Opinion of the European Central Bank of 29 December 2023 on a legislative package on crisis management in the banking sector (CON/2023/47)
Date: 2023-12-29
Institutions: European Central Bank
Subjects: banking supervision, financial stability, legal basis

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 29 December 2023  

on a legislative package on crisis management in the banking sector 

(CON/2023/47) 

Introduction and legal basis 

On 23 October 2023 the European Central Bank (ECB) received a request from the Ministry of Finance of 

the  Republic  of  Cyprus  (hereinafter  the  ‘Ministry’)  for  an  opinion  on  three  draft  laws.  The  first  draft  law 

relates to extraordinary public financial support (hereinafter the ‘draft law on extraordinary public financial 

support’). The second draft law relates to amendments to the Law on the resolution of credit institutions 

and investment firms (hereinafter the ‘draft law on the resolution of credit institutions’). The third draft law 

relates to amendments to the Law on the business of credit institutions (hereinafter the ‘draft law on the 

business of credit institutions’, and together with the draft law on extraordinary public financial support and 

the draft law on the resolution of credit institutions hereinafter collectively referred to as the ‘draft laws’).  

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning of the European Union, Article 25.1 of the Statute of the European System of Central Banks 

and  of  the  European  Central  Bank  and  the  third  and  sixth  indents  of  Article 2(1)  of  Council  Decision 

98/415/EC1, as the draft laws relate to (1) the implementation of Union legislation relating to the prudential 

supervision of credit institutions and to the stability of the financial system, (2) the Central Bank of Cyprus 

(CBC), (3) rules applicable to financial institutions insofar as they materially influence the stability of financial 

institutions and markets and (4) the specific tasks conferred upon the ECB pursuant to Article 127(6) of the 

Treaty concerning policies relating to the prudential supervision of credit institutions. In accordance with 

the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing 

Council has adopted this opinion.  

1. 

Purpose of the draft laws 

1.1  The  purpose  of  the  draft  laws  is  to  provide  for  coordination  procedures  between  the  various 

authorities involved in the application of certain provisions of Directive 2014/59/ΕU of the European 

Parliament  and  of  the  Council2  (hereinafter  the  ‘BRRD’),  Regulation  (ΕU)  No  806/2014  of  the 

1  

2  

Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
See Article 32(4), point (d), of Directive 2014/59/EU of the European Parliament and of the Council of 15 July 2014 
establishing  a  framework  for  the  recovery  and  resolution  of  credit  institutions  and  investment  firms  and  amending 
Council  Directive  82/891/EEC,  and  Directives  2001/24/EC,  2002/47/EC,  2004/25/EC,  2005/56/EC,  2007/36/EC, 
2011/35/EU,  2012/30/EU  and  2013/36/EU,  and  Regulations  (EU)  No  1093/2010  and  (EU)  No  648/2012,  of  the 
European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190). 

 
 
 
 
 
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European Parliament and  of the Council3 (hereinafter  the  ‘SRM  Regulation’), and the Law on the 

business of credit institutions4. In particular, the draft laws are intended to apply to cases in which 

extraordinary public financial support is required in order to prevent or remedy a serious disturbance 

in  the  economy  and  to  preserve  financial  stability  in  the  Republic  of  Cyprus  (hereinafter  the 

’Republic’). 

1.2  The  draft  law  on  extraordinary  public  financial  support  lays  down  rules  and  procedures  for  the 

provision of emergency public financial support to solvent authorised credit institutions (ACIs) without 

triggering  deposit  guarantee  schemes.  Financial  support  is  to  be  provided  for  the  purpose  of 

addressing  a  capital  shortfall  and/or  supporting  liquidity,  in  order  to  prevent  or  remedy  a  serious 

disturbance in the economy and to preserve financial stability in the Republic. This draft law provides 

for three categories of extraordinary public intervention, which reflect the three forms envisaged in 

the relevant provisions of the SRM Regulation and the BRRD5: (1) a State guarantee to back liquidity 

facilities provided by the CBC subject to the conditions laid down by the CBC; (2) a State guarantee 

of newly issued liabilities; and (3) a precautionary recapitalisation, whereby there is an injection of 

own  funds  or  purchase  of  capital  instruments  by  the  State.  The  draft  law  on  extraordinary  public 

financial support also provides that the liquidity support includes emergency liquidity assistance. 

1.3 

Liquidity support measures and State guarantee of newly issued liabilities 

1.3.1  The draft law on extraordinary public financial support provides for the conditions and procedures for 

a solvent ACI to apply to the Ministry for temporary and precautionary support in the form of  State 

guarantees  to  back  liquidity  facilities  provided  by  the  CBC  and/or  in  order  to  issue  new  debt 

instruments. The draft law on extraordinary public financial support  also sets the preconditions for 

the provision of State guarantees to back liquidity facilities to an ACI6 and such preconditions apply 

mutatis mutandis in the case of State guarantees for newly issued debt instruments7. The amount of 

any such guarantee is to be limited to what is strictly necessary to restore the ACI’s medium-term 

funding capacity8 and must not exceed the ACI’s own funds for supervisory purposes other than in 

duly substantiated cases9. A State guarantee to support the liquidity of an ACI may be provided for 

debt  instruments  issued  by  the  ACI  which  are  not  debt  securities  that  may  be  classified  as  own 

funds10,  and  which  present  the  features  defined  in  the  draft  law  on  extraordinary  public  financial 

support11. The criteria and limitations set out in the draft law on extraordinary public financial support 

are derived, where available, from the Communication from the Commission on the application, from 

3  

4  
5  
6  
7  
8  
9  
10  
11  

See Article 18(4), point (d), of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 
2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment 
firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation 
(EU) No 1093/2010 (OJ L 255, 30.7.2014, p. 1). 

See Article 32C(2), point (d), of the Law on the business of credit institutions. 
See Article 18(4), point (d), of the SRM Regulation and Article 32(4), point (d), of the BRRD. 

See Article 7 of the draft law on extraordinary public financial support. 
See Article 13 of the draft law on extraordinary public financial support. 

See Article 6(13) of the draft law on extraordinary public financial support. 
See Article 6(15) of the draft law on extraordinary public financial support. 
See Article 12 of the draft law on extraordinary public financial support. 

See Article 12 of the draft law on extraordinary public financial support.  

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1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial 

crisis (hereinafter the ‘2013 Banking Communication’)12 of the European Commission.  

1.3.2  The provision of any State guarantee to an ACI must receive prior authorisation from the Commission 

and must relate to an ACI whose solvency is confirmed by the competent authority13. The competent 

authority is the CBC or the ECB14 depending on the significance of the requesting credit institution 

for  the  purposes  of  the  SSM  Regulation.  The  CBC,  in  its  capacity  as  the  national  designated 

authority15,  assesses  whether  the  support  is  necessary  in  order  to  prevent  or  remedy  a  serious 

disturbance in the economy of the Republic and to preserve financial stability in the Republic16. The 

CBC,  again  in  its  capacity  as  the  national  designated  authority,  then  submits  to  the  Minister  for 

Finance (hereinafter the ‘Minister’) a recommendation based on its conclusions17. The draft law on 

extraordinary  public  financial  support  provides  for  several  procedural  steps  after  the  receipt  of  a 

positive recommendation from the CBC, up to the notification of the proposed State guarantees to 

the Commission for its approval. Following the completion of certain procedural steps by the ACI and 

CBC, the Minister must, within two months of receiving the Commission’s approval, submit a final 

draft restructuring plan to the Commission  confirming the profitability and financial capacity of the 

ACI in the long term without support from the Republic where the ACI is to be provided with a State 

guarantee for new liabilities or renewed liabilities for which, at the time of the granting of the new 

State guarantee, the total outstanding guaranteed liabilities (including guarantees provided before 

the  date  of  receipt  of  the  Commission’s  approval)  exceed  both  the  proportion  of  5 %  of  the  total 

liabilities and the total amount of EUR 500 million18. The submission of a final restructuring plan is 

also required whenever the Ministry  receives a request for the activation of the State guarantees, 

and  in  such  situations  this  plan  must  be  submitted  by  the  Minister  to  the  Commission  within  two 

months from the submission of the activation request19. 

1.4  Precautionary recapitalisation 

1.4.1  Under the draft law on extraordinary public financial support, a precautionary recapitalisation may be 

provided in the form of an injection of own funds or the purchase of capital instruments20, and may 

only be requested by an ACI that needs recapitalisation, based on any stress test scenario at the 

level of the Republic, the Union or the Single Supervisory Mechanism (SSM), or in the context of an 

asset quality review or an equivalent review carried out by the competent authority 21. Precautionary 

12  

13  

14  
15  

16  
17  
18  
19  
20  
21  

See  Communication  from  the  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 (‘Banking Communication’) (OJ C 216, 30.7.2013, 
p. 1), in particular paragraphs 59 and 60. 
See definition of ‘competent authority’ in Article 2 of the draft law on extraordinary public financial support referring to 
the competent authority as defined in Article 4(1), point (40), of Regulation (EU) No 575/2013 and/or the European 
Central  Bank  for  the purpose  of  carrying  out  the tasks conferred on it in  accordance  with  Council  Regulation  (EU) 
No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating 
to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63) (hereinafter the ‘SSM Regulation’).  
See Article 7 of the draft law on extraordinary public financial support. 

See  definition  of  term  ‘national  designated  authority’  in  Article  2  of  the  draft  law  on  extraordinary  public  financial 
support. 

See Article 6(1) of the draft law on extraordinary public financial support. 
See Article 6(1) of the draft law on extraordinary public financial support. 

See Article 6(9) of the draft law on extraordinary public financial support. 
See Article 6(10) of the draft law on extraordinary public financial support. 
As provided in Article 32C(2), point (d)(iii), of the Law on the business of credit institutions. 

See Article 16(1) of the draft law on extraordinary public financial support. 

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recapitalisation may be provided only if the ACI is not deemed insolvent and is unlikely to become 

insolvent  and  the  preconditions  for  the  write-down  or  conversion  of  capital  instruments  under  the 

relevant provisions of Cypriot law22 or of the SRM Regulation are not fulfilled23. The ACI is deemed 

solvent based on confirmation by the competent authority24.  

1.4.2  Before the submission of a request for precautionary recapitalisation to the Ministry, the ACI must 

submit a recapitalisation plan to the competent authority, meaning the ECB in the case of significant 

institutions  and  the  CBC  in  the  case  of  less  significant  institutions.  If  the  recapitalisation  plan  is 

deemed  unsatisfactory  by 

the  competent  authority, 

the  ACI  may 

immediately  request 

recapitalisation25. If the measures taken by the ACI to achieve the objectives of the recapitalisation 

plan, even before fully completed, are deemed insufficient by the competent authority, the ACI may 

make  a  request  for  a  precautionary  recapitalisation26.  If  the  recapitalisation  plan  is  deemed 

satisfactory  by  the  competent  authority,  the  ACI  implements  this  plan  and  informs  the  competent 

authority of the results of the measures adopted in implementing the plan.  

1.4.3  The request for State intervention must be submitted to the Ministry and notified to the competent 

authority, meaning the ECB in the case of significant credit institutions and the CBC in its capacity 

as national designated authority and competent authority in the case of less significant institutions. 

It must include, inter alia: (1) a list of the ACI’s instruments and loans that will be subject to burden-

sharing measures, indicating their financial value; (2) an estimate of the real value of the ACI’s assets 

and liabilities, for the purposes of assessing whether the creditors would be worse off were the ACI 

to become insolvent; and (3) a restructuring plan prepared in accordance with Union State aid rules27. 

The CBC, being the national designated authority, must, within 60 days from receipt of the request 

for  precautionary  recapitalisation,  assess  the  request  and  prepare  and  submit  a  report  and 

recommendation to the Minister on the need for a precautionary recapitalisation of the ACI. 

1.4.4  The maximum amount of precautionary recapitalisation  is to consist of the difference between the 

losses  resulting  from  the  extreme  and  baseline  scenarios  under  a  stress  test  at  the  level  of  the 

Republic, the Union or the SSM, or in the context of an asset quality review or an equivalent review 

conducted by the competent authority28.  

1.4.5  The precautionary recapitalisation is subject to the Commission’s approval of the restructuring plan 

pursuant to the Union’s State aid framework29. 

1.5  State guarantee for emergency liquidity assistance 

1.5.1  The draft law on extraordinary public financial support provides that the Minister may issue a State 

guarantee concerning the collateral assets or the realisation value of such assets that were provided 

by the ACI as collateral for emergency liquidity assistance conducted by the CBC in compliance with 

22  
23  
24  
25  
26  
27  
28  
29  

See Article 31 of the Law on the resolution of credit institutions and investment firms. 
See Article 16(2) of the draft law on extraordinary public financial support. 

See Article 16(3) of the draft law on extraordinary public financial support. 
See Article 17(2) of the draft law on extraordinary public financial support. 

See Article 17(3) of the draft law on extraordinary public financial support. 
See Article 17(1) of the draft law on extraordinary public financial support. 
See Article 16(4) of the draft law on extraordinary public financial support. 

See Article 17(1), point (c), and (12) of the draft law on extraordinary public financial support. 

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the systems established by the ECB30. An ACI benefiting from such guarantee for the provision of 

emergency liquidity assistance is required to submit a restructuring plan confirming its profitability 

and  long-term funding capacity without the support  of the Republic,  in order, in  particular,  to  limit 

reliance on the temporary liquidity assistance provided by the CBC31.  

1.5.2  The draft law on the resolution of credit institutions aims to implement the exercise of the discretion 

set out in certain provisions of the BRRD32 to enable the resolution authority, in the very exceptional 

case  of  a  systemic  crisis,  to  intervene  directly  to  avoid  the  liquidation  of  an  ACI  or  to  achieve 

resolution  objectives  using  public  financial  stabilisation  tools  (public  equity  support  tool  and 

temporary public ownership tool) subject to certain conditions. Public financial stabilisation tools are 

used as a last resort, after other resolution tools have been assessed and used to the greatest extent 

possible.  

1.5.3  The draft law on the business of credit institutions aims to better transpose certain provisions of the 

BRRD33.  

2. 

General observations  

2.1  Compliance with the Union’s legal framework 

National legislative provisions that aim at providing public support to the banking sector  must fully 

comply with Union law, including the criteria governing the provision of extraordinary public financial 

support  to  credit  institutions  under  the  SRM  Regulation  and  the  BRRD,  and  must  also  take  into 

account  related  Commission  communications  on  the  application  of  State  aid  rules  to  support 

measures for banks. Nonetheless, the ECB stresses that while the draft laws go beyond a simple 

transposition  of  Union  law  requirements,  insofar  as  the  draft  laws  transpose  certain  Union  law 

requirements, the ECB opines neither on whether the draft laws effectively transpose Article 32(4), 

point  (d),  of  the  BRRD  into  Cypriot  law,  nor  on  the  effectiveness  of  the  application  of  the  SRM 

Regulation  in  the  Cypriot  legal  sphere.  Instead,  the  ECB’s  focus  is  on  those  provisions  that  may 

impact on the role and the specific tasks conferred on the ECB by the SSM Regulation concerning 

the prudential supervision of credit institutions.  

2.2  The role of the ECB as competent supervisory authority 

The draft law on extraordinary public financial support envisages a role for the ECB, as the competent 

supervisory  authority  for  significant  institutions  within  the  SSM,  in  the  procedures  leading  to  the 

provision of public support. The ECB emphasises that its role in this respect is derived from Union 

rather than national law,  in particular  the SSM  Regulation. In principle, national law cannot  on  its 

own, in the absence of a firm basis in Union law, transfer responsibilities to a Union institution such 

as the ECB. In this respect, the attribution of the role envisaged for the ECB under the draft law on 

extraordinary  public  financial  support  can  be  considered  to  be  overall  in  line  with  the  specific 

prudential supervisory tasks conferred on the ECB under the Union legal framework, insofar as the 

30  
31  
32  
33  

See Article 22(2) of the draft law on extraordinary public financial support. 
See Article 22(3) of the draft law on extraordinary public financial support. 
See Article 37(10) and Articles 56, 57 and 58 of the BRRD. 

See Article 32(4) of the BRRD. 

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relevant  provisions of the  draft law on  extraordinary public financial support  are interpreted  in the 

light of and within the limits of the prudential supervisory tasks assigned to the ECB under Union law. 

The ECB stresses the importance of ensuring cooperation and the exchange of information between 

the national authorities and the competent supervisory authority, in accordance with this framework.  

3. 

Specific observations   

3.1  Stress and basic scenario-based losses  

3.1.1  The  draft  law  on  extraordinary  public  financial  support  provides  that  specified  precautionary 

recapitalisation is to be capped at the difference between stress and basic scenario-based losses 

established under Republic, Union or SSM-wide stress tests or asset quality reviews or equivalent 

exercises conducted by the competent authority34. 

3.1.2  Under Regulation (EU) No 1093/2010 of the European Parliament and of the Council35 the European 

Banking  Authority (EBA)  may also perform such  tests, and this is  also explicitly  mentioned  in the 

SRM Regulation and the BRRD36. In view of this, it may also be appropriate to make reference to 

the EBA and to clarify that under the SRM Regulation the capital shortfall resulting from such tests 

must be confirmed by the competent authority37.  

3.2  Extent of consultation with the ECB prior to the provision of precautionary recapitalisation  

3.2.1  Article 17(7) of the draft law on extraordinary public financial support provides that the report and the 

recommendation prepared by the national designated authority and submitted to the Minister on the 

need  for  precautionary  recapitalisation,  following  consultation  with  the  competent  authority,  must 

include at the very least the following: (a) the supervisory measures already taken by the competent 

authority; (b) the efficacy of the proposed support in favour of the ACI at the minimal possible cost to 

taxpayers; (c) whether, in the opinion of the national  designated authority, the ACI was unable to 

raise sufficient capital from its existing shareholders or from the market or in any other manner; (d) 

the assessment of the long-term viability of the applicant ACI, given that the proposed precautionary 

recapitalisation is to be provided in the form of a capital injection or a purchase of capital instruments; 

(e)  whether  the  relevant  preconditions  are  fulfilled  in  relation  to  the  proposed  precautionary 

recapitalisation; (f) the restructuring plan submitted by the ACI to the competent authority; and (g) 

the  opinion  of  the  competent  authority  as  to  whether  it  considers  the  recapitalisation  plan  to  be 

satisfactory. 

3.2.2  The ECB understands that, where the ECB is to be consulted, such consultation will be limited to 

matters within its fields of competence under Union law. 

3.2.3  Further, the ECB notes that a clarification of Article 17(7), point (f), of the draft law on extraordinary 

public  financial  support  may  be  required.  Under  the  draft  law  on  extraordinary  public  financial 

34  

35  

36   
37  

See  Article  16(4)  of  the  draft  law  on  extraordinary  public  financial  support.  The  definition  of  the  term  ‘competent 
authority’ is contained in Article 1 of the draft law on extraordinary public financial support.  
See Article 32 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 
establishing  a  European  Supervisory  Authority (European  Banking  Authority), amending  Decision  No 716/2009/EC 
and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 1). 
See Article 18(4) of the SRM Regulation. 

See Article 18(4) of the SRM Regulation. 

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support, the application for precautionary recapitalisation by the ACI is to be submitted to the Ministry 

and the restructuring plan is to be approved by the Commission38. The application is only notified to 

the competent authority. The reference under Article 17(7), point (f), to the restructuring plan being 

submitted by the ACI to the competent authority may not be fully in line with these provisions as the 

restructuring plan would need to be submitted to the Ministry of Finance together with the application 

for  precautionary  recapitalisation  and  notified  to  the  competent  authority  and  national  designated 

authority. 

3.3  Role of the competent authority in respect of the measures provided for under Article 19(1) of the 

draft law on extraordinary public financial support  

3.3.1  The draft law on extraordinary public financial support provides that an ACI must take all measures 

necessary to retain its funds from the time when it knows or should have known of the capital needs39 

and  lists  various  actions  which  cannot  be  performed  by  the  ACI  without  the  prior  consent  of  the 

Commission.  

3.3.2  The ECB understands that this provision aims at implementing the restrictions listed under the 2013 

Banking Communication40 and is without prejudice to the general rules provided in Regulation (EU) 

No 575/2013 of the European Parliament and of the Council41 (hereinafter the ‘CRR’) which assign 

to the competent authorities the power to approve some of those actions (e.g. share or hybrid capital 

instrument buy-backs) when certain specific conditions are met.   

3.4  Assent of the competent authority for conversion of capital instruments  

3.4.1  The draft law on extraordinary public financial support provides that an ACI with a capital shortfall 

which, if not addressed in a timely manner, may lead to the provision of precautionary recapitalisation 

must, having obtained the assent of the competent authority, the national designated authority and 

the  Council  of  Ministers,  and  having  taken  all  appropriate  and  reasonable  measures  in  the 

circumstances to remedy the capital shortfall, initiate a procedure for the variation  of the terms of 

issue of its capital instruments by their holders, with  a view to strengthening  its basic  own funds, 

including its share capital42. 

3.4.2  The ECB understands that this provision aims at supporting the implementation of other measures 

to reduce capital needs as per the 2013 Banking Communication43 and that the competent authority’s 

role  referred  to  in  the  draft  law  is  therefore  aligned  with  the  reference  in  the  2013  Banking 

Communication. This role must be without prejudice to the application of the CRR provisions related 

to the Common Equity Tier 1 instruments classification44 and the reduction of own funds and eligible 

38  
39  
40  
41  

42  
43  
44  

See Article 17(1) of the draft law on extraordinary public financial support.  

See Article 19 of the draft law on extraordinary public financial support.  
See paragraph 47 of the 2013 Banking Communication.  

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  and  amending  Regulation  (EU)  No  648/2012  (OJ  L  176, 
27.6.2013, p. 1). 
See Article 20(1) of the draft law on extraordinary public financial support. 
See paragraph 35 of the 2013 Banking Communication.  

See Article 26(3) of the CRR. 

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liabilities45, as specified in Commission Delegated Regulation (EU) No 241/201446 and the related 

EBA Reports on the monitoring of Common Equity Tier 1, Additional Tier 1, Tier 2 and TLAC/MREL 

eligible liabilities instruments47 as well as associated supervisory guidance, such as the ECB Guide 

on options and discretions available in Union law48. 

This opinion will be published on EUR-Lex.  

Done at Frankfurt am Main, 29 December 2023. 

[signed] 

The President of the ECB 

Christine LAGARDE 

45  
46  

47  

48  

See Articles 77 and 78 of the CRR. 

Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 
of  the  European  Parliament  and  of  the  Council  with  regard  to  regulatory  technical  standards  for  Own  Funds 
requirements for institutions (OJ L 74, 14.3.2014, p. 8). 
See European Banking Authority, EBA Report on the monitoring of CET1 instruments issued by EU institutions of 8 
December 2021 (EBA/REP/2021/36) and EBA Report on the monitoring of additional Tier 1 (AT1) and TLAC/MREL 
eligible liabilities instruments of European Union (EU) institutions – update (EBA/Rep/2023/23), available on the EBA’s 
website at www.eba.europa.eu. 

Available on the ECB’s Banking Supervision website at www.bankingsupervision.europa.eu.  

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