On 14 November 2019, the European Forum of Deposit Insurers (EFDI) published a non-binding guidance paper on deposit guarantee schemes’ (DGSs) alternative measures to pay-out.

Article 11(3) of the Deposit Guarantee Schemes Directive (DGSD) permits DGSs to use available financial means for alternative measures in order to prevent a bank from failure, as well as to make pay-outs to depositors. Under Article 11(6), DGSs may also use available financial means to finance measures to preserve the access of depositors to covered deposits in the context of national insolvency proceedings.

The EFDI explains that the purpose of the guidance paper is to highlight the benefits of Articles 11(3) and (6) and to identify the legal and technical burdens that currently exist for an effective application of alternative measures to pay-outs. The EFDI conducted a comprehensive survey in which 46 national guarantee schemes representing 40 European countries took part. Through its analysis of the legal environment, the EFDI observed different interpretations on the use of funds for interventions other than pay-outs between the European Commission’s DG Competition and some DGSs. In particular, the EFDI notes that a recent decision between the Italian State and the European Commission ruling that interventions other than pay-outs by private DGSs would not be considered State aid, while interventions carried out by public DGSs would be considered State aid, may have created an uneven playing field.

The non-binding guidance can be found in section 3 of the paper. It sets out, among other things, recommendations for the implementation of measures under Articles 11(3) and (6) in a banking crisis relating to:

  • systems and procedures for selecting and implementing alternative measures;
  • a cost-effectiveness evaluation of alternative measures; and
  • adopting a least cost principle to ensure that the costs borne by the DGS in measures undertaken in relation to Article 11(6) do not exceed the net amount of compensating covered depositors.