 12 months after the amount has been credited or from the moment when such deposits become legally transferable:
| (a) | deposits resulting from real estate transactions relating to private residential properties; |
| (b) | deposits that serve social purposes laid down in national law and are linked to particular life events of a depositor such as marriage, divorce, retirement, dismissal, redundancy, invalidity or death; |
| (c) | deposits that serve purposes laid down in national law and are based on the payment of insurance benefits or compensation for criminal injuries or wrongful conviction. |
3. Paragraphs 1 and 2 shall not prevent Member States from maintaining or introducing schemes protecting old-age provision products and pensions, provided that such schemes do not only cover deposits but offer comprehensive coverage for all products and situations relevant in this regard.
4. Member States shall ensure that repayments are made in any of the following:
| (a) | the currency of the Member State where the DGS is located; |
| (b) | the currency of the Member State where the account holder is resident; |
| (c) | euro; |
| (d) | the currency of the account; |
| (e) | the currency of the Member State where the account is located. |
Depositors shall be informed of the currency of repayment.
If accounts were maintained in a currency different from that of the payout, the exchange rate used shall be that of the date on which the relevant administrative authority makes a determination as referred to in point (8)(a) of Article 2(1) or when a judicial authority makes a ruling as referred to in point (8)(b) of Article 2(1).
5. Member States that convert into their national currency the amount referred to in paragraph 1 shall initially use in the conversion the exchange rate prevailing on 3 July 2015.
Member States may round off the amounts resulting from the conversion, provided that such rounding off does not exceed EUR 5 000.
Without prejudice to the second subparagraph, Member States shall adjust the coverage levels converted into another currency to the amount referred to in paragraph 1 of this Article every five years. Member States shall make an earlier adjustment of coverage levels, after consulting the Commission, following the occurrence of unforeseen events such as currency fluctuations.
6. The amount referred to in paragraph 1 shall be reviewed periodically by the Commission and at least once every five years. If appropriate, the Commission shall submit to the European Parliament and to the Council a proposal for a Directive to adjust the amount referred to in paragraph 1, taking account in particular of developments in the banking sector and the economic and monetary situation in the Union. The first review shall not take place before 3 July 2020 unless unforeseen events necessitate an earlier review.
7. The Commission shall be empowered to adopt delegated acts in accordance with Article 18 in order to adjust the amount referred to in paragraph 6 at least every five years, in accordance with inflation in the Union on the basis of changes in the harmonised index of consumer prices published by the Commission since the previous adjustment.
Article 7 - Determination of the repayable amount
2. The share of each depositor in a joint account shall be taken into account in calculating the limit provided for in Article 6(1).
In the absence of special provisions, such an account shall be divided equally among the depositors.
Member States may provide that deposits in an account to which two or more persons are entitled as members of a business partnership, association or grouping of a similar nature, without legal personality, may be aggregated and treated as if made by a single depositor for the purpose of calculating the limit provided for in Article 6(1).
3. Where the depositor is not absolutely entitled to the sums held in an account, the person who is absolutely entitled shall be covered by the guarantee, provided that that person has been identified or is identifiable before the date on which a relevant administrative authority makes a determination as referred to in point (8)(a) of Article 2(1) or a judicial authority makes a ruling referred to in point (8)(b) of Article 2(1). Where several persons are absolutely entitled, the share of each under the arrangements subject to which the sums are managed shall be taken into account when the limit provided for in Article 6(1) is calculated.
4. The reference date for the calculation of the repayable amount shall be the date on which a relevant administrative authority makes a determination as referred to in point (8)(a) of Article 2(1) or when a judicial authority makes a ruling as referred to in point (8)(b) of Article 2(1). Liabilities of the depositor against the credit institution shall not be taken into account when calculating the repayable amount.
5. Member States may decide that the liabilities of the depositor to the credit institution are taken into account when calculating the repayable amount where they have fallen due on or before the date on which a relevant administrative authority makes a determination as referred to in point (8)(a) of Article 2(1) or when a judicial authority makes a ruling as referred to in point (8)(b) of Article 2(1) to the extent the set-off is possible under the statutory and contractual provisions governing the contract between the credit institution and the depositor.
Depositors shall be informed prior to the conclusion of the contract by the credit institution where their liabilities towards the credit institution are taken into account when calculating the repayable amount.
6. Member States shall ensure that DGSs may at any time request credit institutions to inform them about the aggregated amount of eligible deposits of every depositor.
7. Interest on deposits which has accrued until, but has not been credited at, the date on which a relevant administrative authority makes a determination as referred to in point (8)(a) of Article 2(1) or a judicial authority makes a ruling as referred to in point (8)(b) of Article 2(1) shall be reimbursed by the DGS. The limit referred to in Article 6(1) shall not be exceeded.
8. Member States may decide that certain categories of deposits fulfilling a social purpose defined by national law, for which a third party has given a guarantee that complies with State aid rules, are not taken into account when aggregating the deposits held by the same depositor with the same credit institution as referred to in paragraph 1 of this Article. In such cases the third-party guarantee shall be limited to the coverage level laid down in Article 6(1).
9. Where credit institutions are allowed under national law to operate under different trademarks as defined in Article 2 of Directive 2008/95/EC of the European Parliament and of the Council (16), the Member State shall ensure that depositors are informed clearly that the credit institution operates under different trademarks and that the coverage level laid down in Article 6(1), (2) and (3) of this Directive applies to the aggregated deposits the depositor holds with the credit institution. That information shall be included in the depositor information referred to in Article 16 of, and Annex I to, this Directive.
Article 8 - Repayment
2. However, Member States may, for a transitional period until 31 December 2023, establish the following repayment periods of up to:
| (a) | 20 working days until 31 December 2018; |
| (b) | 15 working days from 1 January 2019 until 31 December 2020; |
| (c) | 10 working days from 1 January 2021 until 31 December 2023. |
3. Member States may decide that deposits referred to in Article 7(3) are subject to a longer repayment period, which does not exceed three months from the date on which a relevant administrative authority makes a determination as referred to in point (8)(a) of Article 2(1) or a judicial authority makes a ruling as referred to in point (8)(b) of Article 2(1).
4. During the transitional period until 31 December 2023, where DGSs cannot make the repayable amount available within seven working days they shall ensure that depositors have access to an appropriate amount of their covered deposits to cover the cost of living within five working days of a request.
DGSs shall only grant access to the appropriate amount as referred to in the first subparagraph on the basis of data provided by the DGS or the credit institution.
The appropriate amount as referred to in the first subparagraph shall be deducted from the repayable amount as referred to in Article 7.
5. Repayment as referred to in paragraphs 1 and 4 may be deferred where:
| (a) | it is uncertain whether a person is entitled to receive repayment or the deposit is subject to legal dispute; |
| (b) | the deposit is subject to restrictive measures imposed by national governments or international bodies; |
| (c) | by way of derogation from paragraph 9 of this Article there has been no transaction relating to the deposit within the last 24 months (the account is dormant); |
| (d) | the amount to be repaid is deemed to be part of a temporary high balance as defined in Article 6(2); or |
| (e) | the amount to be repaid is to be paid out by the DGS of the host Member State in accordance with Article 14(2). |
6. The repayable amount shall be made available without a request to a DGS being necessary. For that purpose, the credit institution shall transmit the necessary information on deposits and depositors as soon as requested by the DGS.
7. Any correspondence between the DGS and the depositor shall be drawn up:
| (a) | in the official language of the Union institutions that is used by the credit institution holding the covered deposit when writing to the depositor; or |
| (b) | in the official language or languages of the Member State in which the covered deposit is located. |
If a credit institution operates directly in another Member State without having established branches, the information shall be provided in the language that was chosen by the depositor when the account was opened.
8. Notwithstanding the time limit laid down in paragraph 1 of this Article, where a depositor or any person entitled to or interested in sums held in an account has been charged with an offence arising out of or in relation to money laundering as defined in Article 1(2) of Directive 2005/60/EC, the DGS may suspend any payment relating to the depositor concerned, pending the judgment of the court.
9. No repayment shall be made where there has been no transaction relating to the deposit within the last 24 months and the value of the deposit is lower than the administrative costs that would be incurred by the DGS in making such a repayment.
Article 9 - Claims against DGSs
2. Without prejudice to rights which it may have under national law, the DGS that makes payments under guarantee within a national framework shall have the right of subrogation to the rights of depositors in winding up or reorganisation proceedings for an amount equal to their payments made to depositors. Where a DGS makes payments in the context of resolution proceedings, including the application of resolution tools or the exercise of resolution powers in accordance with Article 11, the DGS shall have a claim against the relevant credit institution for an amount equal to its payments. That claim shall rank at the same level as covered deposits under national law governing normal insolvency proceedings as defined in Directive 2014/59/EU.
3. Member States may limit the time in which depositors whose deposits were not repaid or acknowledged by the DGS within the deadlines set out in Article 8(1) and (3) can claim the repayment of their deposits.
Article 10 - Financing of DGSs
DGSs shall raise the available financial means by contributions to be made by their members at least annually. This shall not prevent additional financing from other sources.
2. Member States shall ensure that, by 3 July 2024, the available financial means of a DGS shall at least reach a target level of 0,8 % of the amount of the covered deposits of its members.
Where the financing capacity falls short of the target level, the payment of contributions shall resume at least until the target level is reached again.
If, after the target level has been reached for the first time, the available financial means have been reduced to less than two-thirds of the target level, the regular contribution shall be set at a level allowing the target level to be reached within six years.
The regular contribution shall take due account of the phase of the business cycle, and the impact procyclical contributions may have when setting annual contributions in the context of this Article.
Member States may extend the initial period referred to in the first subparagraph for a maximum of four years if the DGS has made cumulative disbursements in excess of 0,8 % of covered deposits.
3. The available financial means to be taken into account in order to reach the target level may include payment commitments. The total share of payment commitments shall not exceed 30 % of the total amount of available financial means raised in accordance with this Article.
In order to ensure consistent application of this Directive, EBA shall issue guidelines on payment commitments.
4. Notwithstanding paragraph 1 of this Article, a Member State may, for the purpose of fulfilling its obligations thereunder, raise the available financial means through the mandatory contributions paid by credit institutions to existing schemes of mandatory contributions established by a Member State in its territory for the purpose of covering the costs related to systemic risk, failure, and resolution of institutions.
DGSs shall be entitled to an amount equal to the amount of such contributions up to the target level set out in paragraph 2 of this Article, which the Member State will make immediately available to those DGSs upon request, for use exclusively for the purposes provided for in Article 11.
DGSs are entitled to that amount only if the competent authority considers that they are unable to raise extraordinary contributions from their members. DGSs shall repay that amount through contributions from their members in accordance with Article 10(1) and (2).
5. Contributions to resolution financing arrangements under Title VII of Directive 2014/59/EU, including available financial means to be taken into account in order to reach the target level of the resolution financing arrangements under Article 102(1) of Directive 2014/59/EU, shall not count towards the target level.
6. By way of derogation from paragraph 2, Member States may, where justified and upon approval of the Commission, authorise a minimum target level lower than the target level specified in paragraph 2, provided that the following conditions are met:
| (a) | the reduction is based on the assumption that it is unlikely that a significant share of available financial means will be used for measures to protect covered depositors, other than as provided for in Article 11(2) and (6); and |
| (b) | the banking sector in which the credit institutions affiliated to the DGS operate is highly concentrated with a large quantity of assets held by a small number of credit institutions or banking groups, subject to supervision on a consolidated basis which, given their size, are likely in case of failure to be subject to resolution proceedings. |
That reduced target level shall not be lower than 0,5 % of covered deposits.
7. The available financial means of DGSs shall be invested in a low-risk and sufficiently diversified manner.
8. If the available financial means of a DGS are insufficient to repay depositors when deposits become unavailable, its members shall pay extraordinary contributions not exceeding 0,5 % of their covered deposits per calendar year. DGSs may in exceptional circumstances and with the consent of the competent authority require higher contributions.
The competent authority may defer, in whole or in part, a credit institution's payment of extraordinary ex-post contributions to the DGS if the contributions would jeopardise the liquidity or solvency of the credit institution. Such deferral shall not be granted for a longer period than six months but may be renewed upon the request of the credit institution. The contributions deferred pursuant to this paragraph shall be paid when such payment no longer jeopardises the liquidity or solvency of the credit institution.
9. Member States shall ensure that DGSs have in place adequate alternative funding arrangements to enable them to obtain short-term funding to meet claims against those DGSs.
10. Member States shall, by 31 March each year, inform EBA of the amount of covered deposits in their Member State and of the amount of the available financial means of their DGSs on 31 December of the preceding year.
Article 11 - Use of funds
2. The financial means of a DGS shall be used in order to finance the resolution of credit institutions in accordance with Article 109 of Directive 2014/59/EU. The resolution authority shall determine, after consulting the DGS, the amount by which the DGS is liable.
3. Member States may allow a DGS to use the available financial means for alternative measures in order to prevent the failure of a credit institution provided that the following conditions are met:
| (a) | the resolution authority has not taken any resolution action under Article 32 of Directive 2014/59/EU; |
| (b) | the DGS has appropriate systems and procedures in place for selecting and implementing alternative measures and monitoring affiliated risks; |
| (c) | the costs of the measures do not exceed the costs of fulfilling the statutory or contractual mandate of the DGS; |
| (d) | the use of alternative measures by the DGS is linked to conditions imposed on the credit institution that is being supported, involving at least more stringent risk monitoring and greater verification rights for the DGS; |
| (e) | the use of alternative measures by the DGS is linked to commitments by the credit institution being supported with a view to securing access to covered deposits; |
| (f) | the ability of the affiliated credit institutions to pay the extraordinary contributions in accordance with paragraph 5 of this Article is confirmed in the assessment of the competent authority. |
The DGS shall consult the resolution authority and the competent authority on the measures and the conditions imposed on the credit institution.
4. Alternative measures as referred to in paragraph 3 of this Article shall not be applied where the competent authority, after consulting the resolution authority, considers the conditions for resolution action under Article 27(1) of Directive 2014/59/EU to be met.
5. If available financial means are used in accordance with paragraph 3 of this Article, the affiliated credit institutions shall immediately provide the DGS with the means used for alternative measures, where necessary in the form of extraordinary contributions, where:
| (a) | the need to reimburse depositors arises and the available financial means of the DGS amount to less than two-thirds of the target level; |
| (b) | the available financial means fall below 25 % of the target level. |
6. Member States may decide that the available financial means may also be used to finance measures to preserve the access of depositors to covered deposits, including transfer of assets and liabilities and deposit book transfer, in the context of national insolvency proceedings, provided that the costs borne by the DGS do not exceed the net amount of compensating covered depositors at the credit institution concerned.
Article 12 - Borrowing between DGSs
| (a) | the borrowing DGS is not able to fulfil its obligations under Article 9(1) because of a lack of available financial means as referred to in Article 10; |
| (b) | the borrowing DGS has made recourse to extraordinary contributions referred in Article 10(8); |
| (c) | the borrowing DGS undertakes the legal commitment that the borrowed funds will be used in order to pay claims under Article 9(1); |
| (d) | the borrowing DGS is not currently subject to an obligation to repay a loan to other DGSs under this Article; |
| (e) | the borrowing DGS states the amount of money requested; |
| (f) | the total amount lent does not exceed 0,5 % of covered deposits of the borrowing DGS; |
| (g) | the borrowing DGS informs EBA without delay and states the reasons why the conditions set out in this paragraph are fulfilled and the amount of money requested. |
2. The loan shall be subject to the following conditions:
| (a) | the borrowing DGS must repay the loan within five years. It may repay the loan in annual instalments. Interest shall be due only at the time of repayment; |
| (b) | the interest rate set must be at least equivalent to the marginal lending facility rate of the European Central Bank during the credit period; |
| (c) | the lending DGS must inform EBA of the initial interest rate and the duration of the loan. |
3. Member States shall ensure that the contributions levied by the borrowing DGS are sufficient to reimburse the amount borrowed and to re-establish the target level as soon as possible.
Article 13 - Calculation of contributions to DGSs
Member States may provide for lower contributions for low-risk sectors which are regulated under national law.
Member States may decide that members of an IPS pay lower contributions to the DGS.
Member States may allow the central body and all credit institutions permanently affiliated to the central body as referred to in Article 10(1) of Regulation (EU) No 575/2013 to be subject as a whole to the risk weight determined for the central body and its affiliated institutions on a consolidated basis.
Member States may decide that credit institutions pay a minimum contribution, irrespective of the amount of their covered deposits.
2. DGSs may use their own risk-based methods for determining and calculating the risk-based contributions by their members. The calculation of contributions shall be proportional to the risk of the members and shall take due account of the risk profiles of the various business models. Those methods may also take into account the asset side of the balance sheet and risk indicators, such as capital adequacy, asset quality and liquidity.
Each method shall be approved by the competent authority in cooperation with the designated authority. EBA shall be informed about the methods approved.
3. In order to ensure consistent application of this Directive, EBA shall, by 3 July 2015, issue guidelines pursuant to Article 16 of Regulation (EU) No 1093/2010 to specify methods for calculating the contributions to DGSs in accordance with paragraphs 1 and 2 of this Article.
In particular, it shall include a calculation formula, specific indicators, risk classes for members, thresholds for risk weights assigned to specific risk classes, and other necessary elements.
By 3 July 2017 and at least every five years thereafter, EBA shall conduct a review of the guidelines on risk-based or alternative own-risk-based methods applied by DGSs.
Article 14 - Cooperation within the Union
2. Depositors at branches set up by credit institutions in another Member State shall be repaid by a DGS in the host Member State on behalf of the DGS in the home Member State. The DGS of the host Member State shall make repayments in accordance with the instructions of the DGS of the home Member State. The DGS of the host Member State shall not bear any liability with regard to acts done in accordance with the instructions given by DGS of the home Member State. The DGS of the home Member State shall provide the necessary funding prior to payout and shall compensate the DGS of the host Member State for the costs incurred.
The DGS of the host Member State shall also inform the depositors concerned on behalf of the DGS of the home Member State and shall be entitled to receive correspondence from those depositors on behalf of the DGS of the home Member State.
3. If a credit institution ceases to be member of a DGS and joins another DGS, the contributions paid during the 12 months preceding the end of the membership, with the exception of the extraordinary contributions under Article 10(8), shall be transferred to the other DGS. This shall not apply if a credit institution has been excluded from a DGS pursuant to Article 4(5).
If some of the activities of a credit institution are transferred to another Member State and thus become subject to another DGS, the contributions of that credit institution paid during the 12 months preceding the transfer, with the exception of the extraordinary contributions in accordance with Article 10(8), shall be transferred to the other DGS in proportion to the amount of covered deposits transferred.
4. Member States shall ensure that DGS of the home Member State exchange information referred to under Article 4(7) or (8) and (10) with those in host Member States. The restrictions set out in that Article shall apply.
If a credit institution intends to transfer from one DGS to another in accordance with this Directive, it shall give at least six months’ notice of its intention to do so. During that period, the credit institution shall remain under the obligation to contribute to its original DGS in accordance with Article 10 both in terms of ex-ante and ex-post financing.
5. In order to facilitate an effective cooperation between DGSs, with particular regard to this Article and to Article 12, the DGSs, or, where appropriate, the designated authorities, shall have written cooperation agreements in place. Such agreements shall take into account the requirements laid down in Article 4(9).
The designated authority shall notify EBA of the existence and the content of such agreements and EBA may issue opinions in accordance with Article 34 of Regulation (EU) No 1093/2010. If designated authorities or DGSs cannot reach an agreement or if there is a dispute about the interpretation of an agreement, either party may refer the matter to EBA in accordance with Article 19 of Regulation (EU) No 1093/2010 and EBA shall act in accordance with that Article.
The absence of such agreements shall not affect the claims of depositors under Article 9(1) or of credit institutions under paragraph 3 of this Article.
6. Member States shall ensure that appropriate procedures are in place to enable DGSs to share information and communicate effectively with other DGSs, their affiliated credit institutions and the relevant competent and designated authorities within their own jurisdictions and with other agencies on a cross-border basis, where appropriate.
7. EBA and the competent and designated authorities shall cooperate with each other and exercise their powers in accordance with the provisions of this Directive and with Regulation (EU) No 1093/2010.
Member States shall inform the Commission and EBA of the identity of their designated authority by 3 July 2015.
8. EBA shall cooperate with the European Systemic Risk Board (ESRB), established by Regulation (EU) No 1092/2010 of the European Parliament and of the Council (17) on systemic risk analysis concerning DGSs.
Article 15 - Branches of credit institutions established in third countries
If protection is not equivalent, Member States may, subject to Article 47(1) of Directive 2013/36/EU, stipulate that branches established by a credit institution which has its head office outside the Union must join a DGS in operation within their territories.
When performing the check provided for in the first subparagraph of this paragraph, Member states shall at least check that depositors benefit from the same coverage level and scope of protection as provided for in this Directive.
2. Each branch established by a credit institution which has its head office outside the Union and which is not a member of a DGS operating in a Member State shall provide all relevant information concerning the guarantee arrangements for the deposits of actual and intending depositors at that branch.
3. The information referred to in paragraph 2 shall be made available in the language that was agreed by the depositor and the credit institution when the account was opened or in the official language or languages of the Member State in which the branch is established in the manner prescribed by national law and shall be clear and comprehensible.
Article 16 - Depositor information
2. Before entering into a contract on deposit-taking, depositors shall be provided with the information referred to in paragraph 1. They shall acknowledge the receipt of that information. The template set out in Annex I shall be used for that purpose.
3. Confirmation that the deposits are eligible deposits shall be provided to depositors on their statements of account including a reference to the information sheet set out in Annex I. The website of the relevant DGS shall be indicated on the information sheet. The information sheet set out in Annex I shall be provided to the depositor at least annually.
The website of the DGS shall contain the necessary information for depositors, in particular information concerning the provisions regarding the process for and conditions of deposit guarantees as envisaged under this Directive.
4. The information provided for in paragraph 1 shall be made available in the manner prescribed by national law in the language that was agreed by the depositor and the credit institution when the account was opened or in the official language or languages of the Member State in which the branch is established.
5. Member States shall limit the use in advertising of the information referred to in paragraphs 1, 2 and 3 to a factual reference to the DGS guaranteeing the product to which the advertisement refers and to any additional information required by national law.
Such information may extend to the factual description of the functioning of the DGS but shall not contain a reference to unlimited coverage of deposits.
6. In the case of a merger, conversion of subsidiaries into branches or similar operations, depositors shall be informed at least one month before the operation takes legal effect unless the competent authority allows a shorter deadline on the grounds of commercial secrecy or financial stability.
Depositors shall be given a three-month period following notification of the merger or conversion or similar operation to withdraw or transfer to another credit institution, without incurring any penalty, their eligible deposits including all accrued interest and benefits in so far as they exceed the coverage level pursuant to Article 6 at the time of the operation.
7. Member States shall ensure that if a credit institution withdraws or is excluded from a DGS, the credit institution shall inform its depositors within one month of such withdrawal or exclusion.
8. If a depositor uses internet banking, the information required to be disclosed by this Directive may be communicated by electronic means. Where the depositor so requests, it shall be communicated on paper.
Article 17 - List of authorised credit institutions
2. When publishing and updating the list of authorised credit institutions in accordance with Article 20(2) of Directive 2013/36/EU, EBA shall indicate of which DGS each credit institution is a member.
Article 18 - Exercise of the delegation
2. The power to adopt delegated acts referred to in Article 6(7) shall be conferred on the Commission for an indeterminate period of time.
3. The delegation of power referred to in Article 6(7) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 6(7) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.
Article 19 - Transitional provisions
2. Member States shall ensure that depositors are informed about the deposits or categories of deposits or other instruments which will no longer be covered by a DGS from 3 July 2015.
3. Until the target level has been reached for the first time, Member States may apply the thresholds in Article 11(5) in relation to the available financial means.
4. By way of derogation from Article 6(1), Member States which, on 1 January 2008, provided for a coverage level of between EUR 100 000 and EUR 300 000, may reapply that higher coverage level until 31 December 2018. In that case, the target level and the contributions of the credit institutions shall be adjusted accordingly.
5. By 3 July 2019, the Commission shall submit a report, and, if appropriate, a legislative proposal to the European Parliament and the Council setting out how DGSs operating in the Union may cooperate through a European scheme to prevent risks arising from cross-border activities and protect deposits from such risks.
6. By 3 July 2019, the Commission, supported by EBA, shall submit to the European Parliament and to the Council a report on the progress towards the implementation of this Directive. That report should, in particular, address:
| (a) | the target level on the basis of covered deposits, with an assessment of the appropriateness of the percentage set, taking into account the failure of credit institutions in the Union in the past; |
| (b) | the impact of alternative measures used in accordance with Article 11(3) on the protection of the depositors and consistency with the orderly winding up proceedings in the banking sector; |
| (c) | the impact on the diversity of banking models; |
| (d) | the adequacy of the current coverage level for depositors; and |
| (e) | whether the matters referred to in this subparagraph have been dealt with in a manner that maintains the protection of depositors. |
By 3 July 2019, EBA shall report to the Commission on calculation models and their relevance to the commercial risk of the members. When reporting, EBA shall take due account of the risk profiles of the various business models.
Article 20 - Transposition
Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with Article 8(4) by 31 May 2016.
If, after a thorough examination, appropriate authorities establish that a DGS is not yet in a position to comply with Article 13 by 3 July 2015, the relevant laws, regulations and administrative provisions shall be brought into force by 31 May 2016.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 21 - Repeal
References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.
Article 22 - Entry into force
Points (a), (b) and (c) of Article 5(1), Article 6(1), Article 7(1), (2) and (3), Article 8(8), Article 9(1) and Article 17 shall apply from 4 July 2015.