Use of deposit guarantee scheme

Should Article 109 (1) (b) BRRD be read without the part "in proportion to the losses suffered by creditors with the same level of priority under the national law governing normal insolvency proceedings" in case there are no creditors sharing the priority rank with DGS in national law? If so, does this mean that if any tool other than the bail-in tool is applied, DGS must, in such case, always cover the amount up to the amount of losses it would have had to bear had the institution been wound up under normal insolvency proceedings without the need that other creditors (e.g. eligible depositors) cover such losses before DGS does?

Subject to Article 108 (1) (b) BRRD DGS subrogating to the rights and obligation of covered depositors has priority ranking above eligible depositors and other unsecured, non-preferred creditors. In some member states there are no creditors in the same priority level as DGS which means that de facto DGS has the highest priority ranking in insolvency proceedings (save as preferred creditors such as employees of the failing institution in regard to their claims incurred before the opening of insolvency proceedings which are above DGS). This means that in case DGS suffers losses in insolvency proceedings, it is obvious that creditors with lower priority ranking (amongst others also eligible depositors) will not be able to settle any of their claims from the insolvency estate. If for example in the course of resolution the resolution authority applies the sale of business tool (or bridge bank tool) with partial transfer of covered and eligible depositors to third institution (or bridge bank), this means that DGS would be required to cover (up to the amount equal to the losses it would have had to bear had the institution been wound up under normal insolvency proceedings) a shortage of corresponding assets which need to be transferred together with covered and eligible depositors to third institution (or bridge bank). If bail-in tool is applied, eligible depositors would be required to cover losses. However, in case eligible depositors are transferred when the sale of business tool or bridge bank tool with aim on partial transfer are applied and DGS contributes cash as described above, this could also be characterised as better-of treatment of eligible depositors. Because BRRD only prohibits worse-of treatment of creditors, it could be concluded that such transfer where DGS contributes for the shortage of assets for the transfer of eligible depositors is allowed by the BRRD.