The proposed acquirer shall submit the elements identified in Notice of Banco de Portugal No 5/2010, together with supporting documents that allow Banco de Portugal to conclude on the fulfilment of the criteria listed above.
Cooperation among competent authorities
In order to assess the proposed acquisition, and in the context of cooperation between the competent authorities, Banco de Portugal carries out a set of steps, including consulting several databases and requesting opinions from:
- the competent authorities of the home country;
- the Portuguese Insurance and Pension Funds Supervisory Authority, if the proposed acquirer corresponds to one of the types of entities authorised by that authority;
- the Portuguese Securities Market Commission, if the corporate object of the credit institution includes the activity of intermediation in financial instruments, or if the proposed acquirer corresponds to one of the types of entities authorised by that authority.
Procedures and deadlines
Receipt of the notification
After receipt of the notification regarding the acquisition of a qualifying holding:
- if the notification is accompanied by all the required data and information, Banco de Portugal informs the proposed acquirer in writing of the expity date of the assessment period;
- if the notification is not accompanied by all the required data and information, Banco de Portugal informs the proposed acquirer in writing of the missing data or information.
Assessment of the notification
After the date on which all data and information legally required have been submitted by the proposed acquirer, Banco de Portugal has a period of 45 working days to assesses the notification regarding the acquisition of a qualifying holding and to submit to the ECB a draft decision to oppose or not to oppose the acquisition.
The ECB then has a period of 15 working days to decide whether or not to oppose the acquisition, as the legal decision period is of 60 working days.
During the assessment period, Banco de Portugal may request additional data and/or information from the proposed acquirer in writing and make the inquiries deemed necessary to complete the assessment. In this situation:
- the assessment period is suspended between the date of the request of the additional data and/or information and the date of receipt of the reply by the proposed acquirer;
- the proposed acquirer is informed in writing of the receipt of the data and/or additional information and of the new deadline for the assessment of the acquisition project.
The interruption must not exceed:
- 20 working days or;
- 30 working days, if the proposed acquirer:
- has its residence or head office in a third country or is subject to non-EU regulations;
- is not subject to supervision under Directive 2013/36/EU, or Directives 2009/65/EC of the European Parliament and of the Council of 13 July 2009, 2009/138/EC of the European Parliament and of the Council of 25 November 2009, and 2004/39/EC of the European Parliament and of the Council of 21 April 2004.
5. Decision
The ECB shall decide whether to oppose the acquisition on the basis of the assessment of the proposed acquisition, according to the criteria set out in the applicable EU law, and Banco de Portugal’s draft decision.
The decision must be notified to the proposed acquirer within the assessment period defined in national law and EU law, i.e. within 60 working days following receipt of all data and information deemed necessary for the completeness of the notification, without prejudice to any suspensions of the assessment period, as mentioned above.
Before the ECB may adopt a decision which would adversely affect the rights of the proposed acquirer, it shall grant the proposed acquirer the right to be heard.
Opposition
The ECB may oppose the proposed acquisition in the following situations (Article 103 (1) of the Legal Framework and Article 23 (2) of Directive 2013/36/EU):
- if it deems that it has not been demonstrated that the proposed acquirer fulfils the conditions to ensure the sound and prudent management of the credit institution, based on the above-mentioned assessment criteria;
- if the information provided by the proposed acquirer is incomplete.
If the ECB decides to oppose the proposed acquisition, it:
- informs the proposed acquirer, in writing, of its decision and of the reasons thereof, within two working days of that decision and prior to the expiry of the assessment period;
- may make the decision and the reasons thereof accessible to the public, on its own initiative or upon request of the proposed acquirer.
Non-opposition
If the ECB does not oppose the proposed acquisition, in writing, within the assessment period, it shall be deemed to be approved.
The ECB notifies the proposed acquirer of its decision regarding the acquisition of a qualifying holding in a credit institution.
If the ECB decides not to oppose, it may set a reasonable time limit for the completion of the proposed acquisition, which shall be of one year except where otherwise provided for.