Comparison with the outcome of hypothetical insolvency proceedings; authorisation to issue statutory instruments

(1) Without delay after one or more resolution actions have been carried out, the resolution authority arranges for an independent expert valuer to determine whether, and to what extent, shareholders and creditors have been placed at a disadvantage by the direction and implementation of the resolution actions, as compared with the situation that would have resulted from the opening and conduct of insolvency proceedings over the assets of the institution. This valuation is carried out separately in substance from the valuation under section 69.
(2) The valuer is selected and appointed by the court, on the resolution authority's application. Section 10(1), third sentence, (3) and (4), and section 11, of the Transformation Act apply correspondingly. The regional court in whose district the resolution authority has its seat has jurisdiction. The regional court's selection and appointment should take place within five working days of the application being made, at the latest. The higher regional court should decide on an appeal within five working days.
(3) The valuation under subsection (1) must establish 1. the recovery rates that the shareholders and creditors would have expected, had insolvency proceedings been opened over the institution or group entity under resolution at the time referred to in section 138(3), first sentence, 2. the outcomes actually achieved by the shareholders and creditors of the institution or group entity in the course of the resolution, and 3. whether, and if so what, differences exist between the hypothetical treatment of the shareholders and creditors under point 1 and their actual treatment under point 2.
(4) The valuation under subsection (1) is carried out on the assumption that 1. insolvency proceedings were opened over the institution or group entity under resolution at the time referred to in section 138(3), first sentence; 2. no resolution action was taken; 3. no extraordinary public financial support was provided to the institution or group entity under resolution.
(5) The valuer reports the results of the valuation to the resolution authority in writing.
(6) For the period until the entry into force of the regulatory technical standards under Article 74(4) of Directive 2014/59/EU, the Federal Ministry of Finance is authorised to issue, by statutory instrument not requiring the consent of the Bundesrat, more detailed provisions on the method of valuation under subsections (1) to (3). The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the resolution authority.