EBA欧洲银行-Contractual-recognitionpublic-hearing-09-Jan15_14页_757kb

报告摘要

EBA: Draft RTS under Article 55(3) of the BRRD (Contractual Recognition)

Core Content

The European Banking Authority (EBA) is conducting a public hearing to consult on the draft Regulatory Technical Standards (RTS) under Article 55(3) of the Bank Recovery and Resolution Directive (BRRD). The purpose of these standards is to define the scope of liabilities excluded from the application of the contractual recognition requirement and to specify the content of the contractual term that must be included in such liabilities.

Main Points

Article 55(3) BRRD Overview

Article 55(3) BRRD requires the EBA to develop draft RTS to:
- Further determine the list of liabilities to which the exclusion in Article 55(1) BRRD applies.
- Specify the contents of the contractual term that must be included in liabilities governed by the law of a third country.
The contractual term must ensure that creditors or parties to the agreement:
- Recognise that the liability may be subject to write-down and conversion powers.
- Agree to be bound by any reduction in the principal or outstanding amount, conversion, or cancellation resulting from the exercise of these powers by the resolution authority.
The requirement does not apply to excluded liabilities, as defined in the first and second subparagraphs of Article 55(1) BRRD.

Excluded Liabilities

The EBA outlines several categories of liabilities that are excluded from the contractual recognition requirement:
- Liabilities excluded under Article 44(2) BRRD.
- Deposits referred to in point (a) of Article 108 BRRD.
- Liabilities issued or entered into before the transposition date of the BRRD in a Member State.
- Liabilities governed by the law of a third country or by a binding international agreement, as determined by the Member State resolution authority.
Article 3 of the draft RTS clarifies the grounds of exclusion:
- The contractual term applies to any unsecured portion of a liability, even if the liability is otherwise secured.
- The term is also required if a liability is fully secured but may become unsecured.
- The EBA proposes to include liabilities issued or entered into after the transposition date, including those under agreements entered before the date, but amended after it, and liabilities under debt instruments issued after the transposition date.
The EBA also proposes that Member State resolution authorities should assess specific elements of the third country law or international agreement to determine whether write-down and conversion powers can be applied.

Contents of the Contractual Term

Article 4 of the draft RTS sets out mandatory components of the contractual term:
- Acknowledgment, agreement, and consent by each counterparty that the liability may be subject to write-down and conversion powers.
- Agreement to be bound by any reduction in the principal or outstanding amount due, including accrued but unpaid interest.
- Agreement to be bound by the conversion of the liability into ordinary shares or other ownership instruments.
- Acceptance of such conversions in lieu of rights under the agreement.
- Agreement that the terms of the relevant agreement may be varied as necessary to implement write-down and conversion powers.
The EBA aims to balance convergence across the EU with the flexibility to account for differences in legal systems.

Key Questions for Consultation

The EBA invites stakeholders to provide feedback on the following:

Whether they agree with the approach for determining the scope of excluded liabilities, particularly regarding liabilities that "may" become unsecured.
Whether they agree with the approach for the second subparagraph of Article 55(1) BRRD.
Whether they agree with the proposed components of the contractual term.
Whether they agree with the draft Impact Assessment and can provide numerical data to support it.