Does the use of resolution tools require a prior state aid approval?
Article 34(3) of Directive 2014/59/EU (BRRD) states that “When applying the resolution tools and exercising the resolution powers, Member States shall ensure that they comply with the Union State aid framework, where applicable” It is clearly stated that the use of extraordinary public financial support and guarantee measures to solvent institutions, requires an approval. However, similar clear provisions are not included for other tools. Is it possible to have a general state aid approval of the law implementing BRRD?
Resolution decisions may involve the use of State aid also beyond cases of explicit public support, e.g. where the resolution financing arrangement makes a contribution to the institution under resolution in cases where certain eligible liabilities have been excluded from the scope of bail-in pursuant to Article 44(3) of Directive 2014/59/EU (BRRD) and reference therein in paragraph 12 of the application of the State aid framework. In case prior approval is required under the State Aid framework, the Commission will assess this case by case in line with its Treaty prerogatives and the relevant guidelines, communications and/or notices.
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.