Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 20 May 2016 — RMF Financial Holdings S.a.r.l. v Heta Asset Resolution AG

(Case C-282/16)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: RMF Financial Holdings S.a.r.l.

Defendant: Heta Asset Resolution AG

Questions referred

Is Article 2(1)(2) and (23) of Directive 2014/59/EU 1 establishing a framework for the recovery and resolution of credit institutions and investment firms in conjunction with Article 4(1)(1) of Regulation (EU) No 575/2013 2 of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms, under which a ‘credit institution’ is an undertaking the business of which is to take deposits and/or other repayable funds from the public and to grant credits for its own account (‘CRR institution’), to be interpreted to the effect that a wind-down entity (wind-down company) which no longer holds a banking licence to transact banking business or is now permitted to transact (banking) business on the basis of a statutory licence solely for the purposes of portfolio liquidation also falls within the scope of Article 1(1) of Directive 2014/59/EU?

In the event that Question 1 is answered in the negative: Is Article 3(2) of Directive 2001/24/EC 3 of the European Parliament and of the Council on the reorganisation and winding up of credit institutions (as amended by Article 117(1) of Directive 2014/59/EU) to be interpreted to the effect that a write-down measure ordered by a national administrative authority is fully effective as against persons resident in other Member States — also having regard to Article 17(1) of the European Charter of Fundamental Rights — without any further formalities (despite the negative answer to Question 1)?

In the event that Question 1 is answered in the negative: Does the free movement of capital enshrined in EU law by Article 63(1) TFEU preclude a national provision which extends the scope of Directive 2014/59/EU to a wind-down entity (wind-down company) which no longer holds a banking licence to transact banking business or is now permitted to transact (banking) business on the basis of a statutory licence solely for the purposes of portfolio liquidation?

In the event that Question 1 is answered in the negative: Is EU law to be interpreted, in the light of the principle of ‘effet utile’ and the principle of sincere cooperation laid down in Article 4(3) TEU, to the effect that a write-down measure ordered by a national administrative authority is to be recognised in another Member State even where the rules of national law based on Directive 2014/59/EU are also applied to an institution which, upon the entry into force of Directive 2014/59/EU on 2 July 2014, was still a credit institution within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 (CRR institution), but which lost that status before the expiry of the period for the transposition of Directive 2014/59/EU into national law on 31 December 2014?

In the event that Question 1 is answered in the affirmative: Is the term ‘secured liability’ in Article 2(1)(67) and Article 44(2)(b) of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms to be interpreted, in particular having regard to Article 1(2) of Directive 2014/59/EU, as also encompassing liabilities for which a regional public authority (in this case the Austrian Province of Carinthia) has assumed a statutory deficiency guarantee?

In the event that Question 1 is answered in the affirmative: Are Article 43(2)(b) and Article 59(3)(b) and (4) of Directive 2014/59/EU to be interpreted as precluding a national provision by virtue of which a measure corresponding to the bail-in tool under Article 43 of Directive 2014/59/EU is implemented in a case where there is no longer a realistic prospect that the institution’s viability may be restored and where no systemically important services are transferred to a bridge institution and no other parts of the institution’s business may be sold any longer, but the sole purpose of that institution is management of assets, rights and liabilities with a view to the orderly, active and optimum realisation of those individual assets, rights and liabilities (portfolio liquidation)? In such a case, in accordance with the requirements laid down in Directive 2014/59/EU, should the liquidation of that wind-down entity (wind-down company) preferentially be carried out in the context of orderly insolvency proceedings?

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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 Text with EEA relevance (OJ 2014 L 173, p. 190).

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 Text with EEA relevance (OJ 2013 L 176, p. 1).

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).