# C_2016419EN.01002502.xml

| 14.11.2016 | EN | Official Journal of the European Union | C 419/25 |
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14.11.2016

EN

Official Journal of the European Union

C 419/25

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Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 14 July 2016 — FMS Wertmanagement AöR v Heta Asset Resolution AG

(Case C-394/16)

(2016/C 419/34)

Language of the case: German

Referring court

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Parties to the main proceedings

Applicant: FMS Wertmanagement AöR

Applicant:

Defendant: Heta Asset Resolution AG

Defendant:

Questions referred

Questions referred

| 1. | Is Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms, (1) and in particular Articles 1(1) and 2(1).2 and 2(1).23 thereof, in conjunction with Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and the Council on prudential requirements for credit institutions and investment firms, (2) to be interpreted as meaning that its scope of application also covers a divestment unit (divestment company), which, at the time when Directive 2014/59/EU entered into force on 2 July 2014, was still a credit institution within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 (‘a CRR Institution’), but ceased to be so prior to the expiry on 31 December 2014 of the period provided for transposition of Directive 2014/59/EU into national law, and no longer has a banking licence for conducting banking transactions, but is entitled to carry out (banking) transactions, solely on the basis of a statutory licence, for the sole purpose of portfolio divestment? |
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1.

Is Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms, (1) and in particular Articles 1(1) and 2(1).2 and 2(1).23 thereof, in conjunction with Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and the Council on prudential requirements for credit institutions and investment firms, (2) to be interpreted as meaning that its scope of application also covers a divestment unit (divestment company), which, at the time when Directive 2014/59/EU entered into force on 2 July 2014, was still a credit institution within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 (‘a CRR Institution’), but ceased to be so prior to the expiry on 31 December 2014 of the period provided for transposition of Directive 2014/59/EU into national law, and no longer has a banking licence for conducting banking transactions, but is entitled to carry out (banking) transactions, solely on the basis of a statutory licence, for the sole purpose of portfolio divestment?

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| 2. | Is Directive 2014/59/EU, in particular Article 43(2)(b) and Article 37(6) thereof, to be interpreted as meaning that a measure which corresponds to the bail-in tool of Article 43 of Directive 2014/59/EU also comes within its substantive scope of application if, in consequence of a national provision of the home Member State, it is applied in a case in which there is no longer any realistic prospect of restoring the viability of the divestment unit, which has already sold the parts which are to continue to operate after the entry into force of Directive 2014/59/EU on 2 July 2014 but before the expiry of the transposition period on 31 December 2014, and no further services having systemic consequences are to be transferred to a bridge institution and also no further parts of the institution are to be disposed of or transferred, and instead the divestment unit serves only to administer the assets, rights and liabilities for the purpose of an orderly, proactive and best-value divestment of those individual assets, rights and liabilities (portfolio divestment)? |
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2.

Is Directive 2014/59/EU, in particular Article 43(2)(b) and Article 37(6) thereof, to be interpreted as meaning that a measure which corresponds to the bail-in tool of Article 43 of Directive 2014/59/EU also comes within its substantive scope of application if, in consequence of a national provision of the home Member State, it is applied in a case in which there is no longer any realistic prospect of restoring the viability of the divestment unit, which has already sold the parts which are to continue to operate after the entry into force of Directive 2014/59/EU on 2 July 2014 but before the expiry of the transposition period on 31 December 2014, and no further services having systemic consequences are to be transferred to a bridge institution and also no further parts of the institution are to be disposed of or transferred, and instead the divestment unit serves only to administer the assets, rights and liabilities for the purpose of an orderly, proactive and best-value divestment of those individual assets, rights and liabilities (portfolio divestment)?

| 3. | Is Article 3(2) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding-up of credit institutions (3) (as amended by Article 117 of Directive 2014/59/EU) to be interpreted as meaning that a reduction in the liabilities of a divestment unit which is carried out by an administrative authority of the divestment unit’s home Member State, those liabilities being governed by a different national law, and the reduction of the interest rate and the postponement of liabilities in the Member State whose law governs the obligations and in which the creditor in question has its seat, are fully effective without any further formalities, or is this subject to the conditions that the divestment unit (divestment company) comes within the scope ratione personæ of Directive 2014/59/EU (see Question 1) and the measure which is taken is within the scope ratione materiæ of application of Directive 2014/59/EU?
  Does the term ‘fully effective ... without any further formalities’ mean that the court of a Member State which is required to decide whether to recognise the measures taken pursuant to the law of the home Member State within the framework of the law governing the liabilities has no power to examine whether those measures are compatible with Directive 2014/59/EU? |
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3.

Is Article 3(2) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding-up of credit institutions (3) (as amended by Article 117 of Directive 2014/59/EU) to be interpreted as meaning that a reduction in the liabilities of a divestment unit which is carried out by an administrative authority of the divestment unit’s home Member State, those liabilities being governed by a different national law, and the reduction of the interest rate and the postponement of liabilities in the Member State whose law governs the obligations and in which the creditor in question has its seat, are fully effective without any further formalities, or is this subject to the conditions that the divestment unit (divestment company) comes within the scope ratione personæ of Directive 2014/59/EU (see Question 1) and the measure which is taken is within the scope ratione materiæ of application of Directive 2014/59/EU?

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ratione personæ

ratione materiæ

Does the term ‘fully effective ... without any further formalities’ mean that the court of a Member State which is required to decide whether to recognise the measures taken pursuant to the law of the home Member State within the framework of the law governing the liabilities has no power to examine whether those measures are compatible with Directive 2014/59/EU?

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(1)  Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190).

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(2)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

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(3)  Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15).

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