Should investors have access to the national investor compensation scheme or should Member States provide other rules to guarantee adequate investor protection?
Article 31(2)(d) Directive 2014/59/EU (BRRD) on Resolution objectives provides that "the resolution objectives referred to in paragraph 1 are: […] (d) to protect depositors covered by Directive 2014/49/EU and investors covered by Directive 97/9/EC". Although the wording of this article is clear enough in what concerns the inclusion of the investors' interests within the resolution objectives, there are doubts left on how this protection can be guaranteed. Unlike the depositors, whose protection is provided under several articles of Directive 2014/59/EU (BRRD) (e.g. bail-in tool, safeguards), there are no similar rules regarding investors. Does this mean that, when a resolution measure is applied, the investors should have access to the national investor compensation scheme or should Member States provide some other rules to guarantee an adequate protection?
Article 31(2)(d) of Directive 2014/59/EU (BRRD) sets out the general objective to protect investors covered by Directive 97/9/EC. According to Article 31(1) BRRD, this objective has to be observed when applying resolution tools and exercising resolution powers. How the objective to protect investors covered by Directive 97/9/EC can be achieved in a resolution procedure depends on the individual circumstances. It may be worth recalling also that Article 69(4)(c) BRRD provides that the suspension of obligations of the institution under resolution does not apply to "eligible claims for the purpose of Directive 97/9/EC".
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.