Liabilities owed to firms in the financial sector must not be automatically exempted from bail-in, except where the claims relate to a liability described in Article 44(2), or when they fall under the exceptional circumstances described in Article 44(3).

Article 44(2)(g)(ii) provides exemption from bail-in for liabilities to a commercial or trade creditor arising from the provision to the institution or entity referred to in point (b), (c) or (d) of Article 1(1) of goods or services that are critical to the daily functioning of its operations, including IT services, utilities and the rental, servicing and upkeep of premises. This should not be interpreted as excluding liabilities which are critical to an institution’s funding needs. Rather this intended to capture creditors who provide goods or services of an operational rather than a financial nature.

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.