Commento di Moodys sulle nuove norme relative ai bail-in bancari:
European Union Bank Resolution and Bail-In Rules
Last Thursday, the European Union (EU) Council of Ministers reached agreement on a draft directive
regarding the recovery and resolution of troubled banks in the 27-nation alliance. The agreed-upon
framework will play an important role in the proposed European banking union and includes “bail-in” rules
covering par write down or the conversion to equity of bank liabilities. It follows several months of debate
among EU countries on how to impose losses on creditors in the resolution of a failing bank and also limit
taxpayer-funded government support. In the articles that follow, we examine the credit implications for
senior creditors and covered bondholders, among others.
Bank Bail-In Rules Are Credit Negative for Senior Creditors
The agreed-on framework’s completion increases the likelihood of creditor bail-ins, even for banks outside
of formal resolution. The framework would allow losses to be imposed on a broad range of liabilities,
including senior unsecured debt, and is credit negative for EU bank senior creditors.
As a compromise text produced after long hours of negotiations, the agreement’s full implications are not
yet clear. In particular, the text leaves open to question the latitude national authorities are really intended
to have to deviate from the harmonised and strict approach to bailing in creditors at the heart of the
agreement. This likely reflects continuing differences of view among national authorities. Nevertheless, the
agreement is clear in its basic intent to harmonise the resolution process in the EU, limit national
discretion, and ensure that unsecured creditors of all classes bear losses before taxpayers do.
The ministers’ endorsement of the rules, and the limited number of exclusions, supports our view that the
final bail-in framework will be broad and will include senior unsecured liabilities. The exhibit below
describes the EU ministers’ agreement.
Details of the European Union’s Agreed-Upon Bail-In Rules
Features Approach
Mandatory exclusions
from bail-in
Limited to:
Covered deposits (insured by deposit guarantee schemes)
Wages (such as fixed salary and pension benefits)
Secured borrowing (including covered bonds)
Commercial claims relating to goods and services critical to the daily function of a bank
Liabilities resulting from payment systems with a remaining maturity of fewer than seven days
Interbank liabilities with original maturities of fewer than seven days
Discretionary exclusions
(optional) from bail-in
Discretion to exclude any liabilities for specific reasons of financial stability: 1) if these liabilities
cannot be bailed in within a reasonable timeframe; 2) to ensure continuity of critical functions;
3) to avoid contagion; or 4) to avoid value destruction that raises losses borne by other creditors
Exclusions can be compensated for by passing the losses on to other creditors, as long as no
creditor is worse off than in normal insolvency proceedings
Exclusions can also be compensated for through a contribution from the national resolution fund,
provided only if 8% of the bank’s total liabilities, including own funds, have been bailed in (or under
special circumstances, 20% of the bank’s risk-weighted assets) and if this contribution is capped at
5% of the bank’s total liabilities (subject to exceptions)
Treatment of the deposit
guarantee scheme
Deposit guarantee schemes (which assume the claims of insured deposits if a bank fails) are
included in bail-in, but have preference over all other liabilities subject to bail-in
Treatment of uninsured
depositors and other
senior unsecured creditors
Uninsured deposits of small and midsize enterprises and natural persons included in bail-in, but
have preference over other uninsured deposits and other senior unsecured liabilities
Uninsured deposits from large corporations and other senior unsecured liabilities subject to bailin on a pari passu basis
Although the newly agreed-on rules presumethat senior unsecured creditors will be subject to bail-in where
needed to support a bank resolution, EU countries will retain some discretion in deciding which liabilities
to bail in. Resolution authorities could decide not to impose losses on certain types of liabilities, including
senior unsecured debt, where, for example, there was a risk of potential contagion. The rules allow limited
discretionary exclusions to be financed under certain conditions by shifting the cost to other creditors or by
drawing on a national resolution fund. In extremis, taxpayers’ money or ultimately European Stability
Mechanism (ESM) funds could be tapped to resolve banks. For senior creditors, this flexibility reduces the
predictability of potential losses in a bank resolution: the risk of being bailed in will vary across
jurisdictions, institutions and circumstances. However, the exercise of national discretion is clearly
intended, in principle at least, to be a rare occurrence and will be subject to strict conditions.
In exceptional instances of discretionary exclusion, national resolution funds will only be able to contribute
if losses have been imposed on at least 8% of the bank’s total liabilities, including capital and reserves, and
their contribution could not exceed 5% of the bank’s total liabilities. It remains unclear how member states
might use this discretion or apply these restrictions in practice. The European Commission, which has
historically taken a hard line on imposing losses on creditors, is likely to play a central role in determining
whether exclusions can be applied.
Overall, the agreed-upon bail-in framework is a clear and binding statement of intent by EU economic and
finance ministers that creditors should bear losses ahead of taxpayers in resolutions. While some flexibility
exists, the policymakers’ clear intention is that flexibility should not be used to support bank debtholders
except in extremis, a credit negative for all senior unsecured debtholders.
The proposed rules will now be negotiated among the Council of Ministers, the European Commission and
the European Parliament in the ‘trilogue’ process, and are subject to change before the European Parliament
adopts the final rules, which we expect in late 2013 as part of the Bank Recovery and Resolution Directive.