Is it possible to transfer certain classes of eligible liabilities to a recipient in full even in case not all liabilities of an institution are transferred to that same recipient?
45(6)(c)45c(1)(c ) of Directive 2014/59/EU (BRRD) statesindicates that "certain classes of eligible liabilities might be transferred to a recipient in full under a partial transfer ".
In that context, the question would be whether it would be possible to transfer certain classes of eligible liabilities to a recipient in full even in instance when not all liabilities of an institution are transferred to that same recipient. In case this would not be possible, the exact meaning of wording "certain classes of eligible liabilities might be transferred to a recipient in full under partial transfer" would have to be clarified. The BRRD states several times that a resolution plan shall be reviewed and where relevant updated on a regular basis. In this context, would a requirement in our legislation that such MREL-related decisions shall be reviewed and updated regularly, at least on a yearly basis, be sufficient?
Directive 2014/59/EU (BRRD) allows partial transfers, under which certain classes of eligible liabilities are transferred to a recipient in full even if not all liabilities are transferred to that same recipient.
45(6)45c(1)(c ) of the Directive 2014/59/EU (BRRD) contains the minimum criteria that should be considered when determining the MREL requirement for a firm. Where the resolution plan envisages to transfer some MREL eligible liabilities to a recipient, for instance under the bridge institution tool or partial sale of business tool, the resolution authority is required to consider if there are sufficient other MREL eligible liabilities to ensure that losses can be absorbed and the institution recapitalised.
Consideration should also be given to the safeguard referred to in Article 73(a) of the BRRD in the context of any exclusion of certain classes of liabilities from bail-in by way of transfer.
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 updated in the light of the changes introduced to Directive 2014/59/EU (BRRD).