How should the resolution authority perform the valuation mentioned in Article 36 of Directive 2014/59/EU (BRRD) before making the decision initiating resolution if it is not entitled to require certain information from the particular entity?
Pursuant to Article 36(1) of Directive 2014/59/EU (BRRD), before taking resolution action or exercising the power to write down or convert relevant capital instruments, resolution authorities shall ensure that a fair, prudent and realistic valuation of the assets and liabilities of the institution or entity referred to in point (b), (c), (d) of Article 1(1) is carried out by a person independent from any public authority, including the resolution authority and institution or entity referred to in point (b), (c), (d) of Article 1 (1). However, it is unclear if the resolution authority is entitled to require certain information from the particular entity.
Under Article 36 of Directive 2014/59/EU (BRRD) the resolution authority should ensure that a fair, prudent and realistic valuation is carried out by a person independent from any public authority. If, however, the resolution authority is not entitled to require certain information from a particular entity, and if that would therefore make a full independent valuation impossible, the resolution authority may carry out a provisional valuation in line with Article 36(2).
In principle, Article 63(1)(a) of Directive 2014/59/EU (BRRD) gives authorities the power to require any person to provide any information required for the resolution authority to decide upon and prepare a resolution action. In addition, Article 90 BRRD requires Member States to ensure that resolution authorities and competent authorities shall provide one another on request with all the information relevant for the exercise of the other authorities' tasks under Directive 2014/59/EU (BRRD), in particular consideration of Article 84.
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.