European Central Bank published guidance to banks on
non-performing loans ("NPL")
The structure of the Guidance follows the control and management process for NPL and covers the following key aspects: NPL strategy, NPL governance and operations, forbearance, NPL recognition, NPL impairment measurement and write-offs as well as collateral valuation of immovable property.
1. Applicability of the Guidance
The Guidance generally addresses credit institutions within the meaning of Article 4(1) of Regulation (EU) 575/2013 (CRR) and it is directly applicable to all SIs supervised under the Single Supervisory Mechanism (SSM), including their international subsidiaries. Since national supervisory authorities are involved in the SSM together with the ECB and the Guidance also describes best practices, it can be expected that there will be an effect on the expectations of national authorities in general regarding all banks. Even though the Guidance is non-binding, any deviations from it may result in supervisory measures.
In its supervision in cooperation with national supervisory authorities in so called "Joint Supervisory Teams" ("JSTs"), the ECB will apply the principle of proportionality and adjust its level of intrusiveness depending on the level and severity of NPL in the banks' respective portfolios. Accordingly, the guidelines regarding NPL strategy and NPL governance and operations are relevant in particular for banks with a high level of NPL, i.e. an NPL level that is considerably higher than the EU average („High NPL Banks").
2. Key aspects of the Guidance
2.1 NPL strategy
According to the Guidance, High NPL Banks are requested to build and incorporate a strategy to reduce their NPL exposure within "sufficiently ambitious time-bound horizons" around the following key elements:
- assessing the operating environment, including internal NPL capabilities, external conditions impacting NPL workout and capital implications;
- developing NPL targets in terms of operational capabilities (qualitative) and projected NPL reductions (quantitative) – worth noting in this context is that the Guidance does not provide for specific quantitative targets but banks are asked to develop a strategy that could include e.g. an outsourcing of NPL maintenance or portfolio sales; the operational plan shall comply with certain minimum requirements as regards time-bound objectives and goals and staffing and resource requirements etc.;
- implementing the operational plan, including any necessary changes in the organisational structure of the bank; and
- fully embedding the NPL strategy into the management processes of the bank, including a regular (at least annual) review and an independent monitoring by internal risk control functions.
High NPL Banks are expected to report their NPL strategy to the JSTs annually during the first quarter of each year.
2.2 NPL governance and operations
Alongside the establishment of the NPL strategy, the Guidance expects the management of any SI to ensure implementation and internal control of the strategy and to monitor (at least on a quarterly basis) any progress made. Furthermore, High NPL Banks are expected to create dedicated NPL workout units which are separate from the units responsible for loan origination.
2.3 Forbearance
According to the Guidance, the key objectives of forbearance measures, e.g. grace periods, are either non-performing borrowers to exit their non-performing status or to prevent performing borrowers from reaching a non-performing status – forbearance is an important instrument to reduce the NPL level as it is a way of returning an exposure to a situation of sustainable repayment. However, as forbearance measures may lead to a misrepresentation of asset quality on the balance sheet, and often only prolong the non-performing status, if granted to borrowers in financial difficulties or if multiple consecutive measures are granted to the same exposures, the Guidance addresses forbearance options and criteria to distinguish between viable and non-viable forbearance measures. Banks are expected to enforce their rights if no restructuring solution leading to a repayment of the amount due can be achieved. Banks are also expected to inform the supervisory authorities about forbearance measures by providing standardized information as described in Annex 7 to the Guidance.
2.4 NPL recognition
In its Guidance, the ECB points out that the commonly used term of NPL is based on various different definitions and it encourages banks to adopt – consistently throughout the institutions and their branches and subsidiaries – the definition of "non-performing exposure" ("NPE") based on the criteria of "(more than 90 days) past-due" and/or "unlikely to pay" as issued by the European Banking Authority ("EBA") in Paragraph 145, Annex V, Implementing Technical Standards Amending Commission Implementing Regulation (EU) No 680/2014 on Supervisory Reporting of institutions.
2.5 NPL impairment measurement and write-offs
The ECB notes that supervisory initiatives such as asset quality reviews (AQRs) and stress tests (STs) have further highlighted the need for consistent provisioning methodology and adequate provisioning levels across banks. The Guidance provides requirements for provisioning methodologies to ensure an adequate measurement of impairment provisions across all loan portfolios (in particular individual and collective impairment measurement and write-offs) and it also provides requirements for a timely recognition of loan losses within the context of relevant and applicable accounting standards (with a focus on IAS/IFRS and the entering into force of IFRS 9 in 2018). In addition, provisioning and write-off procedures are described in respect to appropriate credit risk practices. Upon request, banks are expected to be able to provide supervisory authorities at least with data regarding their respective models used for calculation of impairment allowances for NPL (on a collective basis).
2.6 Collateral valuation for immovable property
According to the ECB, supervisory assessments and onsite inspections have shown deficiencies in the banks' completeness and accuracy of immovable property valuation. Banks have often failed to obtain periodic financial information from borrowers or updated real estate valuations. Therefore banks failed to recognize early warning signs of declining asset quality, which resulted in an understatement of balance sheet loan loss provisions. Consequently, the ECB in its Guidance recommends that all valuations are performed by independent appraisers that are not involved in the loan processing, do not have any interest in the property and are not related to the buyer or seller of the property. Valuations shall be updated on an annual basis for commercial real estate and on a three years' basis for residential real estate. However, where there are signs of significant negative changes, valuations should be carried out more frequently.
3. Comments and outlook
In the light of the increased requirements set out in the Guidance regarding NPL strategy, NPL governance and operations and reporting, primarily for High NPL Banks, banks need to assess and analyze their current routines and organizational structure, also regarding the requirement to establish specific workout units and an internal control and management infrastructure with early warning systems.
Despite the non-binding nature of the Guidance, the ECB expects SIs upon supervisory request to explain and substantiate any deviation from the Guidance, and non-compliance may trigger supervisory measures. Against this background it is obvious that the ECB focuses on reducing European banks' NPL levels and that it will use the instruments at its disposal to do so. However, it remains to be seen to what extent SIs and other banks actually will apply the Guidance, and what consequences the supervisory authorities will take in case of non-compliance.
It will be interesting to see how the NPL market develops in the light of the Guidance with its new requirements for NPL impairment measurement.
If you have any questions or would like to discuss the Guidance or any aspects thereof, you are very welcome to get in touch. We are looking forward to your call or email.
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Dr Christina Griebeler, M.I.C.L.
Lawyer (Rechtsanwältin),
Advokat (Sverige), Partner
T +49 - 69 - 97 40 12 - 39
M +49 - 172 - 677 53 72