Does the procedure for addressing or removing impediments to resolvability in Article 17 of Directive 2014/59/EU (BRRD) apply on an individual basis only or on a group basis as well?
Could you please clarify whether the procedure for addressing or removing impediments to resolvability set forth by Article 17 of Directive 2014/59/EU (BRRD) applies on an individual basis only or on a group basis as well. On the one hand, certain provisions of Article 17 refer to both, individual and group resolvability assessment, (e.g. Paragraphs 1 and 2); on the other hand, other provisions (e.g. Paragraph 4 on identifying alternative measures) seem to apply only on an individual basis, because the group treatment is set forth by Article 18, which expressly applies to groups.
Article 17 BRRD is the provision of general application that governs the process of determining and removing impediments to the resolvability of all entities.
Article 18 BRRD provides specific procedural requirements to be followed for groups, alongside or in derogation from those specified in Article 17 BRRD. In this respect, certain provisions (e.g., paragraph 2 of Article 17 BRRD, paragraphs 1, 2, 3, 5, 6, 6a, 7, 8, 9 of Article 18 BRRD) explicitly refer to certain paragraphs of Article 17 BRRD.
Article 17 BRRD being the provision of general application, it should be understood as applicable to groups too, unless Article 18 BRRD provides for more group-specific rules. In this respect, paragraph 1 of Article 17 BRRD makes reference to the assessment of resolvability carried out in accordance both to Article 15 (individual assessment) and to Article 16 (group assessment) BRRD.
Commission Delegated Regulation (EU) 2016/1075, covering inter alia the operational functioning of resolution colleges, were developed on the above basis, namely, on the assumption that the provisions of Article 17 BRRD apply also to groups, unless otherwise stated in Article 18 BRRD.
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.