Question ID
2015_2182
Legal act
Directive 2014/59/EU (BRRD)
Topic
Resolution objectives and triggers
Article
34
Paragraph
3
COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
Not applicable
Article/Paragraph
n.a.
Type of submitter
Competent authority
Subject matter
Interaction between the State aid framework and the application of resolution actions
Question

Could you please clarify the interaction of the State aid framework and the application of resolution actions in the context of Article 34 (3) and Recital 47 of Directive 2014/59/EU (BRRD)?

Background on the question

Article 34 (3) of Directive 2014/59/EU (BRRD) establishes the obligation of Member States to ensure that when exercising resolution actions the state aid framework is complied with, where applicable: ”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.” The same view, i.e that the use of the resolution tools does not automatically qualify as state aid, is stated in Recital 47 of the preamble: ”When the use of the resolution tools involves the granting of State aid, interventions should have to be assessed in accordance with the relevant State aid provisions.”

When analysing the BRRD provisions, it is however difficult to conclude / determine when the State Aid framework is applicable: Each resolution authority may have a different approach, thus leading to different regimes among Member States, as well as to potential delays in the application of resolution measures.

It would be necessary to clarify these issues before transposing Directive 2014/59/EU (BRRD) into national legislations.

Submission date
Final publishing date
Final answer

The criteria to determine whether the exercise of a resolution tool or power constitutes State aid are the same as for any other measure under the EU State aid framework, and the test for the Member State to notify that measure as aid to the Commission will be that of the general State Aid framework.

On a general level, contributions from the resolution fund (national or single resolution fund) are to be assessed under the State Aid framework.

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.

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.