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The Implementation of BRRD and the Banking Crisis in Italy

Raffaele Lener

Before the BRRD implementing measures came into force, the Italian legal framework on banking crises was based upon two pre-insolvency and insolvency procedures: special administration (amministrazione straordinaria) and compulsory administrative liquidation (liquidazione coatta amministrativa). Therefore, even before the BRRD (and the SSM/SRM Regulations) the ordinary bankruptcy procedure (fallimento) did not apply to banks. Under this regime, banking crises were often “resolved” by supporting the sale of the business or the branches of the failing bank to a market participant, generally to a different Italian bank in bonis. Thus, the purchasing bank would take on all the assets and liabilities of the failing bank, thereby avoiding “value disruption” and, most important, “ensuring business continuity”, objectives that are now expressly taken into account by the BRRD. These old, traditional practices ensured full protection to creditors (including all depositors) and were usually financed by the State, which covered the difference in value between the assets and the liabilities taken on by the purchaser, with the general purpose not to favour moral hazard, but to protect depositors.

With the implementation of the Directive we now have to deal with specific tools: some of them were not previously unknown in Italy (e.g. asset separation, bad banks, SPVs) but others are really new for our legal system, such as the bail-in.

The purpose of this paper is to analyse the first “reactions” to Italian banking crises after the Directive, trying to describe the difficult transition between the earlier approach to banking insolvency, based on informal arrangements prompted by the Bank of Italy, and the new BRRD approach, where sale of the business, asset separation and the establishment of bad banks are expressly regulated by a written law and where all the new resolution tools – including the bail-in – are intended to avoid as far as possible public interventions (save for the government financial stabilization tools) in order to protect taxpayers. A new world in which bank’s losses should first be borne by those that have invested in the risk capital and then by those who have financed the bank.

PAROLE CHIAVE: direttiva BRRD - banche - amministrazione straordinaria - amministrazione straordinaria

Sommario:

1. The implementation of the BRRD under Italian law - 2. The resolution of Banca Marche, Banca Popolare dell’Etruria e del Lazio, Carichieti, and Cassa di Risparmio di Ferrara - 3. Financing the resolution (from deposit guarantee schemes to voluntary schemes through resolution funds: sharing the burdens) - 4. NPL disposal and recapitalizations: financing a (market) solution in order to avoid resolution. Lessons learnt from the experience of Atlante 1 and Atlante 2 - 4.1. The NPL issue and the GACS framework - 4.2. Atlante 1 - 4.3. Atlante 2 - 5. MPS’s precautionary recapitalization: where do we stand? - 5.1. Guarantees on newly issued liabilities and precautionary recapitalization: general measures drawn up on the basis of the MPS crisis - 5.2. State guarantee of newly issued liabilities - 5.3. Emergency Liquidity Assistance - 5.4. Capital strengthening measures (precautionary recapitalization) - 6. First conclusions - 7. Some final comments on the residual role of the Italian pre-BRRD winding-up procedures and in particular, on “special administration” (amministrazione straordinaria) - Bibliography - NOTE


1. The implementation of the BRRD under Italian law

As is well known, the word “bankruptcy” derives from the Italian banca rotta which literally means “broken bench”. In Roman times those who traded money (bankers and currency-changers) used to stand before a bench called a mensa argentaria upon which they laid the cash needed for their daily business. The terms “banker” and “bankruptcy” derive from such ancient practice. They subsequently passed into the English language due to the famous bankers from Florence and Siena that were active throughout Europe during the Middle Ages. Tuscan bankers, like the ancient Romans, used to set out their money on a wooden bench, hence the name of bankers. If a banker could not meet his obligations, his bench would immediately be broken, which would prevent him from continuing in the banking business: bankruptcy. Etymology may be misleading. Despite the origin of the term bankruptcy, Italian banks have never technically gone bankrupt. Instead, as happens in other jurisdictions, Italian banks have been subject to a special administrative regime of bank insolvency that has placed their failure outside the jurisdiction of bankruptcy courts. Before the BRRD implementing measures came into force, the Italian legal framework on banking crises was based upon two pre-insolvency and insolvency procedures: special administration (amministrazione straordinaria) and compulsory administrative liquidation (liquidazione coatta amministrativa). Therefore, [continua ..]

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2. The resolution of Banca Marche, Banca Popolare dell’Etruria e del Lazio, Carichieti, and Cassa di Risparmio di Ferrara

In November 2015, the Bank of Italy intervened to resolve the crisis at four banks (the “4 banks”). These were small or medium-sized banks whose total market share came to about 1% of Italian deposits 7. The resolution of the 4 banks followed the transposition of the BRRD into Italian law (Legislative Decree no. 180 of 16 November 2015). Despite the fact that the bail-in tool only became fully applicable at a later date (on 1 January 2016), the 4 banks underwent a “quasi bail-in” since the resolution actions taken by the Bank of Italy included the immediate write down of equity and subordinated debt holders (on 22 November 2015). Subsequently, four good/bridge banks were established, whilst the original banks became “residual boxes” incorporating their losses and loss-absorbing instruments. A single bad bank was also set up with the sole aim of taking on the bad assets of all the original banks. In order to reduce the liabilities of the resolved entities, the Bank of Italy wrote-off the share capital and all subordinated liabilities, extinguishing the corresponding administrative and ownership rights. This provided a small contribution to the resolution, which needed to be financed by the ad hoc Italian Resolution Fund. The latter provided: – the equity capital to the bridge banks (3.6 billion euro); – the financial resources needed by the bad bank. The Resolution Fund acquired its capital through contributions [continua ..]

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3. Financing the resolution (from deposit guarantee schemes to voluntary schemes through resolution funds: sharing the burdens)

Was resolution the only viable solution to resolve the crisis of the four banks? One could answer that yes, it was. However, the answer is not that simple. In the months prior to the transposition of the BRRD, the Italian authorities examined alternative solutions to the crisis of the four banks. The original idea was to recapitalize them with financial resources belonging to the DGS managed by the Italian Deposit Guarantee Fund (FITD). However, this plan failed because the DGS’s envisaged intervention was considered incompatible with the Commission’s rules on state aid. This is due to a strict interpretation of the Banking Communication of 30 July 2013 which considers interventions using mandatory deposit guarantee funds within the “control” of the State, e.g. the Tercas case 8. Banca Tercas was a small bank with a market share of about 0.1% of the total banking assets in Italy. In July 2014, the FITD provided the funds needed to cover Tercas’s losses and to support its sale to Banca Popolare di Bari. The Commission found that such action was taken by the FITD “on behalf” of the Italian State (in particular, the Commission held that the measure was not in line with state aid rules because Italy did not present a restructuring plan and the measures did not minimise the aid or the resulting distortions of competition). It is a well-known fact that the Italian authorities and the FITD do not share the Commission’s view. [continua ..]

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4. NPL disposal and recapitalizations: financing a (market) solution in order to avoid resolution. Lessons learnt from the experience of Atlante 1 and Atlante 2

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4.1. The NPL issue and the GACS framework

According to the IMF (and based on data made available by the Bank of Italy), the ratio of NPLs to total loans in Italy has stretched to unprecedented levels following to the financial crisis: “total NPLs appear to have broadly stabilized at about e356 billion at end-June 2016 (about 18 percent of total loans; 20 percent of GDP; and one-third of the Euro Area total)”. The Italian Authorities have taken several actions to deal with the excessive level of NPLs, including the GACS and the backing of Atlante fund(s). The GACS scheme (Garanzia sulla Cartolarizzazione delle Sofferenze) is a guarantee scheme whose purpose is to facilitate the securitization of bank NPLs. The scheme provides for the granting of State guarantees as part of securitization transactions whose underlying assets are NPLs. In practice, Decreto Legge no. 16/2016 empowers the Treasury to provide an eighteen-month State guarantee on liabilities issued as part of securitization transactions referred to in Article 1 of Law no. 130 of 30 April 1999 14. Pursuant to art. 4 of Decreto Legge no. 16/2016, the State-guaranteed securitization must have the following characteristics: a) the assigned claims are transferred to the SPV for an amount that does not exceed their gross book value (GBV); b) securitization involves the issuance of securities of at least two different classes differentiated on the basis of their loss-absorbing capacity (junior/senior); c) the junior class of securities [continua ..]

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4.2. Atlante 1

There is a compelling need for a market to support the disposal of NPLs from Italian banks’ accounts following the national and international evaluation of banks’ capital requirements (e.g. ECB Comprehensive assessment). The asset quality reviews and assessments conducted by supervisors on regulatory capital requirements have highlighted the need for significant capital increases (and the need to reduce the high number of NPLs) with respect to a number of Italian banks. While many banks experiencing capital shortfalls have been able to obtain fresh money from the market, two banks from Veneto were not able to do so. Their inability to obtain recapitalization exacerbated their NPL problem from a balance sheet perspective. Therefore, in addition to the GACS scheme, the Government has tried to favour market solutions by fostering the creation of a fully private investment fund which would intervene in banking crises caused by a large number of NPLs. Under this framework, on April 2016, an Italian-based management company (Quaestio Sgr) established a private alternative investment fund called Atlante 1. Some of the most important Italian banks and financial institutions provided the initial capital for the fund, € 4.25 billion 18. The purpose of the fund is: (i) to underwrite banks’ issued shares which remain unsubscribed in the primary market (in practice: ensuring that the level of capital required by the supervisory authority for banks in [continua ..]

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4.3. Atlante 2

The above capital increases provided by Atlante 1 resulted in a significant reduction of its resources, which led to the conclusion that Quaestio Sgr should set up a brand new fund (Atlante 2). Atlante 2 is a closed-end alternative investment fund regulated by Italian law and reserved for professional investors. Its aim is to invest in mezzanine and junior financial instruments, issued by a SPV set up to purchase NPL portfolios from a variety of Italian banks (according to the data made available by the fund, it can also perform NPL-related deals – e.g. warrants – in order to reduce the risk in line with parameters used by major institutional investors worldwide). Therefore, it is intended to benefit from the GACS scheme. It was set up in August 2016 and collected subscription commitments for Euro 1.715 billion from several Italian financial Institutions (the deadline for subscriptions of the fund is 31 July 2017). In order to give an idea of the potential relevance of NPL investment funds, it is worth noting that in January Quaestio Sgr announced that it had signed a memorandum of understanding on behalf of Atlante 2 according to which the fund aims to purchase 2.2 billion Euro of NPLs held by the 4 resolved good banks Nuova Banche Marche, Nuova Banca dell’Etruria and Nuova Cassa di Risparmio di Chieti. This highlights the fact that “resolution” is not a panacea for NPLs issues, which have to be addressed through private (where possible) [continua ..]

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5. MPS’s precautionary recapitalization: where do we stand?

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5.1. Guarantees on newly issued liabilities and precautionary recapitalization: general measures drawn up on the basis of the MPS crisis

Public guarantees and precautionary recapitalizations are measures provided by the BRRD (art. 32, par. 4). Under specific circumstances, these measures must be taken in the public interest (i.e. in order to remedy a serious disturbance to the economy of a Member State and to preserve financial stability). This means that where exceptional circumstances occur which require a bank’s capital to be strengthened, authorities are allowed to provide extraordinary state aid, but this may only be of a precautionary and temporary nature. i.e. a State guarantee to back liquidity facilities; a State guarantee of newly issued liabilities; injection of own funds or purchase of capital instruments at prices and on terms that do not confer an advantage upon the institution. Furthermore, the State guarantee or equivalent measures have to be “proportionate to remedy the consequences of the serious disturbance and shall not be used to offset losses that the institution has incurred or is likely to incur in the near future and is permitted as long as the bank is solvent and the intervention is compliant with the rules on State aid ”. In this respect, the same BRRD stipulates that a State can only intervene after the subordinated bonds are converted into equity (burden sharing). However, as highlighted by the same Bank of Italy, “if the subordinated bonds were sold to retail customers without complying with the relevant transparency rules, the impact of the burden [continua ..]

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5.2. State guarantee of newly issued liabilities

The first set of rules allows the Treasury to grant a State guarantee on debt issued by Italian banks after 23 December 2016 and until 30 June 2017 21. Furthermore, Title I contains rules governing the supply of emergency liquidity assistance (ELA) by the Bank of Italy. Let us start with the guarantee. It is clearly intended to improve the banks’ ability to raise financial resources on the market: in fact, from a “market perspective”, the guarantee represents an inducement for third party investors. From the point of view of the Italian legislator – and of the guaranteed bank –, the guarantee is an extraordinary tool of a quasi-contractual nature (“quasi-contractual” since the law regulates in detail its issue, fees and characteristics). In addition to market participants, the Treasury and the bank requesting the guarantee, another important role is played by the Commission, which has the ultimate decision on compatibility with state aid rules. This being the complex framework of the (public and private) parties involved in the scheme, some clarification is needed with regard to the type of instruments involved in the guarantee. At the request of the issuing bank, the State may issue the guarantee on debt instruments with a remaining duration of not less than three months (or two months, under specific circumstances) and no more than five years (or seven for covered bonds). The guarantee is only applicable to [continua ..]

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5.3. Emergency Liquidity Assistance

In addition to the aforementioned guarantee, article 10 of the Decreto Legge empowers the Bank of Italy to provide Emergency Liquidity Assistance (ELA). As is well known, under article 2, no. 29, BRRD, ELA means “the provision by a central bank of central bank money, or any other assistance that may lead to an increase in central bank money, to a solvent financial institution, or group of solvent financial institutions, that is facing temporary liquidity problems, without such an operation being part of monetary policy”. In this case, banks requesting ELA must have adequate collateral, to which a valuation haircut is applied based on the quality of the collateral itself. This State guarantee allows the amount of eligible collateral to grow, thereby increasing the possibility for banks to access this form of financing. The provisions applicable to ELA are similar to those described with respect to the pure State guarantee. In addition, however, banks applying for ELA must present a restructuring plan which demonstrates their capacity to recover and to restore their ability to obtain funding from the market in the long term (when public support is no longer available).

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5.4. Capital strengthening measures (precautionary recapitalization)

The second part of the Decree regulates (public) precautionary recapitalization measures. Again, the purpose of the measure is to avoid or remedy a serious disturbance in the economy and to preserve financial stability. Precautionary recapitalization is a tool which falls within the wider concept of “gov­ernment financial stabilisation tools” (see articles 37, par. 10 and 56-58 of BRRD 23). This has been sometimes defined as a special government bailout regime. Under the BRRD, where a public support measure is adopted, the relevant bank is failing or likely to fail and must, therefore, be subject to resolution or liquidated (if the conditions for resolution are not met, e.g.: there is no public interest). However, public precautionary recapitalization for the purpose of strengthening capital (without triggering resolution or liquidation) is allowed when a capital shortfall is identified under the adverse scenario of a stress test conducted at national or European level in order to remedy a serious disturbance in the economy and to preserve financial stability. According to the Head of the Directorate General for Financial Supervision and Regulation of the Bank of Italy: “The rationale behind this mechanism is that a bank, even if solvent, may be perceived by the market as being excessively risky under adverse stress conditions, circumstances which could themselves cause a deterioration of the bank’s situation and its insolvency. [continua ..]

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6. First conclusions

Many different actions have been taken in the last three years. Although the BRRD (and the SSM-SRM package) have introduced a common framework for dealing with banking crisis: (i) they have not superseded the previous national winding-up procedures (and it might be argued that many principles of the old regime based on the 2001 Reorganisation and winding-up directive are still applicable, see the Portuguese case relating to the re-transfer of certain liabilities from the bridge bank resulting from the resolution of Banco Espirito Santo 25); (ii) they have conveniently introduced several exceptions to the fundamental rule according to which no more bail-outs will take place (i.e. taxpayers may still bear the cost of the crisis, the only difference – which is a big difference – is that burden sharing has to be put in place before public funds are used). This complicates the decision-making process: the banking crisis framework falls within the competence of many authorities (supervisors, EC, national Governments) and provides them with broad discretion as to whether a bank is to be resolved (and how), whether it is to be rescued (and how) and whether it has to be liquidated (and how). In the latter case, moreover, there is no common framework for liquidation and national procedures are still applicable, either alone – if there is no public interest – or in combination with resolution. In this respect, a further issue must be considered. There [continua ..]

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7. Some final comments on the residual role of the Italian pre-BRRD winding-up procedures and in particular, on “special administration” (amministrazione straordinaria)

Another issue that needs to be addressed relates to the residual role of national winding-up procedures. As mentioned, neither the BRRD framework, nor the national laws implemented following the directive (e.g. Decreto Legge no. 237/2016) have repealed them. Compulsory liquidation (liquidazione coatta amministrativa) still exists. As mentioned, it can be used as an alternative to resolution (as well as to other BRRD tools such as government stabilization schemes) or in combination with other measures. In the case of the 4 banks, it was applied to the four old legal entities – the “empty boxes” – following the transfer of the banks’ businesses to the bridge banks. Moreover, compulsory liquidation must be used in all cases in which the failing bank does not meet the requirements for resolution, in particular in the absence of public interest. This may imply that compulsory liquidation will apply to non-resolvable and smaller banks while larger banks must, at least in general, be subject to resolution. However, the recent Italian experience demonstrates that there may also be a public interest justifying resolution in the case of small or medium sized banks (4 banks). Furthermore, the MPS case shows that public interest is not necessarily best served by resorting to resolution. However, whether alone or in combination with other actions, Italian compulsory liquidation will continue to play an important role since – although it is less [continua ..]

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Bibliography

In general: Basedow, Jürgen, Bail-in und internationales Vertragsrecht – Kollisions­rechtliche Notizen zur Europäischen Bankenunion, Max Planck Private Law Research Paper No. 16/22; Davies, Paul L., Resolution of Cross-Border Banking Groups (December 4, 2014); Matthias Haentjens & Bob Wessels (eds.), Research Handbook on Crisis Management in the Banking Sector, Edward Elgar Publishing Ltd, Cheltenham, UK, 2015; Matthias Lehman, Bail-in and Private International Law: How to Make Bank Resolution Measures Effective Across Borders, 2016, 31; Anna Gardella, Bail-in and the Two Dimensions of Burden-Sharing, 2015; Giannini, Curzio, ‘Enemy of None but a Common Friend of All’? An International Perspective on the Lender-of-Last-Resort Function (January 1999). IMF Working Paper, pp. 1-58, 1999; G.B. Portale, Dalla pietra del vituperio al bail-in, in Rivista del diritto commerciale e del diritto generale delle obbligazioni, n. 1/2017; Rulli, Edoardo, Contributo allo studio della disciplina della risoluzione bancaria, Giappichelli, Turin, 2017. On creditors hierarchy: Binder, Jens-Hinrich, Resolution: Concepts, Requirements and Tools (September 22, 2014). Jens-Hinrich Binder and Dalvinder Singh (eds.), Bank Resolution: The European Regime, Oxford University Press, 2015/2016. On the exclusion provided for by SRM Regulation, Hüser, Anne-Caroline and Halaj, Grzegorz and Kok, Christoffer and Perales, Cristian and van der Kraaij, Anton F., The [continua ..]

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NOTE

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