Reg Cap Analytics: The Nationalisation of SNS – Lessons Learnt

On February 1, 2013 De Nederlandsche Bank (DNB) nationalised SNS Reaal Group. The Dutch central bank used powers granted to it under the local implementation of the Bank Recovery and Resolution Directive (BRRD), the Special Measures for Financial Corporations Interventions Act.

Shareholders and subordinated creditors were expropriated without compensation as a last resort to prevent systematic contagion throughout the Dutch financial sector. Whilst the intervention act provided an important tool to prevent the collapse of SNS, some crucial aspects of the BRRD were not in place early enough to prevent the deterioration of SNS, most importantly a requirement for financial institutions to plan and prepare for scenarios that could lead to their failure, and early intervention measures allowing regulators to intervene in the management of banks.

In the light of the current regulatory framework, this article considers the background which led to the nationalisation of SNS and discusses whether the planning and preparation requirements and the early intervention measures provided under the BRRD could have resulted in a different outcome for SNS.  Read More.


The Nationalisation of Banco Espirito Santo – The Aftermath

The Bank of Portugal announced on Sunday 3 August 2014 that it applied its powers under the Decree law No 31/2012 of 10 February 2012 (the “Resolution Law“) to split Banco Espirito Santo (“BES“) into a “good bank” and “bad bank” (the “Restructuring“) and to transfer certain of BES “good” assets and liabilities to “Novo Bank”.

Following the release by BES of its half year results, it was apparent that the financial stability of BES was more questionable than many had suspected.  A rapid decline in BES’s share and subordinated bond price followed and on the weekend of 2 and 3 August, the Bank of Portugal must have come to the conclusion that its earlier plea for a private sector recapitalisation was unrealistic. On 3 August, the Bank of Portugal publicly announced the split which left certain assets with BES, which also retained the subordinated debt. The senior bonds and many of the quality assets of BES were transferred to Novo Bank.

In view of the European Central Bank’s ongoing asset quality review, the BES case was seen as a test case in Europe. This client alert looks at some of the recent history of the Espirito Santo group and BES and considers what will happen in the aftermath of the nationalisation of BES and following the filing by certain Espirito Santo holding companies for controlled management (gestion contrôlée) in Luxembourg.  Specifically, this client alert considers:-

  1. the background and recent history relating to BES and the Espirito Santo group;
  2. the limited legislative tools available to the Bank of Portugal under the Resolution Law;
  3. what the effects of the use of the Resolution Law will have on BES stakeholders; and
  4. what the next steps are likely to be in relation to Espirito Santo International (“ESI“), Rio Forte Investments (“Rio Forte“) Espirito Santo Financière SA (“ESFIL“) and Espirito Santo Financial Group (“ESFG“) that have filed for a controlled management process in Luxembourg.​

Read More.