Resolution conditions in respect of institutions

(1) The resolution conditions in respect of an institution are satisfied where
1. the institution is failing or likely to fail,
2. taking a resolution action is necessary and proportionate to achieve one or more resolution objectives, and this would not be the case to the same extent if the institution were wound up under normal insolvency proceedings, and
3. the institution's failing or likely to fail cannot, within the time available, be removed with equal certainty by measures other than resolution action, other measures for this purpose being in particular:
a) private-sector measures, including measures of an institutional protection scheme,
b) measures of the supervisory authority, in particular early intervention measures under sections 36 to 38 or measures under sections 45 to 46 of the Banking Act, or
c) the write-down or conversion of relevant capital instruments and eligible liabilities under section 65(4). It is not a precondition for taking resolution action that
1. early intervention measures under sections 36 to 38 have previously been applied,
2. measures under sections 45 to 46 of the Banking Act have previously been applied, or
3. relevant capital instruments and eligible liabilities have been written down or converted under section 65(4).
(2) The supervisory authority, after consulting the resolution authority, or the resolution authority, after consulting the supervisory authority, determines that the institution is failing or likely to fail. For this purpose, the resolution authority and the supervisory authority provide each other, on request and without delay, with all information necessary for that determination.