7.5.3.1 Colliding competences

As a result of the resolution framework, a number of ‘restructuring authorities’ play a role in the restructuring process of a bank. These are the Commission, the competent authorities, and the resolution authorities. Member States also play a role in the restructuring process of a failing bank under the State aid regime for the banking sector. Having multiple authorities with their own competences being involved in the same process may trigger a number of questions should these competences not be fully aligned.

One of these questions is whether the Member States and the Commission, when discussing a restructuring plan under the State aid regime, are in any way bound to the measures set out in the recovery and the resolution plan. In that respect, it may be relevant that the resolution framework sets out that when taking resolution actions, resolution authorities should take into account and follow the measures provided for in the resolution plans unless resolution authorities assess, taking into account the circumstances of the case, that resolution objectives will be achieved more effectively by taking actions which are not provided for in the resolution plans.1 The resolution framework therefore provides for the possibility for resolution authorities to deviate from the resolution plan in resolution. It seems logical that the Member State involved and the Commission can take any recovery or resolution plan, insofar they have access thereto, into account when discussing the restructuring plan under the State aid regime, without being legally bound to the measures set out therein. This is notwithstanding the fact that the State aid decision may not violate intrinsically linked provisions of the resolution framework.

Another question is whether the Commission can desire further-going restructuring measures from Member States than provided for in the resolution plan or set out in the business reorganisation plan. In finding an answer to this question, it should be recognised that the resolution framework and the State aid regime have different objectives. While the Commission is responsible for protecting competition, limiting moral hazard, and avoiding excessive bailouts, the resolution authority is primarily responsible for guaranteeing financial stability.2 In addition, the Commission and the resolution authority have different roles. While the resolution authority decides on the resolution path and manages the respective national resolution fund (or the SRF, if the resolution authority is the SRB), the Commission acts more as a referee and provides a dispute-prevention mechanism, both for Member States and for banks receiving aid and their competitors.3 Taking into account these different objectives and roles and in the absence of any further guidance, it seems arguable that the Commission can impose different restructuring obligations than the resolution authority. Thus a bank put in resolution with the assistance of EPFS may be confronted with different restructuring obligations in simultaneous restructuring processes.