EBA欧洲银行-2009-08-09_Presentation-for-the-public-hearing-on-hybrids_16页_231kb

报告摘要

Summary of Implementation Guidelines regarding Hybrid Capital Instruments - CP 27

Background

The Implementation Guidelines regarding Hybrid Capital Instruments - CP 27 were introduced as part of the CRD II review, which established the first EU-wide rules on the eligibility of hybrid capital instruments as original own funds. These rules became applicable starting from 31 December 2010. The guidelines are based on the CEBS proposal for a common EU definition of Tier 1 hybrids from April 2008 and aim to address the request in Article 63a (6) of Directive 2006/48/EC for CEBS to provide guidance for supervisory convergence.

Objectives of the Draft Guidelines

To ensure a common understanding among EU competent authorities regarding the implementation and application of the new provisions.
To promote convergent transposition of the rules across member states.
To increase transparency for market participants.

BUT – Limitations of the Guidelines

The guidelines do not cover all aspects of Tier 1 hybrids, but rather provide additional guidance to complement the CRD provisions in Article 63a and Article 66 (1a).
This is due to the principles-based nature of the CRD text or because certain issues are not explicitly addressed by it.

Permanence

Article 63a (2)

Hybrid instruments must be undated or have an original maturity of at least 30 years.
Call options may be included, but instruments cannot be redeemed before five years after issuance.
If the instrument is undated, and there is a moderate incentive for redemption, such an incentive may not occur before ten years after issuance.
Dated instruments can only be redeemed at their maturity date.
Early redemption is allowed only if there is an unforeseen change in tax treatment or regulatory classification.
Supervisory consent is required for any call or redemption, and may be granted only if the institution is not in danger of not meeting capital requirements and will still have adequate capital buffers after redemption.
Supervisors may also consider liquidity and profitability when granting consent.
If the institution fails to meet capital requirements, redemption may be suspended.
Buybacks of hybrid instruments in the market are treated as calls or redemptions and must also be approved by supervisors, generally not before five years after issuance.

Flexibility of Payments

Article 63a (3)

Credit institutions must have the flexibility to cancel interest or dividend payments non-cumulatively for an unlimited period.
Payment cancellation is required if the institution does not meet capital requirements.
Supervisors may also require payment cancellation based on the institution’s financial and solvency situation.
Dividend pushers/stoppers are acceptable if the issuer has significant flexibility to cancel payments, but must be waived if the institution no longer meets Article 75 requirements or if required by supervisors.
Alternative Coupon Satisfaction Mechanisms (ACSM) are acceptable only if they do not reduce capital and allow the issuer to discretionarily decide on coupon or dividend payments. If these mechanisms fail, coupon payments must be cancelled.

Loss Absorbency

Article 63a (4) and (5)

Hybrid instruments must be loss-absorbing and not hinder recapitalisation through appropriate mechanisms.
In liquidation, the instruments must rank junior to depositors, creditors, and subordinated debt.
They must be senior only to capital instruments in Article 57(a).
No guarantees, security, or arrangements should enhance the seniority of the claim.
In a going concern, the instrument should help prevent insolvency.
Holders should not have the right to petition for insolvency.
The instrument should not be considered in determining insolvency.
The flexibility to cancel coupons is not sufficient to restore financial health; principal must also be used to cover losses.
Instruments must include a mechanism that encourages recapitalisation by reducing future outflows, triggered prudently and timely.

Limits

Article 66 (1a)

The total amount of hybrid instruments that can be included in original own funds is limited:
- (a) Instruments that must be converted during emergencies or at the discretion of supervisors may not exceed 50% of the total original own funds (excluding points (i), (j), and (k) of Article 57).
- (b) All other instruments may not exceed 35% of the same base.
- (c) Dated instruments and those with incentives to redeem may not exceed 15% of the same base.
- (d) Instruments exceeding these limits must comply with the general limits in Article 66 (1).
Supervisors may temporarily authorise exceeding the limits in emergency situations, but this is subject to the duration of the emergency.

Issuances via SPV

The CRD does not address hybrid instruments issued via SPV.
CEBS believes such instruments should comply with the same conditions as if issued directly by the parent institution.
Investors should retain at least the same subordination in insolvency and on an ongoing basis.
They should not be able to place the SPV into insolvency or have a better claim against the parent institution than holders of similar instruments issued directly.
The use of SPVs should minimize cross-border and legal risks.

Next Steps and Outlook

The final guidelines on hybrid capital instruments will be based on feedback received on CP 27.
The consultation period closes on 23 September 2009, and CEBS endorsement and publication are expected in December 2009.
An upcoming consultation paper will focus on instruments referred to in Article 57(a).
CEBS is also considering a definition of core Tier 1 capital, which is closely related to Basel III developments.