Critical Functions and Core Business Areas
The institutions' critical functions must be identified to ensure they can continue in a resolution scenario. The institutions themselves must report their assessment of which critical functions they perform, based on the EBA's data reporting template for resolution planning. Institutions typically base their assessment on the following elements, but may also have various policies on the matter:
- What market share does the institution have within the specific function?
- Would it be easy to find substitution options for the specific function?
- What impact on the market would there be from a disruption of the specific function?
The business areas that the institution considers particularly important, including core business areas, are not necessarily the same as the critical functions. This is partly because core business areas are crucial for the institution's revenue, while critical functions can have a broader societal significance beyond the institution, for example deposits.
Operational Continuity
In connection with resolution, it is important to focus on operational continuity. This refers to the ability to continue the institution's critical services and maintain access to service providers in a resolution scenario. This includes IT systems that support critical functions and core business areas. To support operational continuity, both the institution and the resolution authorities work on the following aspects:
- Identification of critical and essential suppliers
- Identification of operational assets* and key personnel
- Contractual provisions that ensure access to services from these suppliers can continue in a resolution scenario, i.e., are not interrupted solely due to resolution
- Sufficient financial resources to ensure access to services
- Pre-determined costs to continue services, potentially distributed internally within the institution beforehand
- Contingency arrangements to retain key employees
- Systematic access to information (suppliers, operational assets, key personnel, contractual provisions, etc.) in the form of a "service catalogue" where necessary information can be retrieved
- Management support and sound decision-making processes to ensure access to services in a resolution scenario and thereby support operational continuity.
*Operational assets are defined by the Single Resolution Board as non-financial assets that support services within a group, such as properties, IT systems, and data warehouses.
Contractual provisions
To handle a resolution scenario as effectively as possible, it is crucial to enable the continuation of the institution's contracts during resolution, including ensuring access to critical services. A particular issue arises with contracts governed by third-country law, as these contracts may not necessarily include the same provisions regarding a resolution scenario as contracts made under EU law, due to the common EU regulations.
A party to a contract governed by third-country law is therefore not necessarily aware of the Danish resolution authorities' powers. Companies are therefore generally required to include contractual provisions in their third-country contracts, according to sections 274 and 276 of the Danish Financial Business Act (FIL), where the counterparty acknowledges the Danish Financial Supervisory Authority and the Danish Financial Stability Company’s powers to write down obligations or convert obligations into equity, or the Danish Resolution Authority's power to suspend contracts. This provides greater legal certainty and transparency by including provisions on these powers in the contracts. Additionally, it facilitates enforcement and improves the ability to ensure access to suppliers supporting critical functions and core business areas in a resolution scenario.
The Danish Financial Supervisory Authority and the Danish Financial Stability Company can exercise their write-down and conversion powers over obligations, regardless of whether this is stated in the contracts. The same applies to the Danish Financial Stability Company's suspension power. The EBA's guidelines on improving resolvability include a section on contractual provisions and cross-border contracts. This includes that institutions in their self-assessments should perform:
- Mapping of the institution's cross-border contracts governed by third-country law.
- Mapping of contracts with service providers supporting critical functions and/or core business areas. These contracts may be based on both third-country law and EU law (as covered by the outsourcing regulations and the EBA's guidelines).
To support operational continuity, the institutions' contracts with service providers (supporting critical functions and/or core business areas) must include provisions ensuring the continuation of the function in the event of the institution entering resolution. The contractual assurance applies beyond third-country contracts to both external and intra-group contracts made under EU law. The requirement concerning contracts made under third-country law falls under Section 276 of the Danish Financial Business Act, whereas the recommendation to ensure EU contracts follows from the EBA's guidelines on improving resolvability. The table below provides an overview of the types of contracts covered by the EBA's guidelines on resolvability in relation to operational continuity.
The clauses aim to make the counterparty aware that the Danish Financial Stability Company possesses these powers, thereby ensuring transparency and greater legal certainty. Pursuant to Section 30 of the Act on the Restructuring and Resolution of Certain Financial Enterprises (RAL), the Danish Financial Stability Company has the authority to terminate or amend terms in a contract entered by a company or entity under resolution, when necessary to support the implementation of resolution measures. This authority enables the Danish Financial Stability Company to exercise resolution powers to ensure the continuation of critical functions. The resolution authority’s power to regulate contracts applies regardless of whether the contract is governed by Danish or foreign law.
Access to Financial Market Infrastructures (FMIs)
It is crucial to understand and mitigate any contractual or other obstacles to maintaining access to financial market infrastructures (FMIs*) during resolution. Accordingly, the guidelines encourage institutions to develop contingency plans for access to FMIs that support critical functions and core business lines. The box below outlines some of the key FMIs in Denmark.
*Financial market infrastructures, or FMIs, are defined in accordance with CPMI-IOSCO’s definition and include, at a minimum: payment systems, (international) central securities depositories, securities settlement systems, central counterparties, and trade repositories (source). No central counterparties have been established in Denmark. In addition to payment systems, there are also marketplaces such as Nasdaq CPH and its First North market.