Question
How should the outcome under Article 94(4)(d) be achieved and in what way is that article different from the provision under Article 68?
Background on the question
Article 94(4)(d) of Directive 2014/59/EU (BRRD) provides that, in order to enforce a third country resolution proceeding, a resolution authority should be able to “render unenforceable any right to terminate, liquidate or accelerate contracts”. Please clarify how such outcome should be achieved and whether it is different from the provision under Article 68.
Answer
There is no difference in terms of the objective between Articles 94(4)(d) and 68(3) of Directive 2014/59/EU (BRRD), which is that the party to a contract cannot exercise their termination right under a set of conditions. However, Article 94(4)(d) of Directive 2014/59/EU (BRRD) only refers to the enforcement of third-country resolution proceedings. In addition, Article 94(4)(d) of Directive 2014/59/EU (BRRD) applies during the resolution procedure, whereas Art 68(3) refers also to measures which can be used before resolution 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.