# L_2014264EN.01000601.xml

| 4.9.2014 | EN | Official Journal of the European Union | L 264/6 |
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4.9.2014

EN

Official Journal of the European Union

L 264/6

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EFTA SURVEILLANCE AUTHORITY DECISION

No 464/13/COL

of 27 November 2013

amending, for the 91st time, the procedural and substantive rules in the field of State aid by introducing a new chapter on the application, from 1 December 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘Banking Guidelines 2013’)

THE EFTA SURVEILLANCE AUTHORITY (‘THE AUTHORITY’),

Having regard to Article 5(2)(b) of the Surveillance and Court Agreement,

Whereas:

The Authority considers it necessary to issue Guidelines on State aid rules to support measures in favour of banks in the context of the financial crisis.

In July 2013, the European Commission adopted a Communication on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘2013 Banking Communication’) (1).

2013 Banking Communication

1

This Communication is also of relevance for the European Economic Area.

Uniform application of the EEA State aid rules is to be ensured throughout the European Economic Area in line with the objective of homogeneity established in Article 1 of the EEA Agreement.

According to point II under the heading ‘GENERAL’ on page 11 of Annex XV to the EEA Agreement, the Authority, after consultation with the Commission, is to adopt acts corresponding to those adopted by the European Commission.

The Authority consulted the European Commission on 14 August 2013 and the EFTA States by letters dated 14 November 2013 on the subject.

HAS ADOPTED THIS DECISION:

Article 1

The State Aid Guidelines shall be amended by introducing a new chapter on the application, from 1 December 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘2013 Banking Guidelines’)

2013 Banking Guidelines

The new chapter is set out in the Annex to this Decision.

Article 2

Only the English language version of this decision is authentic.

Done at Brussels, 27 November 2013.

For the EFTA Surveillance Authority

Oda Helen SLETNES

President

Sverrir Haukur GUNNLAUGSSON

College Member

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(1)  OJ C 216, 30.7.2013, p. 1.

1

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ANNEX

PART VIII — TEMPORARY RULES REGARDING THE FINANCIAL CRISIS

Guidelines on the application, from 1 December 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘2013 Banking Guidelines’)
   (1)

1.   INTRODUCTION

| (1) | Since the beginning of the financial crisis the EFTA Surveillance Authority (‘the Authority’) has adopted five sets of State aid Guidelines (‘Crisis Guidelines’) as well as prolongation guidelines for 2011 and 2012 (2). They have provided detailed guidance on the criteria for the compatibility of State aid within the European Economic Area (‘EEA’) pursuant to Article 61(3)(b) of the Agreement on the European Economic Area (‘EEA Agreement’) for the financial sector during the financial crisis. |
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(1)

Since the beginning of the financial crisis the EFTA Surveillance Authority (‘the Authority’) has adopted five sets of State aid Guidelines (‘Crisis Guidelines’) as well as prolongation guidelines for 2011 and 2012 (2). They have provided detailed guidance on the criteria for the compatibility of State aid within the European Economic Area (‘EEA’) pursuant to Article 61(3)(b) of the Agreement on the European Economic Area (‘EEA Agreement’) for the financial sector during the financial crisis.

| (2) | The Crisis Guidelines provide a comprehensive framework for coordinated action in support of the financial sector so as to ensure financial stability while minimising distortions of competition between banks and EEA States. They spell out the conditions for access to State aid and the requirements which need to be ensured to find such aid compatible with the functioning of the EEA Agreement in light of State aid principles set out therein. Through the Crisis Guidelines, State aid rules governing public assistance to the financial sector have been regularly updated where necessary to adapt to the evolution of the crisis. Recent developments require a further update of the Crisis Guidelines. |
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(2)

The Crisis Guidelines provide a comprehensive framework for coordinated action in support of the financial sector so as to ensure financial stability while minimising distortions of competition between banks and EEA States. They spell out the conditions for access to State aid and the requirements which need to be ensured to find such aid compatible with the functioning of the EEA Agreement in light of State aid principles set out therein. Through the Crisis Guidelines, State aid rules governing public assistance to the financial sector have been regularly updated where necessary to adapt to the evolution of the crisis. Recent developments require a further update of the Crisis Guidelines.

Legal basis

| (3) | The Crisis Guidelines, as well as all individual decisions on aid measures and schemes falling within the scope of those Guidelines, were adopted on the basis of Article 61(3)(b) of the EEA Agreement, which exceptionally allows for aid to remedy a serious disturbance in the economy of an EFTA State. |
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(3)

The Crisis Guidelines, as well as all individual decisions on aid measures and schemes falling within the scope of those Guidelines, were adopted on the basis of Article 61(3)(b) of the EEA Agreement, which exceptionally allows for aid to remedy a serious disturbance in the economy of an EFTA State.

| (4) | Significant action has been taken since the start of the crisis to address the financial sector's difficulties. The evolution of the crisis has required the adaptation of some provisions of the State aid framework dealing with the rescue and restructuring of firms in difficulty while not ruling out the possibility of accessing, exceptionally, significant public support. Notwithstanding the exceptional deployment of fiscal and monetary instruments which helped avert further worsening of the crisis, the economic recovery remains very fragile and uneven across the EEA. The financial sectors in some EEA States face further challenges in accessing term funding and in asset quality, stemming from the economic recession and public or private debt deleveraging. The stress in financial markets and the risk of wider negative spill-over effects persist. |
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(4)

Significant action has been taken since the start of the crisis to address the financial sector's difficulties. The evolution of the crisis has required the adaptation of some provisions of the State aid framework dealing with the rescue and restructuring of firms in difficulty while not ruling out the possibility of accessing, exceptionally, significant public support. Notwithstanding the exceptional deployment of fiscal and monetary instruments which helped avert further worsening of the crisis, the economic recovery remains very fragile and uneven across the EEA. The financial sectors in some EEA States face further challenges in accessing term funding and in asset quality, stemming from the economic recession and public or private debt deleveraging. The stress in financial markets and the risk of wider negative spill-over effects persist.

| (5) | The persistence of tensions in sovereign debt markets forcefully illustrates the continued volatility in financial markets. The high level of interconnectedness and interdependence within the financial sector in the EEA continues to give rise to market concerns about contagion. The high volatility of financial markets and the uncertainty in the economic outlook and the resulting persistent risk of a serious disturbance in the economy of EFTA States justifies maintaining, as a safety net, the possibility for EFTA States to grant crisis-related support measures on the basis of Article 61(3)(b) of the EEA Agreement in respect of the financial sector. |
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(5)

The persistence of tensions in sovereign debt markets forcefully illustrates the continued volatility in financial markets. The high level of interconnectedness and interdependence within the financial sector in the EEA continues to give rise to market concerns about contagion. The high volatility of financial markets and the uncertainty in the economic outlook and the resulting persistent risk of a serious disturbance in the economy of EFTA States justifies maintaining, as a safety net, the possibility for EFTA States to grant crisis-related support measures on the basis of Article 61(3)(b) of the EEA Agreement in respect of the financial sector.

| (6) | In those circumstances of persisting stress in financial markets and given the risk of wider negative spill-over effects, the Authority considers that the requirements for the application of Article 61(3)(b) of the EEA Agreement to State aid in the financial sector continue to be fulfilled. The application of that derogation remains, however, possible only as long as the crisis situation persists, creating genuinely exceptional circumstances where financial stability at large is at risk. |
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(6)

In those circumstances of persisting stress in financial markets and given the risk of wider negative spill-over effects, the Authority considers that the requirements for the application of Article 61(3)(b) of the EEA Agreement to State aid in the financial sector continue to be fulfilled. The application of that derogation remains, however, possible only as long as the crisis situation persists, creating genuinely exceptional circumstances where financial stability at large is at risk.

Financial stability as overarching objective

| (7) | In its response to the financial crisis, and under the Crisis Guidelines, financial stability has been the overarching objective for the Authority, whilst ensuring that State aid and distortions of competition between banks and across EEA States are kept to the minimum. Financial stability implies the need to prevent major negative spill-over effects for the rest of the banking system which could flow from the failure of a credit institution as well as the need to ensure that the banking system as a whole continues to provide adequate lending to the real economy. Financial stability remains of central importance in the Authority's assessment of State aid to the financial sector under these Guidelines. The Authority shall conduct its assessment taking account of the evolution of the crisis from one of acute and system-wide distress towards a situation of more fundamental economic difficulties in parts of the EEA, with a correspondingly higher risk of fragmentation of the EEA market. |
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(7)

In its response to the financial crisis, and under the Crisis Guidelines, financial stability has been the overarching objective for the Authority, whilst ensuring that State aid and distortions of competition between banks and across EEA States are kept to the minimum. Financial stability implies the need to prevent major negative spill-over effects for the rest of the banking system which could flow from the failure of a credit institution as well as the need to ensure that the banking system as a whole continues to provide adequate lending to the real economy. Financial stability remains of central importance in the Authority's assessment of State aid to the financial sector under these Guidelines. The Authority shall conduct its assessment taking account of the evolution of the crisis from one of acute and system-wide distress towards a situation of more fundamental economic difficulties in parts of the EEA, with a correspondingly higher risk of fragmentation of the EEA market.

| (8) | That overarching objective is reflected not only in the possibility for banks in distress to access State aid when necessary for financial stability, but also in the way restructuring plans are assessed. In that respect it has to be underlined that financial stability cannot be ensured without a healthy financial sector. Capital raising plans must therefore be assessed in close collaboration with the competent supervisory authority with a view to ensuring that viability can be regained within a reasonable time frame and on a solid and lasting basis; otherwise the failing institution should be wound down in an orderly manner. |
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(8)

That overarching objective is reflected not only in the possibility for banks in distress to access State aid when necessary for financial stability, but also in the way restructuring plans are assessed. In that respect it has to be underlined that financial stability cannot be ensured without a healthy financial sector. Capital raising plans must therefore be assessed in close collaboration with the competent supervisory authority with a view to ensuring that viability can be regained within a reasonable time frame and on a solid and lasting basis; otherwise the failing institution should be wound down in an orderly manner.

| (9) | When applying State aid rules to individual cases, the Authority nevertheless takes account of the macroeconomic environment which affects both banks' viability and the need for the real economy of a given EFTA State to continue to have access to credit from healthy banks. The Authority will, in its assessment of banks' restructuring plans continue to take account of the specificities of each institution and EFTA State: It will, in particular, undertake a proportionate assessment of the long-term viability of banks where the need for State aid stems from the sovereign crisis and is not a result of excessive risk-taking (3), and will reflect in its assessment the need to maintain a level playing field across the EEA, having regard in particular to the evolution of burden-sharing within the EEA. |
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(9)

When applying State aid rules to individual cases, the Authority nevertheless takes account of the macroeconomic environment which affects both banks' viability and the need for the real economy of a given EFTA State to continue to have access to credit from healthy banks. The Authority will, in its assessment of banks' restructuring plans continue to take account of the specificities of each institution and EFTA State: It will, in particular, undertake a proportionate assessment of the long-term viability of banks where the need for State aid stems from the sovereign crisis and is not a result of excessive risk-taking (3), and will reflect in its assessment the need to maintain a level playing field across the EEA, having regard in particular to the evolution of burden-sharing within the EEA.

| (10) | Moreover, where large parts of EFTA State's financial sector need to be restructured, the Authority endeavours to take a coordinated approach in its assessment of individual banks' restructuring plans so as to provide for a system-wide response. In particular, the Authority has taken that approach for those EFTA States under an economic adjustment programme. The Authority should thereby take into account specifically the aggregate effects of restructuring of individual institutions at the level of the sector (for example in terms of market structure) and on the economy as a whole, notably as regards the adequate provision of lending to the real economy on a sound and sustainable basis. |
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(10)

Moreover, where large parts of EFTA State's financial sector need to be restructured, the Authority endeavours to take a coordinated approach in its assessment of individual banks' restructuring plans so as to provide for a system-wide response. In particular, the Authority has taken that approach for those EFTA States under an economic adjustment programme. The Authority should thereby take into account specifically the aggregate effects of restructuring of individual institutions at the level of the sector (for example in terms of market structure) and on the economy as a whole, notably as regards the adequate provision of lending to the real economy on a sound and sustainable basis.

| (11) | Furthermore, in its assessment of burden-sharing and measures to limit distortions of competition the Authority assesses the feasibility of the proposed measures, including divestments, and their impact on the market structure and entry barriers. At the same time the Authority has to ensure that solutions devised in a particular case or an EFTA State are coherent with the goal of preventing major asymmetries across EEA States which could further fragment the EEA market and cause financial instability, impeding recovery within the EEA. |
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(11)

Furthermore, in its assessment of burden-sharing and measures to limit distortions of competition the Authority assesses the feasibility of the proposed measures, including divestments, and their impact on the market structure and entry barriers. At the same time the Authority has to ensure that solutions devised in a particular case or an EFTA State are coherent with the goal of preventing major asymmetries across EEA States which could further fragment the EEA market and cause financial instability, impeding recovery within the EEA.

Evolution of the regulatory framework and need for revision of the Crisis Guidelines

| (12) | Since the start of the crisis, the European Union has undertaken a number of institutional and regulatory changes aimed at strengthening the resilience of the financial sector and improving the prevention, the management and the resolution of banking crises. The European Council has agreed to undertake further initiatives to put the Economic and Monetary Union on a more solid footing through the creation of a Banking Union, starting with a single supervisory mechanism (SSM) and a single resolution mechanism for credit institutions established in an EU Member State participating in the SSM. EU Member States have also agreed to set up a stability mechanism by which financial resources could be provided to members and their banks in case of need. At the time of adoption of these Guidelines no decision has been taken on the possible involvement of the EEA EFTA States in the initiatives establishing the Banking Union (4). |
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(12)

Since the start of the crisis, the European Union has undertaken a number of institutional and regulatory changes aimed at strengthening the resilience of the financial sector and improving the prevention, the management and the resolution of banking crises. The European Council has agreed to undertake further initiatives to put the Economic and Monetary Union on a more solid footing through the creation of a Banking Union, starting with a single supervisory mechanism (SSM) and a single resolution mechanism for credit institutions established in an EU Member State participating in the SSM. EU Member States have also agreed to set up a stability mechanism by which financial resources could be provided to members and their banks in case of need. At the time of adoption of these Guidelines no decision has been taken on the possible involvement of the EEA EFTA States in the initiatives establishing the Banking Union (4).

| (13) | Those measures inevitably involve a degree of phasing-in, for example in order to allow legislation to enter into force or for resolution funds to build up. Some of them remain confined to the euro area. In the meantime an increasing divergence in economic recovery across the EEA, the need to reduce and consolidate public and private debt and the existence of pockets of vulnerability in the financial sector have led to persistent tensions in the financial markets and fragmentation with increasing distortions in the EEA market. The integrity of the EEA market needs therefore to be protected including through a strengthened State aid regime. Adapting the Crisis Guidelines can help to ensure a smooth passage to the future regime under the European Commission's proposal for a directive for the recovery and resolution of credit institutions (5) (‘BRRD’) by providing more clarity to markets. The adapted Crisis Guidelines can also ensure more decisive restructuring and stronger burden-sharing for all banks in receipt of State aid in the entire EEA market. |
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(13)

Those measures inevitably involve a degree of phasing-in, for example in order to allow legislation to enter into force or for resolution funds to build up. Some of them remain confined to the euro area. In the meantime an increasing divergence in economic recovery across the EEA, the need to reduce and consolidate public and private debt and the existence of pockets of vulnerability in the financial sector have led to persistent tensions in the financial markets and fragmentation with increasing distortions in the EEA market. The integrity of the EEA market needs therefore to be protected including through a strengthened State aid regime. Adapting the Crisis Guidelines can help to ensure a smooth passage to the future regime under the European Commission's proposal for a directive for the recovery and resolution of credit institutions (5) (‘BRRD’) by providing more clarity to markets. The adapted Crisis Guidelines can also ensure more decisive restructuring and stronger burden-sharing for all banks in receipt of State aid in the entire EEA market.

| (14) | Exercising State aid control for the financial sector sometimes interacts with responsibilities of supervisory authorities in EFTA States. For example, in certain cases, supervisory authorities might require adjustments in matters such as corporate governance and remuneration practices which for banks benefitting from State aid are often also set out in restructuring plans. In such cases, whilst fully preserving the Authority's exclusive competence in State aid control, coordination between the Authority and the competent supervisory authorities is of importance. Given the evolving regulatory and supervisory landscape in the EEA and, in particular, in the euro area, the Authority will liaise closely — as it does already today — with supervisory authorities to ensure a smooth interplay between the different roles and responsibilities of all the authorities involved. |
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(14)

Exercising State aid control for the financial sector sometimes interacts with responsibilities of supervisory authorities in EFTA States. For example, in certain cases, supervisory authorities might require adjustments in matters such as corporate governance and remuneration practices which for banks benefitting from State aid are often also set out in restructuring plans. In such cases, whilst fully preserving the Authority's exclusive competence in State aid control, coordination between the Authority and the competent supervisory authorities is of importance. Given the evolving regulatory and supervisory landscape in the EEA and, in particular, in the euro area, the Authority will liaise closely — as it does already today — with supervisory authorities to ensure a smooth interplay between the different roles and responsibilities of all the authorities involved.

Burden-sharing

| (15) | The Crisis Guidelines clearly spell out that even during the crisis the general principles of State aid control remain applicable. In particular, in order to limit distortions of competition between banks and across EEA States and address moral hazard, aid should be limited to the minimum necessary and an appropriate own contribution to restructuring costs should be provided by the aid beneficiary. The bank and its capital holders should contribute to the restructuring as much as possible with their own resources (6). State support should be granted on terms which represent an adequate burden-sharing by those who invested in the bank. |
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(15)

The Crisis Guidelines clearly spell out that even during the crisis the general principles of State aid control remain applicable. In particular, in order to limit distortions of competition between banks and across EEA States and address moral hazard, aid should be limited to the minimum necessary and an appropriate own contribution to restructuring costs should be provided by the aid beneficiary. The bank and its capital holders should contribute to the restructuring as much as possible with their own resources (6). State support should be granted on terms which represent an adequate burden-sharing by those who invested in the bank.

| (16) | Since the start of the crisis, when examining the compatibility of aid to banks the Authority has required at least a minimum degree of burden-sharing relative to the amount of aid received by those banks, in particular by absorbing losses with available capital and by paying an adequate remuneration for State interventions. Furthermore, in order to prevent the outflow of funds, it has introduced rules on the buyback of hybrid instruments and coupon and dividend bans. However, the Authority did not set ex ante thresholds for own contributions or any further requirements (7). |
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(16)

Since the start of the crisis, when examining the compatibility of aid to banks the Authority has required at least a minimum degree of burden-sharing relative to the amount of aid received by those banks, in particular by absorbing losses with available capital and by paying an adequate remuneration for State interventions. Furthermore, in order to prevent the outflow of funds, it has introduced rules on the buyback of hybrid instruments and coupon and dividend bans. However, the Authority did not set ex ante thresholds for own contributions or any further requirements (7).

| (17) | In the first phases of the crisis, EEA States did not generally go beyond the minimum requirements set by State aid rules with regard to burden-sharing ex ante, and creditors were not required to contribute to rescuing credit institutions for reasons of financial stability. |
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(17)

In the first phases of the crisis, EEA States did not generally go beyond the minimum requirements set by State aid rules with regard to burden-sharing ex ante, and creditors were not required to contribute to rescuing credit institutions for reasons of financial stability.

| (18) | The sovereign crisis has, however, made clear that such a policy could not ensure financial stability in the long-term, in particular for EEA States in which the cost of bank bail-outs significantly weakened their fiscal position. Indeed some EEA States had to go beyond minimum requirements under State aid rules and by introducing new legal frameworks enforce stricter ex ante burden-sharing requirements. That development led to diverging approaches to burden-sharing across EEA States, namely those that have limited themselves to the minimum requirements under State aid rules and those which have gone beyond those requirements, requiring bail-in of investors or creditors. Such differences in the approach to burden-sharing between EEA States have led to divergent funding costs between banks depending on the perceived likelihood of a bail-in as a function of an EEA State's fiscal strength. They pose a threat to the integrity of the EEA market and risk undermining the level playing field which State aid control aims to protect. |
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(18)

The sovereign crisis has, however, made clear that such a policy could not ensure financial stability in the long-term, in particular for EEA States in which the cost of bank bail-outs significantly weakened their fiscal position. Indeed some EEA States had to go beyond minimum requirements under State aid rules and by introducing new legal frameworks enforce stricter ex ante burden-sharing requirements. That development led to diverging approaches to burden-sharing across EEA States, namely those that have limited themselves to the minimum requirements under State aid rules and those which have gone beyond those requirements, requiring bail-in of investors or creditors. Such differences in the approach to burden-sharing between EEA States have led to divergent funding costs between banks depending on the perceived likelihood of a bail-in as a function of an EEA State's fiscal strength. They pose a threat to the integrity of the EEA market and risk undermining the level playing field which State aid control aims to protect.

| (19) | In the light of the above developments, the minimum requirements for burden-sharing should be raised. Before granting any kind of restructuring aid, be it a recapitalisation or impaired asset measure, to a bank all capital generating measures including the conversion of junior debt should be exhausted, provided that fundamental rights are respected and financial stability is not put at risk. As any restructuring aid is needed to prevent the possible disorderly demise of a bank, in order to reduce the aid to the minimum those burden sharing measures should be respected regardless of the initial solvency of the bank. Therefore, before granting restructuring aid to a bank EFTA States will need to ensure that the bank's shareholders and junior capital holders arrange for the required contribution or establish the necessary legal framework for obtaining such contributions. |
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(19)

In the light of the above developments, the minimum requirements for burden-sharing should be raised. Before granting any kind of restructuring aid, be it a recapitalisation or impaired asset measure, to a bank all capital generating measures including the conversion of junior debt should be exhausted, provided that fundamental rights are respected and financial stability is not put at risk. As any restructuring aid is needed to prevent the possible disorderly demise of a bank, in order to reduce the aid to the minimum those burden sharing measures should be respected regardless of the initial solvency of the bank. Therefore, before granting restructuring aid to a bank EFTA States will need to ensure that the bank's shareholders and junior capital holders arrange for the required contribution or establish the necessary legal framework for obtaining such contributions.

| (20) | In principle, the application of measures to limit distortions of competition depends on the degree of burden-sharing, and also takes into account the evolving level of burden-sharing of aided banks across the EEA. All other matters being equal, enhanced burden-sharing therefore implies a reduced need for measures addressing competition distortions. In any event, measures to limit distortions of competition should be calibrated in such a way so as to approximate as much as possible the market situation which would have materialised if the beneficiary of the aid had exited the market without aid. |
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(20)

In principle, the application of measures to limit distortions of competition depends on the degree of burden-sharing, and also takes into account the evolving level of burden-sharing of aided banks across the EEA. All other matters being equal, enhanced burden-sharing therefore implies a reduced need for measures addressing competition distortions. In any event, measures to limit distortions of competition should be calibrated in such a way so as to approximate as much as possible the market situation which would have materialised if the beneficiary of the aid had exited the market without aid.

An effective restructuring procedure and further modernisation of the framework

| (21) | Whilst it is necessary to retain certain support facilities for banks so as to address continued turmoil on the financial markets, certain procedures and conditions should be improved and further developed. It is also necessary to pursue the process of aligning the legal framework to market evolution, which started in June 2010 with the increase of the guarantee fee (8) and continued with the 2011 Prolongation Guidelines (9). |
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(21)

Whilst it is necessary to retain certain support facilities for banks so as to address continued turmoil on the financial markets, certain procedures and conditions should be improved and further developed. It is also necessary to pursue the process of aligning the legal framework to market evolution, which started in June 2010 with the increase of the guarantee fee (8) and continued with the 2011 Prolongation Guidelines (9).

| (22) | The 2008 Banking Guidelines enabled EFTA States to put rescue schemes in place whilst at the same time not excluding the availability of ad hoc interventions. Given the scale of the crisis and the general erosion of confidence within the whole EEA financial sector with, inter alia, the drying-up of the interbank market, the Authority decided that it would approve all necessary measures taken by EFTA States to safeguard the stability of the financial system, including rescue measures and recapitalisation schemes. The temporary approval of rescue aid both in the form of guarantees as well as recapitalisation and impaired asset measures succeeded in averting panic and restoring market confidence. |
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(22)

The 2008 Banking Guidelines enabled EFTA States to put rescue schemes in place whilst at the same time not excluding the availability of ad hoc interventions. Given the scale of the crisis and the general erosion of confidence within the whole EEA financial sector with, inter alia, the drying-up of the interbank market, the Authority decided that it would approve all necessary measures taken by EFTA States to safeguard the stability of the financial system, including rescue measures and recapitalisation schemes. The temporary approval of rescue aid both in the form of guarantees as well as recapitalisation and impaired asset measures succeeded in averting panic and restoring market confidence.

| (23) | However, in the changed market conditions, there is less need for structural rescue measures granted solely on the basis of a preliminary assessment which is based on the premise that practically all banks need to be rescued and which postpones the in-depth assessment of the restructuring plan to a later stage. Whilst such an approach helped prevent the irremediable collapse of the financial sector as a whole, restructuring efforts of individual beneficiaries were often delayed. Late action to address banks' problems has resulted in some cases in a higher final bill to the taxpayers. These Guidelines establish the principle that recapitalisation and impaired asset measures will be authorised only once the bank's restructuring plan is approved. This approach ensures that the amount of aid is more accurately calibrated, that the sources of the bank's problems are already identified and addressed at an early stage and that financial stability is assured. Guarantee schemes will continue to be available in order to provide liquidity to banks. Such schemes can, however, only serve as a means to provide liquidity to banks without a capital shortfall as defined by the competent supervisory authority (10). |
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(23)

However, in the changed market conditions, there is less need for structural rescue measures granted solely on the basis of a preliminary assessment which is based on the premise that practically all banks need to be rescued and which postpones the in-depth assessment of the restructuring plan to a later stage. Whilst such an approach helped prevent the irremediable collapse of the financial sector as a whole, restructuring efforts of individual beneficiaries were often delayed. Late action to address banks' problems has resulted in some cases in a higher final bill to the taxpayers. These Guidelines establish the principle that recapitalisation and impaired asset measures will be authorised only once the bank's restructuring plan is approved. This approach ensures that the amount of aid is more accurately calibrated, that the sources of the bank's problems are already identified and addressed at an early stage and that financial stability is assured. Guarantee schemes will continue to be available in order to provide liquidity to banks. Such schemes can, however, only serve as a means to provide liquidity to banks without a capital shortfall as defined by the competent supervisory authority (10).

| (24) | These Guidelines set out the necessary adaptations to the parameters for the compatibility of crisis-related State aid to banks as from 1 December 2013. In particular, these Guidelines:






  a) | replace the 2008 Banking Guidelines, and provide guidance on the compatibility criteria for liquidity support; |
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(24)

These Guidelines set out the necessary adaptations to the parameters for the compatibility of crisis-related State aid to banks as from 1 December 2013. In particular, these Guidelines:

a)

replace the 2008 Banking Guidelines, and provide guidance on the compatibility criteria for liquidity support;

| b) | adapt and complement the Recapitalisation and Impaired Assets Guidelines; |
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b)

adapt and complement the Recapitalisation and Impaired Assets Guidelines;

| c) | supplement the Restructuring Guidelines by providing more detailed guidance on burden-sharing by shareholders and subordinated creditors; |
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c)

supplement the Restructuring Guidelines by providing more detailed guidance on burden-sharing by shareholders and subordinated creditors;

| d) | establish the principle that no recapitalisation or asset protection measure can be granted without prior authorisation of a restructuring plan, and propose a procedure for the permanent authorisation of such measures; |
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d)

establish the principle that no recapitalisation or asset protection measure can be granted without prior authorisation of a restructuring plan, and propose a procedure for the permanent authorisation of such measures;

| e) | provide guidance on the compatibility requirements for liquidation aid. |
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e)

provide guidance on the compatibility requirements for liquidation aid.

2.   SCOPE

| (25) | The Authority will apply the principles set out in these Guidelines and all Crisis Guidelines
   (11) to ‘credit institutions’ (also referred to as ‘banks’) (12). Credit institutions exhibit a high degree of interconnectedness in that the disorderly failure of one credit institution can have a strong negative effect on the financial system as a whole. Credit institutions are susceptible to sudden collapses of confidence that can have serious consequences for their liquidity and solvency. The distress of a single complex institution may lead to systemic stress in the financial sector, which in turn can also have a strong negative impact on the economy as a whole, for example through the role of credit institutions in lending to the real economy, and might thus endanger financial stability. |
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(25)

The Authority will apply the principles set out in these Guidelines and all Crisis Guidelines
   (11) to ‘credit institutions’ (also referred to as ‘banks’) (12). Credit institutions exhibit a high degree of interconnectedness in that the disorderly failure of one credit institution can have a strong negative effect on the financial system as a whole. Credit institutions are susceptible to sudden collapses of confidence that can have serious consequences for their liquidity and solvency. The distress of a single complex institution may lead to systemic stress in the financial sector, which in turn can also have a strong negative impact on the economy as a whole, for example through the role of credit institutions in lending to the real economy, and might thus endanger financial stability.

| (26) | The Authority will apply the principles set out in these Guidelines and all Crisis Guidelines where appropriate mutatis mutandis to insurance companies within the meaning of Article 6 of Council Directive 73/239/EEC (13), Article 4 of Directive 2002/83/EC of the European Parliament and of the Council (14) or Article 1(b) of Directive 98/78/EC of the European Parliament and of the Council (15). |
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(26)

The Authority will apply the principles set out in these Guidelines and all Crisis Guidelines where appropriate mutatis mutandis to insurance companies within the meaning of Article 6 of Council Directive 73/239/EEC (13), Article 4 of Directive 2002/83/EC of the European Parliament and of the Council (14) or Article 1(b) of Directive 98/78/EC of the European Parliament and of the Council (15).

| (27) | All aid to such institutions incorporated in an EFTA State, including subsidiaries of such institutions, and having significant activities in an EFTA State or EU Member State will be examined under these Guidelines. |
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(27)

All aid to such institutions incorporated in an EFTA State, including subsidiaries of such institutions, and having significant activities in an EFTA State or EU Member State will be examined under these Guidelines.

3.   RECAPITALISATION AND IMPAIRED ASSET MEASURES

| (28) | Recapitalisations and impaired asset measures including asset guarantees are typically granted to cover a capital shortfall. A ‘capital shortfall’ for the purposes of these Guidelines refers to a capital shortfall established in a capital exercise, stress-test, asset quality review or an equivalent exercise at the EEA, euro area or national level, where applicable confirmed by the competent supervisory authority. Such public support is normally of a permanent nature and cannot be easily undone. |
| --- | --- |

(28)

Recapitalisations and impaired asset measures including asset guarantees are typically granted to cover a capital shortfall. A ‘capital shortfall’ for the purposes of these Guidelines refers to a capital shortfall established in a capital exercise, stress-test, asset quality review or an equivalent exercise at the EEA, euro area or national level, where applicable confirmed by the competent supervisory authority. Such public support is normally of a permanent nature and cannot be easily undone.

| (29) | Given the irreversibility of such measures in practice and the fiscal implications for the granting EFTA States and in the light of the Authority's decisional practice during the crisis, the Authority can in principle only authorise them once the EFTA State concerned demonstrates that all measures to limit such aid to the minimum necessary have been exploited to the maximum extent. To that end, EFTA States are invited to submit a capital raising plan, before or as part of the submission of a restructuring plan. A capital raising plan should contain in particular capital raising measures by the bank and potential burden-sharing measures by the shareholders and subordinated creditors of the bank. |
| --- | --- |

(29)

Given the irreversibility of such measures in practice and the fiscal implications for the granting EFTA States and in the light of the Authority's decisional practice during the crisis, the Authority can in principle only authorise them once the EFTA State concerned demonstrates that all measures to limit such aid to the minimum necessary have been exploited to the maximum extent. To that end, EFTA States are invited to submit a capital raising plan, before or as part of the submission of a restructuring plan. A capital raising plan should contain in particular capital raising measures by the bank and potential burden-sharing measures by the shareholders and subordinated creditors of the bank.

| (30) | A capital raising plan, in conjunction with a thorough asset quality review of the bank and a forward looking capital adequacy assessment, should enable the EFTA State, jointly with the Authority and the competent supervisory authority, to determine precisely the (residual) capital shortfall of a bank that needs to be covered with State aid. Any such residual capital shortfall which needs to be covered by State aid requires the submission of a restructuring plan. |
| --- | --- |

(30)

A capital raising plan, in conjunction with a thorough asset quality review of the bank and a forward looking capital adequacy assessment, should enable the EFTA State, jointly with the Authority and the competent supervisory authority, to determine precisely the (residual) capital shortfall of a bank that needs to be covered with State aid. Any such residual capital shortfall which needs to be covered by State aid requires the submission of a restructuring plan.

| (31) | The restructuring plan involving restructuring aid will, with the exception of the requirements on capital raising and burden-sharing which must be included in the capital raising plan as set out in points (32) to (34), submitted prior to or as part of the restructuring plan, continue to be assessed on the basis of the Restructuring Guidelines. |
| --- | --- |

(31)

The restructuring plan involving restructuring aid will, with the exception of the requirements on capital raising and burden-sharing which must be included in the capital raising plan as set out in points (32) to (34), submitted prior to or as part of the restructuring plan, continue to be assessed on the basis of the Restructuring Guidelines.

3.1.   ADDRESSING A CAPITAL SHORTFALL — PRE-NOTIFICATION AND NOTIFICATION OF RESTRUCTURING AID

| (32) | As soon as a capital shortfall that is likely to result in a request for State aid has been identified, all measures to minimise the cost of remedying that shortfall for the EFTA State should be implemented. To that end, EFTA States are invited to enter into pre-notification contacts with the Authority. In the course of those voluntary pre-notification contacts, the Authority will offer its assistance on how to ensure compatibility of the restructuring aid and in particular on how to implement the burden-sharing requirements in accordance with State aid rules. The basis for the pre-notification will be a capital raising plan established by the EFTA State and the bank and endorsed by the competent supervisory authority. It should:






  (a) | list the capital raising measures to be undertaken by the bank and the (potential) burden-sharing measures for shareholders and subordinated creditors; |
| --- | --- | --- |

(32)

As soon as a capital shortfall that is likely to result in a request for State aid has been identified, all measures to minimise the cost of remedying that shortfall for the EFTA State should be implemented. To that end, EFTA States are invited to enter into pre-notification contacts with the Authority. In the course of those voluntary pre-notification contacts, the Authority will offer its assistance on how to ensure compatibility of the restructuring aid and in particular on how to implement the burden-sharing requirements in accordance with State aid rules. The basis for the pre-notification will be a capital raising plan established by the EFTA State and the bank and endorsed by the competent supervisory authority. It should:

(a)

list the capital raising measures to be undertaken by the bank and the (potential) burden-sharing measures for shareholders and subordinated creditors;

| (b) | contain safeguards preventing the outflows of funds from the bank which could, for example, occur by the bank acquiring stakes in other undertakings or paying dividends or coupons. |
| --- | --- |

(b)

contain safeguards preventing the outflows of funds from the bank which could, for example, occur by the bank acquiring stakes in other undertakings or paying dividends or coupons.

| (33) | The EFTA State should provide a detailed methodology and input data used to determine the capital shortfall, validated by the competent supervisory authority. The methodology needs to be presented on a business segment basis. |
| --- | --- |

(33)

The EFTA State should provide a detailed methodology and input data used to determine the capital shortfall, validated by the competent supervisory authority. The methodology needs to be presented on a business segment basis.

| (34) | After the submission of the capital raising plan and the incorporation of the results of the asset quality review of the bank and a forward looking capital adequacy assessment, the EFTA State must determine the residual capital shortfall that has to be covered by State aid. The Authority will offer to the EFTA State to discuss the restructuring plan before its notification. Once agreement on the restructuring plan has been achieved the EFTA State may formally notify the restructuring plan. The Authority will authorise any recapitalisation or impaired asset measure as restructuring aid only after agreement on the restructuring plan has been reached. |
| --- | --- |

(34)

After the submission of the capital raising plan and the incorporation of the results of the asset quality review of the bank and a forward looking capital adequacy assessment, the EFTA State must determine the residual capital shortfall that has to be covered by State aid. The Authority will offer to the EFTA State to discuss the restructuring plan before its notification. Once agreement on the restructuring plan has been achieved the EFTA State may formally notify the restructuring plan. The Authority will authorise any recapitalisation or impaired asset measure as restructuring aid only after agreement on the restructuring plan has been reached.

3.1.1.   Capital raising measures by the bank

| (35) | In the capital raising plan endorsed by the competent supervisory authority, the beneficiary should identify and to the extent possible, without endangering viability, carry out all capital raising measures that can be implemented. Such measures should include in particular:






  (a) | rights issues; |
| --- | --- | --- |

(35)

In the capital raising plan endorsed by the competent supervisory authority, the beneficiary should identify and to the extent possible, without endangering viability, carry out all capital raising measures that can be implemented. Such measures should include in particular:

(a)

rights issues;

| (b) | voluntary conversion of subordinated debt instruments into equity on the basis of a risk-related incentive; |
| --- | --- |

(b)

voluntary conversion of subordinated debt instruments into equity on the basis of a risk-related incentive;

| (c) | liability management exercises which should in principle be 100 % capital generating if the capital shortfall cannot be overcome in full and therefore State aid is required; |
| --- | --- |

(c)

liability management exercises which should in principle be 100 % capital generating if the capital shortfall cannot be overcome in full and therefore State aid is required;

| (d) | capital-generating sales of assets and portfolios; |
| --- | --- |

(d)

capital-generating sales of assets and portfolios;

| (e) | securitisation of portfolios in order to generate capital from non-core activities; |
| --- | --- |

(e)

securitisation of portfolios in order to generate capital from non-core activities;

| (f) | earnings retention; |
| --- | --- |

(f)

earnings retention;

| (g) | other measures reducing capital needs. |
| --- | --- |

(g)

other measures reducing capital needs.

| (36) | If the identified measures are indicated in the capital raising plan as ones that cannot be implemented within six months from the submission of that plan, the Authority will consult the competent supervisory authority to assess whether it should take those proposed measures into account as capital raising measures. |
| --- | --- |

(36)

If the identified measures are indicated in the capital raising plan as ones that cannot be implemented within six months from the submission of that plan, the Authority will consult the competent supervisory authority to assess whether it should take those proposed measures into account as capital raising measures.

| (37) | There should be incentives for banks' managements to undertake far-reaching restructuring in good times and, thereby, minimize the need to recourse to State support. Accordingly, if recourse to State aid could have reasonably been averted through appropriate and timely management action, any entity relying on State aid for its restructuring or orderly winding down should normally replace the Chief Executive Officer of the bank, as well as board members if appropriate. |
| --- | --- |

(37)

There should be incentives for banks' managements to undertake far-reaching restructuring in good times and, thereby, minimize the need to recourse to State support. Accordingly, if recourse to State aid could have reasonably been averted through appropriate and timely management action, any entity relying on State aid for its restructuring or orderly winding down should normally replace the Chief Executive Officer of the bank, as well as board members if appropriate.

| (38) | For the same reasons, such entities should apply strict executive remuneration policies. This requires a cap on remuneration of executive pay combined with incentives ensuring that the bank is implementing its restructuring plan towards sustainable, long-term company objectives. Thus, any bank in receipt of State aid in the form of recapitalisation or impaired asset measures should restrict the total remuneration to staff, including board members and senior management, to an appropriate level. That cap on total remuneration should include all possible fixed and variable components and pensions, and be in line with Articles 93 and 94 of the EU Capital Requirements Directive (CRD IV) (16).
  The total remuneration of any such individual may therefore not exceed 15 times the national average salary in the EFTA State where the beneficiary is incorporated (17) or 10 times the average salary of employees in the beneficiary bank.
  Restrictions on remuneration must apply until the end of the restructuring period or until the bank has repaid the State aid, whichever occurs earlier. |
| --- | --- |

(38)

For the same reasons, such entities should apply strict executive remuneration policies. This requires a cap on remuneration of executive pay combined with incentives ensuring that the bank is implementing its restructuring plan towards sustainable, long-term company objectives. Thus, any bank in receipt of State aid in the form of recapitalisation or impaired asset measures should restrict the total remuneration to staff, including board members and senior management, to an appropriate level. That cap on total remuneration should include all possible fixed and variable components and pensions, and be in line with Articles 93 and 94 of the EU Capital Requirements Directive (CRD IV) (16).

The total remuneration of any such individual may therefore not exceed 15 times the national average salary in the EFTA State where the beneficiary is incorporated (17) or 10 times the average salary of employees in the beneficiary bank.

Restrictions on remuneration must apply until the end of the restructuring period or until the bank has repaid the State aid, whichever occurs earlier.

| (39) | Any bank in receipt of State aid in the form of recapitalisation or impaired asset measures should not in principle make severance payments in excess of what is required by law or contract. |
| --- | --- |

(39)

Any bank in receipt of State aid in the form of recapitalisation or impaired asset measures should not in principle make severance payments in excess of what is required by law or contract.

3.1.2.   Burden-sharing by the shareholders and the subordinated creditors

| (40) | State support can create moral hazard and undermine market discipline. To reduce moral hazard, aid should only be granted on terms which involve adequate burden-sharing by existing investors. |
| --- | --- |

(40)

State support can create moral hazard and undermine market discipline. To reduce moral hazard, aid should only be granted on terms which involve adequate burden-sharing by existing investors.

| (41) | Adequate burden-sharing will normally entail, after losses are first absorbed by equity, contributions by hybrid capital holders and subordinated debt holders. Hybrid capital and subordinated debt holders must contribute to reducing the capital shortfall to the maximum extent. Such contributions can take the form of either a conversion into Common Equity Tier 1 (18) or a write-down of the principal of the instruments. In any case, cash outflows from the beneficiary to the holders of such securities must be prevented to the extent legally possible. |
| --- | --- |

(41)

Adequate burden-sharing will normally entail, after losses are first absorbed by equity, contributions by hybrid capital holders and subordinated debt holders. Hybrid capital and subordinated debt holders must contribute to reducing the capital shortfall to the maximum extent. Such contributions can take the form of either a conversion into Common Equity Tier 1 (18) or a write-down of the principal of the instruments. In any case, cash outflows from the beneficiary to the holders of such securities must be prevented to the extent legally possible.

| (42) | The Authority will not require contribution from senior debt holders (in particular from insured deposits, uninsured deposits, bonds and all other senior debt) as a mandatory component of burden-sharing under State aid rules whether by conversion into capital or by write-down of the instruments. |
| --- | --- |

(42)

The Authority will not require contribution from senior debt holders (in particular from insured deposits, uninsured deposits, bonds and all other senior debt) as a mandatory component of burden-sharing under State aid rules whether by conversion into capital or by write-down of the instruments.

| (43) | Where the capital ratio of the bank that has the identified capital shortfall remains above the EEA regulatory minimum the bank should normally be able to restore the capital position on its own, in particular through capital raising measures as set out in point (35). If there are no other possibilities, including any other supervisory action such as early intervention measures or other remedial actions to overcome the shortfall as confirmed by the competent supervisory or resolution authority, then subordinated debt must be converted into equity, in principle before State aid is granted. |
| --- | --- |

(43)

Where the capital ratio of the bank that has the identified capital shortfall remains above the EEA regulatory minimum the bank should normally be able to restore the capital position on its own, in particular through capital raising measures as set out in point (35). If there are no other possibilities, including any other supervisory action such as early intervention measures or other remedial actions to overcome the shortfall as confirmed by the competent supervisory or resolution authority, then subordinated debt must be converted into equity, in principle before State aid is granted.

| (44) | In cases where the bank no longer meets the minimum regulatory capital requirements, subordinated debt must be converted or written down, in principle before State aid is granted. State aid must not be granted before equity, hybrid capital and subordinated debt have fully contributed to offset any losses. |
| --- | --- |

(44)

In cases where the bank no longer meets the minimum regulatory capital requirements, subordinated debt must be converted or written down, in principle before State aid is granted. State aid must not be granted before equity, hybrid capital and subordinated debt have fully contributed to offset any losses.

| (45) | An exception to the requirements in points 43 and 44 can be made where implementing such measures would endanger financial stability or lead to disproportionate results. This exception could cover cases where the aid amount to be received is small in comparison to the bank's risk weighted assets and the capital shortfall has been reduced significantly in particular through capital raising measures as set out in point 35. Disproportionate results or a risk to financial stability could also be addressed by reconsidering the sequencing of measures to address the capital shortfall. |
| --- | --- |

(45)

An exception to the requirements in points 43 and 44 can be made where implementing such measures would endanger financial stability or lead to disproportionate results. This exception could cover cases where the aid amount to be received is small in comparison to the bank's risk weighted assets and the capital shortfall has been reduced significantly in particular through capital raising measures as set out in point 35. Disproportionate results or a risk to financial stability could also be addressed by reconsidering the sequencing of measures to address the capital shortfall.

| (46) | In the context of implementing points 43 and 44 the ‘no creditor worse off principle’ (19) should be adhered to. Thus, subordinated creditors should not receive less in economic terms than what their instrument would have been worth if no State aid were to be granted. |
| --- | --- |

(46)

In the context of implementing points 43 and 44 the ‘no creditor worse off principle’ (19) should be adhered to. Thus, subordinated creditors should not receive less in economic terms than what their instrument would have been worth if no State aid were to be granted.

3.1.3.   Preventing the outflow of funds prior to a restructuring decision

| (47) | In order to limit the aid to the minimum necessary, outflows of funds must be prevented at the earliest stage possible. Therefore, from the time capital needs are known or should have been known to the bank, the Authority considers that the bank should take all measures necessary to retain its funds. In particular, from that moment on, institutions which have identified or should have identified capital needs:






  a) | must not pay dividends on shares or coupons on hybrid capital instruments (or any other instruments for which the coupon payment is discretionary); |
| --- | --- | --- |

(47)

In order to limit the aid to the minimum necessary, outflows of funds must be prevented at the earliest stage possible. Therefore, from the time capital needs are known or should have been known to the bank, the Authority considers that the bank should take all measures necessary to retain its funds. In particular, from that moment on, institutions which have identified or should have identified capital needs:

a)

must not pay dividends on shares or coupons on hybrid capital instruments (or any other instruments for which the coupon payment is discretionary);

| b) | must not repurchase any of their own shares or call hybrid capital instruments for the duration of the restructuring period without prior approval by the Authority; and |
| --- | --- |

b)

must not repurchase any of their own shares or call hybrid capital instruments for the duration of the restructuring period without prior approval by the Authority; and

| c) | must not buy back hybrid capital instruments, unless such a measure, possibly in combination with others, allows the institution to fully absorb its capital shortfall, and occurs sufficiently close to current market levels (20) and at not more than 10 % above the market price; any buy back is subject to prior approval by the Authority; |
| --- | --- |

c)

must not buy back hybrid capital instruments, unless such a measure, possibly in combination with others, allows the institution to fully absorb its capital shortfall, and occurs sufficiently close to current market levels (20) and at not more than 10 % above the market price; any buy back is subject to prior approval by the Authority;

| d) | must not perform any capital management transaction without prior approval by the Authority; |
| --- | --- |

d)

must not perform any capital management transaction without prior approval by the Authority;

| e) | must not engage in aggressive commercial practices; and |
| --- | --- |

e)

must not engage in aggressive commercial practices; and

| f) | must not acquire a stake in any undertaking, be it an asset or a share transfer. That requirement does not cover: (i) acquisitions that take place in the ordinary course of the banking business in the management of existing claims towards ailing firms; and (ii) the acquisition of stakes in undertakings provided that the purchase price paid is less than 0,01 % of the last available balance sheet size of the institution at that moment and that the cumulative purchase prices paid for all such acquisitions from that moment until the end of the restructuring period is less than 0,025 % of its last available balance sheet size at that moment; (iii) the acquisition of a business, after obtaining the Authority's approval, if it is, in exceptional circumstances, necessary to restore financial stability or to ensure effective competition; |
| --- | --- |

f)

must not acquire a stake in any undertaking, be it an asset or a share transfer. That requirement does not cover: (i) acquisitions that take place in the ordinary course of the banking business in the management of existing claims towards ailing firms; and (ii) the acquisition of stakes in undertakings provided that the purchase price paid is less than 0,01 % of the last available balance sheet size of the institution at that moment and that the cumulative purchase prices paid for all such acquisitions from that moment until the end of the restructuring period is less than 0,025 % of its last available balance sheet size at that moment; (iii) the acquisition of a business, after obtaining the Authority's approval, if it is, in exceptional circumstances, necessary to restore financial stability or to ensure effective competition;

| g) | must refrain from advertising referring to State support and from employing any aggressive commercial strategies which would not take place without the support of the EFTA State. |
| --- | --- |

g)

must refrain from advertising referring to State support and from employing any aggressive commercial strategies which would not take place without the support of the EFTA State.

| (48) | As it needs to be ensured that the aid is limited to the minimum necessary, if a bank undertakes actions which are not in line with the requirements listed in point 47 at a point in time when its need for additional capital should have been evident to a well-run business, the Authority will, for the purpose of establishing the required measures to limit distortions of competition, add an amount equivalent to the outflow of funds to the aid amount. |
| --- | --- |

(48)

As it needs to be ensured that the aid is limited to the minimum necessary, if a bank undertakes actions which are not in line with the requirements listed in point 47 at a point in time when its need for additional capital should have been evident to a well-run business, the Authority will, for the purpose of establishing the required measures to limit distortions of competition, add an amount equivalent to the outflow of funds to the aid amount.

3.1.4.   Covering the residual capital shortfall with restructuring aid

| (49) | If after the implementation of the capital raising and burden-sharing measures a capital shortfall remains, it can in principle be covered by public recapitalisation, impaired asset measures or a combination of the two. In order for such aid to be compatible, a restructuring plan has to be submitted to the Authority which needs to comply with the relevant sections of the Crisis Guidelines. |
| --- | --- |

(49)

If after the implementation of the capital raising and burden-sharing measures a capital shortfall remains, it can in principle be covered by public recapitalisation, impaired asset measures or a combination of the two. In order for such aid to be compatible, a restructuring plan has to be submitted to the Authority which needs to comply with the relevant sections of the Crisis Guidelines.

3.2.   RESCUE AID IN THE FORM OF RECAPITALISATION AND IMPAIRED ASSET MEASURES

| (50) | Once the Authority begins to apply the principles set out in theseGuidelines an EFTA State will have to notify a restructuring plan to the Authority and obtain State aid approval before any recapitalisation or impaired asset measures are taken. However, such measures can exceptionally be authorised by the Authority to be granted by the EFTA State on a temporary basis as rescue aid before a restructuring plan is approved, if such measures are required to preserve financial stability. If an EFTA State invokes this financial stability clause, the Authority will request an ex ante analysis from the competent supervisory authority confirming that a current (not prospective) capital shortfall exists, which would force the supervisor to withdraw the institution's banking license immediately if no such measures were taken. Moreover, any such analysis will have to demonstrate that the exceptional risk to financial stability cannot be averted with private capital within a sufficiently short period of time or by any other less distorting temporary measure such as a State guarantee. |
| --- | --- |

(50)

Once the Authority begins to apply the principles set out in theseGuidelines an EFTA State will have to notify a restructuring plan to the Authority and obtain State aid approval before any recapitalisation or impaired asset measures are taken. However, such measures can exceptionally be authorised by the Authority to be granted by the EFTA State on a temporary basis as rescue aid before a restructuring plan is approved, if such measures are required to preserve financial stability. If an EFTA State invokes this financial stability clause, the Authority will request an ex ante analysis from the competent supervisory authority confirming that a current (not prospective) capital shortfall exists, which would force the supervisor to withdraw the institution's banking license immediately if no such measures were taken. Moreover, any such analysis will have to demonstrate that the exceptional risk to financial stability cannot be averted with private capital within a sufficiently short period of time or by any other less distorting temporary measure such as a State guarantee.

| (51) | Any rescue measure falling under point 50 has to be notified to the Authority. In order to be temporarily approved by the Authority, such a measure must comply with the rules governing the remuneration and burden-sharing of such measures set out in the Recapitalisation Guidelines, the 2011 Prolongation Guidelines and, where applicable, the Impaired Asset Guidelines. |
| --- | --- |

(51)

Any rescue measure falling under point 50 has to be notified to the Authority. In order to be temporarily approved by the Authority, such a measure must comply with the rules governing the remuneration and burden-sharing of such measures set out in the Recapitalisation Guidelines, the 2011 Prolongation Guidelines and, where applicable, the Impaired Asset Guidelines.

| (52) | Moreover, rescue aid in the form of recapitalisation and impaired asset measures must not prevent compliance with the burden-sharing requirements set out in these Guidelines. Consequently, either the required burden-sharing measures must be implemented as part of the rescue aid, or the recapitalisation or impaired asset measures must be arranged in a manner that allows for the implementation of the burden-sharing measures ex post. Such ex post implementation may be achieved by, for example, equity recapitalisation in a form that is senior to existing capital and subordinated debt instruments, whilst being compliant with the applicable regulatory and supervisory framework. |
| --- | --- |

(52)

Moreover, rescue aid in the form of recapitalisation and impaired asset measures must not prevent compliance with the burden-sharing requirements set out in these Guidelines. Consequently, either the required burden-sharing measures must be implemented as part of the rescue aid, or the recapitalisation or impaired asset measures must be arranged in a manner that allows for the implementation of the burden-sharing measures ex post. Such ex post implementation may be achieved by, for example, equity recapitalisation in a form that is senior to existing capital and subordinated debt instruments, whilst being compliant with the applicable regulatory and supervisory framework.

| (53) | Following the authorisation of rescue aid, the EFTA State must submit a restructuring plan in line with the Restructuring Guidelines within two months of the date of the decision temporarily approving the aid. The restructuring plan will be assessed on the basis of the Restructuring Guidelines, taking into account the principles of burden-sharing described in these Guidelines. |
| --- | --- |

(53)

Following the authorisation of rescue aid, the EFTA State must submit a restructuring plan in line with the Restructuring Guidelines within two months of the date of the decision temporarily approving the aid. The restructuring plan will be assessed on the basis of the Restructuring Guidelines, taking into account the principles of burden-sharing described in these Guidelines.

3.3.   SCHEMES FOR RECAPITALISATION AND RESTRUCTURING OF SMALL INSTITUTIONS

| (54) | Aid to small banks tends to affect competition less than aid granted to larger banks. For that reason and to ensure a proportionate administrative treatment, it is appropriate to allow for a simpler procedure in relation to small banks whilst ensuring that competition distortions are limited to the minimum. Therefore, the Authority is willing to authorise schemes for recapitalisation and restructuring of small institutions where such schemes have a clear remit and are limited to a six-month period, provided they respect the principles set out in the Crisis Guidelines and in particular the burden-sharing requirements of these Guidelines. The application of any such scheme must furthermore be restricted to banks with a balance-sheet total of not more than EUR 100 million. The sum of the balance-sheets of the banks that receive aid under the scheme must not exceed 1,5 % of the total assets held by banks in the domestic market of the EFTA State concerned. |
| --- | --- |

(54)

Aid to small banks tends to affect competition less than aid granted to larger banks. For that reason and to ensure a proportionate administrative treatment, it is appropriate to allow for a simpler procedure in relation to small banks whilst ensuring that competition distortions are limited to the minimum. Therefore, the Authority is willing to authorise schemes for recapitalisation and restructuring of small institutions where such schemes have a clear remit and are limited to a six-month period, provided they respect the principles set out in the Crisis Guidelines and in particular the burden-sharing requirements of these Guidelines. The application of any such scheme must furthermore be restricted to banks with a balance-sheet total of not more than EUR 100 million. The sum of the balance-sheets of the banks that receive aid under the scheme must not exceed 1,5 % of the total assets held by banks in the domestic market of the EFTA State concerned.

| (55) | The Authority will evaluate any such scheme so as to verify whether it achieves its objective and is implemented correctly. To that end, the EFTA State must provide a report on the use of the scheme on a six-monthly basis after the scheme's authorisation. |
| --- | --- |

(55)

The Authority will evaluate any such scheme so as to verify whether it achieves its objective and is implemented correctly. To that end, the EFTA State must provide a report on the use of the scheme on a six-monthly basis after the scheme's authorisation.

4.   GUARANTEES AND LIQUIDITY SUPPORT OUTSIDE THE PROVISION OF CENTRAL BANK LIQUIDITY

| (56) | Liquidity support and guarantees on liabilities temporarily stabilise the liability side of a bank's balance sheet. Therefore, unlike recapitalisation or impaired asset measures which in principle must be preceded by the notification of a restructuring plan by the EFTA State concerned and approval by the Authority before they can be granted, the Authority can accept that EFTA States notify guarantees and liquidity support to be granted after approval on a temporary basis as rescue aid before a restructuring plan is approved. |
| --- | --- |

(56)

Liquidity support and guarantees on liabilities temporarily stabilise the liability side of a bank's balance sheet. Therefore, unlike recapitalisation or impaired asset measures which in principle must be preceded by the notification of a restructuring plan by the EFTA State concerned and approval by the Authority before they can be granted, the Authority can accept that EFTA States notify guarantees and liquidity support to be granted after approval on a temporary basis as rescue aid before a restructuring plan is approved.

| (57) | Guarantees and liquidity support can be notified individually to the Authority; in addition the Authority may also authorise schemes providing for liquidity measures for a maximum period of six months. |
| --- | --- |

(57)

Guarantees and liquidity support can be notified individually to the Authority; in addition the Authority may also authorise schemes providing for liquidity measures for a maximum period of six months.

| (58) | Such schemes must be restricted to banks which have no capital shortfall. Where a bank with a capital shortfall is in urgent need of liquidity, an individual notification to the Authority is required (21). In such circumstances, the Authority will apply the procedure set out in points 32 to 34 mutatis mutandis, including the requirement for a restructuring or wind-down plan, unless the aid is reimbursed within two months. |
| --- | --- |

(58)

Such schemes must be restricted to banks which have no capital shortfall. Where a bank with a capital shortfall is in urgent need of liquidity, an individual notification to the Authority is required (21). In such circumstances, the Authority will apply the procedure set out in points 32 to 34 mutatis mutandis, including the requirement for a restructuring or wind-down plan, unless the aid is reimbursed within two months.

| (59) | In order to be approved by the Authority, guarantees and liquidity support must meet the following requirements:






  a) | guarantees may only be granted for new issues of credit institutions' senior debt (subordinated debt is excluded); |
| --- | --- | --- |

(59)

In order to be approved by the Authority, guarantees and liquidity support must meet the following requirements:

a)

guarantees may only be granted for new issues of credit institutions' senior debt (subordinated debt is excluded);

| b) | guarantees may only be granted on debt instruments with maturities from three months to five years (or a maximum of seven years in the case of covered bonds). Guarantees with a maturity of more than three years must, except in duly justified cases, be limited to one-third of the outstanding guarantees granted to the individual bank; |
| --- | --- |

b)

guarantees may only be granted on debt instruments with maturities from three months to five years (or a maximum of seven years in the case of covered bonds). Guarantees with a maturity of more than three years must, except in duly justified cases, be limited to one-third of the outstanding guarantees granted to the individual bank;

| c) | the minimum remuneration level of the State guarantees must be in line with the formula set out in the 2011 Prolongation Guidelines; |
| --- | --- |

c)

the minimum remuneration level of the State guarantees must be in line with the formula set out in the 2011 Prolongation Guidelines;

| d) | a restructuring plan must be submitted to the Authority within two months for any credit institution granted guarantees on new liabilities or on renewed liabilities for which, at the time of the granting of the new guarantee, the total outstanding guaranteed liabilities (including guarantees accorded before the date of that decision) exceed both a ratio of 5 % of total liabilities and a total amount of EUR 500 million; |
| --- | --- |

d)

a restructuring plan must be submitted to the Authority within two months for any credit institution granted guarantees on new liabilities or on renewed liabilities for which, at the time of the granting of the new guarantee, the total outstanding guaranteed liabilities (including guarantees accorded before the date of that decision) exceed both a ratio of 5 % of total liabilities and a total amount of EUR 500 million;

| e) | for any credit institution which causes the guarantee to be called upon, an individual restructuring or wind-down plan must be submitted within two months after the guarantee has been activated; |
| --- | --- |

e)

for any credit institution which causes the guarantee to be called upon, an individual restructuring or wind-down plan must be submitted within two months after the guarantee has been activated;

| f) | the recipients of guarantees and liquidity support must refrain from advertising referring to State support and from employing any aggressive commercial strategies which would not take place without the support of the EFTA State. |
| --- | --- |

f)

the recipients of guarantees and liquidity support must refrain from advertising referring to State support and from employing any aggressive commercial strategies which would not take place without the support of the EFTA State.

| (60) | For guarantee and liquidity support schemes, the following additional criteria must be met:






  a) | the scheme must be restricted to banks without a capital shortfall as certified by the competent supervisory authority in line with point 28; |
| --- | --- | --- |

(60)

For guarantee and liquidity support schemes, the following additional criteria must be met:

a)

the scheme must be restricted to banks without a capital shortfall as certified by the competent supervisory authority in line with point 28;

| b) | guarantees with a maturity of more than three years must be limited to one-third of the total guarantees granted to the individual bank; |
| --- | --- |

b)

guarantees with a maturity of more than three years must be limited to one-third of the total guarantees granted to the individual bank;

| c) | EFTA States must report to the Authority on a three-monthly basis on: (i) the operation of the scheme, (ii) the guaranteed debt issues and (iii) the actual fees charged; |
| --- | --- |

c)

EFTA States must report to the Authority on a three-monthly basis on: (i) the operation of the scheme, (ii) the guaranteed debt issues and (iii) the actual fees charged;

| d) | EFTA States must supplement their reports on the operation of the scheme with available updated information on the cost of comparable non-guaranteed debt issuances (nature, volume, rating, currency). |
| --- | --- |

d)

EFTA States must supplement their reports on the operation of the scheme with available updated information on the cost of comparable non-guaranteed debt issuances (nature, volume, rating, currency).

| (61) | In exceptional cases guarantees may also be approved covering exposures of the European Investment Bank towards banks for the purpose of restoring lending to the real economy in countries with severely distressed borrowing conditions compared to the EEA average. In assessing such measures the Authority will examine in particular whether they do not confer an undue benefit that could for example serve to develop other business activities of those banks. Such guarantees may only cover a period of up to seven years. If approved by the Authority, such guarantees do not trigger an obligation for the bank to present a restructuring plan. |
| --- | --- |

(61)

In exceptional cases guarantees may also be approved covering exposures of the European Investment Bank towards banks for the purpose of restoring lending to the real economy in countries with severely distressed borrowing conditions compared to the EEA average. In assessing such measures the Authority will examine in particular whether they do not confer an undue benefit that could for example serve to develop other business activities of those banks. Such guarantees may only cover a period of up to seven years. If approved by the Authority, such guarantees do not trigger an obligation for the bank to present a restructuring plan.

5.   PROVISION OF LIQUIDITY BY CENTRAL BANKS AND INTERVENTION OF DEPOSIT GUARANTEE SCHEMES AND RESOLUTION FUNDS

| (62) | The ordinary activities of central banks related to monetary policy, such as open market operations and standing facilities, do not fall within the scope of the State aid rules. Dedicated support to a specific credit institution (commonly referred to as ‘emergency liquidity assistance’) may constitute aid unless the following cumulative conditions are met (22):






  a) | the credit institution is temporarily illiquid but solvent at the moment of the liquidity provision which occurs in exceptional circumstances and is not part of a larger aid package; |
| --- | --- | --- |

(62)

The ordinary activities of central banks related to monetary policy, such as open market operations and standing facilities, do not fall within the scope of the State aid rules. Dedicated support to a specific credit institution (commonly referred to as ‘emergency liquidity assistance’) may constitute aid unless the following cumulative conditions are met (22):

a)

the credit institution is temporarily illiquid but solvent at the moment of the liquidity provision which occurs in exceptional circumstances and is not part of a larger aid package;

| b) | the facility is fully secured by collateral to which appropriate haircuts are applied, in function of its quality and market value; |
| --- | --- |

b)

the facility is fully secured by collateral to which appropriate haircuts are applied, in function of its quality and market value;

| c) | the central bank charges a penal interest rate to the beneficiary; |
| --- | --- |

c)

the central bank charges a penal interest rate to the beneficiary;

| d) | the measure is taken at the central bank's own initiative, and in particular is not backed by any counter-guarantee of the State. |
| --- | --- |

d)

the measure is taken at the central bank's own initiative, and in particular is not backed by any counter-guarantee of the State.

| (63) | Interventions by deposit guarantee funds to reimburse depositors in accordance with EFTA States' obligations under Directive 94/19/EC of the European Parliament and of the Council (23) do not constitute State aid (24). However, the use of those or similar funds to assist in the restructuring of credit institutions may constitute State aid. Whilst the funds in question may derive from the private sector, they may constitute aid to the extent that they come within the control of the State and the decision as to the funds' application is imputable to the State (25). The Authority will assess the compatibility of State aid in the form of such interventions under these Guidelines. |
| --- | --- |

(63)

Interventions by deposit guarantee funds to reimburse depositors in accordance with EFTA States' obligations under Directive 94/19/EC of the European Parliament and of the Council (23) do not constitute State aid (24). However, the use of those or similar funds to assist in the restructuring of credit institutions may constitute State aid. Whilst the funds in question may derive from the private sector, they may constitute aid to the extent that they come within the control of the State and the decision as to the funds' application is imputable to the State (25). The Authority will assess the compatibility of State aid in the form of such interventions under these Guidelines.

| (64) | State aid in the form of interventions by a resolution fund will be assessed under these Guidelines in order to assess its compatibility with the EEA Agreement. |
| --- | --- |

(64)

State aid in the form of interventions by a resolution fund will be assessed under these Guidelines in order to assess its compatibility with the EEA Agreement.

6.   SPECIFIC CONSIDERATIONS IN RELATION TO LIQUIDATION AID

6.1.   GENERAL PRINCIPLES

| (65) | EFTA States should encourage the exit of non-viable players, while allowing for the exit process to take place in an orderly manner so as to preserve financial stability. The orderly liquidation of a credit institution in difficulty should always be considered where the institution cannot credibly return to long-term viability. |
| --- | --- |

(65)

EFTA States should encourage the exit of non-viable players, while allowing for the exit process to take place in an orderly manner so as to preserve financial stability. The orderly liquidation of a credit institution in difficulty should always be considered where the institution cannot credibly return to long-term viability.

| (66) | The Authority recognises that, due to the specificities of credit institutions and in the absence of mechanisms allowing for the resolution of credit institutions without threatening financial stability, it might not be feasible to liquidate a credit institution under ordinary insolvency proceedings. For that reason, State measures to support the liquidation of failing credit institutions may be considered as compatible aid, subject to compliance with the requirement specified in point 44. |
| --- | --- |

(66)

The Authority recognises that, due to the specificities of credit institutions and in the absence of mechanisms allowing for the resolution of credit institutions without threatening financial stability, it might not be feasible to liquidate a credit institution under ordinary insolvency proceedings. For that reason, State measures to support the liquidation of failing credit institutions may be considered as compatible aid, subject to compliance with the requirement specified in point 44.

| (67) | The goal of the orderly liquidation must be the cessation of the ailing credit institution's activity over a limited period of time. That goal implies that no new third party business may be undertaken. However, it does not prevent existing business from being executed, if doing so reduces the liquidation costs. Moreover, liquidation must as much as possible aim at selling off parts of the business or assets by means of a competitive process. The orderly liquidation procedure requires that the proceedings of any sale of assets contribute to the liquidation costs. |
| --- | --- |

(67)

The goal of the orderly liquidation must be the cessation of the ailing credit institution's activity over a limited period of time. That goal implies that no new third party business may be undertaken. However, it does not prevent existing business from being executed, if doing so reduces the liquidation costs. Moreover, liquidation must as much as possible aim at selling off parts of the business or assets by means of a competitive process. The orderly liquidation procedure requires that the proceedings of any sale of assets contribute to the liquidation costs.

| (68) | EFTA States may choose a number of tools for the organisation of the liquidation of ailing credit institutions. Any State aid measures implemented to support such a liquidation must comply with the principles specified in points 69 to 82. |
| --- | --- |

(68)

EFTA States may choose a number of tools for the organisation of the liquidation of ailing credit institutions. Any State aid measures implemented to support such a liquidation must comply with the principles specified in points 69 to 82.

6.2.   CONDITIONS FOR THE AUTHORISATION OF LIQUIDATION AID

| (69) | EFTA States must provide a plan for the orderly liquidation of the credit institution. |
| --- | --- |

(69)

EFTA States must provide a plan for the orderly liquidation of the credit institution.

| (70) | The Authority will assess the compatibility of aid measures to be implemented with a view to resolving credit institutions on the same lines, mutatis mutandis, as set out in sections 2, 3 and 4 of the Restructuring Guidelines for restructuring aid. |
| --- | --- |

(70)

The Authority will assess the compatibility of aid measures to be implemented with a view to resolving credit institutions on the same lines, mutatis mutandis, as set out in sections 2, 3 and 4 of the Restructuring Guidelines for restructuring aid.

| (71) | The particular nature of orderly liquidation gives rise to the considerations set out in points 72 to 78. |
| --- | --- |

(71)

The particular nature of orderly liquidation gives rise to the considerations set out in points 72 to 78.

6.2.1.   Limitation of liquidation costs

| (72) | EFTA States should demonstrate that the aid enables the credit institution to be effectively wound up in an orderly fashion, while limiting the amount of aid to the minimum necessary to keep it afloat during the liquidation in view of the objective pursued and complying with the burden-sharing requirements of these Guidelines. |
| --- | --- |

(72)

EFTA States should demonstrate that the aid enables the credit institution to be effectively wound up in an orderly fashion, while limiting the amount of aid to the minimum necessary to keep it afloat during the liquidation in view of the objective pursued and complying with the burden-sharing requirements of these Guidelines.

6.2.2.   Limitation of competition distortions

| (73) | To avoid undue distortions of competition, the winding-up phase should be limited to the period strictly necessary for the orderly liquidation. |
| --- | --- |

(73)

To avoid undue distortions of competition, the winding-up phase should be limited to the period strictly necessary for the orderly liquidation.

| (74) | As long as the beneficiary credit institution continues to operate, it must not actively compete on the market or pursue any new activities. Its operations must in principle be limited to continuing and completing activities pending for existing customers. Any new activity with existing customers must be limited to changing the terms of existing contracts and restructuring existing loans, provided that such changes improve the respective asset's net present value. |
| --- | --- |

(74)

As long as the beneficiary credit institution continues to operate, it must not actively compete on the market or pursue any new activities. Its operations must in principle be limited to continuing and completing activities pending for existing customers. Any new activity with existing customers must be limited to changing the terms of existing contracts and restructuring existing loans, provided that such changes improve the respective asset's net present value.

| (75) | The pricing policy of the credit institution to be wound down must be designed to encourage customers to find more attractive alternatives. |
| --- | --- |

(75)

The pricing policy of the credit institution to be wound down must be designed to encourage customers to find more attractive alternatives.

| (76) | Where a banking licence is necessary, for example for a rump bank or a temporary institution created for the sole purpose of orderly liquidation of a credit institution (‘bridge bank’), it should be limited to the activities strictly necessary for the winding up. The banking licence should be withdrawn as soon as possible by the competent supervisory authority. |
| --- | --- |

(76)

Where a banking licence is necessary, for example for a rump bank or a temporary institution created for the sole purpose of orderly liquidation of a credit institution (‘bridge bank’), it should be limited to the activities strictly necessary for the winding up. The banking licence should be withdrawn as soon as possible by the competent supervisory authority.

6.2.3.   Burden-sharing

| (77) | In the context of orderly liquidation, care must be taken to minimise moral hazard, particularly by preventing additional aid from being provided to the benefit of the shareholders and subordinated debt holders. Therefore, the claims of shareholders and subordinated debt holders must not be transferred to any continuing economic activity. |
| --- | --- |

(77)

In the context of orderly liquidation, care must be taken to minimise moral hazard, particularly by preventing additional aid from being provided to the benefit of the shareholders and subordinated debt holders. Therefore, the claims of shareholders and subordinated debt holders must not be transferred to any continuing economic activity.

| (78) | Sections 3.1.2 and 3.1.3 must be complied with mutatis mutandis. |
| --- | --- |

(78)

Sections 3.1.2 and 3.1.3 must be complied with mutatis mutandis.

6.3.   SALE OF A CREDIT INSTITUTION DURING THE ORDERLY LIQUIDATION PROCEDURE

| (79) | The sale of a credit institution during an orderly liquidation procedure may entail State aid to the buyer, unless the sale is organised via an open and unconditional competitive tender and the assets are sold to the highest bidder. Such competitive tender should, where appropriate, allow for sale of parts of the institution to different bidders. |
| --- | --- |

(79)

The sale of a credit institution during an orderly liquidation procedure may entail State aid to the buyer, unless the sale is organised via an open and unconditional competitive tender and the assets are sold to the highest bidder. Such competitive tender should, where appropriate, allow for sale of parts of the institution to different bidders.

| (80) | In particular, when determining if there is aid to the buyer of the credit institution or parts of it, the Authority will examine whether:






  a) | the sales process is open, unconditional and non-discriminatory; |
| --- | --- | --- |

(80)

In particular, when determining if there is aid to the buyer of the credit institution or parts of it, the Authority will examine whether:

a)

the sales process is open, unconditional and non-discriminatory;

| b) | the sale takes place on market terms; |
| --- | --- |

b)

the sale takes place on market terms;

| c) | the credit institution or the government, depending on the structure chosen, maximises the sales price for the assets and liabilities involved. |
| --- | --- |

c)

the credit institution or the government, depending on the structure chosen, maximises the sales price for the assets and liabilities involved.

| (81) | Where the Authority finds that there is aid to the buyer, the Authority will assess the compatibility of that aid separately. |
| --- | --- |

(81)

Where the Authority finds that there is aid to the buyer, the Authority will assess the compatibility of that aid separately.

| (82) | If aid is granted to the economic activity to be sold (as opposed to the purchaser of that activity), the compatibility of such aid will be subject to an individual examination in the light of these Guidelines. If the liquidation process entails the sale of an economic entity which holds a significant market share, the Authority will assess the need for measures to limit distortions of competition brought about by the aid to that economic entity and will verify the viability of the entity resulting from the sale. In its viability assessment, the Authority will take into due consideration the size and strength of the buyer relative to the size and strength of the business acquired. |
| --- | --- |

(82)

If aid is granted to the economic activity to be sold (as opposed to the purchaser of that activity), the compatibility of such aid will be subject to an individual examination in the light of these Guidelines. If the liquidation process entails the sale of an economic entity which holds a significant market share, the Authority will assess the need for measures to limit distortions of competition brought about by the aid to that economic entity and will verify the viability of the entity resulting from the sale. In its viability assessment, the Authority will take into due consideration the size and strength of the buyer relative to the size and strength of the business acquired.

6.4.   CONDITIONS FOR THE AUTHORISATION OF ORDERLY LIQUIDATION SCHEMES

| (83) | The implementation by EFTA States of regimes to deal with distressed credit institutions may include the possibility of granting aid to ensure the orderly liquidation of distressed credit institutions, while limiting negative spill-overs on the sector and on the economy as a whole. |
| --- | --- |

(83)

The implementation by EFTA States of regimes to deal with distressed credit institutions may include the possibility of granting aid to ensure the orderly liquidation of distressed credit institutions, while limiting negative spill-overs on the sector and on the economy as a whole.

| (84) | The Authority considers that liquidation aid schemes for credit institutions of limited size (26) can be approved, provided they are well designed so as to ensure compliance with the requirements on burden-sharing by shareholders and subordinated debt-holders set out in point 44 and to remove moral hazard and other competition concerns. |
| --- | --- |

(84)

The Authority considers that liquidation aid schemes for credit institutions of limited size (26) can be approved, provided they are well designed so as to ensure compliance with the requirements on burden-sharing by shareholders and subordinated debt-holders set out in point 44 and to remove moral hazard and other competition concerns.

| (85) | The compatibility of such schemes will be assessed in the light of the conditions set out in section 3. When notifying a scheme to the Authority, EFTA States must therefore provide detailed information on the process and on the conditions for the interventions in favour of beneficiary institutions. |
| --- | --- |

(85)

The compatibility of such schemes will be assessed in the light of the conditions set out in section 3. When notifying a scheme to the Authority, EFTA States must therefore provide detailed information on the process and on the conditions for the interventions in favour of beneficiary institutions.

| (86) | As the degree to which competition is distorted may vary according to the nature of the beneficiary institution and its positioning in the market, an individual assessment might be necessary to ensure that the process does not lead to undue competition distortions. Therefore, aid measures under an approved scheme in favour of credit institutions with total assets of more than EUR 3 000 million must be individually notified for approval. |
| --- | --- |

(86)

As the degree to which competition is distorted may vary according to the nature of the beneficiary institution and its positioning in the market, an individual assessment might be necessary to ensure that the process does not lead to undue competition distortions. Therefore, aid measures under an approved scheme in favour of credit institutions with total assets of more than EUR 3 000 million must be individually notified for approval.

6.5.   MONITORING

| (87) | EFTA States must provide regular reports, at least on an annual basis, on the operation of any scheme authorized pursuant to section 6.4. Those reports must also provide the information for each credit institution being liquidated pursuant to section 6.4. |
| --- | --- |

(87)

EFTA States must provide regular reports, at least on an annual basis, on the operation of any scheme authorized pursuant to section 6.4. Those reports must also provide the information for each credit institution being liquidated pursuant to section 6.4.

| (88) | In order to allow the Authority to monitor the progress of the orderly liquidation process and its impact on competition, EFTA States must submit regular reports (on at least a yearly basis) on the development of the liquidation process of each bank in liquidation and a final report at the end of the winding-up procedure. In certain cases, a monitoring trustee, a divestment trustee or both may be appointed to ensure compliance with any conditions and obligations underpinning the authorisation of the aid. |
| --- | --- |

(88)

In order to allow the Authority to monitor the progress of the orderly liquidation process and its impact on competition, EFTA States must submit regular reports (on at least a yearly basis) on the development of the liquidation process of each bank in liquidation and a final report at the end of the winding-up procedure. In certain cases, a monitoring trustee, a divestment trustee or both may be appointed to ensure compliance with any conditions and obligations underpinning the authorisation of the aid.

7.   DATE OF APPLICATION AND DURATION

| (89) | The Authority will apply the principles set out in these Guidelines from 1 December 2013. |
| --- | --- |

(89)

The Authority will apply the principles set out in these Guidelines from 1 December 2013.

| (90) | Notifications registered by the Authority prior to 1 December 2013 will be examined in the light of the criteria in force at the time of notification. |
| --- | --- |

(90)

Notifications registered by the Authority prior to 1 December 2013 will be examined in the light of the criteria in force at the time of notification.

| (91) | The Authority will examine the compatibility with the EEA Agreement of any aid granted without its authorisation and therefore in breach of Article 1(3) of Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on the basis of these Guidelines if some or all of that aid is granted after the publication of these Guidelines in the Official Journal of the European Union and the EEA Supplement thereto. |
| --- | --- |

(91)

The Authority will examine the compatibility with the EEA Agreement of any aid granted without its authorisation and therefore in breach of Article 1(3) of Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on the basis of these Guidelines if some or all of that aid is granted after the publication of these Guidelines in the Official Journal of the European Union and the EEA Supplement thereto.

| (92) | In all other cases it will conduct the examination on the basis of the Crisis Guidelines in force at the time at which the aid is granted. |
| --- | --- |

(92)

In all other cases it will conduct the examination on the basis of the Crisis Guidelines in force at the time at which the aid is granted.

| (93) | The Authority will review these Guidelines as deemed appropriate, in particular so as to cater for changes in market conditions or in the regulatory environment which may affect the rules it sets out. |
| --- | --- |

(93)

The Authority will review these Guidelines as deemed appropriate, in particular so as to cater for changes in market conditions or in the regulatory environment which may affect the rules it sets out.

| (94) | The 2008 Banking Guidelines are withdrawn with effect from 30 November 2013. |
| --- | --- |

(94)

The 2008 Banking Guidelines are withdrawn with effect from 30 November 2013.

| (95) | Point 47 and Annex 5 of the Impaired Assets Guidelines are withdrawn. |
| --- | --- |

(95)

Point 47 and Annex 5 of the Impaired Assets Guidelines are withdrawn.

| (96) | The Restructuring Guidelines are adapted as follows: | In Point 4 the first sentence is replaced by the following: ‘Where a financial institution has received State aid, the EFTA State should submit a restructuring plan in order to confirm or re-establish individual banks' long-term viability without reliance on State support.’ |
| --- | --- | --- |

(96)

The Restructuring Guidelines are adapted as follows:

In Point 4 the first sentence is replaced by the following: ‘Where a financial institution has received State aid, the EFTA State should submit a restructuring plan in order to confirm or re-establish individual banks' long-term viability without reliance on State support.’

| | Footnote 6 relating to point 4 is withdrawn. |
| --- | --- |

Footnote 6 relating to point 4 is withdrawn.

| | Point 7 third indent is replaced by the following: ‘The Authority will apply the basic principle of appropriate burden-sharing between EFTA States and the beneficiary banks with the overall situation of the financial sector in mind.’ |
| --- | --- |

Point 7 third indent is replaced by the following: ‘The Authority will apply the basic principle of appropriate burden-sharing between EFTA States and the beneficiary banks with the overall situation of the financial sector in mind.’

| | Point 8 is withdrawn. |
| --- | --- |

Point 8 is withdrawn.

| | In Footnote 28 relating to point 21 the first sentence is replaced by the following: ‘See section 6 of the 2013 Banking Guidelines’. |
| --- | --- |

In Footnote 28 relating to point 21 the first sentence is replaced by the following: ‘See section 6 of the 2013 Banking Guidelines’.

| | Point 25 is replaced by the following: ‘Any derogation from an adequate burden-sharing ex ante which may have been exceptionally granted before a restructuring plan is approved for reasons of financial stability must be compensated by a further contribution at a later stage of the restructuring, for example in the form of claw-back clauses and/or by farther-reaching restructuring including additional measures to limit distortions of competition.’ |
| --- | --- |

Point 25 is replaced by the following: ‘Any derogation from an adequate burden-sharing ex ante which may have been exceptionally granted before a restructuring plan is approved for reasons of financial stability must be compensated by a further contribution at a later stage of the restructuring, for example in the form of claw-back clauses and/or by farther-reaching restructuring including additional measures to limit distortions of competition.’

---

(1)  These Guidelines correspond to the Communication from the European Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘2013 Banking Communication’) (OJ C 216, 30.7.2013, p. 1).

(2)  Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement (‘the State Aid Guidelines’), adopted and issued by the Authority on 19 January 1994, published in the Official Journal of the European Union (hereinafter referred to as the OJ) (OJ L 231, 3.9.1994, p. 1) and EEA Supplement No 32, 3.9.1994, p. 1. The Guidelines were last amended on 23 October 2013. The updated version of the State Aid Guidelines is published on the Authority's website at: http://www.eftasurv.int/state-aid/legal-framework/state-aid-guidelines/. Part VIII of the State Aid Guidelines sets out the temporary rules regarding the financial crisis in the following set of Crisis Guidelines:

| (1) | the application of State aid rules to measures taken in relation to financial institutions (‘the Banking Guidelines’) (OJ L 17, 20.1.2011, p. 1 and EEA Supplement No 3; 20.1.2011, p. 1), |
| --- | --- |

(1)

the application of State aid rules to measures taken in relation to financial institutions (‘the Banking Guidelines’) (OJ L 17, 20.1.2011, p. 1 and EEA Supplement No 3; 20.1.2011, p. 1),

| (2) | the recapitalisation of financial institutions in the current financial crisis (‘the Recapitalisation Guidelines’) (OJ L 17, 20.1.2011, p. 1 and EEA Supplement No 3; 20.1.2011, p. 1). |
| --- | --- |

(2)

the recapitalisation of financial institutions in the current financial crisis (‘the Recapitalisation Guidelines’) (OJ L 17, 20.1.2011, p. 1 and EEA Supplement No 3; 20.1.2011, p. 1).

| (3) | the temporary framework for State aid measures to support access to finance in the current financial and economic crisis (‘the Temporary Framework Guidelines’) (OJ L 17, 20.1.2011, p. 1 and EEA supplement No 3; 20.1.2011, p. 1). |
| --- | --- |

(3)

the temporary framework for State aid measures to support access to finance in the current financial and economic crisis (‘the Temporary Framework Guidelines’) (OJ L 17, 20.1.2011, p. 1 and EEA supplement No 3; 20.1.2011, p. 1).

| (4) | the treatment of impaired assets in the EEA banking sector (‘the Impaired Assets Guidelines’) (OJ L 23, 27.1.2011, p. 31 and EEA Supplement No 4; 27.1.2011, p. 1). |
| --- | --- |

(4)

the treatment of impaired assets in the EEA banking sector (‘the Impaired Assets Guidelines’) (OJ L 23, 27.1.2011, p. 31 and EEA Supplement No 4; 27.1.2011, p. 1).

| (5) | the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (‘the Restructuring Guidelines’) (OJ L 282, 24.10.2013, p. 72 and EEA Supplement No 58, 24.10.2013, p. 1).
  The financial crisis guidelines were then prolonged twice, in 2011 (‘2011 Prolongation Guidelines’) (OJ L 332, 15.12.2011, p. 20 and EEA Supplement No 67,15.12.2011, p. 7) and in 2012 (‘2012 Prolongation Guidelines’) (OJ L 282, 24.10.2013, p. 72 and EEA Supplement No 58, 24.10.2013, p. 1). |
| --- | --- |

(5)

the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (‘the Restructuring Guidelines’) (OJ L 282, 24.10.2013, p. 72 and EEA Supplement No 58, 24.10.2013, p. 1).

The financial crisis guidelines were then prolonged twice, in 2011 (‘2011 Prolongation Guidelines’) (OJ L 332, 15.12.2011, p. 20 and EEA Supplement No 67,15.12.2011, p. 7) and in 2012 (‘2012 Prolongation Guidelines’) (OJ L 282, 24.10.2013, p. 72 and EEA Supplement No 58, 24.10.2013, p. 1).

(3)  See 2011 Prolongation Guidelines, point 14.

(4)  The initiatives establishing the Banking Union were primarily constructed for the Eurozone, as the euro members have several instruments in common but no shared supervision. EU Member States outside the Eurozone will however have the possibility to participate if they so wish. At present it is not clear to what extent EU Member States outside the Eurozone may decide to participate in these initiatives. As for the EEA EFTA States, the EFTA Working Group on Financial Services has followed the developments on the EU side with great interest and has been presented with information from the EU side regarding the Banking Union. However, no discussion has taken place so far on the possible involvement of the EFTA States.

(5)  Proposal for a Directive of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms of 6 June 2012, COM(2012)0280 final. The EFTA Working Group on Financial Services follows closely developments on the EU side. It would appear that this proposal may be deemed EEA relevant and thus likely to be incorporated into the EEA Agreement once adopted by the EU side.

(6)  See e.g. Restructuring Guidelines, point 22.

(7)  Ibid, point 24.

(8)  See section 1.2 of the Authority's Temporary Framework Guidelines and the reference found therein to the DG Competition Staff working document of 30 April 2010, ‘The application of State aid rules to government guarantee schemes covering bank debt to be issued after 30 June 2010’.

(9)  Those Guidelines set out the requirement to submit a restructuring plan for all banks benefitting from State support in the form of capital or impaired asset measures, independent of the aid amount.

(10)  ‘Competent supervisory authority’ means any national competent authority designated by participating EEA State in accordance with Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (OJ L 177, 30.6.2006, p. 1) as adapted to the EEA Agreement by EEA Joint Commitee Decision No 65/2008 (OJ L 257, 25.9.2008, p. 27 and the EEA Supplement No 58, 25.9.2008, p. 9) or the European Central bank in its supervisory tasks as conferred in Article 1 of the Commission proposal for a Council Regulation conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions for credit institutions established in a Member State participating in the Single Supervisory Mechanism. As concerns the Commission proposal for a Council Regulation referred to above, the EFTA Working Group on Financial Services follows closely developments on the EU side.

(11)  See footnote 2.

(12)  As defined in Article 4(1) of Directive 2006/48/EC, as adapted to the EEA Agreement by EEA Joint Commitee Decision No 65/2008 (see footnote 10 for publication references).

(13)  First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ L 228, 16.8.1973, p. 3), as adapted to the EEA Agreement by EEA Joint Committee Decision No 78/2011 (OJ L 262, 6.10.2011, p. 45 and the EEA Supplement No 54, 6.10.2011, p. 57).

(14)  Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ L 345, 19.12.2002, p. 1), as adapted to the EEA Agreement by EEA Joint Commitee Decision No 60/2004 (OJ L 277, 26.8.2004, p. 172 and the EEA Supplement No 43, 26.8.2004, p. 156).

(15)  Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group (OJ L 330, 5.12.1998, p. 1), as adapted to the EEA Agreement by EEA Joint Committee Decision No 95/1999 of 16 July 1999 (OJ L 296, 23.11.2000, p. 61 and the EEA Supplement No 55, 23.11.2000, p. 160).

(16)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). The act has not been incorporated into the EEA Agreement.

(17)  As published by the OECD on its website under Average Annual Wages in constant prices for the last available year, http://stats.oecd.org/Index.aspx.

(18)  As defined by Article 26 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms, (OJ L 176 27.6.2013, p. 1). Preparation for the incorporation of the act is ongoing on the EFTA side.

(19)  This can for example be achieved by creating a holding company. The ownership of the bank would be recorded on the asset side of the holding company, whereas the equity, hybrids and subordinated debt existing in the bank prior to the State aid interventions constitute the liability side of the holding company with the same seniority structure as the one existing in the bank prior to the intervention.

(20)  For example if the buy-back occurs at a double digit discount in percentage points of nominal value from the market price (or, in the absence of a market, a proxy of the market price) to generate profits, or if the buy-back is part of an exchange providing the credit institution with higher quality capital reducing the shortfall.

(21)  Banks which have already received approved rescue aid at the date of entry into force of these Guidelines but have not yet obtained a final approval of the restructuring aid may receive support under a liquidity scheme without individual notification.

(22)  In such cases, the measures will subsequently be assessed as part of the restructuring plan.

(23)  Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ L 135, 31.5.1994, p. 5), as referred to in point 19a of Chapter II (ii) of Annex IX to the EEA Agreement.

(24)  See, by analogy, Case T-351/02 Deutsche Bahn v Commission [2006] ECR II-1047, paragraph 114, as well as Case C-460/07 Puffer [2009] ECR I-3251, paragraph 70.

(25)  See Danish winding up scheme, OJ C 312, 17.11.2010, p. 5.

(26)  See e.g. N 407/2010, Danish winding-up scheme for banks, OJ C 312, 17.11.2010, p. 7.

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