2016_2582 Difference between the two references in Articles 23(1)(d) and 19(5)(b)

Question ID:

2016_2582

Legal Act:

Directive 2014/59/EU (BRRD)

Topic:

Intra-group financial support

Article:

23, 19

Paragraph:

1, 5

Subparagraph:

d, b

COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations:

Not applicable

Article/Paragraph:

n.a.

Disclose name of institution / entity:

Type of submitter:

Competent authority

Subject Matter:

Difference between the two references in Articles 23(1)(d) and 19(5)(b)

Question:

Could you please provide additional clarifications on why there is a difference between the two references mentioned below (between Article 23(1)(d) and 19(5)(b)) and also on what is meant by “form of security” in Article 23 (1)(d)?

Background on the question:

There is a mismatch between Article 23(1)(d) of Directive 2014/59/EU (BRRD) stating that “There is a reasonable prospect […] If the support is given in the form of a guarantee or any form of security, the same condition shall apply to the liability arising for the recipient if the guarantee or the security is enforced.” and Article 19(5)(b) stating that “The group financial support agreement may:[…] b) provide for financial support in the form of a loan, the provision of guarantees, the provision of assets for use as collateral, or any combination of those forms of financial support, in one or more transactions, including between the beneficiary of the support and a third party.“ Could you please provide additional clarifications?

Date of submission:

20/01/2016

Published as Final Q&A:

05/02/2016

Final Answer:

Reference to "any form of security" in Article 23(1)(d) should be construed as capturing "provision of assets for the use of collateral" referred to in Article 19(5)(b); hence, reference to "any form of security" in Article 23 does not conflict with the language of Article 19.

Disclaimer:

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.

Status:

Final Q&A

Answer prepared by:

Answer prepared by the European Commission because it is a matter of interpretation of Union law.

Note to Q&A:

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.