Question
What is the proper basis of transferring assets in case of sale of business tools as referred to in Article 38(1) of Directive 2014/59/EU (BRRD), is it the resolution authority decision or agreement?
Background on the question
Article 38(1) of the BRRD states that Member States shall ensure that resolution authorities shall have the power to transfer to a purchaser that is not a bridge institution (a) shares or other instruments of ownership issued by an institution under resolution; (b) all or any assets, rights or liabilities of an institution under resolution; With regards to the transfer of assets do resolution authorities require prior consent of shareholders etc. before they can perform this action?
Answer
According to Article 83 of Directive 2014/59/EU (BRRD), the transfer is based on the order or instrument of the resolution authority. It is clear from Article 38(1) that shareholder's or any third party, other than the purchaser's, consent is not necessary. Disclaimer: This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission (Directorate General Financial Stability, Financial Services and Capital Markets Union) has prepared the answer, albeit that only the Court of Justice of the European Union can provide definitive interpretations of EU legislation. This is an unofficial opinion of that Directorate General, which the European Banking Authority publishes on its behalf. The answers are not binding on the European Commission as an institution. You should be aware that the European Commission could adopt a position different from the one expressed in such Q&As, for instance in infringement proceedings or after a detailed examination of a specific case or on the basis of any new legal or factual elements that may have been brought to its attention.