Germany’s Bank Resolution Rules Are Credit Negative, Except for Development Banks
and Grandfathered Debt
Last Friday, the upper house of Germany’s parliament passed the European Union’s (EU) Bank Recovery and
Resolution Directive (BRRD) into national law, the first country to do so. The early adoption of the bail-in
regulation – one year before the January 2016 deadline – is credit negative for most bank bondholders.
The upper house’s action clearly signals the government’s resolve to limit taxpayer support for banks and to
share potential losses with owners and creditors. At the same time, under the BRRD implementation law in
Germany (known as BRRI) there are also national clarifications and interpretations in some key areas, largely
reflecting the specifics of the domestic banking sector, where close to 40% of bank assets are publicly owned.1
This is particularly credit positive for creditors of grandfathered debt obligations and development banks.
The new law provides further clarity over the projected treatment of debt instruments in bank resolutions.
Cases of particular interest are the following:
Grandfathered debt obligations of public sector banks, most notably Landesbanken, issued before July
2005 (credit positive). Deficiency guarantees attached to a debt instrument will remain unaffected by a
write-down in bail-in, thereby preserving the principle of “no creditor worse off.” The continued recourse
to guarantors is reflected in our ratings of grandfathered debt instruments that are based on the guarantors’
credit quality, mainly federal states.
Development banks (credit positive). With the exception of Kreditanstalt fuer Wiederaufbau (Aaa stable),
all development banks are subject to BBRD and BRRI, including the bail-in regulation. Under the BRRI
explanatory notes, there are two important clarifications. First, capital measures by public owners are
permitted if these measures do not distort competition in accordance with Article 107 of the 2012 Treaty
on the Functioning of the European Union, meaning as long as these banks operate within their statutory
public policy mandates, as agreed between the European Commission (EC) and the German government in
2002. Second, even under a resolution, guarantees attached to bailed-in liabilities will remain unaffected.
All liabilities of Moody’s-rated German development banks are explicitly guaranteed by their respective
owners (i.e., the federal states or the central government). Our current ratings reflect these explicit,
unconditional guarantees.
Public capital measures (credit negative). BRRD treats public-sector capital support for banks as an
indication of bank failure or near failure, triggering bank resolution. German legislators’ full adoption of
BRRD provisions on government support and burden-sharing underscores the constraints for public owners
of banks to provide support on an ad-hoc basis or on the back of stress tests, without triggering resolution
measures or at least a subordinated debt bail-in owing to EU state aid rules. These constraints primarily
affect the constituents of Sparkassen-Finanzgruppe (Aa2 negative, C+/a2 stable2
), for which the bank
ownership role of a public body coincides with its role as a trustee of taxpayer money. We view this as an
indication that lawmakers would suggest that the public owners and/or the relevant sector support schemes
implement sufficiently timely and forward-looking measures to pass the EU’s market economy operator
test,
3 which already strictly limits their ability to provide emergency support.