Determining MREL for entities of a group for which resolution plan provides that liquidation is credible and feasible

Where liquidation is credible and feasible either for the parent entity or for all of the entities of a group what is the legal basis for determining and reaching a joint decision on MREL?

Article 45h(1) BRRD, provides the legal background for determining MREL and reaching a joint decision for entities of a resolution group only. In this case, joint decision is taken by the resolution authority, the group-level resolution authority, where different from the former and the resolution authorities responsible for the resolution group that are subject to the requirement of article 45f BRRD on an individual basis. There are no specific legal provisions in BRRD regarding the power to reach a joint decision on MREL among resolution authorities responsible for the entities of a group (which is not a resolution group), where liquidation is credible and feasible according to the resolution plan of the group.  On the other hand, Commission Delegated Regulation (EU) 2016/1075 (that complements BRRD) sets a general legal background for reaching joint decision on MREL for entities of a group irrespective of the resolvability type, such as: Article 86(2) letter c) and Article 89 are relevant legal provisions for involvement of group level resolution authority and resolution authority of the subsidiary in a dialogue for the proposed MREL at the parent and subsidiary level; Article  86(2) letter d) and Article 90 provide details on the process of preparation/drafting  and submission of the group level resolution authority of the draft joint decision on MREL, followed by the dialogue phase on the draft joint decision on MREL as provided by Article 86.2 letter e); Articles 86(2) letter f) and Article 91 provide the legal background for reaching joint decision on MREL at the level of the parent and subsidiary. In addition, according to the Commission Notice relating to the interpretation of certain legal provisions of the revised bank resolution framework – C(2020)6417 final, unless the entity falls in one of the MREL exempting situations provided by Article 45a, 45f.3, 45f.4 and 45g, the adoption of MREL decision by the resolution authority is mandatory even when the resolution plan provides that the entity is to be wound up under normal insolvency proceedings (see Question 38 of the referred Commission document).