How should the exemption from bail in for “liabilities” in a fiduciary relationship context be implemented?
Article 44(2)(d) of Directive 2014/59/EU (BRRD) states that: “Resolution authorities shall not exercise the write down or conversion powers in relation to the following liabilities whether they are governed by the law of a Member State or of a third country: […] (d) any liability that arises by virtue of a fiduciary relationship between the institution or entity referred to in point (b), (c) or (d) of Article 1(1) (as fiduciary) and another person (as beneficiary) provided that such a beneficiary is protected under the applicable insolvency or civil law”.
Article 5(1)(e) of the Commission Delegated Regulation 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements states that the contributions shall be calculated excluding: “in case of investment firms, the liabilities that arise by virtue of holding client assets or client money including client assets or client money held on behalf of UCITS as defined in Article 1(2) of Directive 2009/65/EC of the European Parliament and of the Council or of AIFs as defined in point (a) of Article 4(1) of Directive 2011/61/EU of the European Parliament and of the Council, provided that such a client is protected under the applicable insolvency law.”
The delegated act clarifies that for the purpose of calculating ex ante contributions, client assets should not be included in the liabilities of a bank/investment firm. They are not really liabilities, as the corresponding assets are not owned by the bank. The issue is similar in relation to fiduciaries. However, it is not clear what exactly should be exempted. This could for example be property that would not fall into the estate of the insolvent bank and therefore could not be given to another creditor but must be returned to the person for whom it is being held in the context of the abovementioned ”protection” offered by ”insolvency law”.
Article 44(2)(d) of Directive 2014/59/EU (BRRD) refers to protection "in general" under insolvency or civil law. The article concerns third-party-owned assets; who owns the asset will depend on the applicable contractual law. The protection that one would expect to be afforded by insolvency or civil law would be the right of the owner to reclaim the asset in the insolvency proceedings. Other protection afforded could be the duty of the bankruptcy trustee to preserve the value of the asset, until it is given back to the owner.
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.