- Question ID
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2016_3024
- Legal act
- Directive 2014/59/EU (BRRD)
- Topic
- Cross-border resolution
- Article
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89
- Paragraph
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4
- COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
- Not applicable
- Article/Paragraph
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n.a.
- Type of submitter
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Competent authority
- Subject matter
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Mutual agreement to waive the requirement to establish a European resolution college
- Question
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How should the reference to “mutual agreement” with regard to waiving the requirement to establish a European resolution college stated in Article 89(4) of Directive 2014/59/EU (BRRD) be interpreted?
- Background on the question
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In general, Article 89(4) of Directive 2014/59/EU (BRRD) seems to provide that Member States, when transposing the BRRD, can waive the requirement to establish a European resolution college if other groups or colleges, including a resolution college established under Article 88, perform the same functions and carry out the same tasks specified in this article and comply with all the conditions and procedures, including those covering membership and participation in European resolution colleges, established in Article 89nd Article 90.
However, this paragraph stipulates that the decision to waive that requirement regarding European resolution college can only be made if there is a mutual agreement of all the relevant parties (“Member States may, by mutual agreement of all the relevant parties, waive the requirement [...]").
We would like to seek clarification (i) if the mutual agreement necessary refers to the legislative options to waive that requirement, which means that Member States that want to exercise this option have to previously transpose the Directive and reach a mutual agreement and (ii) who are the relevant parties about this matters, whose agreement is essential to Member States who want to waive that requirement.
- Submission date
- Final publishing date
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- Final answer
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In accordance with Article 89(4) of Directive 2014/59/EU (BRRD) it is possible to waive the requirement to establish a European resolution college in cases where
aanotherresolutiongroup or collegeunder Article 88 has been established, and only if such a resolution collegealready exists and performs the same functions and tasks specified in Article 89 and complies with all the conditions and procedures established in Articles 89 and 90, which includes those covering membership and participation in European resolution colleges.National transposition should provide for the option to waive the requirement to establish a European resolution college. Such an option should be exercised on a case by case basis and only if there is mutual agreement of all the relevant parties.
Following Article 89(1) BRRD, the wording “mutual agreement between all the relevant parties”
includedwhich is in Article 89(4) BRRD refers to the mutual agreement between the resolution authorities of Member States where Union subsidiaries are established or where Union significant branches are located.Disclaimer:
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.
- Status
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Final Q&A
- Answer prepared by
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Answer prepared by the European Commission because it is a matter of interpretation of Union law.
- Note to Q&A
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Update 26.03.2021: This Q&A has not yet been reviewed by the European Commission in the light of the changes introduced to Directive 2014/59/EU (BRRD).Update 02.12.2021: This Q&A has been updated in the light of the changes introduced to Directive 2014/59/EU (BRRD).
Disclaimer
The Q&A refers to the provisions in force on the day of their publication. The EBA does not systematically review published Q&As following the amendment of legislative acts. Users of the Q&A tool should therefore check the date of publication of the Q&A and whether the provisions referred to in the answer remain the same.