Prudential treatment of extraordinary ex-post contributions to resolution funds pursuant to Article 104 of the BRRD

Can the extraordinary ex-post contributions to resolution funds provided for by Article 104 of the BRRD be considered as any of the off-balance sheet items mentioned in Annex I of the CRR ?

Two alternative interpretations may be considered. Interpretation A: future extraordinary contributions not treated as exposure under pillar 1 On one hand, it can be argued that the common denominator for all off-balance sheet items in Annex I of the CRR is that they represent a contingent pre-defined and quantifiable credit risk for a particular credit institution. In case of the ex-post extraordinary contributions, such credit risk is not pre-defined or quantifiable: although financial needs of the Resolution Fund and hence the overall need for future extraordinary contributions depend on the use of these funds in the resolution of an entity in financial sector (‘credit event’), the contributions themselves and their amount to be paid by each relevant bank is not directly determined by such credit event. Instead, it is up to the resolution authority to determine the level of the extraordinary contributions by each credit institution taking into account variable criteria used to compute periodical contribution. Furthermore the resolution authority may even temporarily suspend, partially or totally, the obligation to pay it if such payment jeopardises the liquidity or the solvency of the institution. As the direct causal link between the amount of contributions to the Resolution Fund and a particular credit risk cannot be established, it can be inferred that the future contributions cannot be captured by any of the CRR provisions on credit risk. This assessment of course does not prevent the use of pillar 2 powers. Interpretation B: future extraordinary contributions treated as off-balance sheet items On the other hand, the statutory commitment to make ex-post extraordinary contributions upon the call of the resolution authority may be classified as a guarantee within the meaning of Annex I(1)(a) of the CRR and be subject to the related prudential treatment. At the end, the resolution fund is guaranteeing the financing of the resolution proceedings. Thus, the statutory commitment ultimately acts as a guarantee for the good payment of the credit facilities provided by creditors to the covered banks, which constitutes indirect exposures to covered banks that are failing or likely to fail. The fact that the resolution authority could decide to not draw the ex-post extraordinary contributions it is not different from other guarantees where the protection receiver always can decide to make use of other resources instead of drawing the guarantee in full. The CRR should be read in such a way as to include in credit risk any protection provided for credit risk exposures, as this exposes the protection provider to these credit risk exposures – which also means that credit risk exposures for the CRR are in particular not limited to counterparties of the institution.