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On February 4, 2016, the European Commission adopted a Delegated Regulation
(C(2016) 379) which (taking into account advice given by the
European Banking Authority in March 2015) specifies where exclusion
from the application of write-down or conversion powers is allowed
under Article 44(3) of the Bank Recovery and Resolution Directive
(2014/59/EU) (BRRD).
The BRRD’s bail-in tool gives a resolution authority the
power to bail in all the liabilities of a firm in resolution,
subject to exclusions specified in Article 44 of the BRRD. In
exceptional circumstances, Article 44(3) permits the resolution
authority to exclude certain liabilities from the scope of the
bail-in tool, if certain conditions are met. The Commission has the
power under Article 44(11) to adopt a delegated act specifying the
circumstances in which exclusions from the bail-in tool are
necessary under Article 44(3).
The Delegated Regulation:
Lays down common rules to be applied whenever a resolution
authority considers excluding a liability from the application of
the bail-in tool under Article 44(3).
Clarifies when a liability can be excluded from bail-in based
on the impossibility of bailing-in that liability within a
reasonable timeframe.
Lays down the elements to determine the reasonable time after
which a liability can be excluded from bail-in.
Clarifies when a liability can be excluded from bail-in based
on the need to preserve certain critical functions and core
business lines, to avoid widespread contagion or to avoid value
destruction.
The Council of the EU and the European Parliament are now
considering the Delegated Regulation. If neither of them objects to
it, the Delegated Regulation will enter into force 20 days after
its publication in the Official Journal of the EU.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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