7.3.2.1 Cooperation in resolution

In the 2013 Banking Communication, it is acknowledged that exercising State aid control for the financial sector sometimes interacts with responsibilities of the supervisory authorities in Member States. For example, in certain cases, supervisory authorities might require adjustments in matters such as corporate governance and remuneration practices which for banks benefitting from State aid are often also set out in restructuring plans. In such cases, whilst fully preserving the Commission's exclusive competence in State aid control, coordination between the Commission and the competent supervisory authorities is of importance. Given the evolving regulatory and supervisory landscape in the EU and, in particular, in the Eurozone, the Commission will liaise closely – as it currently does – with supervisory authorities to ensure a smooth interplay between the different roles and responsibilities of all the authorities involved.1 Although the 2013 Banking Communication does not specifically refer to the resolution authorities, it may be safe to presume that this premise of close liaison also applies in respect of resolution authorities. The 2013 Banking Communication does not, however, provide any further substantiation of such cooperation.

The resolution framework provides some guidance as to the situation in which both a business reorganisation plan and a restructuring plan need to be drafted, e.g. in relation to timelines and contents of the plan.2 It does not, however, provide any guidance as to the cooperation between the resolution authority and the Commission in that respect. The resolution framework does not provide for a role of the Commission in the preparation or assessment of the business reorganisation plan. In addition, there is no requirement for the Commission and the relevant resolution authority to discuss the contents of the business reorganisation plan and restructuring plan.

The EBA has provided further guidance in its Guidelines on the minimum criteria to be fulfilled by a business reorganisation plan. Pursuant to these Guidelines, the business reorganisation plan should be consistent with any business plans prepared by the bank and submitted to any other authority (e.g. competition or securities and markets authorities) following regulatory or legal obligations. Where the Union State aid framework is applicable, the resolution authority and the competent authority, when assessing the business reorganisation plan, should cooperate with the Commission on the assessment and viability analysis, which is an objective of both the business reorganisation plan and the restructuring plan.3 Other than that, there is no guidance on how the authorities should cooperate when a bank in resolution is faced with restructuring under the State aid regime and the resolution framework.