Entity in resolution and purchaser not registered in the same Member State

There may be two types of situations: 1. Assets and liabilities are purchased from the institution under resolution (Article 38(1)(b) BRRD). This would require: • an authorisation to take deposits or other repayable funds from the public and to grant credits on own account, and • any other supplementary authorisations necessary by national law with regard to activities that it will be carrying out following the purchase (Recital 14 of Directive 2013/36/EU (CRD IV)). Article 38(7) BRRD does not prescribe the Member State authority which is competent to give authorisation. Therefore, it should be possible for the purchaser to apply for authorisation in either Member State where it is registered (and then, for example, set up a branch in the Member State of the institution under resolution for which no separate authorisation would be necessary) or in the Member State of the institution under resolution. The provision (Article 38(7) BRRD) requires a timely consideration of application in order to allow for such purchasers to bid for the institution or its parts. Given the urgency of the situation, it may be more practicable to apply for an authorisation in the Member State of the institution under resolution. 2. Shares or other instruments of ownership are purchased (Article 38(1)(a) BRRD). In these cases BRRD provisions on assessment of qualifying holdings apply (Articles 38(8) and (9) BRRD). They relate to CRD IV provisions in Articles 22-25 on assessment of qualifying holdings by the competent authority of institution under resolution which require them to assess the suitability of the proposed acquirer and the financial soundness of the proposed acquisition in accordance with a number of specified criteria. Accordingly, Article 38(8) BRRD stated that the assessment shall be carried out by the competent authority of the entity under resolution. Disclaimer: 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.