Financial Services And Markets Citation and commencement 1 This Order may be cited as the Building Societies (Bail-in) Order 2014 and comes into force on 10th January 2015. Amendments to Part 1 of the Banking Act 2009 2 1 Part 1 of the Banking Act 2009 is amended as follows. 2 In section 84 (application of Part 1 to building societies: general), for the existing text before the Table substitute— This Part applies to building societies (within the meaning of section 119 of the Building Societies Act 1986 ) as it applies to banks, subject to— a the provisions of the Table, and b sections 84A to 84D (which relate to the fourth stabilisation option). . 3 After section 84 insert— Bail-in option: building societies 84A 1 This section applies for the purpose of the exercise of the fourth stabilisation option (bail-in) in relation to a building society. 2 Subsection (2A) of section 12A (bail-in option) is to be read as if the provision referred to included provision under this section. 3 Subsection (1) of section 12AA (bail-in: sequence of write-down and conversion of capital instruments and liabilities) is to be read as if the powers referred to included the powers conferred by this section, sections 84B and 84C and the provisions modified by section 84D. 4 A resolution instrument with respect to a building society may make— a provision of the kind mentioned in subsection (5); b other provision for the purposes of, or in connection with, provision of the kind mentioned in subsection (5) made by that or another instrument. 5 A resolution instrument may— a convert the building society into a company, or b transfer all the property, rights and liabilities of the building society to a company. 6 In the following provisions of this section, “the successor company”, in relation to a building society, means the company into which the building society is converted, or to which the property, rights and liabilities of the building society are transferred, as a result of provision made under subsection (5). 7 The provision that may be made under subsection (4)(b) includes— a provision cancelling shares in the building society; b provision cancelling membership rights in the building society; c provision converting shares in the building society into deposits with the successor company; d provision conferring rights and imposing liabilities in place of cancelled shares and membership rights; e provision requiring the FCA to cancel the building society’s registration under the Building Societies Act 1986 at a time specified in or determined in accordance with the instrument; f provision that any person approved for the purposes of Part 5 of the Financial Services and Markets Act 2000 (performance of regulated activities) in relation to the building society immediately before the resolution instrument is made continues to be approved for those purposes in relation to the successor company (but without affecting the powers of the FCA or PRA to vary or withdraw an approval); g provision which could be included in a property transfer instrument by virtue of— i section 34(7) and (8) (property held on trust), or ii section 36(1) to (5) (continuity). 8 The provision that may be made under subsection (4)(b) also includes— a in a case where the resolution instrument makes provision under subsection (5)(a), provision for the successor company on its incorporation to be wholly owned by a company specified in the instrument; b in a case where the resolution instrument makes provision under subsection (5)(b) transferring the property, rights and liabilities of the building society to a company which is wholly owned by another company, provision relating to that other company; c in either case, provision— i for the transfer of liabilities from the successor company to the other company mentioned in paragraph (a) or (b) (“the parent undertaking”), and for the creation of corresponding liabilities of the successor company to the parent undertaking; ii replacing a liability (of any form) of the building society or the successor company with a liability or security (of any form or class) of the parent undertaking. 9 A company may not be specified under subsection (8)(a) unless it is (or is to be) wholly owned by— a the Bank of England, b a resolution administrator appointed under section 62B(1) , or c a person nominated by the Bank of England. 10 Where a resolution instrument makes provision under subsection (5), section 37 (licences) applies as if the references to a property transfer instrument were references to the resolution instrument. 11 A resolution instrument may provide for different provision made under this section by the instrument to take effect at different times. 12 In this section— “company” means a company as defined in section 1(1) of the Companies Act 2006 which is a public company limited by shares; “deposit” has the meaning given by article 5(2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ( S.I. 2001/544 ), but ignoring the exclusions in article 6. Further provision: conversion of building society into company 84B 1 This section applies where a resolution instrument makes provision under section 84A(5)(a). 2 The resolution instrument must— a state the company’s proposed name; b set out the terms of the memorandum of association of the company; c set out the terms of the articles of association of the company (to the extent that these are not to be supplied by the default application of model articles: see section 20 of the Companies Act 2006); d contain the statements and information required to be included in or to accompany an application for a certificate under section 761 of the Companies Act 2006 (public company: requirement as to minimum share capital). 3 The conversion into the successor company takes effect on the registration of the company under the Companies Act 2006. 4 The successor company is to be treated as the same person in law as the building society. 5 The documents required by section 9 of the Companies Act 2006 (registration documents) to be delivered to the registrar (within the meaning of that Act) include a copy of the resolution instrument. 6 In section 13 of the Companies Act 2006 (statement of compliance) and section 14 of that Act (registration), the reference to the requirements of that Act is to be read as a reference to the requirements of that Act as modified by this section. 7 If the resolution instrument complies with subsection (2)(d), an application for a trading certificate is to be taken to have been made in accordance with section 762 of the Companies Act 2006 (procedure for obtaining trading certificate). 8 In this section— “company” means a company as defined in section 1(1) of the Companies Act 2006 which is a public company limited by shares; “the successor company”, in relation to a building society, means the company into which the building society is converted as a result of provision made under section 84A(5)(a). Further provision: transfer of business of building society to company 84C 1 A transfer under section 84A(5)(b) must be to a company which immediately before the transfer is wholly owned by— a the Bank of England, b a resolution administrator appointed under section 62B(1), c a person nominated by the Bank of England, or d a company which is itself wholly owned by a person within paragraphs (a) to (c). 2 Where a resolution instrument has made provision under section 84A(5)(b), the building society is dissolved at such time as may be specified in or determined in accordance with the instrument. 3 In this section, “company” means a company as defined in section 1(1) of the Companies Act 2006 which is a public company limited by shares. Bail-in option: modifications of this Act and other legislation 84D 1 Where a resolution instrument makes provision under section 84A(5) with respect to a building society, the exercise of the fourth stabilisation option involves the making (in that or a subsequent resolution instrument) of provision or proposals of any kind mentioned in section 12A(3) to (6)— a with respect to the successor company, or b where provision made under section 84A includes provision under subsection (8) of that section, with respect to the successor company or its specified parent undertaking. 2 For the purpose of the making of provision or proposals as mentioned in subsection (1)(a) or (b)— a the Table in section 84 does not apply, and b the provisions in the first column of the following Table apply— i in relation to the successor company, or ii in a case within subsection (1)(b), in relation to the successor company or its specified parent undertaking, as they apply in relation to a bank, but subject to the modifications in the third column of the Table. Table Section Topic Modification Section 12A Bail-in option Treat references in subsection (4) to securities issued by a specified bank as references to securities issued by the building society, or by the successor company or its specified parent undertaking. For subsection (8) substitute— 8 Subsection (8ZA) applies where— a the Bank of England has exercised the power in subsection (4) to transfer securities to a resolution administrator; or b by virtue of section 84A, 84B or 84C securities of a successor company or a specified parent undertaking are held by— i the resolution administrator, ii the Bank of England, iii a subscriber to the memorandum of association of a company into which the building society is converted in accordance with section 84B, or iv a person nominated for the purposes of section 84C(1)(c). 8ZA The Bank of England must exercise its functions under this Part (see, in particular, section 48V) with a view to ensuring that any securities— a held by a person in the capacity of a resolution administrator, b held by the Bank of England, c held by a person as a result of being a subscriber to the memorandum of association of a company into which the building society is converted in accordance with section 84B, d held by a person as a result of being nominated by the Bank of England for the purposes of section 84C(1)(c), are so held only for so long as is, in the Bank of England’s opinion, appropriate having regard to the special resolution objectives. . Section 12AA Bail-in: sequence of write-down and conversion of capital instruments and liabilities In relation to the result to be achieved, treat any reference to an instrument or liability of the bank as a reference to an instrument or liability of the building society immediately before the making of the first resolution instrument under section 84A in respect of it. Section 17 Effect of transfer Section 18 Continuity Section 41A , and any other provision so far as relating to property transfer instruments under section 41A(2) Transfer of property subsequent to resolution instrument Section 48B Special bail-in provision The provision that may be made in accordance with section 48B(1)(b) (see also rule 3(a) and (b) of section 48B(5)) includes provision replacing a liability (of any form) of the building society or its successor company with a liability of the successor company’s specified parent undertaking. Section 48C Meaning of “protected deposit” Section 48D General interpretation of section 48B Section 48E Report on special bail-in provision Section 48F Power to amend definition of “excluded liabilities” Section 48G Priority between creditors Treat the reference in subsection (1) to the treatment of liabilities on an insolvency as a reference to the treatment of liabilities on the insolvency of a building society. Section 48H Business reorganisation plans Treat the reference in subsection (2)(a) to the bank as a reference to the building society. Section 48L Powers in relation to securities Treat references to securities issued by the bank as references to securities issued by the building society or by the successor company or its specified parent undertaking. Section 48N Directors and senior managers Treat references to a director or senior manager of a specified bank as references to a director or senior manager of the building society or of the successor company or its specified parent undertaking. Section 48O Directions in or under resolution instrument Treat references to a director of the bank as references to a director of the building society or of the successor company or its specified parent undertaking. Section 48P Orders for safeguarding certain financial arrangements Section 48Q Continuity Section 48R Execution and registration of instruments etc. Section 48S Resolution instruments: general matters Section 48T Resolution instruments: procedure On the first occasion on which the power to make a resolution instrument is exercised in relation to a building society, treat the first reference in subsection (1) to a bank as a reference to the building society. Section 48U Supplemental resolution instruments Treat the reference in subsection (1) to a bank as a reference to the building society. Section 48V Onward transfer Treat references to securities issued by the bank as references to securities issued by the building society or by the successor company or its specified parent undertaking. Section 48W Reverse transfer Treat references to securities issued by the bank as references to securities issued by the building society or by the successor company or its specified parent undertaking. Section 48X Replacement of Bank’s provisional valuation Treat the first reference in subsection (2)(a) to the bank as a reference to the building society. Section 48Y Consequences of a replacement valuation Treat the first reference in subsection (1) to the bank as a reference to the building society. Section 48Z Termination rights etc. This section applies to contracts and other agreements entered into by the building society or by the successor company or its specified parent undertaking. Section 49 Compensation orders Treat references to transferors as including references to the shareholding members of the building society. Section 52A Compensation orders: bail-in option Section 53 Onward and reverse transfers etc. Section 54 Independent valuer: compensation scheme order or bail-in compensation order Section 55 Independent valuer: supplemental Section 56 Independent valuer: money Section 57 Valuation principles Treat the reference in subsection (4) to a bank as a reference to the building society. Treat the reference in subsection (5) to a transferor as including a reference to a shareholding member of the building society. Section 58 Resolution fund Section 59 Third party compensation: discretionary provision Treat the reference in subsection (1) to a transferor as including a reference to a shareholding member of the building society. Section 60A Further mandatory provision: bail-in provision Section 60B Principle of no less favourable treatment Treat references to pre-resolution shareholders and creditors of a bank as references to persons who were shareholding members of, or creditors of, the building society, immediately before the coming into effect of the first resolution instrument to be made in respect of the building society. Treat references to the bank as references to the building society. Section 61 Sources of compensation Section 62 Procedure Section 62A Independent valuer: sections 6E and 48X Sections 62B to 62E Resolution administrator Sections 63, 64 and 66 to 70 where they apply in relation to a resolution instrument or in relation to a property transfer instrument under section 41A(2) Continuity obligations Treat references in sections 66(1A) and 68(1)(a) to securities issued by the bank as references to securities issued by the building society or by the successor company or its specified parent undertaking. Section 70A Suspension of obligations Section 70B Restriction of security interests Section 70C Suspension of termination rights Section 70D Suspension: general provisions Section 71 Pensions This section applies in relation to a pension scheme of the building society or of the successor company. Section 73 Disputes Section 74 Tax This section enables regulations to make provision in relation to the building society, the successor company or its specified parent undertaking. Section 75 Power to change law Treat the reference in subsection (5)(b) to building societies as including a reference to successor companies and their specified parent undertakings. Section 78A Pre-conditions for financial assistance: duty of Bank to give information Section 80A Transfer for bail-in purposes: report Treat the reference in subsection (1) to a bank as a reference to the building society. Section 81A Accounting information to be included in reports under sections 80, 80A(2)(b) and 81 Sections 83ZA to 83Z2 Information, investigation and enforcement Section 89K Insolvency proceedings Treat the references in paragraphs (a) and (b) of subsection (1) to a relevant firm as references to the building society. Section 89L Restrictions on disclosure of confidential information Section 89M Giving of notices, documents etc. under Part 1 3 Any statutory instrument made under a provision specified in the first column of the Table in subsection (2) applies— a to the successor company, or b in a case within subsection (1)(b), to the successor company or the specified parent undertaking, as it applies in relation to a bank, but subject to modifications corresponding to those applying to the provision under which it is made and as if references to a provision modified by subsection (2) or (5) were references to that provision as so modified. 4 Subsection (3) does not apply where the instrument— a states that it does not apply, or b makes express provision about building societies or their successor companies. 5 Where a resolution instrument makes provision under section 84A in respect of a building society— a section 81BA (groups: bail-in option) applies with the following modifications— i references to a banking group company are to be read as references to a subsidiary of the building society, and ii the power in subsection (1) of that section is to be exercised only where the Bank of England has exercised the stabilisation power in accordance with section 12A(2) in respect of the parent building society; b section 81CA applies as if references to a banking group company were references to a subsidiary of the building society or of the successor company; and c section 81D (interpretation: “banking group company”) does not apply. 6 Sections 97 to 102D of the Building Societies Act 1986 (transfer of business of building society to commercial company) do not apply where a resolution instrument makes provision under section 84A. 7 Section 103 of the Building Societies Act 1986 (cancellation of registration) does not apply where a resolution instrument makes provision under section 84A(7)(e). 8 In this section— “company” means a company as defined in section 1(1) of the Companies Act 2006 which is a public company limited by shares; “specified parent undertaking” means a company by which in accordance with provision falling within paragraph (a) or (b) of section 84A(8) the successor company is (or is to be) wholly owned; “the successor company”, in relation to a building society, means the company into which the building society is converted, or to which the property, rights and liabilities of the building society are transferred, as a result of provision made under section 84A(5). . Charges 3 1 Where— a a resolution instrument makes provision under section 84A(5) of the Banking Act 2009 in relation to a building society; b by virtue of the conversion under section 84A(5)(a) of the Banking Act 2009 or the transfer under section 84A(5)(b) of that Act the successor company acquires property or undertaking which is subject to a charge; and c the charge is of a kind which would, if it had been created by the company after the acquisition of the property or undertaking, have been capable of being registered under section 859A of the Companies Act 2006 (charges created by a company), section 859C(2) and (3) of the Companies Act 2006 (charges existing on property or undertaking acquired) applies in relation to that charge. 2 Despite regulation 6 of the Companies Act 2006 (Amendment of Part 25) Regulations 2013 , paragraph (1) applies regardless of the date of creation of the charge. 3 In relation to a charge to which section 859C(2) and (3) of the Companies Act 2006 applies because of paragraph (1), Part 25 of the Companies Act 2006 has effect as if— a for sub-paragraphs (i) and (ii) of section 859K(2)(b) there were substituted the words “the unique reference code allocated to the charge”; b for sub-paragraphs (i) and (ii) of section 859K(3)(b) there were substituted the words “the unique reference code allocated to the charge”; c section 859K(4) were omitted; d for section 859L(4)(b) there were substituted— b the registered name and number of the successor company that acquired the property or undertaking subject to the charge; ; e section 859L(4)(c) were omitted; f for section 859L(4)(d) there were substituted— d the unique reference code allocated to the charge. ; g in section 859O(2) the reference to the company that created the charge were a reference to the successor company that acquired the property or undertaking subject to the charge; h section 859O(3)(b) were omitted; i for section 859O(3)(c) there were substituted— c the unique reference code allocated to the charge. . 4 In this article— “resolution instrument” has the meaning given by section 12A of the Banking Act 2009; “successor company” has the meaning given by section 84D(8) of the Banking Act 2009. Amendment to Building Societies Act 1986 4 1 Section 90D of the Building Societies Act 1986 (notice to the FCA and the PRA) is amended as follows. 2 In subsection (5) after “FCA” insert “, the Bank of England”. 3 In subsection (7)— a in paragraph (a), for “2 weeks” substitute “7 days”; b for paragraph (b) substitute— b both— i the Bank of England has informed the person who gave the notice that it does not intend to exercise a stabilisation power under Part 1 of the Banking Act 2009 in relation to the building society (and condition 5 has been met, if applicable), and ii each of the PRA and the Bank of England has informed the person who gave the notice that it does not intend to apply for a building society insolvency order (under section 95 of the Banking Act 2009 as applied by section 90C ). . 4 After subsection (8) insert— 8A Condition 5— a applies only if a resolution instrument has been made under section 12A of the Banking Act 2009 with respect to the building society in the three months ending with the date on which the Bank of England receives the notification under Condition 1, and b is that the Bank of England has informed the person who gave the notice that it consents to the insolvency procedure to which the notice relates going ahead. . 5 In subsection (10)— a for “the PRA receives notice under Condition 1” substitute “notice has been given under Condition 1”; b omit paragraph (a); c omit the “and” at the end of paragraph (b); d after paragraph (c) insert— ; and d if Condition 5 applies, the Bank of England must, within the period in Condition 3(a), inform the person who gave the notice whether or not it consents to the insolvency procedure to which the notice relates going ahead. . 6 In subsection (11)— a for “the FCA receives notice under Condition 1” substitute “notice has been received under Condition 1”; b omit paragraph (a); c after paragraph (b) insert— ; and c if Condition 5 applies, the Bank of England must, within the period in Condition 3(a), inform the person who gave the notice whether or not it consents to the insolvency procedure to which the notice relates going ahead. . 7 After subsection (11) insert— 12 References in this section to the insolvency procedure to which the notice relates are to the procedure for the determination, resolution or appointment in question (see subsections (1) to (4)). . Amendment to the Building Societies (Insolvency and Special Administration) Order 2009 5 In Schedule 1 to the Building Societies (Insolvency and Special Administration) Order 2009 (modified application of Parts 2 and 3 of the Banking Act 2009 to building societies), after paragraph 32 insert— Property transfer from transferred institution 32ZA Where a resolution instrument makes provision under section 84A of the 2009 Act in respect of a building society, in section 152A of the 2009 Act (property transfer from transferred institution)— a the first reference in paragraphs (a) and (b) of subsection (1) to a bank (which would otherwise apply as mentioned in section 90C(2)(a) of the 1986 Act) is to be read as a reference— i to the successor company (defined in section 84D(8) of the 2009 Act), or ii in a case within section 84D(1)(b) of the 2009 Act, to the successor company or its specified parent undertaking (defined in section 84D(8) of the 2009 Act); b in paragraph (a) of subsection (1) ignore the reference to a bank’s parent undertaking; c in paragraph (b) of subsection (1) ignore “or from another a bank which is or was in the same group as the bank”; and d the reference in subsection (1) to sections 12A(2) and 41A(2) of the 2009 Act and the reference in subsection (2) to section 41A(2) is to those section as applied and modified by section 84D(2) of the 2009 Act. . Amendment to the Banking Act 2009 (Mandatory Compensation Arrangements Following Bail-in) Regulations 2014 6 In regulation 12 of the Banking Act 2009 (Mandatory Compensation Arrangements Following Bail-in) Regulations 2014 (application to building societies), after paragraph (2) insert— 3 Where a resolution instrument makes provision under section 84A of the Act with respect to a building society, these Regulations apply— a to the successor company, or b where provision made under section 84A includes provision under subsection (8) of that section, to the successor company and to its specified parent undertaking, as they apply to banks, subject to the modifications specified in paragraphs (2)(a), (b) and (d) and (4). 4 The modification specified in this paragraph is that references in these Regulations to sections of the Act are to be read as to those sections as applied or as applied and modified by virtue of section 84D of the Act. 5 In this regulation, “successor company” and “specified parent undertaking” have the meanings given by section 84D(8) of the Act. . Review 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mark Lancaster Gavin Barwell Two of the Lords Commissioners of Her Majesty’s Treasury 18th December 2014