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2. The Board shall draw up the resolution plans, after consulting the ECB or the relevant national competent authorities and the national resolution authorities, including the group-level resolution authority, of the participating Member States in which the entities are established, and the resolution authorities of non-participating Member States in which significant branches are located insofar as relevant to the significant branch. To that end, the Board may require the national resolution authorities to prepare and submit to the Board draft resolution plans and the group-level resolution authority to prepare and submit to the Board a draft group resolution plan.
The Board may instruct the national resolution authorities to exercise the powers referred to in Article 10(8) of Directive 2014/59/EU. The national resolution authorities shall implement the instructions of the Board in accordance with Article 29 of this Regulation.
3. In order to ensure effective and consistent application of this Article, the Board shall issue guidelines and address instructions to the national resolution authorities for the preparation of draft resolution plans and draft group resolution plans relating to specific entities or groups.
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Where a group is composed of more than one resolution group, the Board shall assess the resolvability of each resolution group in accordance with this Article.
The assessment referred to in the firstthird subparagraph shall be performed in addition to the assessment of the resolvability of the entire group.
5. For the purposes of paragraphs 3, 4 and 10, significant adverse consequences for the financial system or threat to financial stability refers to a situation where the financial system is actually or potentially exposed to a disruption that may give rise to financial distress liable to jeopardise the orderly functioning, efficiency and integrity of the internal market or the economy or the financial system of one or more Member States. In determining the significant adverse consequences the Board shall take into account the relevant warnings and recommendations of the ESRB and the relevant criteria developed by EBA in considering the identification and measurement of systemic risk.
6. For the purpose of the assessment referred to in this Article, the Board shall examine the matters specified in Section C of the Annex to Directive 2014/59/EU.
7. If, pursuant to an assessment of the resolvability forof an entity or a group carried out in accordance with paragraph 3 or 4, the Board, after consulting the competent authorities, including the ECB, determines that there are substantive impediments to the resolvability of that entity or group, the Board shall prepare a report, in cooperation with the competent authorities, addressed to the institutionentity or the parent undertaking analysing the substantive impediments to the effective application of resolution tools and the exercise of resolution powers. That report shall consider the impact on the institution'entity’s or the group’s business model and recommend any proportionate and targeted measures that, in the Board'’s view, are necessary or appropriate to remove those impediments in accordance with paragraph 10.
8. The report shall also be notified to the competent authorities and to the resolution authorities of non-participating Member States in which significant branches of institutions which are not part of a group are located. It shall be supported by reasons for the assessment or determination in question and shall indicate how that assessment or determination complies with the requirement for proportionate application laid down in Article 6.
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When proposing the timeline for the implementation of measures referred to in the second subparagraph, the entity shall take into account the reasons for the substantive impediment. The Board, after consulting the competent authorities, including the ECB, shall assess whether those measures effectively address or remove the substantive impediment in question.
10. TheWhere Board, after consulting the competentBoard authorities,finds shallthat assess whether the measures referred to in paragraph 9 effectively address or remove the substantive impediments in question. If the measures proposed by the entity or the parent undertaking concerned do not effectively reduce or remove the substantive impediments to resolvability, the Board shall take a decision, after consultinghaving consulted the competent authorities and, where appropriate, the designated macro-prudential authority, indicatingshall take a decision. That decision shall indicate that the Board has assessed that the measures proposed do not effectively reduce or remove the substantive impediments to resolvability, and instructingshall instruct the national resolution authorities to require the institutionentity, the parent undertaking, or any subsidiary of the group concerned, to take any of the measures listed in paragraph 11.
In identifying alternative measures, the Board shall demonstrate how the measures proposed by the institutionentity or the parent undertaking concerned would not be able to remove the substantive impediments to resolvability and how the alternative measures proposed are proportionate in removing them. The Board shall take into account the threat to financial stability of those impediments to resolvability and the effect of the measures on the business of the institutionentity or the parent undertaking concerned, its stability and its ability to contribute to the economy, on the internal market for financial services and on the financial stability in other Member States and the Union as a whole.
The Board shall also take into account the need to avoid any impact on the institutionentity or the group concerned which would go beyond what is necessary to remove the impediment to resolvability or which would be disproportionate.
11. For the purpose of paragraph 10, the Board, where applicable, shall instruct the national resolution authorities to take any of the following measures:
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Article 10a Power to prohibit certain distributions
1. Where an entity is in a situation where it meets the combined buffer requirement when considered in addition to each of the requirements referred to in Article 141a(1), points (a), (b) and (c), of Article 141a(1) of Directive 2013/36/EU, but it fails to meet the combined buffer requirement when considered in addition to the requirements referred to in Articles 12d and 12e of this Regulation, when calculated in accordance with pointArticle 12a(a2), ofpoint Article 12a(2a), of this Regulation, the Board shall have the power, in accordance with paragraphs 2 and 3 of this Article, to instruct the national resolution authority to prohibit an entity from distributing more than the Maximum Distributable Amount related to the minimum requirement for own funds and eligible liabilities (‘M-MDA’), calculated in accordance with paragraph 4 of this Article, through any of the following actions:
(a) make a distribution in connection with Common Equity Tier 1 capital;
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7. In order to ensure the effective and consistent application of this Article, the Board shall issue guidelines, and address instructions, to national resolution authorities relating to specific entities or groups.
8. The Board shall be responsible for granting the permissions referred to in Article 77(2) and Article 78a of Regulation (EU) No 575/2013 to the entities referred to in paragraph 1 of this Article. The Board shall address a decision to the entity concerned.
Article 12a Application and calculation of the minimum requirement for own funds and eligible liabilities
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1. Institutions that are subsidiaries of a resolution entity or of a third-country entity, but are not themselves resolution entities, shall comply with the requirements laid down in Article 12d on an individual basis.
The Board, after consultinghaving consulted the competent authorities, including the ECB, may decide to apply the requirement laid down in this Article to an entity as referred to in Article 2, point (b), ofor to a financial institution as referred to in Article 2, point (c), that is a subsidiary of a resolution entity but is not itself a resolution entity.
By way of derogation from the first subparagraph of this paragraph, Union parent undertakings that are not themselves resolution entities, but are subsidiaries of third-country entities, shall comply with the requirements laid down in Articles 12d and 12e on a consolidated basis.
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For the purposes of point (i) of the first subparagraph, at the request of the Board, the resolution entity shall provide an independent written and reasoned legal opinion or shall otherwise satisfactorily demonstrate that there are no legal, regulatory or operational barriers to the transfer of collateral from the resolution entity to the relevant subsidiary.
4. Where in accordance with the global resolution strategy subsidiaries established in the Union, or a Union parent undertaking and its subsidiary institutions, are not resolution entities and the members of the European resolution college, where established pursuant to Article 89 of Directive 2014/59/EU, agree with that strategy, subsidiaries established in the Union or, on a consolidated basis, the Union parent undertaking shall comply with the requirement of Article 12a(1) of this Regulation by issuing the instruments referred to in paragraph 2, points (a) and (b), of this Article, to any of the following:
(a) their ultimate parent undertaking established in a third country;
(b) the subsidiaries of that ultimate parent undertaking that are established in the same third country;
(c) other entities under the conditions set out in paragraph 2, points (a)(i) and (b)(ii), of this Article.
Article 12h Waiver of the minimum requirement for own funds and eligible liabilities applied to entities that are not themselves resolution entities
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3. The minimum levels of the requirements referred to in Article 12d(4) and (5) shall not apply within the two-year period following the date:
(a) on which the Board or the national resolution authority has applied the bail-in tool; or
(b) on which the resolution entity has put in place an alternative private sector measure as referred to in point (b) of Article 18(1) by which capital instruments and other liabilities have been written down or converted into Common Equity Tier 1 instruments, or on which write down or conversion powers, in accordance with Article 21, have been exercised in respect of that resolution entity, in order to recapitalise the resolution entity without the application of resolution tools.
4. The requirements referred to in Article 12c(4) and (7) as well as Article 12d(4) and (5), as applicable, shall not apply within the three-year period following the date on which the resolution entity or the group of which the resolution entity is part has been identified as a G-SII, or the resolution entity starts to be in the situation referred to in Article 12d(4) or (5).
5. By way of derogation from Article 12a(1), the Board and the national resolution authorities shall determine an appropriate transitional period within which to comply with the requirements of ArticlesArticle 12f or 12g, or a requirement resulting from the application of Article 12c(4), (5) or (7), as appropriate, for entities to which resolution tools or the write-down or conversion power referred to in Article 21 have been applied.
6. For the purposes of paragraphs 1 to 5, theof Boardthis andArticle, the nationalBoard resolution authorities shall communicate to the entity a planned minimum requirement for own funds and eligible liabilities for each 12-month period during the transitional period, with a view to facilitating a gradual build-up of its loss-absorption and recapitalisation capacity. At the end of the transitional period, the minimum requirement for own funds and eligible liabilities shall be equal to the amount determined under Article 12c(4), (5) or (7), Article 12d(4) or (5), Article 12f or Article 12g, as applicable.
7. When determining the transitional periods, the Board shall take into account:
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7. Immediately after the adoption of the resolution scheme, the Board shall transmit it to the Commission.
Within 24 hours from the transmission of the resolution scheme by the Board, the Commission shall either endorse the resolution scheme, or object to it, either with regard to the discretionary aspects of the resolution scheme in the cases not covered in the third subparagraph of this paragraph or with regard to the proposed use of State aid or Fund aid that is not considered compatible with the internal market.
Within 12 hours from the transmission of the resolution scheme by the Board, the Commission may propose to the Council:
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10. The Commission shall have the power to obtain from the Board any information which it deems to be relevant for performing its tasks under this Regulation. The Board shall have the power to obtain from any person, in accordance with Chapter 5 of this Title, any information necessary for it to prepare and decide upon a resolution action, including updates and supplements of information provided in the resolution plans.
11. Where the conditions referred to in paragraph 1, first subparagraph, points (a) and (b), of this Article are met, the Board may instruct the national resolution authorities to exercise the powers under national law transposing Article 33a of Directive 2014/59/EU in accordance with the conditions laid down in national law. The national resolution authorities shall implement the instructions of the Board in accordance with Article 29 of this Regulation.
12. The Board may instruct the national resolution authorities to exercise the powers referred to in Article 84b(2) of Directive 2014/59/EU. The national resolution authorities shall implement the instructions of the Board in accordance with Article 29 of this Regulation.
Article 19 State aid and Fund aid
1. Where resolution action involves the granting of State aid pursuant to Article 107(1) TFEU or of Fund aid in accordance with paragraph 3 of this Article, the adoption of the resolution scheme underreferred to in Article 18(6) of this Regulation shall not takeenter placeinto force until such time as the Commission hasadopts adopted a positive or conditional decision, or a decision not to raise objections, concerning the compatibility of the use of such aid with the internal market. The Commission shall, taking into consideration the need for the timely execution of the resolution scheme by the Board, adopt the decision concerning the compatibility of the use of State aid or of Fund aid with the internal market by, at the latest, the time it endorses the resolution scheme or objects to it pursuant to Article 18(7), second subparagraph, of this Regulation, or before the expiry of the period of 24 hours referred to in Article 18(7), fifth subparagraph, of this Regulation, whichever is earlier.
In performing the tasks conferred on them by Article 18 of this Regulation, Union institutions shall acthave in conformityplace withstructural arrangements that ensure operational independence and avoid conflicts of interest that could arise between the principlesfunctions establishedentrusted inwith Articlethe 3(3)performance of Directivethose 2014/59/EUtasks and other functions and shall make public, in an appropriate manner, all relevant information on their internal organisation in thisthat regard.
2. On receiving a communication pursuant to Article 18(1) of this Regulation or on its own initiative, if the Board considers that resolution actions could constitute State aid pursuant to Article 107(1) TFEU, it shall invite the participating Member State or Member States concerned to immediately notify the envisaged measures to the Commission under Article 108(3) TFEU. The Board shall notify the Commission of any case in which it invites one or more Member States to make a notification under Article 108(3) TFEU.
3. ToAs soon as the extentBoard considers that it may be necessary to use the resolutionFund, actionit asshall proposedinformally, bypromptly and in a confidential manner contact the BoardCommission involvesto discuss the possible use of the Fund, including the legal and economic aspects of its use. Once the Board is sufficiently certain that the resolution scheme envisaged will entail the use of Fund aid, the Board shall formally notify the Commission of the proposed use of the Fund. TheThat Board's notification shall includecontain all of the information necessarythat to enable the Commission needs to make its assessments pursuant to this paragraph.
The notificationand underthat thisthe paragraphBoard shallhas triggerin aits preliminarypossession investigationor byhas the Commissionpower duringto theobtain coursein ofaccordance whichwith thethis CommissionRegulation.
Upon mayreceiving requestthe furthernotification informationreferred fromto in the Board.first Thesubparagraph, the Commission shall assess whether the use of the Fund would distort, or threaten to distort, competition by favouring the beneficiary or any other undertaking so as, insofar as it would affect trade between Member States, to be incompatible with the internal market. The Commission shall apply to the use of the Fund the criteria established for the application of State aid rules as enshrined in Article 107 TFEU. The Board shall provide the Commission with the information thatin theits Commission deems to be necessary to carry out that assessment.
If the Commission has serious doubts as to the compatibility of the proposed use of the Fund with the internal marketpossession, or wherewhich the Board has failed to provide the necessarypower information pursuant to aobtain request of the Commission under the second subparagraph, the Commission shall open an in-depth investigationaccordance andwith shallthis notify the Board accordingly. The Commission shall publish its decision to open an in-depth investigation in the Official Journal of the European Union. The BoardRegulation, any Member State or any person, undertaking or association whose interests may be affected by the use of the Fund, may submit comments to the Commission within such timeframe as may be specified in the notification. The Board may submit observations on the comments submitted by Member States and interestedthat third parties within such timeframe as may be specified by the Commission. Atdeems thenecessary end of the period of investigation the Commission shall make its assessment as to whethercarry theout usethat of the Fund would be compatible with the internal marketassessment.
InWhen making its assessments and conducting its investigations pursuant to this paragraphassessment, the Commission shall be guided by all of the relevant regulations adopted under Article 109 TFEU, asall wellrelated asand relevant communications, and guidance of the Commission, and all measures adopted by the Commission in application of the rules of the Treaties relating to State aid as are in force at the time the assessment is to be made. Those measures shall be applied as thoughif references to the Member State responsible for notifying the aid were references to the Board, and with any other necessary modifications.
The Commission shall adopt a decision on the compatibility of the use of the Fund with the internal market, whichand shalladdress bethat addresseddecision to the Board and to the national resolution authorities of the Member State or Member States concerned. That decision may be contingent on conditions, commitments or undertakings in respect of the beneficiary and it shall take into account the need for timely execution of resolution action by the Board.
The decision may also lay down obligations on the Board, the national resolution authorities in the participating Member State or Member States concerned or the beneficiary to enable compliance with it to be monitored. This may include requirements for the appointment of a trustee or other independent person to assist in monitoring. A trustee or other independent person may perform such functions as may be specified in the Commission decision.
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9. Where the Commission, following a recommendation of the Board or on its own initiative, considers that the application of resolution tools and actions does not respond to the criteria on the basis of which its initial decision under paragraph 3 was made, it may review such a decision and adopt the appropriate amendments.
10. By way of derogation from paragraph 3, the Council may, on an application byof a Member State, or the Council mayBoard, actingwithin unanimouslyseven days of such application being made, unanimously decide that the use of the Fund shallis be considered to be considered compatible with the internal market, ifwhere such a decision is justified by exceptional circumstances. If,The however,Commission theshall Counciltake hasa notdecision madeon its attitude known within seven days of the saidcase applicationwhere being made, the CommissionCouncil shallhas givenot itsdecided decisionwithin onthat theseven-day caseperiod.
11. Participating Member States shall ensure that their national resolution authorities have the powers necessary to ensure compliance with any conditions laid down in a Commission decision pursuant to paragraph 3 and to recover misused amounts pursuant to a Commission decision under paragraph 5.
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(e) extraordinary public financial support is required by the entity or group, except in any of the circumstances set out in point (d)(iii) of Article 18(4).
The assessment of the conditions referred to in the first subparagraph, points (a), (c)to and (d), of thethis firstparagraph, subparagraph shall be made by the ECB, afterfor consultingentities thereferred Board.to The Board, in itsArticle executive session7(2), maypoint also(a), makeor suchby assessment.
2.the Regardingrelevant thenational assessmentcompetent ofauthority whetherfor theentities entityreferred orto groupin isArticle viable7(2), thepoint Board(b), inArticle its7(4), executivepoint session(b), mayand makeArticle such7(5), anand assessmentby only after informing the ECBBoard ofin its intentionexecutive and only if the ECBsession, withinin threeaccordance calendarwith daysthe ofallocation receipt of suchtasks information,pursuant doesto not make such an assessment. The ECB shall, without delay, provide the Boardprocedure withlaid anydown relevant information that the Board requests in orderArticle to18(1) informand its assessment(2).
3. For the purposes of paragraph 1 of this Article, an entity referred to in Article 2 or a group shall be deemed to be no longer viable only if both of the following conditions are met:
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The Board shall ensure that before national resolution authorities exercise the power to write down or convert relevant capital instruments, and eligible liabilities as referred to in paragraph 7a, a valuation of the assets and liabilities of an entity referred to in Article 2 or a group is carried out in accordance with Article 20(1) to (15). That valuation shall form the basis of the calculation of the write-down to be applied to the relevant capital instruments, and eligible liabilities as referred to in paragraph 7a in order to absorb losses and the level of conversion to be applied to relevant capital instruments, and eligible liabilities as referred to in paragraph 7a in order to recapitalise the entity referred to in Article 2 or the group.
9. Where one or more of the conditions referred to in paragraph 1 of this Article are met in relation to an entity referred to in that paragraph, and the conditions referred to in Article 18(1) are also met in relation to that entity or to an entity belonging to the same group, the procedure laid down in Article 18(6), (7) and (8) shall apply. The Board shall adopt a single resolution scheme covering the entity for which the conditions referred to in Article 18(1) are met as well as any entity referred to in paragraph 1 of this Article.
10. The Board shall ensure that the national resolution authorities exercise the write-down or conversion powers without delay, in accordance with the priority of claims pursuant to Article 17 and in a way that produces the following results:
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CHAPTER 4 Cooperation
Article 30 Obligation to cooperate and information exchange within the SRM
1. The Board shall inform the Commission of any action it takes in order to prepare for resolution. With regard to any information received from the Board, the members of the Council, the Commission as well as the Council and the Commission staff shall be subject to the requirements of professional secrecy laid down in Article 88.
2. In the exercise of their respective responsibilities under this Regulation, the Board, the Council, the Commission, the ECB and the national resolution authorities and national competent authorities shall cooperate closely, in particular in the resolution planning, early intervention and resolution phases pursuant to Articles 8 to 29. They shall provide each other with all information necessary for the performance of their respective tasks, including the information referred to in paragraphs 2a, 2b and 2c of this Article.
2a. The Board, the ESRB, EBA, ESMA and EIOPA shall cooperate closely and provide each other with all of the information necessary for the performance of their respective tasks.
2b. The ECB and other members of the European System of Central Banks (ESCB) shall cooperate closely with the Board and provide it with all of the information necessary for the performance of the Board’s tasks, including the information collected by them pursuant to the Statute of the European System of Central Banks and of the European Central Bank. Article 88(6) shall apply to all such exchanges of information.
2c. The designated authorities and deposit guarantee schemes shall cooperate closely with the Board. Those designated authorities, deposit guarantee schemes and the Board shall provide each other with all of the information necessary for the performance of their respective tasks. The designated authorities and deposit guarantee schemes shall be subject to the requirements of professional secrecy laid down in Article 88.
3. The ECB or the national competent authorities shall transmit to the Board and the national resolution authorities the group financial support agreements authorised and any changes thereto.
4. For the purposes of this Regulation, the ECB may invite the Chair of the Board to participate as an observer in the Supervisory Board of the ECB established in accordance with Article 19 of Regulation (EU) No 1024/2013. Where deemed to be appropriate the Board may appoint another representative to replace the Chair for that purpose.
5. For the purposes of this Regulation, the Board shall appoint a representative which shall participate in the Resolution Committee of EBA established in accordance with Article 127 of Directive 2014/59/EU.
6. The Board shall endeavour to cooperate closely with any public financial assistance facility, including the European Financial Stability Facility (EFSF) and the European Stability Mechanism (ESM), in particular in all of the following situations:
(a) in the extraordinary circumstances referred to in Article 27(9) and where such a facility has granted, or is likely to grant, direct or indirect financial assistance to entities established in a participating Member State;
(b) where the Board has contracted for the Fund a financial arrangement pursuant to Article 74.
7. Where necessary, the Board shall conclude a memorandum of understanding with the ECB and other members of the ESCB, the national resolution authorities and the national competent authorities, and the designated authorities and deposit guarantee schemes describing in general terms how they will cooperate under paragraphs 2 to 2c and 4 of this Article and under Article 74, second paragraph, in the performance of their respective tasks under Union law. The memorandum shall be reviewed on a regular basis and shall be published subject to the requirements of professional secrecy.
Article 31 Cooperation within the SRM
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2. Article 13(4) to (10) and Articles 88 to 92 of Directive 2014/59/EU shall not apply to relations between national resolution authorities. The joint decision and any decision taken in the absence of a joint decision as referred to in Article 45h of Directive 2014/59/EU shall not apply. The relevant provisions of this Regulation shall apply instead.
3. For the entities and groups referred to in Article 7(2) of this Regulation and for the entities and groups referred to in Article 7(4), point (b), and Article 7(5), of this Regulation where the conditions for the application of those provisions are met, national resolution authorities shall consult the Board before acting under Article 86 of Directive 2014/59/EU.
National resolution authorities shall set an appropriate time limit for the Board to respond to the request for consultation, which shall not be shorter than two working days after the submission of the request by the national resolution authority. Where the Board does not express its views within that time limit, or request the extension thereof, it shall be assumed that the Board has no comments.
Article 31a Exchange of information between authorities and with other entities
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Article 32 Consultation of, and cooperation with, non-participating Member States and third countries
1. Where a group includes entities established in participating Member States as well as in non-participating Member States or third countries, without prejudice to any approval by the Council or the Commission required under this Regulation, the Board shall represent the national resolution authorities of the participating Member States for the purposes of consultation and cooperation with non-participating Member States or third countries in accordance with Articles 7, 8, 12 to 12k, 13, 16, 18, 45h, 55, and 88 to 92 of Directive 2014/59/EU.
Where a group includes entities established in participating Member States and subsidiaries established, or significant branches located, in non-participating Member States, the Board shall communicate any plans, decisions or measures referred to in Articles 8, 10, 11, 12 and 13 relevant to the group to the competent authorities and/or the resolution authorities of the non-participating Member State, as appropriate.
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Article 34 Requests for information
1. ForThe theBoard purposemay, making full use of performingall itsof tasksthe underinformation thiswhich Regulationis already available to the ECB, including the Boardinformation may,collected throughby the nationalmembers resolutionof authoritiesthe orESCB directly,pursuant afterto informingthe them,Statute makingof fullthe useEuropean System of central banks and of the European Central Bank, or of all of the information available to the ECBnational orcompetent authorities, to the ESRB, EBA, ESMA or EIOPA, require, through the national competentresolution authorities or directly, requireafter having informed the national resolution authorities, the following legal or natural persons to provide it with all of the information necessary, toin performaccordance with the tasksprocedure conferredand onform itrequested by thisthe RegulationBoard, for the performance of its tasks:
(a) the entities referred to in Article 2;
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4. The Board shall be able to obtain, including on a continuous basis, any information necessary for the exercise of its functions under this Regulation, in particular on capital, liquidity, assets and liabilities concerning any institution subject to its resolution powers.
5. The Board, the ECB, the members of the ESCB, the national competent authorities, the ESRB, EBA, ESMA, EIOPA and the national resolution authorities may draw up memoranda of understanding withsetting out a procedure concerninggoverning the exchange of information. The exchange of information between the Board, the ECB and other members of the ESCB, the national competent authorities, the ESRB, EBA, ESMA, EIOPA and the national resolution authorities shall not be deemed to infringe the requirements of professional secrecy.
6. National competent authorities, the ECB, wheremembers relevantof the ESCB, the ESRB, EBA, ESMA, EIOPA, and the national resolution authorities shall cooperate with the Board in order to verify whether some or all of the information requested is already available at the time the request is made. Where such information is available, the national competent authorities, the ECB whereand relevantother members of the ESCB, the ESRB, EBA, ESMA, EIOPA or the national resolution authorities shall provide that information to the Board.
Article 35 General investigations
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4. The amounts of the fines and periodic penalty payments shall be allocated to the Fund.
Article 41a Review by the Court of Justice of the European Union The Court of Justice of the European Union shall have unlimited jurisdiction to review decisions of the Board imposing a fine or a periodic penalty payment. It may annul, or reduce or increase the amount of, the fine or periodic penalty payment imposed.