Could you please clarify the interaction between Recital 39 and the last sentence of Article 29 (2) of Directive 2014/59/EU (BRRD)?
Recital 39 of Directive 2014/59/EU (BRRD) states: ”During the recovery and early intervention phases laid down in this Directive, shareholders should retain full responsibility and control of the institution except when a temporary administrator has been appointed by the competent authority.“ Article 29 (2) of Directive 2014/59/EU (BRRD) states: ”The competent authority shall specify the powers of the temporary administrator at the time of the appointment of the temporary administrator based on what is proportionate in the circumstances. Such powers may include some or all of the powers of the management body of the institution under the statutes of the institution and under national law, including the power to exercise some or all of the administrative functions of the management body of the institution. The powers of the temporary administrator in relation to the institution shall comply with the applicable company law.“ Clarification would be needed on the objective of last sentence of Article 29 (2).
The objective of the last sentence of Article 29 (2) of Directive 2014/59/EU (BRRD) is to preserve as much as possible the requirements under national company law, in as much as they do not compromise the ability of the competent authority to take Early intervention measures.
This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission (Directorate General Financial Stability, Financial Services and Capital Markets Union) has prepared the answer, albeit that only the Court of Justice of the European Union can provide definitive interpretations of EU legislation. This is an unofficial opinion of that Directorate General, which the European Banking Authority publishes on its behalf. The answers are not binding on the European Commission as an institution. You should be aware that the European Commission could adopt a position different from the one expressed in such Q&As, for instance in infringement proceedings or after a detailed examination of a specific case or on the basis of any new legal or factual elements that may have been brought to its attention.
Update 26.03.2021: This Q&A has been reviewed in the light of the changes introduced to Directive 2014/59/EU (BRRD) and continues to be relevant.