6.2.3 Another role for the Commission in the resolution process?

When a resolution authority (the SRB or the national resolution authority) decides to (partially) exclude certain liabilities from the application of the bail-in tool, it has to notify the Commission.1 If this requires a contribution by the SRF, national resolution fund, or an alternative financing source, the Commission may prohibit or require amendments to the proposed exclusion in order to protect the integrity of the internal market.2 Under the SRMR, it is specified that such a decision by the Commission has to set out adequate reasons based on an infringement of the requirements laid down in Article 27 SRMR and in the delegated act adopted by the Commission on the basis of Article 44(11) BRRD.3 This is without prejudice to the assessment by the Commission under the State aid regime.4

This assessment is hence not part of the State aid assessment conducted by the Commission in its role as State aid authority. It however seems that this assessment is also not made by the Commission in its role as co-resolution authority, since the BRRD also provides for the Commission to conduct this assessment.5 One could argue that this assessment should be seen as an assessment on compliance with intrinsically linked provisions of the resolution framework, as this relates to aid measures granted by Member States or the SRF, in relation to which the Commission exercises an analogue form of State aid control, as further discussed in section 6.4.6.1. It seems however to be a more far-reaching power, since the Commission may also prohibit or require amendments to the exclusion proposed by the resolution authority.