Consultation paper on draft Guidelines on the interpretation of the different circumstances when an institution shall be considered as failing or likely to fail (
EBA/CP/2014/22
)

Start Date: 22/09/2014 | Deadline: 22/12/2014 | Status: CLOSED |

The European Banking Authority (EBA) launched today a consultation on draft Guidelines on the circumstances under which an institution shall be considered as ‘failing or likely to fail’ (triggers for resolution). The Guidelines ensure continuum between the on-going supervision conducted by national authorities in line with the CRD, and the Bank Recovery and Resolution Directive (BRRD). They aim at promoting convergence of supervisory and resolution practices in relation to how resolution should be triggered. The consultation runs until 22 December 2014.
 
Determining that an institution is failing or likely to fail is the necessary element to start any resolution process. This determination is made by the relevant competent authority, but Member States may grant this power to the relevant resolution authority too. In this regard, the draft Guidelines provide separate guidance for the competent authorities, where the determination is based primarily on the outcomes of the SREP assessment of the viability of an institution, and for the resolution authorities, where the determination is based on the objective elements specified in the Guidelines (which cover an institution’s capital and liquidity position, as well as other requirements for continuing its authorisation).
 
While respecting the functional and operational independence of competent and resolution authorities, the Guidelines aim to ensure consistency in the outcome of their assessment of whether an institution is failing or likely to fail. In particular, the core areas to be assessed (i.e. capital position, liquidity position and other requirements for continuing authorisation) are covered both in the objective elements for the resolution authorities and in the SREP assessment conducted by the competent authorities. The scope of the draft Guidelines on resolution triggers is expanded to provide guidance on the consultation, as well as information exchange between the competent authorities and resolution authorities in order to determine if an institution is failing or likely to fail. The goal is to enhance coordination of supervisory and resolution practices.
 
The Guidelines on resolution triggers complement the EBA Guidelines on early intervention triggers and Guidelines for common procedures and methodologies for SREP. These three Guidelines together form a set of supervisory guidance linking on-going supervision, early intervention and resolution.

Consultation process

Comments to these consultations can be sent to the EBA by clicking on the "send your comments" button on the consultation page. Please note that the deadline for the submission of comments is 22 December 2014.
 
All contributions received will be published following the close of the consultation, unless requested otherwise. A public hearing will then take place at the EBA premises on 10 November 2014 from 14.00 to 17.00 UK time.

Legal basis and next steps

The proposed Guidelines are based on Article 32(6) of the BRRD, which mandates the EBA to promote convergence of supervisory and resolution practices on the circumstances determining when an institution is ‘failing or likely to fail’.