Question
In the Article 45b(6), first subparagraph, Directive 2014/59/EU (BRRD) specifies that "derivative liabilities shall be included in total liabilities on the basis that full recognition is given to counterparty netting rights". What are the netting principles applicable? Does the Article 45b(6), first subparagraph, of the BRRD refer to accounting or prudential netting principles?
Background on the question
The choice of the netting principles for derivatives can be very impacting on the calculation of total liabilities. This has a significant impact on MREL calculation (Article 45) or on the assessment of the contribution of loss absorption and recapitalisation following a bail-in (Article 44(5)(a)).
Answer
The netting principles applied for derivatives in Directive 2014/59/EU (BRRD) should be consistent with the prudential calculation. This is in line with the letter wording of BRRD since, using the prudential approach, netting will be wider, this being closer to the concept of "full recognition" as in Article 45b(6), first subparagraph, BRRD. This will permit comparability among member states since prudential netting is harmonized EU-wide. Disclaimer: The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.