At the request of the Single Resolution Board (SRB) SBERBANK Europe AG, domiciled in Vienna, was placed under a moratorium by the Austrian Regulator, FMA, on 27 February 2022. Despite measures SBERBANK took to stem the outflow of funds the SRB decision finds it is likely to be unable to meet its payment obligations at maturity. SRB also held that current and future sanctions – US sanctions limiting access to USD supply by correspondent banks only take effect on 26 March 2022 – make it unlikely that SBERBANK’s liquidity situation will quickly recover. The FMA implemented the SRB’s decision of 27 February 2022 (SRB EES-2022-16), as per the provisions of the Austrian Act on Restructuring and Liquidation of banks (BaSAG) and Art 29 SRMRegulation.
Said moratorium orders:
1. All payment obligations and obligations to deliver assets that arise out of agreements to which SBERBANK is a party are suspended. The moratorium also effects the counterparty of SBERBANK, as in section 47a para 6 BaSAG.
Baker McKenzie note: The moratorium affects duties to pay as well as duties to deliver securities or release collateral. It also affects multiparty transactions. All obligations as a whole are suspended for the duration of the moratorium. Accordingly, these counterparties, for the duration of the moratorium, cannot claim payment form SBERBANK. Further, lending banks other than SBERBANK, banks in consortia together with SBERBANK must also not pay or perform. This issue requires checks in each bank lending together with SBERBANK. Please verify if you deal with SBERBANK affiliates in Slovenia or Croatia as they are similarly affected.
2. All payment obligations and obligations to deliver assets with respect to deposits, in particular deposits secured under deposit guarantee schemes, are also suspended. The moratorium also covers each counterparty to SBERBANK.
Baker McKenzie note: This means that funds, but for the exceptions in 3 and 4 below, cannot be withdrawn from SBERBANK accounts.
3. Exceptions to items 1 and 2 do apply with respect to the following:
- the operators of certain systems as per the provisions of so called systems under the Settlement Finality Directive (98/26/EG)
- EU and certain third country central counterparties recognized by ESMA (c.f. Art 14 and the ESMA recognition based on Art 25 Regulation 648/2012)
- central banks
Baker McKenzie note: Payments to central counterparties (e.g. stock exchange related settlement payments) may still be made.
4. Permitted withdrawings from savings accounts are capped by depositors at the amount of EUR 100 per depositor and per day.
5. Secured SBERBANK creditors must not enforce collateral posted in their favor as per section 47a para 10 BaSAG.
6. The exercise of SBERBANK counterparties’ termination rights (statutory and/or contractual; BM note) is suspended.
The moratorium took immediate effect and expires on 1 March 2022 at 23:59:59 hours Vienna time. This is the maximum duration permitted by BaSAG rules. FMA has until then to decide if it is in the best public interest to commence reorganization or if the bank is to be wound up in accordance with national Austrian bank liquidation rules.