Interaction between total MREL and subordinated “eight percent TLOF” requirement

Article 45b(4) requires, for GSIIs and top tier banks, that “a part of” the total MREL requirement “equal to” eight percent of total liabilities, including own funds (TLOF), subject to possible upwards or downwards adjustments, is to be met with own funds and subordinated instruments (hereafter referred as “the subordination requirement”). How does this subordination requirement and its calibration interact with the methodology set out in Article 45c for determining the total MREL requirement? If the requirement resulting from the application of the methodology set out in Article 45c happens to be lower than 8% TLOF, subject to possible upwards or downwards adjustments, is that subordination requirement capped by the total MREL requirement?

Article 45b(4) BRRD2 provides that “resolution authorities shall ensure that a part of the requirement referred to in Article 45e equal to eight percent of the total liabilities, including own funds, shall be met by resolution entities that are G-SIIs or resolution entities that are subject to Article 45c(5) or (6) [top tier banks] using own funds, subordinated eligible instruments, or liabilities as referred to in paragraph 3 of this Article.” This subordination requirement for GSIIs and top tiers banks is subject to possible upwards adjustments (45b(7)) or downwards adjustments (45b(4)) under certain conditions. The “requirement referred to in Article 45e”, i.e. the total MREL requirement, is calculated in accordance with the methodology set out in Article 45c. This article provides that the MREL requirement should consist of a recapitalisation amount and a loss absorption amount and does not consider the subordination requirement set out in Article 45b. As such, the total MREL requirement calculated according to Article 45c may therefore, perfectly be lower (or higher) than the 8% TLOF possibly adjusted upwards or downward mentioned in Article 45b. If the total MREL requirement is higher than the subordination requirement, the situation is straightforward. However, if the total MREL requirement is lower than the subordination requirement, which requirement should prevail? Please note that during the political negotiations, in November 2018 under the Austrian presidency, one delegation suggested to introduce an additional paragraph in Article 45b(9) explicitly stating that the subordinated 8% TLOF requirement should prevail over the formula for calculating the total MREL requirement. The Council decided to reject this amendment. In the final text of the directive, the subordination requirement (8% TLOF possibly adjusted up or down) is only construed as “a part of” the total MREL requirement, obviously defining the former as a subset of the latter. The political intention, clearly set out in the directive, is that the total MREL requirement calculated following the Article 45c methodology prevail over the subordination requirement set out in Article 45b, which is only a portion of the former. If the total MREL requirement resulting from the application of the methodology set out in Article 45c happens to be lower than 8% TLOF (possibly adjusted upwards or downwards), the directive contains no provision forcing an increase of the total requirement in order to make it higher than 8% TLOF (possibly adjusted upwards or downwards). The actual amount to be met using own funds and subordinated instruments would thus in that case be equal to the total MREL requirement of the entity, without however increasing this total requirement so that it reaches 8% TLOF(possibly adjusted upwards or downwards).