Question ID
2015_2073
Legal act
Directive 2014/59/EU (BRRD)
Topic
Other topics
Article
2, 45
Paragraph
71, 4
COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
Not applicable
Article/Paragraph
n.a.
Type of submitter
Competent authority
Subject matter
Eligible Liabilities in the context of Articles 2(71) and 45(4)
Question

Does the term "eligible liabilities" defined in Article 2(71) only cover these debt instruments which fulfil conditions laid down in Article 45(4), or does it relate to particular categories of liabilities in general?

Background on the question

As a consequence of the latter approach there would be a possibility to distinguish two sub-categories within eligible liabilities - "qualifying eligible liabilities" (in line with conditions laid down in Article 45(4) of Directive 2014/59/EU (BRRD)) and "non-qualifying eligible liabilities".

Submission date
Final answer

Article 2(71) of Directive 2014/59/EU (BRRD) defines liabilities which are eligible for bail-in in general. Article 45(4) sets the additional conditions that those eligible liabilities must meet in order to count towards the MREL requirement.

Debt instruments are therefore to be considered as eligible liabilities if they present the features indicated in Article 2(71), namely they do not qualify as Common Equity Tier 1, Additional Tier 1 or Tier 2 instruments and are not excluded from bail-in pursuant to Article 44(2).

Note: The originally published answer to this Q&A was revised by the European Commission to rectify an error and updated on the Q&A tool on 21st April 2017.

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
Archive
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 archived in light of the distinction between bail-inable liabilities (Article 2(71)) and (MREL) eligible liabilities (Article 2(71)a) introduced in Directive 2014/59/EU (BRRD).