Heta is the wind-down unit converted out of the Hypo Alpe-Adria Bank International AG (HBInt). Its owner is the Republic of Austria.
In order to draw up a balance sheet and a resolution plan, an Asset Quality Review for Heta has been carried out since the start of 2015 by external auditors. According to the currently available information a future requirement for additional funding for Heta appears to exist. Heta therefore asked the Republic of Austria whether it would be willing to inject further capital into Heta.
The Republic of Austria has decided that no further capital injection should be provided for Heta.
On the basis of the Republic of Austria’s decision, as well as the notification by the Board of Management of Heta to the FMA, the FMA as the new resolution authority checked for and determined the existence of conditions for resolution of Heta in accordance with the new “Federal Act on the Recovery and Resolution of Banks” (BaSAG).
Consequently, the FMA, in its capacity as the designated Austrian resolution authority, issued an administrative ruling on 01/03/2015 in accordance with the Federal Act on the Recovery and Resolution of Banks (BaSAG) in accordance with the new European resolution regime for banks initiating the resolution of Heta.
Pursuant to the “Federal Act on the Recovery and Resolution of Banks” (BaSAG) the Austrian Financial Market Authority (FMA), has assumed the function of the national resolution authority with effect from 1.1.2015.
In its function as the resolution authority, the FMA, in the event of the failure or threat of failure of an institution or a wind-down entity, like Heta, has to ensure the orderly resolution of such an entity in the public interest.
The Federal Act on the Recovery and Resolution of Banks (“BaSAG”) as published in the Austrian Federal Law Gazette I No. 98/2014 entered into force on 1.1.2015. It transposes the EU Directive on the Recovery and Resolution of Credit Institutions and Investment Firms (“BRRD”) in Austria, in which Directive Europe has given its assent for new rules for the resolution of banks (the European bank resolution regime). It was an important aim of the European Union, to relieve pressure on public budgets, and as a consequence also taxpayers, from the costs of the resolution of a bank.
For this purpose, far-reaching duties and powers have been conferred upon the FMA. On the one hand it has to draft and create preventive resolution plans, and on the other hand, in the event of resolution has to implement this plan by applying the far-reaching tools placed at its disposal.
The following defined resolution tools are placed at the FMA’s disposal:
- The sale of business tool
- The tool to establish a bridge institution (Bridge bank)
- The tool for the separation of asset positions (asset separation)
- Bail-in
The resolution authority is therefore making a considerable contribution, among other things, towards ensuring in the future that in the event of a bank falling into financial difficulties, that the government, and thereby the taxpayers, are not required to provide assistance, but that the bank’s owners and creditors can be called upon in such an event.
Heta is subject to the Federal Act on the Creation of a Wind-down Entity (GSA). Pursuant to Art. 162 para. 6 of BaSAG, the provisions of Part 4 of BaSAG, which sets the resolution actions, applied to wind-down entities in accordance with Articles 2 and 3 GSA. Consequently the orderly resolution of Heta can occur under the responsibility of and in accordance with instructions by the FMA and applying the provisions of BaSAG.
As a consequence of the notification made by Heta to the FMA and the emergence of the necessity of an additional future requirement for funding for Heta, and in light of the decision of the Republic of Austria to not make additional funding available, there is a definite threat of Heta becoming insolvent.
The FMA has checked the existence of legal conditions to be able to apply BaSAG. The following conditions for resolution were ascertained:
- the threat of insolvency
- no alternative measures being available in the private sector, which would be able to avert the risk of failure within a reasonable period of time
- the necessity to take resolution actions in the public interest, in particular the existence of public interests with regard to the resolution objectives
- ensuring the continuity of critical functions;
- the avoidance der considerable negative effects on financial stability
- the protection of public funds
The initiation of actions without delay in accordance with BaSAG has prevented there being preferential treatment of creditors and the opening of insolvency proceedings on the assets of Heta has been immediately averted.
The FMA, as national resolution authority, issued an administrative ruling on Sunday, 1 March 2015, which suspends the maturity of certain eligible liabilities of Heta towards its creditors in accordance with BaSAG until 31.05.2016, so that the due dates of payments has been deferred until 31.05.2016 (temporary moratorium on debts).
This means that the date when Heta’s eligible liabilities become payable has been changed accordingly, that they their becoming payable has been suspended until 31.05.2016, and therefore that these exposures may not be serviced until the end of 31.05.2016.
The respective edict in accordance with BaSAG was published immediately on the FMA Website.
By imposing this temporary moratorium on debts, it is now possible to allow the asset quality review of Heta’s assets to be checked, to determine their actual value, to draw up a resolution plan and to evaluate which other instruments shall be applied in accordance with BaSAG.
The objective is to conduct the orderly resolution of Heta in accordance with the provisions set out in the new European supervisory regime, in particular to enable the orderly winding-down of assets.
Hypo Group Alpe Adria AG is a credit institution with a valid banking licence and is not a business unit of Heta. The subsidiary banks of Hypo Group Alpe Adria AG in the countries of South-Eastern Europe are also not part of Heta. The business operations of Hypo Group Alpe Adria AG and its subsidiary banks therefore continue as previously.
Once the FMA had followed up all the improvement requests on the part of the appellants, the investigation procedure was able to be formally initiated on 14.09.2015. The procedure will now be concluded as quickly as possible – also dependent of course on further arguments and interventions are brought by the parties to the procedure.
The FMA will check all arguments raised by the creditors within the scope of its legal competence. There is no legal obligation for an application for the checking of regulations to be conducted by the resolution authority. An appeal may only be made to the Constitutional Court (VfGH) in extraordinary legal proceedings by an appellant.
At the time of the emergency administrative decision being issued, 31.05.2016 was chosen, to permit the resolution authority – in the event that it should prove necessary to do so within the procedure – to in any case also be able to take the financial statements for 2015 into account. From today’s point of view, the resolution authority is endeavouring to conclude the procedure as rapidly as possible, while ensuring that the necessary care is taken, in order to offer all involved parties legal and planning security. From today’s point of view, it is possible that the procedure may be concluded before 31.05.2016.
The potential use of the bail-in instrument is currently being evaluated.
BaSAG provides the resolution authority with extensive resolution powers, which also prescribe rights to intervene in existing arrangements, providing that such interventions also correspond with the principle of proportionality. A haircut on interest is being considered as one of the many potential options for the next resolution action. The FMA is considering the possibility in relation to the next resolution action to be taken, to package a resolution tool (possible bail-in) with one or several resolution powers (a possible haircut on interest). The content and the precise design of this package of measures is currently being examined for its economic feasibility and its legal conformity. We are therefore unable to make any reliable statements about individual resolution powers, since such statements may only be made within the context of the package of measures.
BDO Financial Services Advisory GmbH.
This will be evaluated and decided at the time of the appointment of the experts.
This will be evaluated and decided at the time of the appointment of the experts.
BaSAG provides the resolution authority with extensive resolution powers, which also prescribe rights to intervene in existing arrangements, providing that such interventions also correspond with the principle of proportionality. A haircut on interest is one of many potential options being considered for the next resolution action. The FMA is considering the possibility to package a resolution tool (possibly bail-in) with one or several resolution powers (possible intervention on maturity dates) as the next resolution action. The content and the precise design of this package of measures is currently being examined for its economic feasibility and its legal conformity. We are therefore unable to make any reliable statements about individual resolution powers, since statements may only be made within the context of the package of measures.
The resolution authority will endeavour, where possible, to bundle resolution actions and powers, in order to increase their effectiveness and to achieve the resolution objectives in the best possible way. In addition, the procedure is to be conducted in an efficient manner. The package of measures that is currently under examination is anticipated to be issued in the form of an emergency administrative decision. Whether additional administrative decisions will be necessary in the future depends upon the progress of the resolution proceedings, and therefore cannot be predicted.
The resolution authority will, in the case of any bail-in, adopt the stance set out in the valuation opinion, which according to Art. 54 para. 1 BaSAG is obliged to adhere inter alia to the principle of prudence. A future upward revaluation cannot be ruled out in the event that the resolution process is successful.
The resolution authority is currently drawing up a resolution plan pursuant to BaSAG based on non-publicly available information from HETA. Furthermore the findings of the expert opinion will also be integrated into the administrative decision that is to be drafted.
The significant legal and economic considerations – i.e. excerpts from the aforementioned documentation – will be published in the emergency administrative decision, which is to be announced by means of an edict (Art. 116 BaSAG). Other rights relating to procedural law will remain unaffected.
The wind-down plan under the GSA will be drafted under the individual responsibility of HETA.
The resolution plan will be made available shortly after the valuation opinion in accordance with Arts. 54ff BaSAG. Work on the valuation opinion has currently not yet been concluded.
The resolution authority is obliged to draw up a resolution plan. It will be supported by external experts in this process.
The resolution authority is currently drawing up a resolution plan pursuant to BaSAG based on non-publicly available information requested by the authority from HETA.
Portfolio reduction must take place in accordance with legal provisions in an orderly and active to ensure the best possible results.
The resolution authority currently exercises its rights of information and control by means of options for influence under company law, as set in the articles of association, and the rules of procedure of the supervisory board and the management board (Art. 83 para. 2 no. 2 BaSAG).
Yes, such reservations of consent are listed in the rules of procedure of the supervisory board and the management board.
It is at the discretion of the resolution authority to appoint a resolution administrator in the case of exercising of control. The authority has not applied the exercising of control tool to date, and does not consider this option to be necessary at the current time (Art. 67 para. 2 BaSAG). For this reason, a resolution administrator has not been appointed to date.
The resolution authority is an legally independent authority that is not subject to (external) instructions, which checks significant decisions on the basis of their legality pursuant to BaSAG, by means of comprehensive rights of information and options for influence under company law, which exist on the basis of the articles of association as well as the rules of procedures for the management board and the supervisory board.
No rights of consultation or participation rights are prescribed for creditors in BaSAG. The resolution authority shall take account of the legal principles of equal treatment of creditors and not being placed in a less favourable position in comparison with a bankruptcy.
The resolution authority is an legally independent authority that is not subject to (external) instruction, which checks significant decisions on the basis of their legality pursuant to BaSAG, by means of comprehensive rights of information and options for influence under company law, which exist on the basis of the articles of association as well as the rules of procedures for the management board and the supervisory board. Accordingly, the legal principles of equal treatment of creditors and not being placed in a less favourable position in comparison with a bankruptcy shall be taken into account.
No rights of consultation or participation rights are prescribed for creditors in BaSAG. The resolution authority shall take account of the legal principles of equal treatment of creditors and not being placed in a less favourable position in comparison with a bankruptcy.
Please see the following question.
The resolution authority has exercised its options for influence as determined by the articles of association, the rules of procedure for the management board and the supervisory board, and has not opposed the decisions taken by HETA committees in relation to HBI and HGAA. It was assisted by experts in this process. The resolution authority is bound to observe the provisions for the protection of creditors set out in BaSAG in the decisions that it takes.
The resolution authority is bound to observe the provisions for the protection of creditors set out in BaSAG in the decisions that it takes.
It is not possible to rule out insolvency proceedings being conducted against HETA at the current time.
The FMA must take into account Art. 7 of the Act for the Creation of a Wind-Down Entity – (Bundesgesetz zur Schaffung einer Abbaueinheit – GSA) as well as the relevant provisions in BaSAG when filing for the insolvency of HETA.
The resolution authority currently does not see any association between the two, but is constantly monitoring developments in this regard.
This resolution power – viewed in isolation – was not deemed to be relevant or proportional.