EBA · 2015_1796 Archive

Resolution action with regard to a holding

Regulation
Directive 2014/59/EU (BRRD)
Article
33
Topic
Resolution objectives and triggers
Submitted by
Competent authority
Submitted
2015-02-04
Answer provided by
ESAs (EBA, ESMA, EIOPA)

Question

When can a resolution action be taken with regard to a holding according to Article 33(4) of Directive 2014/59/EU (BRRD): are the conditions individual or cumulative?

Background

Subject to Article 33(3), notwithstanding the fact that an entity referred to in point (c) or (d) of Article 1(1) does not meet the conditions established in Article 32(1), resolution authorities may take resolution action with regard to an entity referred to in point (c) or (d) of Article 1(1) when (1) one or more of the subsidiaries which are institutions comply with the conditions established in Article 32(1), (4) and (5) and (2) their assets and liabilities are such that their failure threatens an institution or the group as a whole or (3) the insolvency law of the Member State requires that groups be treated as a whole and (4) resolution action with regard to the entity referred to in point (c) or (d) of Article 1(1) is necessary for the resolution of such subsidiaries which are institutions or for the resolution of the group as a whole. There are four conditions, which are highlighted above. Which of these conditions apply cumulatively, and which apply alternatively?

Answer

The resolution authority should be able to take action with regard to a holding (even if the holding does not meet the conditions for resolution) when in accordance with Article 33 of Directive 2014/59/ EU:                                                                                                       (1) one or more of the subsidiaries which are institutions comply with the conditions for resolution, PLUS (2) their assets and liabilities (those of the subsidiaries) are such that their failure threatens an institution or the group as a whole OR (3) the insolvency law of the Member State requires that groups be treated as a whole PLUS (4) resolution action with regard to holding is necessary for the resolution of such subsidiaries which are institutions or for the resolution of the group as a whole. This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission ( Directorate General Financial Stability, Financial Services and Capital Markets Union) has prepared the answer, albeit that only the Court of Justice of the European Union can provide definitive interpretations of EU legislation. This is an unofficial opinion of that Directorate General, which the European Banking Authority publishes on its behalf. The answers are not binding on the European Commission as an institution. You should be aware that the European Commission could adopt a position different from the one expressed in such Q&As, for instance in infringement proceedings or after a detailed examination of a specific case or on the basis of any new legal or factual elements that may have been brought to its attention.

Original source: European Banking Authority, Q&A ID 2015_1796

This Q&A is published by European Banking Authority and is non-binding. It does not constitute legal advice. Updated weekly from official ESA sources.

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