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Document 02013L0036-20250117
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (Text with EEA relevance)
Consolidated text: Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (Text with EEA relevance)
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (Text with EEA relevance)
02013L0036 — EN — 17.01.2025 — 012.001
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►M6 DIRECTIVE 2013/36/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC ◄ (OJ L 176 27.6.2013, p. 338) |
Amended by:
Corrected by:
DIRECTIVE 2013/36/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 26 June 2013
on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC
(Text with EEA relevance)
TITLE I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter
This Directive lays down rules concerning:
access to the activity of credit institutions;
supervisory powers and tools for the prudential supervision of credit institutions by competent authorities;
the prudential supervision of credit institutions by competent authorities in a manner that is consistent with the rules set out in Regulation (EU) No 575/2013;
publication requirements for competent authorities in the field of prudential regulation and supervision of credit institutions.
Article 2
Scope
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This Directive shall not apply to the following:
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central banks;
post office giro institutions;
in Denmark, the ‘Eksport Kredit Fonden’, the ‘Eksport Kredit Fonden A/S’, the ‘Danmarks Skibskredit A/S’ and the ‘KommuneKredit’;
in Germany, the ‘Kreditanstalt für Wiederaufbau’, ‘Landwirtschaftliche Rentenbank’, ‘Bremer Aufbau-Bank GmbH’, ‘Hamburgische Investitions- und Förderbank’, ‘Investitionsbank Berlin’, ‘Investitionsbank des Landes Brandenburg’, ‘Investitionsbank Schleswig-Holstein’, ‘Investitions- und Förderbank Niedersachsen – NBank’, ‘Investitions- und Strukturbank Rheinland-Pfalz’, ‘Landeskreditbank Baden-Württemberg – Förderbank’, ‘LfA Förderbank Bayern’, ‘NRW.BANK’, ‘Saarländische Investitionskreditbank AG’, ‘Sächsische Aufbaubank – Förderbank’, ‘Thüringer Aufbaubank’, undertakings which are recognised under the ‘Wohnungsgemeinnützigkeitsgesetz’ as bodies of State housing policy and are not mainly engaged in banking transactions, and undertakings recognised under that law as non-profit housing undertakings;
in Estonia, the ‘hoiu-laenuühistud’, as cooperative undertakings that are recognised under the ‘hoiu-laenuühistu seadus’;
in Ireland, the Strategic Banking Corporation of Ireland, credit unions and friendly societies;
in Greece, the ‘Ταμείο Παρακαταθηκών και Δανείων’ (Tamio Parakatathikon kai Danion);
in Spain, the ‘Instituto de Crédito Oficial’;
in France, the ‘Caisse des dépôts et consignations’;
in Croatia, the ‘kreditne unije’ and the ‘Hrvatska banka za obnovu i razvitak’;
in Italy, the ‘Cassa depositi e prestiti’;
in Latvia, the ‘krājaizdevu sabiedrības’, undertakings that are recognised under the ‘krājaizdevu sabiedrību likums’ as cooperative undertakings rendering financial services solely to their members;
in Lithuania, the ‘kredito unijos’ other than the ‘centrinės kredito unijos’;
in Hungary, the ‘MFB Magyar Fejlesztési Bank Zártkörűen Működő Részvénytársaság’ and the ‘Magyar Export-Import Bank Zártkörűen Működő Részvénytársaság’;
in Malta, ‘The Malta Development Bank’;
in the Netherlands, the ‘Nederlandse Investeringsbank voor Ontwikkelingslanden NV’, the ‘NV Noordelijke Ontwikkelingsmaatschappij’, the ‘NV Limburgs Instituut voor Ontwikkeling en Financiering’, the ‘Ontwikkelingsmaatschappij Oost-Nederland NV’ and kredietunies;
in Austria, undertakings recognised as housing associations in the public interest and the ‘Österreichische Kontrollbank AG’;
in Poland, the ‘Spółdzielcze Kasy Oszczędnościowo — Kredytowe’ and the ‘Bank Gospodarstwa Krajowego’;
in Portugal, the ‘Caixas Económicas’ existing on 1 January 1986 with the exception of those incorporated as limited companies and of the ‘Caixa Económica Montepio Geral’;
in Slovenia, the ‘SID-Slovenska izvozna in razvojna banka, d.d. Ljubljana’;
in Finland, the ‘Teollisen yhteistyön rahasto Oy/Fonden för industriellt samarbete AB’, and the ‘Finnvera Oyj/Finnvera Abp’;
in Sweden, the ‘Svenska Skeppshypotekskassan’;
in the United Kingdom, National Savings and Investments (NS&I), CDC Group plc, the Agricultural Mortgage Corporation Ltd, the Crown Agents for overseas governments and administrations, credit unions and municipal banks.
Article 3
Definitions
For the purposes of this Directive, the following definitions shall apply:
'credit institution' means credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No 575/2013;
'investment firm' means investment firm as defined in point (2) of Article 4(1) of Regulation (EU) No 575/2013;
'institution' means institution as defined in point (3) of Article 4(1) of Regulation (EU) No 575/2013;
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'insurance undertaking' means insurance undertaking as defined in point (5) of Article 4(1) of Regulation (EU) No 575/2013;
'reinsurance undertaking' means reinsurance undertaking as defined in point (6) of Article 4(1) of Regulation (EU) No 575/2013;
'management body' means an institution’s body or bodies, which are appointed in accordance with national law, which are empowered to set the institution’s strategy, objectives and overall direction, and which oversee and monitor management decision-making, and include the persons who effectively direct the business of the institution;
'management body in its supervisory function' means the management body acting in its role of overseeing and monitoring management decision-making;
'senior management' means those natural persons who exercise executive functions within an institution and who are responsible, and accountable to the management body, for the day-to-day management of the institution;
'systemic risk' means a risk of disruption in the financial system with the potential to have serious negative consequences for the financial system and the real economy;
'model risk' means the potential loss an institution may incur, as a consequence of decisions that could be principally based on the output of internal models, due to errors in the development, implementation or use of such models;
'originator' means originator as defined in point (13) of Article 4(1) of Regulation (EU) No 575/2013;
'sponsor' means sponsor as defined in point (14) of Article 4(1) of Regulation (EU) No 575/2013;
'parent undertaking' means parent undertaking as defined in point (15) of Article 4(1) of Regulation (EU) No 575/2013;
'subsidiary' means subsidiary as defined in point (16) of Article 4(1) of Regulation (EU) No 575/2013;
'branch' means branch as defined in point (17) of Article 4(1) of Regulation (EU) No 575/2013;
'ancillary services undertaking' means ancillary services undertaking as defined in point (18) of Article 4(1) of Regulation (EU) No 575/2013;
'asset management company' means asset management company as defined in point (19) of Article 4(1) of Regulation (EU) No 575/2013;
'financial holding company' means financial holding company as defined in point (20) of Article 4(1) of Regulation (EU) No 575/2013;
'mixed financial holding company' means mixed financial holding company as defined in point (21) of Article 4(1) of Regulation (EU) No 575/2013;
'mixed activity holding company' means mixed activity holding company as defined in point (22) of Article 4(1) of Regulation (EU) No 575/2013;
'financial institution' means financial institution as defined in point (26) of Article 4(1) of Regulation (EU) No 575/2013;
'financial sector entity' means financial sector entity as defined in point (27) of Article 4(1) of Regulation (EU) No 575/2013;
'parent institution in a Member State' means parent institution in a Member State as defined in point (28) of Article 4(1) of Regulation (EU) No 575/2013;
'EU parent institution' means EU parent institution as defined in point (29) of Article 4(1) of Regulation (EU) No 575/2013;
'parent financial holding company in a Member State' means parent financial holding company in a Member State as defined in point (30) of Article 4(1) of Regulation (EU) No 575/2013;
'EU parent financial holding company' means EU parent financial holding company as defined in point (31) of Article 4(1) of Regulation (EU) No 575/2013;
'parent mixed financial holding company in a Member State' means parent mixed financial holding company in a Member State as defined in point (32) of Article 4(1) of Regulation (EU) No 575/2013;
'EU parent mixed financial holding company' means EU parent mixed financial holding company as defined in point (33) of Article 4(1) of Regulation (EU) No 575/2013;
'systemically important institution' means an EU parent institution, an EU parent financial holding company, an EU parent mixed financial holding company or an institution the failure or malfunction of which could lead to systemic risk;
'central counterparty' means central counterparty as defined in point (34) of Article 4(1) of Regulation (EU) No 575/2013;
'participation' means participation as defined in point (35) of Article 4(1) of Regulation (EU) No 575/2013;
'qualifying holding' means qualifying holding as defined in point (36) of Article 4(1) of Regulation (EU) No 575/2013;
'control' means control as defined in point (37) of Article 4(1) of Regulation (EU) No 575/2013;
'close links' means close links as defined in point (38) of Article 4(1) of Regulation (EU) No 575/2013;
'competent authority' means competent authority as defined in point (40) of Article 4(1) of Regulation (EU) No 575/2013;
'consolidating supervisor' means consolidating supervisor as defined in point (41) of Article 4(1) of Regulation (EU) No 575/2013;
'authorisation' means authorisation as defined in point (42) of Article 4(1) of Regulation (EU) No 575/2013;
'home Member State' means home Member State as defined in point (43) of Article 4(1) of Regulation (EU) No 575/2013;
'host Member State' means host Member State as defined in point (44) of Article 4(1) of Regulation (EU) No 575/2013;
'ESCB central banks' means ESCB central banks as defined in point (45) of Article 4(1) of Regulation (EU) No 575/2013;
'central banks' means central banks as defined in point (46) of Article 4(1) of Regulation (EU) No 575/2013;
'consolidated situation' means consolidated situation as defined in point (47) of Article 4(1) of Regulation (EU) No 575/2013;
'consolidated basis' means consolidated basis as defined in point (48) of Article 4(1) of Regulation (EU) No 575/2013;
'sub-consolidated basis' means sub-consolidated basis as defined in point (49) of Article 4(1) of Regulation (EU) No 575/2013;
'financial instrument' means financial instrument as defined in point (50) of Article 4(1) of Regulation (EU) No 575/2013;
'own funds' means own funds as defined in point (118) of Article 4(1) of Regulation (EU) No 575/2013;
'operational risk' means operational risk as defined in point (52) of Article 4(1) of Regulation (EU) No 575/2013;
'credit risk mitigation' means credit risk mitigation as defined in point (57) of Article 4(1) of Regulation (EU) No 575/2013;
'securitisation' means securitisation as defined in point (61) of Article 4(1) of Regulation (EU) No 575/2013;
'securitisation position' means securitisation position as defined in point (62) of Article 4(1) of Regulation (EU) No 575/2013;
'securitisation special purpose entity' means securitisation special purpose entity as defined in point (66) of Article 4(1) of Regulation (EU) No 575/2013;
'discretionary pension benefits' means discretionary pension benefits as defined in point (73) of Article 4(1) of Regulation (EU) No 575/2013;
'trading book' means trading as defined in point (86) of Article 4(1) of Regulation (EU) No 575/2013;
'regulated market' means regulated market as defined in point (92) of Article 4(1) of Regulation (EU) No 575/2013;
'leverage' means leverage as defined in point (93) of Article 4(1) of Regulation (EU) No 575/2013;
'risk of excessive leverage' means risk of excessive leverage as defined in point (94) of Article 4(1) of Regulation (EU) No 575/2013;
'external credit assessment institution' means external credit assessment institution as defined in point (98) of Article 4(1) of Regulation (EU) No 575/2013;
'internal approaches' means the internal ratings based approach referred to in Article 143(1), the internal models approach referred to in Article 221, the own estimates approach referred to in Article 225, the advanced measurement approaches referred to in Article 312(2), the internal models method referred to in Articles 283 and 363, and the internal assessment approach referred to in Article 259(3) of Regulation (EU) No 575/2013;
‘resolution authority’ means a resolution authority as defined in point (18) of Article 2(1) of Directive 2014/59/EU of the European Parliament and of the Council ( 1 );
‘global systemically important institution’ or ‘G-SII’ means a G-SII as defined in point (133) of Article 4(1) of Regulation (EU) No 575/2013;
‘non-EU global systemically important institution’ or ‘non-EU G-SII’ means a non-EU G-SII as defined in point (134) of Article 4(1) of Regulation (EU) No 575/2013;
‘group’ means a group as defined in point (138) of Article 4(1) of Regulation (EU) No 575/2013;
‘third-country group’ means a group of which the parent undertaking is established in a third country;
‘gender neutral remuneration policy’ means a remuneration policy based on equal pay for male and female workers for equal work or work of equal value.
In order to ensure that requirements or supervisory powers laid down in this Directive or in Regulation (EU) No 575/2013 apply on a consolidated or sub-consolidated basis in accordance with this Directive and that Regulation, the terms ‘institution’, ‘parent institution in a Member State’, ‘EU parent institution’ and ‘parent undertaking’ shall also include:
financial holding companies and mixed financial holding companies that have been granted approval in accordance with Article 21a of this Directive;
designated institutions controlled by an EU parent financial holding company, an EU parent mixed financial holding company, a parent financial holding company in a Member State or a parent mixed financial holding company in a Member State where the relevant parent is not subject to approval in accordance with Article 21a(4) of this Directive; and
financial holding companies, mixed financial holding companies or institutions designated pursuant to point (d) of Article 21a(6) of this Directive.
TITLE II
COMPETENT AUTHORITIES
Article 4
Designation and powers of the competent authorities
Article 5
Coordination within Member States
Member States that have more than one competent authority for the prudential supervision of credit institutions and financial institutions shall take the requisite measures to organise coordination between such authorities.
Article 6
Cooperation within the European System of Financial Supervision
In the exercise of their duties, the competent authorities shall take into account the convergence in respect of supervisory tools and supervisory practices in the application of the laws, regulations and administrative requirements adopted pursuant to this Directive and to Regulation (EU) No 575/2013. For that purpose, Member States shall ensure that:
the competent authorities, as parties to the European System of Financial Supervision (ESFS), cooperate with trust and full mutual respect, in particular when ensuring the flow of appropriate and reliable information between them and other parties to the ESFS, in accordance with the principle of sincere cooperation set out in Article 4(3) of the Treaty on European Union;
the competent authorities participate in the activities of EBA and, as appropriate, in the colleges of supervisors;
the competent authorities make every effort to comply with those guidelines and recommendations issued by EBA in accordance with Article 16 of Regulation (EU) No 1093/2010 and to respond to the warnings and recommendations issued by the ESRB pursuant to Article 16 of Regulation (EU) No 1092/2010;
the competent authorities cooperate closely with the ESRB;
national mandates conferred on the competent authorities do not inhibit the performance of their duties as members of EBA, of the ESRB, where appropriate, or under this Directive and under Regulation (EU) No 575/2013.
Article 7
Union dimension of supervision
The competent authorities in each Member State shall, in the exercise of their general duties, duly consider the potential impact of their decisions on the stability of the financial system in the other Member States concerned and, in particular, in emergency situations, based on the information available at the relevant time.
TITLE III
REQUIREMENTS FOR ACCESS TO THE ACTIVITY OF CREDIT INSTITUTIONS
CHAPTER 1
General requirements for access to the activity of credit institutions
Article 8
Authorisation
EBA shall develop draft regulatory technical standards to specify:
the information to be provided to the competent authorities in the application for the authorisation of credit institutions, including the programme of operations, structural organisation and governance arrangements provided for in Article 10;
the requirements applicable to shareholders and members with qualifying holdings, or, where there are no qualifying holdings, to the 20 largest shareholders or members, pursuant to Article 14; and
obstacles which may prevent effective exercise of the supervisory functions of the competent authority, as referred to in Article 14.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in points (a), (b) and (c) of the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 8a
Specific requirements for authorisation of credit institutions referred to in point (1)(b) of Article 4(1) of Regulation (EU) No 575/2013
Member States shall require the undertakings referred to in point (1)(b) of Article 4(1) of Regulation (EU) No 575/2013 which have already obtained an authorisation pursuant to Title II of Directive 2014/65/EU to submit an application for authorisation in accordance with Article 8, at the latest on the day when either of the following events takes place:
the average of monthly total assets, calculated over a period of 12 consecutive months, is equal to or exceeds EUR 30 billion; or
the average of monthly total assets calculated over a period of 12 consecutive months is less than EUR 30 billion, and the undertaking is part of a group in which the total value of the consolidated assets of all undertakings in the group that individually have total assets of less than EUR 30 billion and that carry out any of the activities referred to in points (3) and (6) of Section A of Annex I to Directive 2014/65/EU is equal to or exceeds EUR 30 billion, both calculated as an average over a period of 12 consecutive months.
EBA shall develop draft regulatory technical standards to specify:
the information to be provided by the undertaking to the competent authorities in the application for the authorisation, including the programme of operations provided for in Article 10;
the methodology for calculating the thresholds referred to in paragraph 1.
Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in points (a) and (b) of the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
EBA shall submit those draft regulatory technical standards to the Commission by 26 December 2020.
Article 9
Prohibition against persons or undertakings other than credit institutions from carrying out the business of taking deposits or other repayable funds from the public
Article 10
Programme of operations, structural organisation and governance arrangements
Article 11
Economic needs
Member States shall not require the application for authorisation to be examined in terms of the economic needs of the market.
Article 12
Initial capital
Member States may grant authorisation to particular categories of credit institutions the initial capital of which is less than that specified in paragraph 1, subject to the following conditions:
the initial capital is no less than EUR 1 million;
the Member States concerned notify the Commission and EBA of their reasons for exercising that option.
Article 13
Effective direction of the business and place of the head office
They shall refuse such authorisation if the members of the management body do not meet the requirements referred to in Article 91(1).
Each Member State shall require that:
a credit institution which is a legal person and which, under its national law, has a registered office, has its head office in the same Member State as its registered office;
a credit institution other than that referred to in point (a) has its head office in the Member State which granted it authorisation and in which it actually carries out its business.
Article 14
Shareholders and members
In determining whether the criteria for a qualifying holding are fulfilled, the voting rights referred to in Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( 2 ) and the conditions regarding aggregation thereof set out in Article 12(4) and (5) of that Directive, shall be taken into account.
Member States shall not take into account voting rights or shares which institutions hold as a result of providing the underwriting of financial instruments or placing of financial instruments on a firm commitment basis included under point 6 of Section A of Annex I to Directive 2004/39/EC, provided that those rights are not exercised or otherwise used to intervene in the management of the issuer and are disposed of within one year of acquisition.
The competent authorities shall refuse authorisation to commence the activity of a credit institution where the laws, regulations or administrative provisions of a third country governing one or more natural or legal persons with which the credit institution has close links, or difficulties involved in the enforcement of those laws, regulations or administrative provisions, prevent the effective exercise of their supervisory functions.
The competent authorities shall require credit institutions to provide them with the information they require to monitor compliance with the conditions referred to in this paragraph on an ongoing basis.
Article 15
Refusal of authorisation
Where a competent authority refuses authorisation to commence the activity of a credit institution, it shall notify the applicant of the decision and the reasons therefor within six months of receipt of the application or, where the application is incomplete, within six months of receipt of the complete information required for the decision.
A decision to grant or refuse authorisation shall, in any event, be taken within 12 months of the receipt of the application.
Article 16
Prior consultation of the competent authorities of other Member States
The competent authority shall, before granting authorisation to a credit institution, consult the competent authorities of another Member State where the credit institution is:
a subsidiary of a credit institution authorised in that other Member State;
a subsidiary of the parent undertaking of a credit institution authorised in that other Member State;
controlled by the same natural or legal persons as those who control a credit institution authorised in that other Member State.
The competent authority shall, before granting authorisation to a credit institution, consult the competent authority that is responsible for the supervision of insurance undertakings or investment firms in the Member State concerned where the credit institution is:
a subsidiary of an insurance undertaking or investment firm authorised in the Union;
a subsidiary of the parent undertaking of an insurance undertaking or investment firm authorised in the Union;
controlled by the same natural or legal persons as those who control an insurance undertaking or investment firm authorised in the Union.
Article 17
Branches of credit institutions authorised in another Member State
Host Member States shall not require authorisation or endowment capital for branches of credit institutions authorised in other Member States. The establishment and supervision of such branches shall be effected in accordance with Article 35, Article 36(1), (2) and (3), Article 37, Articles 40 to 46, Article 49 and Articles 74 and 75.
Article 18
Withdrawal of authorisation
The competent authorities may only withdraw the authorisation granted to a credit institution where such a credit institution:
does not make use of the authorisation within 12 months, expressly renounces the authorisation or has ceased to engage in business for more than six months, unless the Member State concerned has made provision for the authorisation to lapse in such cases;
uses its authorisation exclusively to engage in the activities referred to in point (1)(b) of Article 4(1) of Regulation (EU) No 575/2013 and has, for a period of five consecutive years, average total assets below the thresholds set out in that Article;
has obtained the authorisation through false statements or any other irregular means;
no longer fulfils the conditions under which authorisation was granted;
no longer meets the prudential requirements set out in Part Three, Four or Six, except for the requirements laid down in Articles 92a and 92b of Regulation (EU) No 575/2013 or imposed under point (a) of Article 104(1) or Article 105 of this Directive or can no longer be relied on to fulfil its obligations towards its creditors, and, in particular, no longer provides security for the assets entrusted to it by its depositors;
falls within one of the other cases where national law provides for withdrawal of authorisation; or
commits one of the breaches referred to in Article 67(1).
Article 19
Name of credit institutions
For the purposes of exercising their activities, credit institutions may, notwithstanding any provisions in the host Member State concerning the use of the words 'bank', 'savings bank' or other banking names, use throughout the territory of the Union the same name that they use in the Member State in which their head office is situated. In the event of there being any danger of confusion, the host Member State may, for the purposes of clarification, require that the name be accompanied by certain explanatory particulars.
Article 20
Notification of authorisation and withdrawal of authorisation
Article 21
Waiver for credit institutions permanently affiliated to a central body
Member States may maintain and make use of existing national law regarding the application of such a waiver provided that it does not conflict with this Directive or with Regulation (EU) No 575/2013.
Article 21a
Approval of financial holding companies and mixed financial holding companies
For the purposes of paragraph 1, financial holding companies and mixed financial holding companies referred to therein shall provide the consolidating supervisor and, where different, the competent authority in the Member State where they are established with the following information:
the structural organisation of the group of which the financial holding company or the mixed financial holding company is part, with a clear indication of its subsidiaries and, where applicable, parent undertakings, and the location and type of activity undertaken by each of the entities within the group;
information regarding the nomination of at least two persons effectively directing the financial holding company or mixed financial holding company and compliance with the requirements set out in Article 121 on qualification of directors;
information regarding compliance with the criteria set out in Article 14 concerning shareholders and members, where the financial holding company or mixed financial holding company has a credit institution as its subsidiary;
the internal organisation and distribution of tasks within the group;
any other information that may be necessary to carry out the assessments referred to in paragraphs 3 and 4 of this Article.
Where the approval of a financial holding company or mixed financial holding company takes place concurrently with the assessment referred to in Article 22, the competent authority for the purposes of that Article shall coordinate, as appropriate, with the consolidating supervisor and, where different, the competent authority in the Member State where the financial holding company or mixed financial holding company is established. ►C3 In that case, the assessment period referred to in the second subparagraph of Article 22(2) shall be suspended for a period exceeding 20 working days until the procedure set out in this Article is complete. ◄
Approval may be granted to a financial holding company or mixed financial holding company pursuant to this Article only where all of the following conditions are fulfilled:
the internal arrangements and distribution of tasks within the group are adequate for the purpose of complying with the requirements imposed by this Directive and Regulation (EU) No 575/2013 on a consolidated or sub-consolidated basis and, in particular, are effective to:
coordinate all the subsidiaries of the financial holding company or mixed financial holding company including, where necessary, through an adequate distribution of tasks among subsidiary institutions;
prevent or manage intra-group conflicts; and
enforce the group-wide policies set by the parent financial holding company or parent mixed financial holding company throughout the group;
the structural organisation of the group of which the financial holding company or mixed financial holding company is part does not obstruct or otherwise prevent the effective supervision of the subsidiary institutions or parent institutions as concerns the individual, consolidated and, where appropriate, sub-consolidated obligations to which they are subject. The assessment of that criterion shall take into account, in particular:
the position of the financial holding company or mixed financial holding company in a multi-layered group;
the shareholding structure; and
the role of the financial holding company or mixed financial holding company within the group;
the criteria set out in Article 14 and the requirements laid down in Article 121 are complied with.
Approval of the financial holding company or mixed financial holding company under this Article shall not be required where all of the following conditions are met:
the financial holding company’s principal activity is to acquire holdings in subsidiaries or, in the case of a mixed financial holding company, its principal activity with respect to institutions or financial institutions is to acquire holdings in subsidiaries;
the financial holding company or mixed financial holding company has not been designated as a resolution entity in any of the group’s resolution groups in accordance with the resolution strategy determined by the relevant resolution authority pursuant to Directive 2014/59/EU;
a subsidiary credit institution is designated as responsible to ensure the group’s compliance with prudential requirements on a consolidated basis and is given all the necessary means and legal authority to discharge those obligations in an effective manner;
the financial holding company or mixed financial holding company does not engage in taking management, operational or financial decisions affecting the group or its subsidiaries that are institutions or financial institutions;
there is no impediment to the effective supervision of the group on a consolidated basis.
Financial holding companies or mixed financial holding companies exempted from approval in accordance with this paragraph shall not be excluded from the perimeter of consolidation as laid down in this Directive and in Regulation (EU) No 575/2013.
The supervisory measures referred to in the first subparagraph may include:
suspending the exercise of voting rights attached to the shares of the subsidiary institutions held by the financial holding company or mixed financial holding company;
issuing injunctions or penalties against the financial holding company, the mixed financial holding company or the members of the management body and managers, subject to Articles 65 to 72;
giving instructions or directions to the financial holding company or mixed financial holding company to transfer to its shareholders the participations in its subsidiary institutions;
designating on a temporary basis another financial holding company, mixed financial holding company or institution within the group as responsible for ensuring compliance with the requirements laid down in this Directive and in Regulation (EU) No 575/2013 on a consolidated basis;
restricting or prohibiting distributions or interest payments to shareholders;
requiring financial holding companies or mixed financial holding companies to divest from or reduce holdings in institutions or other financial sector entities;
requiring financial holding companies or mixed financial holding companies to submit a plan on return, without delay, to compliance.
The joint decision shall be duly documented and reasoned. The consolidating supervisor shall communicate the joint decision to the financial holding company or mixed financial holding company.
In the event of a disagreement, the consolidating supervisor or the competent authority in the Member State where the financial holding company or the mixed financial holding company is established shall refrain from taking a decision and shall refer the matter to EBA in accordance with Article 19 of Regulation (EU) No 1093/2010. EBA shall take its decision within one month of receipt of the referral to EBA. The competent authorities concerned shall adopt a joint decision in conformity with the decision of EBA. The matter shall not be referred to EBA after the end of the two-month period or after a joint decision has been reached.
A decision to grant or refuse approval shall, in any event, be taken within six months of receipt of the application. Refusal may be accompanied, where necessary, by any of the measures referred to in paragraph 6.
Article 21b
Intermediate EU parent undertaking
Competent authorities may allow the institutions referred to in paragraph 1 to have two intermediate EU parent undertakings where they determine that the establishment of a single intermediate EU parent undertaking would:
be incompatible with a mandatory requirement for separation of activities imposed by the rules or supervisory authorities of the third country where the ultimate parent undertaking of the third-country group has its head office; or
render resolvability less efficient than in the case of two intermediate EU parent undertakings according to an assessment carried out by the competent resolution authority of the intermediate EU parent undertaking.
By way of derogation from the first subparagraph of this paragraph, where none of the institutions referred to in paragraph 1 of this Article is a credit institution or where a second intermediate EU parent undertaking must be set up in connection with investment activities to comply with a mandatory requirement as referred to in paragraph 2 of this Article, the intermediate EU parent undertaking or the second intermediate EU parent undertaking, may be an investment firm authorised in accordance with Article 5(1) of Directive 2014/65/EU that is subject to Directive 2014/59/EU.
For the purposes of this Article:
the total value of assets in the Union of the third‐country group shall be the sum of the following:
the total value of assets of each institution in the Union of the third‐country group, as resulting from its consolidated balance sheet or as resulting from their individual balance sheets, where an institution’s balance sheet is not consolidated; and
the total value of assets of each branch of the third‐country group authorised in the Union in accordance with this Directive, Regulation (EU) No 600/2014 of the European Parliament and of the Council ( 4 ) or Directive 2014/65/EU;
the term ‘institution’ shall also include investment firms.
Competent authorities shall notify the following information in respect of each third-country group operating in their jurisdiction to EBA:
the names and the total value of assets of supervised institutions belonging to a third-country group;
the names and the total value of assets corresponding to branches authorised in that Member State in accordance with this Directive, Directive 2014/65/EU or Regulation (EU) No 600/2014, and the types of activities that they are authorised to carry out;
the name and the type as referred to in paragraph 3 of any intermediate EU parent undertaking set up in that Member State and the name of the third-country group of which it is part.
Competent authorities shall ensure that each institution under their jurisdiction that is part of a third-country group meets one of the following conditions:
it has an intermediate EU parent undertaking;
it is an intermediate EU parent undertaking;
it is the only institution in the Union of the third-country group; or
it is part of a third-country group with a total value of assets in the Union of less than EUR 40 billion.
By 30 December 2026 the Commission shall, after consulting EBA, review the requirements imposed on institutions by this Article and submit a report to the European Parliament and to the Council. That report shall, at least, consider:
whether the requirements laid down in this Article are operable, necessary and proportionate and whether other measures would be more appropriate;
whether the requirements imposed on institutions by this Article should be revised to reflect best international practices.
By 28 June 2021, EBA shall submit a report to the European Parliament, to the Council and to the Commission on the treatment of third-country branches under national law of Member States. That report shall, at least, consider:
whether and to what extent supervisory practices under national law for third-country branches differ between Member States;
whether a different treatment of third-country branches under national law could result in regulatory arbitrage;
whether further harmonisation of national regimes for third-country branches would be necessary and appropriate, especially with regard to significant third-country branches.
The Commission shall, if appropriate, submit a legislative proposal to the European Parliament and to the Council, based on the recommendations made by EBA.
CHAPTER 2
Qualifying holding in a credit institution
Article 22
Notification and assessment of proposed acquisitions
The competent authorities shall have a maximum of 60 working days as from the date of the written acknowledgement of receipt of the notification and all documents required by the Member State to be attached to the notification on the basis of the list referred to in Article 23(4) (the "assessment period"), to carry out the assessment provided for in Article 23(1) (the "assessment").
The competent authorities shall inform the proposed acquirer of the date of the expiry of the assessment period at the time of acknowledging receipt.
For the period between the date of request for information by the competent authorities and the receipt of a response thereto by the proposed acquirer, the assessment period shall be suspended. The suspension shall not exceed 20 working days. Any further requests by the competent authorities for completion or clarification of the information shall be at their discretion but shall not result in a suspension of the assessment period.
EBA shall submit those draft implementing technical standards to the Commission by 31 December 2015.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 23
Assessment criteria
In assessing the notification provided for in Article 22(1) and the information referred to in Article 22(3), the competent authorities shall, in order to ensure the sound and prudent management of the credit institution in which an acquisition is proposed, and having regard to the likely influence of the proposed acquirer on that credit institution, assess the suitability of the proposed acquirer and the financial soundness of the proposed acquisition in accordance with the following criteria:
the reputation of the proposed acquirer;
the reputation, knowledge, skills and experience, as set out in Article 91(1), of any member of the management body who will direct the business of the credit institution as a result of the proposed acquisition;
the financial soundness of the proposed acquirer, in particular in relation to the type of business pursued and envisaged in the credit institution in which the acquisition is proposed;
whether the credit institution will be able to comply and continue to comply with the prudential requirements based on this Directive and Regulation (EU) No 575/2013, and where applicable, other Union law, in particular Directives 2002/87/EC and 2009/110/EC, including whether the group of which it will become a part has a structure that makes it possible to exercise effective supervision, effectively exchange information among the competent authorities and determine the allocation of responsibilities among the competent authorities;
whether there are reasonable grounds to suspect that, in connection with the proposed acquisition, money laundering or terrorist financing within the meaning of Article 1 of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing ( 5 ) is being or has been committed or attempted, or that the proposed acquisition could increase the risk thereof.
Article 24
Cooperation between competent authorities
The relevant competent authorities shall fully consult each other when carrying out the assessment if the proposed acquirer is one of the following:
a credit institution, insurance undertaking, reinsurance undertaking, investment firm, or a management company within the meaning of Article 2(1)(b) of Directive 2009/65/EC ("UCITS management company") authorised in another Member State or in a sector other than that in which the acquisition is proposed;
the parent undertaking of a credit institution, insurance undertaking, reinsurance undertaking, investment firm or UCITS management company authorised in another Member State or in a sector other than that in which the acquisition is proposed;
a natural or legal person controlling a credit institution, insurance undertaking, reinsurance undertaking, investment firm or UCITS management company authorised in another Member State or in a sector other than that in which the acquisition is proposed.
Article 25
Notification in the case of a divestiture
Member States shall require any natural or legal person who has taken a decision to dispose, directly or indirectly, of a qualifying holding in a credit institution to notify the competent authorities in writing in advance of the divestiture, indicating the size of the holding concerned. Such a person shall also notify the competent authorities if it has taken a decision to reduce its qualifying holding so that the proportion of the voting rights or of the capital held would fall below 20 %, 30 % or 50 % or so that the credit institution would cease to be its subsidiary. Member States shall not be required to apply the 30 % threshold where, in accordance with Article 9(3)(a) of Directive 2004/109/EC, they apply a threshold of one-third.
Article 26
Information obligations and penalties
Credit institutions admitted to trading on a regulated market shall, at least annually, inform the competent authorities of the names of shareholders and members possessing qualifying holdings and the sizes of such holdings as shown, for example, by the information received at the annual general meetings of shareholders and members or as a result of compliance with the regulations relating to companies admitted to trading on a regulated market.
Similar measures shall apply to natural or legal persons who fail to comply with the obligation to provide prior information as set out in Article 22(1) and subject to Articles 65 to 72.
If a holding is acquired despite opposition by the competent authorities, Member States shall, regardless of any other penalty to be adopted, provide either for exercise of the corresponding voting rights to be suspended, or for the nullity of votes cast or for the possibility of their annulment.
Article 27
Criteria for qualifying holdings
In determining whether the criteria for a qualifying holding as referred to in Articles 22, 25 and 26 are fulfilled, the voting rights referred to in Articles 9, 10 and 11 of Directive 2004/109/EC and the conditions regarding aggregation thereof set out in Article 12(4) and (5) of that Directive, shall be taken into account.
In determining whether the criteria for a qualifying holding as referred to in Article 26 are fulfilled, Member States shall not take into account voting rights or shares which institutions may hold as a result of providing the underwriting of financial instruments or placing of financial instruments on a firm commitment basis included under point 6 of Section A of Annex I to Directive 2004/39/EC, provided that those rights are not exercised or otherwise used to intervene in the management of the issuer and are disposed of within one year of acquisition.
▼M6 —————
TITLE V
PROVISIONS CONCERNING THE FREEDOM OF ESTABLISHMENT AND THE FREEDOM TO PROVIDE SERVICES
CHAPTER 1
General Principles
Article 33
Credit institutions
Member States shall provide that the activities listed in Annex I may be carried out within their territories, in accordance with Article 35, Article 36(1), (2) and (3), Article 39(1) and (2) and Articles 40 to 46 either by establishing a branch or by providing services, by any credit institution authorised and supervised by the competent authorities of another Member State, provided that such activities are covered by the authorisation.
Article 34
Financial institutions
Member States shall provide that the activities listed in Annex I may be carried out within their territories, in accordance with Article 35, Article 36(1), (2) and (3), Article 39(1) and (2) and Articles 40 to 46, either by establishing a branch or by providing services, by any financial institution from another Member State, whether a subsidiary of a credit institution or the jointly owned subsidiary of two or more credit institutions, the memorandum and Articles of association of which permit the carrying out of those activities and which fulfils each of the following conditions:
the parent undertaking or undertakings are authorised as credit institutions in the Member State by the law of which the financial institution is governed;
the activities in question are actually carried out within the territory of the same Member State;
the parent undertaking or undertakings holds 90 % or more of the voting rights attaching to shares in the capital of the financial institution;
the parent undertaking or undertakings satisfies the competent authorities regarding the prudent management of the financial institution and has declared, with the consent of the relevant home Member State competent authorities, that they jointly and severally guarantee the commitments entered into by the financial institution;
the financial institution is effectively included, for the activities in question in particular, in the consolidated supervision of the parent undertaking, or of each of the parent undertakings, in accordance with Title VII, Chapter 3 of this Directive and Part One, Title II, Chapter 2 of Regulation (EU) No 575/2013, in particular for the purposes of the own funds requirements set out in Article 92 of that Regulation, for the control of large exposures provided for in Part Four of that Regulation and for the purposes of the limitation of holdings provided for in Articles 89 and 90 of that Regulation.
The competent authorities of the home Member State shall check compliance with the conditions set out in the first subparagraph and shall supply the financial institution with a certificate of compliance which shall form part of the notification referred to in Articles 35 and 39.
CHAPTER 2
The right of establishment of credit institutions
Article 35
Notification requirement and interaction between competent authorities
Member States shall require every credit institution wishing to establish a branch in another Member State to provide all the following information when effecting the notification referred to in paragraph 1:
the Member State within the territory of which it plans to establish a branch;
a programme of operations setting out, inter alia, the types of business envisaged and the structural organisation of the branch;
the address in the host Member State from which documents may be obtained;
the names of those to be responsible for the management of the branch.
The home Member State’s competent authorities shall also communicate the amount and composition of own funds and the sum of the own funds requirements under Article 92 of Regulation (EU) No 575/2013 of the credit institution.
By way of derogation from the second subparagraph, in the case referred to in Article 34 the home Member State’s competent authorities shall communicate the amount and composition of own funds of the financial institution and the total risk exposure amounts calculated in accordance with Article 92(3) and (4) of Regulation (EU) No 575/2013 of the credit institution which is its parent undertaking.
That refusal or a failure to reply shall be subject to a right to apply to the courts in the home Member State.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 36
Commencement of activities
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 37
Information about refusals
Member States shall inform the Commission and EBA of the number and type of cases in which there has been a refusal pursuant to Article 35 and Article 36(3).
Article 38
Aggregation of branches
Any number of places of business set up in the same Member State by a credit institution with headquarters in another Member State shall be regarded as a single branch.
CHAPTER 3
Exercise of the freedom to provide services
Article 39
Notification procedure
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
CHAPTER 4
Powers of the competent authorities of the host Member State
Article 40
Reporting requirements
The competent authorities of the host Member States may require that all credit institutions having branches within their territories shall report to them periodically on their activities in those host Member States.
Such reports shall only be required for information or statistical purposes, for the application of Article 51(1), or for supervisory purposes in accordance with this Chapter. They shall be subject to professional secrecy requirements at least equivalent to those referred to in Article 53(1).
The competent authorities of the host Member States may in particular require information from the credit institutions referred to in the first subparagraph in order to allow those competent authorities to assess whether a branch is significant in accordance with Article 51(1).
Article 41
Measures taken by the competent authorities of the home Member State in relation to activities carried out in the host Member State
Where the competent authorities of the host Member State on the basis of information received from the competent authorities of the home Member State under Article 50 ascertain that a credit institution having a branch or providing services within its territory fulfils one of the following conditions in relation to the activities carried out in that host Member State, they shall inform the competent authorities of the home Member State:
the credit institution does not comply with the national provisions transposing this Directive or with Regulation (EU) No 575/2013;
there is a material risk that the credit institution will not comply with the national provisions transposing this Directive or with Regulation (EU) No 575/2013.
The competent authorities of the home Member State shall, without delay, take all appropriate measures to ensure that the credit institution concerned remedies its non-compliance or takes measures to avert the risk of non-compliance. The competent authorities of the home Member State shall communicate those measures to the competent authorities of the host Member State without delay.
Article 42
Reasons and communication
Any measure taken pursuant to Article 41(1), or Article 43 or 44 involving penalties or restrictions on the exercise of the freedom to provide services or the freedom of establishment shall be properly reasoned and communicated to the credit institution concerned.
Article 43
Precautionary measures
Where the competent authorities of the home Member State or of any other affected Member State object to measures taken by the competent authorities of the host Member State, they may refer the matter to EBA and request its assistance in accordance with Article 19 of Regulation (EU) No 1093/2010. Where EBA acts in accordance with that Article, it shall take any decision under Article 19(3) of that Regulation within 24 hours. EBA may also assist the competent authorities in reaching an agreement on its own initiative in accordance with the second subparagraph of Article 19(1) of that Regulation.
Article 44
Powers of host Member States
Host Member States may, notwithstanding Articles 40 and 41, exercise the powers conferred on them under this Directive to take appropriate measures to prevent or to punish breaches committed within their territories of the rules they have adopted pursuant to this Directive or in the interests of the general good. This shall include the possibility of preventing offending credit institutions from initiating further transactions within their territories.
Article 45
Measures following withdrawal of authorisation
In the event of withdrawal of authorisation, the competent authorities of the home Member State shall inform the competent authorities of the host Member State without delay. The competent authorities of the host Member State shall take appropriate measures to prevent the credit institution concerned from initiating further transactions within its territory and to safeguard the interests of depositors.
Article 46
Advertising
Nothing in this Chapter shall prevent credit institutions with head offices in other Member States from advertising their services through all available means of communication in the host Member State, subject to any rules governing the form and the content of such advertising adopted in the interests of the general good.
TITLE VI
RELATIONS WITH THIRD COUNTRIES
Article 47
Notification in relation to third-country branches and conditions of access for credit institutions with such branches
A Member State shall require branches of credit institutions having their head office in a third country to report at least annually to the competent authorities the following information:
the total assets corresponding to the activities of the branch authorised in that Member State;
information on the liquid assets available to the branch, in particular availability of liquid assets in Member State currencies;
the own funds that are at the disposal of the branch;
the deposit protection arrangements available to depositors in the branch;
the risk management arrangements;
the governance arrangements, including key function holders for the activities of the branch;
the recovery plans covering the branch; and
any other information considered by the competent authority necessary to enable comprehensive monitoring of the activities of the branch.
The competent authorities shall notify EBA of the following:
all the authorisations for branches granted to credit institutions having their head office in a third country and any subsequent changes to such authorisations;
total assets and liabilities of the authorised branches of credit institutions having their head office in a third country, as periodically reported;
the name of the third-country group to which an authorised branch belongs.
EBA shall publish on its website a list of all third-country branches authorised to operate in the Union, indicating the Member State in which they are authorised to operate.
EBA shall facilitate the cooperation among competent authorities for the purposes of the first subparagraph of this paragraph, including when verifying whether the threshold referred to in Article 21b(4) is met.
Article 48
Cooperation with supervisory authorities of third countries regarding supervision on a consolidated basis
The Commission may submit proposals to the Council, either at the request of a Member State or on its own initiative, for the negotiation of agreements with one or more third countries regarding the means of exercising supervision on a consolidated basis over the following:
institutions the parent undertakings of which have their head offices in a third country;
institutions situated in third countries the parent undertakings of which, whether institutions, financial holding companies or mixed financial holding companies, have their head offices in the Union.
The agreements referred to in paragraph 1 shall, in particular, seek to ensure that:
the competent authorities of the Member States are able to obtain the information necessary for the supervision, on the basis of their consolidated financial situations, of institutions, financial holding companies and mixed financial holding companies situated in the Union which have as subsidiaries institutions or financial institutions situated in a third country, or holding participation therein;
the supervisory authorities of third countries are able to obtain the information necessary for the supervision of parent undertakings the head offices of which are situated within their territories and which have as subsidiaries institutions or financial institutions situated in one or more Member States or holding participation therein; and
EBA is able to obtain from the competent authorities of the Member States the information received from national authorities of third countries in accordance with Article 35 of Regulation (EU) No 1093/2010.
TITLE VII
PRUDENTIAL SUPERVISION
CHAPTER 1
Principles of prudential supervision
Article 49
Competence of the competent authorities of the home and host Member States
Article 50
Collaboration concerning supervision
Where the competent authorities of the home Member State disagree with the measures to be taken by the competent authorities of the host Member State, they may refer the matter to EBA and request its assistance in accordance with Article 19 of Regulation (EU) No 1093/2010. Where EBA acts in accordance with that Article, it shall take any decision within one month.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 51
Significant branches
That request shall provide reasons for considering the branch to be significant with particular regard to the following:
whether the market share of the branch in terms of deposits exceeds 2 % in the host Member State;
the likely impact of a suspension or closure of the operations of the institution on systemic liquidity and the payment, clearing and settlement systems in the host Member State;
the size and the importance of the branch in terms of number of clients within the context of the banking or financial system of the host Member State.
The competent authorities of the home and host Member States, and, where Article 112(1) applies, the consolidating supervisor, shall do everything within their power to reach a joint decision on the designation of a branch as being significant.
If no joint decision is reached within two months of receipt of a request under the first subparagraph, the competent authorities of the host Member State shall take their own decision within a further period of two months on whether the branch is significant. In taking their decision, the competent authorities of the host Member State shall take into account any views and reservations of the consolidating supervisor or the competent authorities of the home Member State.
The decisions referred to in the third and fourth subparagraphs shall be set out in a document containing full reasons, shall be transmitted to the competent authorities concerned and shall be recognised as determinative and applied by the competent authorities in the Member States concerned.
The designation of a branch as being significant shall not affect the rights and responsibilities of the competent authorities under this Directive.
If a competent authority of a home Member State becomes aware of an emergency situation as referred to in Article 114(1), it shall alert without delay the authorities referred to in Article 58(4) and Article 59(1).
The competent authorities of the home Member State shall communicate to the competent authorities of the host Member States where significant branches are established the results of the risk assessments of institutions with such branches referred to in Article 97 and, where applicable, Article 113(2). They shall also communicate decisions under Articles 104 and 105 in so far as those assessments and decisions are relevant to those branches.
The competent authorities of the home Member States shall consult the competent authorities of the host Member States where significant branches are established about operational steps required by Article 86(11), where relevant for liquidity risks in the host Member State’s currency.
Where the competent authorities of the home Member State have not consulted the competent authorities of the host Member State, or where, following such consultation, the competent authorities of the host Member State maintain that operational steps required by Article 86(11) are not adequate, the competent authorities of the host Member State may refer the matter to EBA and request its assistance in accordance with Article 19 of Regulation (EU) No 1093/2010.
The decision of the competent authority of the home Member State shall take account of the relevance of the supervisory activity to be planned or coordinated for those authorities, in particular the potential impact on the stability of the financial system in the Member States concerned referred to in Article 7 and the obligations referred to in paragraph 2 of this Article.
The competent authority of the home Member State shall keep all members of the college fully informed, in advance, of the organisation of such meetings, the main issues to be discussed and the activities to be considered. The competent authority of the home Member State shall also keep all the members of the college fully informed, in a timely manner, of the actions taken in those meetings or the measures carried out.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 52
On-the-spot checking and inspection of branches established in another Member State
Article 53
Professional secrecy
Confidential information which such persons, auditors or experts receive in the course of their duties may be disclosed only in summary or aggregate form, such that individual credit institutions cannot be identified, without prejudice to cases covered by criminal law.
Nevertheless, where a credit institution has been declared bankrupt or is being compulsorily wound up, confidential information which does not concern third parties involved in attempts to rescue that credit institution may be disclosed in civil or commercial proceedings.
Article 54
Use of confidential information
Competent authorities receiving confidential information under Article 53 shall use it only in the course of their duties and only for any of the following purposes:
to check that the conditions governing access to the activity of credit institutions are met and to facilitate monitoring, on a non-consolidated or consolidated basis, of the conduct of such activity, especially with regard to the monitoring of liquidity, solvency, large exposures, and administrative and accounting procedures and internal control mechanisms;
to impose penalties;
in an appeal against a decision of the competent authority including court proceedings pursuant to Article 72;
in court proceedings initiated pursuant to special provisions provided for in Union law adopted in the field of credit institutions.
Article 54a
Articles 53 and 54 shall be without prejudice to the powers of investigation conferred on the European Parliament pursuant to Article 226 TFEU.
Article 55
Cooperation agreements
Member States and EBA, in accordance with Article 33 of Regulation (EU) No 1093/2010, may conclude cooperation agreements, providing for exchanges of information, with the supervisory authorities of third countries or with authorities or bodies of third countries in accordance with Article 56 and Article 57(1) of this Directive only if the information disclosed is subject to a guarantee that professional secrecy requirements at least equivalent to those referred to in Article 53(1) of this Directive are complied with. Such exchange of information shall be for the purpose of performing the supervisory tasks of those authorities or bodies.
Where the information originates in another Member State, it shall only be disclosed with the express agreement of the authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement.
Article 56
Exchange of information between authorities
Article 53(1) and Article 54 shall not preclude the exchange of information between competent authorities within a Member State, between competent authorities in different Member States or between competent authorities and the following, in the discharge of their supervisory functions:
authorities entrusted with the public duty of supervising other financial sector entities and the authorities responsible for the supervision of financial markets;
authorities or bodies charged with responsibility for maintaining the stability of the financial system in Member States through the use of macroprudential rules;
reorganisation bodies or authorities aiming at protecting the stability of the financial system;
contractual or institutional protection schemes as referred to in Article 113(7) of Regulation (EU) No 575/2013;
bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures;
persons responsible for carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions;
authorities responsible for supervising the obliged entities listed in points (1) and (2) of Article 2(1) of Directive (EU) 2015/849 of the European Parliament and of the Council ( 9 ) for compliance with that Directive, and financial intelligence units;
competent authorities or bodies responsible for the application of rules on structural separation within a banking group.
Article 53(1) and Article 54 shall not preclude the disclosure to bodies which administer deposit-guarantee schemes and investor compensation schemes of information necessary for the exercise of their functions.
The information received shall in any event be subject to professional secrecy requirements at least equivalent to those referred to in Article 53(1).
Article 57
Exchange of information with oversight bodies
Notwithstanding Articles 53, 54 and 55, Member States shall ensure that an exchange of information can take place between the competent authorities and the authorities responsible for oversight:
the bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures;
contractual or institutional protection schemes as referred to in Article 113(7) of Regulation (EU) No 575/2013;
persons charged with carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions.
In the cases referred to in paragraph 1, Member States shall require fulfilment of at least the following conditions:
that the information is exchanged for the purpose of performing the tasks referred to in paragraph 1;
that the information received is subject to professional secrecy requirements at least equivalent to those referred to in Article 53(1);
where the information originates in another Member State, that it is not disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement.
In such cases Member States shall require fulfilment of at least the following conditions:
that the information is exchanged for the purpose of detecting and investigating breaches of company law;
that the information received is subject to professional secrecy requirements at least equivalent to those referred to in Article 53(1);
where the information originates in another Member State, that it is not disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement.
Article 58
Transmission of information concerning monetary, deposit protection, systemic and payment aspects
Nothing in this Chapter shall prevent a competent authority from transmitting information to the following for the purposes of their tasks:
ESCB central banks and other bodies with a similar function in their capacity as monetary authorities when the information is relevant for the exercise of their respective statutory tasks, including the conduct of monetary policy and related liquidity provision, oversight of payments, clearing and settlement systems and the safeguarding of stability of the financial system;
contractual or institutional protection schemes as referred to in Article 113(7) of Regulation (EU) No 575/2013;
where appropriate, other public authorities responsible for overseeing payment systems;
the ESRB, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) ("EIOPA"), established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council ( 10 ) and ESMA, where that information is relevant for the exercise of their tasks under Regulations (EU) No 1092/2010, (EU) No 1094/2010 or (EU) No 1095/2010.
Member States shall take the appropriate measures to remove obstacles preventing competent authorities from transmitting information in accordance with the first subparagraph.
Article 58a
Transmission of information to international bodies
Notwithstanding Article 53(1) and Article 54, competent authorities may, subject to the conditions set out in paragraphs 2, 3 and 4 of this Article, transmit or share certain information with the following:
the International Monetary Fund and the World Bank, for the purposes of assessments for the Financial Sector Assessment Program;
the Bank for International Settlements, for the purposes of quantitative impact studies;
the Financial Stability Board, for the purposes of its surveillance function.
Competent authorities may only share confidential information following an explicit request by the relevant body, where at least the following conditions are met:
the request is duly justified in light of the specific tasks performed by the requesting body in accordance with its statutory mandate;
the request is sufficiently precise as to the nature, scope, and format of the required information, and the means of its disclosure or transmission;
the requested information is strictly necessary for the performance of the specific tasks of the requesting body and does not go beyond the statutory tasks conferred on the requesting body;
the information is transmitted or disclosed exclusively to the persons directly involved in the performance of the specific task;
the persons having access to the information are subject to professional secrecy requirements at least equivalent to those referred to in Article 53(1).
Article 59
Transmission of information to other entities
However, such disclosures may be made only where necessary for reasons of prudential supervision, and prevention and resolution of failing institutions. Without prejudice to paragraph 2 of this Article, persons having access to the information shall be subject to professional secrecy requirements at least equivalent to those referred to in Article 53(1).
In an emergency situation as referred to in Article 114(1), Member States shall allow competent authorities to disclose information which is relevant to the departments referred to in the first subparagraph of this paragraph in all Member States concerned.
Member States may authorise the disclosure of certain information relating to the prudential supervision of institutions to parliamentary enquiry committees in their Member State, courts of auditors in their Member State and other entities in charge of enquiries in their Member State, under the following conditions:
that the entities have a precise mandate under national law to investigate or scrutinise the actions of authorities responsible for the supervision of institutions or for laws on such supervision;
that the information is strictly necessary for fulfilling the mandate referred to in point (a);
the persons with access to the information are subject to professional secrecy requirements under national law at least equivalent to those referred to in Article 53(1);
where the information originates in another Member State that it is not disclosed without the express agreement of the competent authorities which have disclosed it and, solely for the purposes for which those authorities gave their agreement.
To the extent that the disclosure of information relating to prudential supervision involves processing of personal data, any processing by the entities referred to in the first subparagraph shall comply with the applicable national laws transposing Directive 95/46/EC.
Article 60
Disclosure of information obtained by on-the-spot checks and inspections
Member States shall ensure that information received under Article 52(3), Article 53(2) and Article 56 and information obtained by means of an on-the-spot check or inspection referred to in Article 52(1) and (2) shall not be disclosed under Article 59 save with the express consent of the competent authorities which disclosed the information or of the competent authorities of the Member State in which such an on-the-spot check or inspection was carried out.
Article 61
Disclosure of information concerning clearing and settlement services
Article 62
Processing of personal data
The processing of personal data for the purposes of this Directive shall be carried out in accordance with Directive 95/46/EC and, where relevant, with Regulation (EC) No 45/2001.
Article 63
Duty of persons responsible for the legal control of annual and consolidated accounts
Member States shall provide that any person authorised in accordance with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts ( 12 ) and performing in an institution the tasks described in Article 51 of Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies ( 13 ), Article 37 of Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts ( 14 ) Article 73 of Directive 2009/65/EC, or any other statutory task, shall at least have a duty to report promptly to the competent authorities any fact or decision concerning that institution of which that person has become aware while carrying out that task, which is liable to:
constitute a material breach of the laws, regulations or administrative provisions which lay down the conditions governing authorisation or which specifically govern pursuit of the activities of institutions;
affect the ongoing functioning of the institution;
lead to refusal to certify the accounts or to the expression of reservations.
Member States shall provide at least that a person referred to in the first subparagraph shall also have a duty to report any fact or decision of which that person becomes aware in the course of carrying out a task as described in the first subparagraph in an undertaking having close links resulting from a control relationship with the institution within which he is carrying out that task.
Member States shall provide that competent authorities may require the replacement of a person referred to in the first subparagraph if that person acts in breach of his or her obligations under the first subparagraph.
Article 64
Supervisory powers and powers to impose penalties
Competent authorities shall exercise their supervisory powers and their powers to impose penalties in accordance with this Directive and with national law, in any of the following ways:
directly;
in collaboration with other authorities;
under their responsibility by delegation to such authorities;
by application to the competent judicial authorities.
Article 65
Administrative penalties and other administrative measures
Competent authorities shall have all information gathering and investigatory powers that are necessary for the exercise of their functions. Without prejudice to other relevant provisions laid down in this Directive and in Regulation (EU) No 575/2013 those powers shall include:
the power to require the following natural or legal persons to provide all information that is necessary in order to carry out the tasks of the competent authorities, including information to be provided at recurring intervals and in specified formats for supervisory and related statistical purposes:
institutions established in the Member State concerned;
financial holding companies established in the Member State concerned;
mixed financial holding companies established in the Member State concerned;
mixed-activity holding companies established in the Member State concerned;
persons belonging to the entities referred to in points (i) to (iv);
third parties to whom the entities referred to in points (i) to (iv) have outsourced functions or activities, including ICT third-party service providers referred to in Chapter V of Regulation (EU) 2022/2554 of the European Parliament and of the Council ( 15 );
the power to conduct all necessary investigations of any person referred to in points (a)(i) to (vi) established or located in the Member State concerned where necessary to carry out the tasks of the competent authorities, including:
the right to require the submission of documents;
to examine the books and records of the persons referred to in points(a)(i) to (vi) and take copies or extracts from such books and records;
to obtain written or oral explanations from any person referred to in points (a) (i) to (vi) or their representatives or staff; and
to interview any other person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation;
the power, subject to other conditions set out in Union law, to conduct all necessary inspections at the business premises of the legal persons referred to in points (a)(i) to (vi) and any other undertaking included in consolidated supervision where a competent authority is the consolidating supervisor, subject to the prior notification of the competent authorities concerned. If an inspection requires authorisation by a judicial authority under national law, such authorisation shall be applied for.
Article 66
Administrative penalties and other administrative measures for breaches of authorisation requirements and requirements for acquisitions of qualifying holdings
Member States shall ensure that their laws, regulations and administrative provisions provide for administrative penalties and other administrative measures at least in respect of:
carrying out the business of taking deposits or other repayable funds from the public without being a credit institution in breach of Article 9;
carrying out at least one of the activities referred to in point (1)(b) of Article 4(1) of Regulation (EU) No 575/2013 and meeting the threshold indicated in that Article without being authorised as a credit institution;
commencing activities as a credit institution without obtaining authorisation in breach of Article 9;
acquiring, directly or indirectly, a qualifying holding in a credit institution or further increasing, directly or indirectly, such a qualifying holding in a credit institution as a result of which the proportion of the voting rights or of the capital held would reach or exceed the thresholds referred to in Article 22(1) or so that the credit institution would become its subsidiary, without notifying in writing the competent authorities of the credit institution in which they are seeking to acquire or increase a qualifying holding, during the assessment period, or against the opposition of the competent authorities, in breach of Article 22(1);
disposing, directly or indirectly, of a qualifying holding in a credit institution or reducing a qualifying holding so that the proportion of the voting rights or of the capital held would fall below the thresholds referred to in Article 25 or so that the credit institution would cease to be a subsidiary, without notifying in writing the competent authorities;
failing to apply for approval in breach of Article 21a or any other breach of the requirements set out in that Article.
Member States shall ensure that in the cases referred to in paragraph 1, the administrative penalties and other administrative measures that can be applied include at least the following:
a public statement which identifies the natural person, institution, financial holding company or mixed financial holding company responsible and the nature of the breach;
an order requiring the natural or legal person responsible to cease the conduct and to desist from a repetition of that conduct;
in the case of a legal person, administrative pecuniary penalties of up to 10 % of the total annual net turnover including the gross income consisting of interest receivable and similar income, income from shares and other variable or fixed-yield securities, and commissions or fees receivable in accordance with Article 316 of Regulation (EU) No 575/2013 of the undertaking in the preceding business year;
in the case of a natural person, administrative pecuniary penalties of up to EUR 5 000 000 , or in the Member States whose currency is not the euro, the corresponding value in the national currency on 17 July 2013;
administrative pecuniary penalties of up to twice the amount of the benefit derived from the breach where that benefit can be determined;
suspension of the voting rights of the shareholder or shareholders held responsible for the breaches referred to in paragraph 1.
Where the undertaking referred to in point (c) of the first subparagraph is a subsidiary of a parent undertaking, the relevant gross income shall be the gross income resulting from the consolidated account of the ultimate parent undertaking in the preceding business year.
Article 67
Other provisions
This Article shall apply at least in any of the following circumstances:
an institution has obtained an authorisation through false statements or any other irregular means;
an institution, on becoming aware of any acquisitions or disposals of holdings in their capital that cause holdings to exceed or fall below one of the thresholds referred to in Article 22(1) or Article 25, fails to inform the competent authorities of those acquisitions or disposals in breach of the first subparagraph of Article 26(1);
an institution listed on a regulated market as referred to in the list to be published by ESMA in accordance with Article 47 of Directive 2004/39/EC does not, at least annually, inform the competent authorities of the names of shareholders and members possessing qualifying holdings and the sizes of such holdings in breach of the second subparagraph of Article 26(1) of this Directive;
an institution fails to have in place governance arrangements required by the competent authorities in accordance with the national provisions transposing Article 74;
an institution fails to report information or provides incomplete or inaccurate information on compliance with the obligation to meet own funds requirements set out in Article 92 of Regulation (EU) No 575/2013 to the competent authorities in breach of Article 99(1) of that Regulation;
an institution fails to report or provides incomplete or inaccurate information to the competent authorities in relation to the data referred to in Article 101 of Regulation (EU) No 575/2013;
an institution fails to report information or provides incomplete or inaccurate information about a large exposure to the competent authorities in breach of Article 394(1) of Regulation (EU) No 575/2013;
an institution fails to report information or provides incomplete or inaccurate information on liquidity to the competent authorities in breach of Article 415(1) and (2) of Regulation (EU) No 575/2013;
an institution fails to report information or provides incomplete or inaccurate information on the leverage ratio to the competent authorities in breach of Article 430(1) of Regulation (EU) No 575/2013;
an institution repeatedly or persistently fails to hold liquid assets in breach of Article 412 of Regulation (EU) No 575/2013;
an institution incurs an exposure in excess of the limits set out in Article 395 of Regulation (EU) No 575/2013;
an institution is exposed to the credit risk of a securitisation position without satisfying the conditions set out in Article 405 of Regulation (EU) No 575/2013;
an institution fails to disclose information or provides incomplete or inaccurate information in breach of Article 431(1), (2) and (3) or Article 451(1) of Regulation (EU) No 575/2013;
an institution makes payments to holders of instruments included in the own funds of the institution in breach of Article 141 of this Directive ►C2 or in cases where Article 28, 52 or 63 of Regulation (EU) No 575/2013 prohibit such payments to holders of instruments included in own funds; ◄
an institution is found liable for a serious breach of the national provisions adopted pursuant to Directive 2005/60/EC;
an institution allows one or more persons not complying with Article 91 to become or remain a member of the management body;
a parent institution, a parent financial holding company or a parent mixed financial holding company fails to take any action that may be required to ensure compliance with the prudential requirements set out in Part Three, Four, Six or Seven of Regulation (EU) No 575/2013 or imposed under point (a) of Article 104(1) or Article 105 of this Directive on a consolidated or sub-consolidated basis.;
Member States shall ensure that in the cases referred to in paragraph 1, the administrative penalties and other administrative measures that can be applied include at least the following:
a public statement which identifies the natural person, institution, financial holding company or mixed financial holding company responsible and the nature of the breach;
an order requiring the natural or legal person responsible to cease the conduct and to desist from a repetition of that conduct;
in the case of an institution, withdrawal of the authorisation of the institution in accordance with Article 18;
subject to Article 65(2), a temporary ban against a member of the institution’s management body or any other natural person, who is held responsible, from exercising functions in institutions;
in the case of a legal person, administrative pecuniary penalties of up to 10 % of the total annual net turnover including the gross income consisting of interest receivable and similar income, income from shares and other variable or fixed-yield securities, and commissions or fees receivable in accordance with Article 316 of Regulation (EU) No 575/2013 of the undertaking in the preceding business year;
in the case of a natural person, administrative pecuniary penalties of up to EUR 5 000 000 , or in the Member States whose currency is not the euro, the corresponding value in the national currency on 17 July 2013;
administrative pecuniary penalties of up to twice the amount of the profits gained or losses avoided because of the breach where those can be determined.
Where an undertaking referred to in point (e) of the first subparagraph is a subsidiary of a parent undertaking, the relevant gross income shall be the gross income resulting from the consolidated account of the ultimate parent undertaking in the preceding business year.
Article 68
Publication of administrative penalties
Where Member States permit publication of penalties against which there is an appeal, competent authorities shall, without undue delay, also publish on their official website information on the appeal status and outcome thereof.
Competent authorities shall publish the penalties on an anonymous basis, in a manner in accordance with national law, in any of the following circumstances:
where the penalty is imposed on a natural person and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
where publication would jeopardise the stability of financial markets or an ongoing criminal investigation;
where publication would cause, insofar as it can be determined, disproportionate damage to the institutions or natural persons involved.
Alternatively, where the circumstances referred to in the first subparagraph are likely to cease within a reasonable period of time, publication under paragraph 1 may be postponed for such a period of time.
Article 69
Exchange of information on penalties and maintenance of a central database by EBA
Article 70
Effective application of penalties and exercise of powers to impose penalties by competent authorities
Member States shall ensure that when determining the type of administrative penalties or other administrative measures and the level of administrative pecuniary penalties, the competent authorities shall take into account all relevant circumstances, including, where appropriate:
the gravity and the duration of the breach;
the degree of responsibility of the natural or legal person responsible for the breach;
the financial strength of the natural or legal person responsible for the breach, as indicated, for example, by the total turnover of a legal person or the annual income of a natural person;
the importance of profits gained or losses avoided by the natural or legal person responsible for the breach, insofar as they can be determined;
the losses for third parties caused by the breach, insofar as they can be determined;
the level of cooperation of the natural or legal person responsible for the breach with the competent authority;
previous breaches by the natural or legal person responsible for the breach;
any potential systemic consequences of the breach.
Article 71
Reporting of breaches
The mechanisms referred to in paragraph 1 shall include at least:
specific procedures for the receipt of reports on breaches and their follow-up;
appropriate protection for employees of institutions who report breaches committed within the institution against retaliation, discrimination or other types of unfair treatment at a minimum;
protection of personal data concerning both the person who reports the breaches and the natural person who is allegedly responsible for a breach, in accordance with Directive 95/46/EC;
clear rules that ensure that confidentiality is guaranteed in all cases in relation to the person who reports the breaches committed within the institution, unless disclosure is required by national law in the context of further investigations or subsequent judicial proceedings.
Such a channel may also be provided through arrangements provided for by social partners. The same protection as referred to in points (b), (c) and (d) of paragraph 2 shall apply.
Article 72
Right of appeal
Member States shall ensure that decisions and measures taken pursuant to laws, regulations and administrative provisions adopted in accordance with this Directive or to Regulation (EU) No 575/2013 are subject to a right of appeal. Member States shall also ensure that failure to take a decision within six months of submission of an application for authorisation which contains all the information required under the national provisions transposing this Directive, is subject to a right of appeal.
CHAPTER 2
Review Processes
Article 73
Internal Capital
Institutions shall have in place sound, effective and comprehensive strategies and processes to assess and maintain on an ongoing basis the amounts, types and distribution of internal capital that they consider adequate to cover the nature and level of the risks to which they are or might be exposed.
Those strategies and processes shall be subject to regular internal review to ensure that they remain comprehensive and proportionate to the nature, scale and complexity of the activities of the institution concerned.
Article 74
Internal governance and recovery and resolution plans
Institutions shall have robust governance arrangements, which include a clear organisational structure with well-defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks they are or might be exposed to, adequate internal control mechanisms, including sound administration and accounting procedures, network and information systems that are set up and managed in accordance with Regulation (EU) 2022/2554, and remuneration policies and practices that are consistent with and promote sound and effective risk management.
◄The remuneration policies and practices referred to in the first subparagraph shall be gender neutral.
EBA shall issue guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010, on gender neutral remuneration policies for institutions.
Within two years of the date of publication of the guidelines referred to in the second subparagraph and based on the information collected by the competent authorities, EBA shall issue a report on the application of gender neutral remuneration policies by institutions.
Article 75
Oversight of remuneration policies
ESMA shall cooperate closely with EBA to develop guidelines on remuneration policies for categories of staff involved in the provision of investment services and activities within the meaning of point 2 of Article 4(1) of Directive 2004/39/EC.
EBA shall use the information received from the competent authorities in accordance with paragraph 1 to benchmark remuneration trends and practices at Union level.
Article 76
Treatment of risks
Member States shall ensure that the management body develops specific plans and quantifiable targets in accordance with the requirements laid down in Article 7a of Regulation (EU) No 648/2012 to monitor and address the concentration risk arising from exposures towards central counterparties offering services of substantial systemic importance for the Union or one or more of its Member States.
The risk committee shall advise the management body on the institution’s overall current and future risk appetite and strategy and assist the management body in overseeing the implementation of that strategy by senior management. The management body shall retain overall responsibility for risks.
The risk committee shall review whether prices of liabilities and assets offered to clients take fully into account the institution’s business model and risk strategy. Where prices do not properly reflect risks in accordance with the business model and risk strategy, the risk committee shall present a remedy plan to the management body.
Competent authorities may allow an institution which is not considered significant as referred to in the first subparagraph to combine the risk committee with the audit committee as referred to in Article 41 of Directive 2006/43/EC. Members of the combined committee shall have the knowledge, skills and expertise required for the risk committee and for the audit committee.
The management body in its supervisory function and, where one has been established, the risk committee shall determine the nature, the amount, the format, and the frequency of the information on risk which it is to receive. In order to assist in the establishment of sound remuneration policies and practices, the risk committee shall, without prejudice to the tasks of the remuneration committee, examine whether incentives provided by the remuneration system take into consideration risk, capital, liquidity and the likelihood and timing of earnings.
Member States shall ensure that the risk management function ensures that all material risks are identified, measured and properly reported. They shall ensure that the risk management function is actively involved in elaborating the institution’s risk strategy and in all material risk management decisions and that it can deliver a complete view of the whole range of risks of the institution.
Where necessary, Member States shall ensure that the risk management function can report directly to the management body in its supervisory function, independent from senior management, and can raise concerns and warn that body, where appropriate, where specific risk developments affect or may affect the institution, without prejudice to the responsibilities of the management body in its supervisory and/or managerial functions pursuant to this Directive and Regulation (EU) No 575/2013.
The head of the risk management function shall be an independent senior manager with distinct responsibility for the risk management function. Where the nature, scale and complexity of the activities of the institution do not justify a specially appointed person, another senior person within the institution may fulfil that function, provided there is no conflict of interest.
The head of the risk management function shall not be removed without prior approval of the management body in its supervisory function and shall be able to have direct access to the management body in its supervisory function where necessary.
▼M6 —————
Article 77
Internal Approaches for calculating own funds requirements
This Article shall be without prejudice to the fulfilment of the criteria laid down in Part Three, Title IV, Chapter 5, Sections 1 to 5, of Regulation (EU) No 575/2013.
EBA shall submit those draft regulatory technical standards to the Commission by 1 January 2014.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 78
Supervisory benchmarking of internal approaches for calculating own funds requirements
Competent authorities shall, on the basis of the information submitted by institutions in accordance with paragraph 1, monitor the range of risk weighted exposure amounts or own funds requirements, as applicable, except for operational risk, for the exposures or transactions in the benchmark portfolio resulting from the internal approaches of those institutions. At least annually, competent authorities shall make an assessment of the quality of those approaches paying particular attention to:
those approaches that exhibit significant differences in own fund requirements for the same exposure;
approaches where there is particularly high or low diversity, and also where there is a significant and systematic under-estimation of own funds requirements.
EBA shall produce a report to assist the competent authorities in the assessment of the quality of the internal approaches based on the information referred to in paragraph 2.
The competent authorities shall ensure that their decisions on the appropriateness of corrective actions as referred to in paragraph 4 comply with the principle that such actions must maintain the objectives of an internal approach and therefore do not:
lead to standardisation or preferred methods;
create wrong incentives; or
cause herd behaviour.
EBA shall develop draft regulatory technical standards to specify:
the procedures for sharing assessments made in accordance with paragraph 3 between the competent authorities and with EBA;
the standards for the assessment made by competent authorities referred to in paragraph 3.
EBA shall submit those draft regulatory technical standards to the Commission by 1 January 2014.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
EBA shall develop draft implementing technical standards to specify:
the template, the definitions and the IT-solutions to be applied in the Union for the reporting referred to in paragraph 2;
the benchmark portfolio or portfolios referred to in paragraph 1.
EBA shall submit those draft implementing technical standards to the Commission by 1 January 2014.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 79
Credit and counterparty risk
Competent authorities shall ensure that:
credit-granting is based on sound and well-defined criteria and that the process for approving, amending, renewing, and re-financing credits is clearly established;
institutions have internal methodologies that enable them to assess the credit risk of exposures to individual obligors, securities or securitisation positions and credit risk at the portfolio level. In particular, internal methodologies shall not rely solely or mechanistically on external credit ratings. Where own funds requirements are based on a rating by an External Credit Assessment Institution (ECAI) or based on the fact that an exposure is unrated, this shall not exempt institutions from additionally considering other relevant information for assessing their allocation of internal capital;
the ongoing administration and monitoring of the various credit risk-bearing portfolios and exposures of institutions, including for identifying and managing problem credits and for making adequate value adjustments and provisions, is operated through effective systems;
diversification of credit portfolios is adequate given an institution’s target markets and overall credit strategy.
Article 80
Residual risk
Competent authorities shall ensure that the risk that recognised credit risk mitigation techniques used by institutions prove less effective than expected is addressed and controlled including by means of written policies and procedures.
Article 81
Concentration risk
Competent authorities shall ensure that the concentration risk arising from exposures to each counterparty, including central counterparties, groups of connected counterparties, and counterparties in the same economic sector, geographic region or from the same activity or commodity, the application of credit risk mitigation techniques, and including in particular risks associated with large indirect credit exposures such as a single collateral issuer, is addressed and controlled including by means of written policies and procedures.
Competent authorities shall assess and monitor developments in the practices of institutions concerning the management of their concentration risk arising from exposures towards central counterparties, including the plans developed in accordance with Article 76(2), fifth subparagraph of this Directive, as well as the progress made in adapting their business models to the requirements laid down in Article 7a of Regulation (EU) No 648/2012.
Article 82
Securitisation risk
Article 83
Market risk
Institutions, which have, in calculating own funds requirements for position risk in accordance with Part Three, Title IV, Chapter 2, of Regulation (EU) No 575/2013, netted off their positions in one or more of the equities constituting a stock-index against one or more positions in the stock-index future or other stock-index product shall have adequate internal capital to cover the basis risk of loss caused by the future’s or other product’s value not moving fully in line with that of its constituent equities. Institutions shall also have such adequate internal capital where they hold opposite positions in stock-index futures which are not identical in respect of either their maturity or their composition or both.
Where using the treatment in Article 345 of Regulation (EU) No 575/2013, institutions shall ensure that they hold sufficient internal capital against the risk of loss which exists between the time of the initial commitment and the following working day.
Article 84
Interest risk arising from non-trading book activities
EBA shall submit those draft regulatory technical standards to the Commission by 28 June 2020.
Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
EBA shall issue guidelines to specify the criteria for:
the evaluation by an institution’s internal system of the risks referred to in paragraph 1;
the identification, management and mitigation by institutions of the risks referred to in paragraph 1;
the assessment and monitoring by institutions of the risks referred to in paragraph 2;
determining which of the internal systems implemented by institutions for the purposes of paragraph 1 are not satisfactory as referred to in paragraph 3.
EBA shall issue those guidelines by 28 June 2020.
Article 85
Operational risk
Article 86
Liquidity risk
Competent authorities shall monitor developments in relation to liquidity risk profiles, for example product design and volumes, risk management, funding policies and funding concentrations.
Competent authorities shall take effective action where developments referred to in the second subparagraph may lead to individual institution or systemic instability.
Competent authorities shall inform EBA about any actions carried out pursuant to the third subparagraph.
EBA shall make recommendations where appropriate in accordance with Regulation (EU) No 1093/2010.
Article 87
Risk of excessive leverage
Article 88
Governance arrangements
Those arrangements shall comply with the following principles:
the management body must have the overall responsibility for the institution and approve and oversee the implementation of the institution’s strategic objectives, risk strategy and internal governance;
the management body must ensure the integrity of the accounting and financial reporting systems, including financial and operational controls and compliance with the law and relevant standards;
the management body must oversee the process of disclosure and communications;
the management body must be responsible for providing effective oversight of senior management;
the chairman of the management body in its supervisory function of an institution must not exercise simultaneously the functions of a chief executive officer within the same institution, unless justified by the institution and authorised by competent authorities.
Member States shall ensure that the management body monitors and periodically assesses the effectiveness of the institution’s governance arrangements and takes appropriate steps to address any deficiencies.
Member States shall ensure that data on loans to members of the management body and their related parties are properly documented and made available to competent authorities upon request.
For the purposes of this Article, the term ‘related party’ means:
a spouse, registered partner in accordance with national law, child or parent of a member of the management body;
a commercial entity, in which a member of the management body or his or her close family member as referred to in point (a) has a qualifying holding of 10 % or more of capital or of voting rights in that entity, or in which those persons can exercise significant influence, or in which those persons hold senior management positions or are members of the management body.
The nomination committee shall:
identify and recommend, for the approval of the management body or for approval of the general meeting, candidates to fill management body vacancies, evaluate the balance of knowledge, skills, diversity and experience of the management body and prepare a description of the roles and capabilities for a particular appointment, and assess the time commitment expected.
Furthermore, the nomination committee shall decide on a target for the representation of the underrepresented gender in the management body and prepare a policy on how to increase the number of the underrepresented gender in the management body in order to meet that target. The target, policy and its implementation shall be made public in accordance with Article 435(2)(c) of Regulation (EU) No 575/2013;
periodically, and at least annually, assess the structure, size, composition and performance of the management body and make recommendations to the management body with regard to any changes;
periodically, and at least annually, assess the knowledge, skills and experience of individual members of the management body and of the management body collectively, and report to the management body accordingly;
periodically review the policy of the management body for selection and appointment of senior management and make recommendations to the management body.
In performing its duties, the nomination committee shall, to the extent possible and on an ongoing basis, take account of the need to ensure that the management body’s decision making is not dominated by any one individual or small group of individuals in a manner that is detrimental to the interests of the institution as a whole.
The nomination committee shall be able to use any forms of resources that it considers to be appropriate, including external advice, and shall receive appropriate funding to that effect.
Where, under national law, the management body does not have any competence in the process of selection and appointment of any of its members, this paragraph shall not apply.
Article 89
Country-by-country reporting
From 1 January 2015 Member States shall require each institution to disclose annually, specifying, by Member State and by third country in which it has an establishment, the following information on a consolidated basis for the financial year:
name(s), nature of activities and geographical location;
turnover;
number of employees on a full time equivalent basis;
profit or loss before tax;
tax on profit or loss;
public subsidies received.
In the event that the Commission report identifies significant negative effects, the Commission shall consider making an appropriate legislative proposal for an amendment of the disclosure obligations set out in paragraph 1 and may, in accordance with point (h) of Article 145, decide to defer those obligations. The Commission shall review the necessity to extend deferral annually.
By 30 June 2021, the Commission shall, on the basis of the consultation with EBA, EIOPA and ESMA, report to the European Parliament and to the Council on the assessment referred to in this paragraph and, where appropriate, submit a legislative proposal to the European Parliament and to the Council.
Article 90
Public disclosure of return on assets
Institutions shall disclose in their annual report among the key indicators their return on assets, calculated as their net profit divided by their total balance sheet.
Article 91
Management body
Where members of the management body do not fulfil the requirements set out in this paragraph, competent authorities shall have the power to remove such members from the management body. The competent authorities shall in particular verify whether the requirements set out in this paragraph are still fulfilled where they have reasonable grounds to suspect that money laundering or terrorist financing is being or has been committed or attempted, or there is increased risk thereof in connection with that institution.
The number of directorships which may be held by a member of the management body at the same time shall take into account individual circumstances and the nature, scale and complexity of the institution’s activities. Unless representing the Member State, members of the management body of an institution that is significant in terms of its size, internal organisation and the nature, the scope and the complexity of its activities shall, from 1 July 2014, not hold more than one of the following combinations of directorships at the same time:
one executive directorship with two non-executive directorships;
four non-executive directorships.
For the purposes of paragraph 3, the following shall count as a single directorship:
executive or non-executive directorships held within the same group;
executive or non-executive directorships held within:
institutions which are members of the same institutional protection scheme provided that the conditions set out in Article 113(7) of Regulation (EU) No 575/2013 are fulfilled; or
undertakings (including non-financial entities) in which the institution holds a qualifying holding.
EBA shall issue guidelines on the following:
the notion of sufficient time commitment of a member of the management body to perform his functions, in relation to the individual circumstances and the nature, scale and complexity of activities of the institution;
the notion of adequate collective knowledge, skills and experience of the management body as referred to in paragraph 7;
the notions of honesty, integrity and independence of mind of a member of the management body as referred to in paragraph 8;
the notion of adequate human and financial resources devoted to the induction and training of members of the management body as referred to in paragraph 9;
the notion of diversity to be taken into account for the selection of members of the management body as referred to in paragraph 10;
the consistent application of the power referred to in the second subparagraph of paragraph 1.
EBA shall issue those guidelines by 31 December 2015.
Article 92
Remuneration policies
▼M5 —————
►M5 Member States shall ensure that, when establishing and applying the total remuneration policies, inclusive of salaries and discretionary pension benefits, for categories of staff whose professional activities have a material impact on the institution’s risk profile, institutions comply with the following requirements in a manner that is appropriate to their size, internal organisation and the nature, scope and complexity of their activities: ◄
the remuneration policy is consistent with and promotes sound and effective risk management and does not encourage risk-taking that exceeds the level of tolerated risk of the institution;
the remuneration policy is a gender neutral remuneration policy;
the remuneration policy is in line with the business strategy, objectives, values and long-term interests of the institution, and incorporates measures to avoid conflicts of interest;
the institution’ s management body in its supervisory function adopts and periodically reviews the general principles of the remuneration policy and is responsible for overseeing its implementation;
the implementation of the remuneration policy is, at least annually, subject to central and independent internal review for compliance with policies and procedures for remuneration adopted by the management body in its supervisory function;
staff engaged in control functions are independent from the business units they oversee, have appropriate authority, and are remunerated in accordance with the achievement of the objectives linked to their functions, independent of the performance of the business areas they control;
the remuneration of the senior officers in the risk management and compliance functions is directly overseen by the remuneration committee referred to in Article 95 or, if such a committee has not been established, by the management body in its supervisory function;
the remuneration policy, taking into account national criteria on wage setting, makes a clear distinction between criteria for setting:
basic fixed remuneration, which should primarily reflect relevant professional experience and organisational responsibility as set out in an employee’s job description as part of the terms of employment; and
variable remuneration which should reflect a sustainable and risk adjusted performance as well as performance in excess of that required to fulfil the employee’s job description as part of the terms of employment.
For the purposes of paragraph 2, categories of staff whose professional activities have a material impact on the institution’s risk profile shall, at least, include:
all members of the management body and senior management;
staff members with managerial responsibility over the institution’s control functions or material business units;
staff members entitled to significant remuneration in the preceding financial year, provided that the following conditions are met:
the staff member’s remuneration is equal to or greater than EUR 500 000 and equal to or greater than the average remuneration awarded to the members of the institution’s management body and senior management referred to in point (a);
the staff member performs the professional activity within a material business unit and the activity is of a kind that has a significant impact on the relevant business unit’s risk profile.
Article 93
Institutions that benefit from government intervention
In the case of institutions that benefit from exceptional government intervention, the following principles shall apply in addition to those set out in Article 92(2):
variable remuneration is strictly limited as a percentage of net revenue where it is inconsistent with the maintenance of a sound capital base and timely exit from government support;
the relevant competent authorities require institutions to restructure remuneration in a manner aligned with sound risk management and long-term growth, including, where appropriate, establishing limits to the remuneration of the members of the management body of the institution;
no variable remuneration is paid to members of the management body of the institution unless justified.
Article 94
Variable elements of remuneration
For variable elements of remuneration, the following principles shall apply in addition to, and under the same conditions as, those set out in Article 92(2):
where remuneration is performance related, the total amount of remuneration is based on a combination of the assessment of the performance of the individual and of the business unit concerned and of the overall results of the institution and when assessing individual performance, financial and non-financial criteria are taken into account;
the assessment of the performance is set in a multi-year framework in order to ensure that the assessment process is based on longer-term performance and that the actual payment of performance-based components of remuneration is spread over a period which takes account of the underlying business cycle of the credit institution and its business risks;
the total variable remuneration does not limit the ability of the institution to strengthen its capital base;
guaranteed variable remuneration is not consistent with sound risk management or the pay-for-performance principle and shall not be a part of prospective remuneration plans;
guaranteed variable remuneration is exceptional, occurs only when hiring new staff and where the institution has a sound and strong capital base and is limited to the first year of employment;
fixed and variable components of total remuneration are appropriately balanced and the fixed component represents a sufficiently high proportion of the total remuneration to allow the operation of a fully flexible policy on variable remuneration components, including the possibility to pay no variable remuneration component;
institutions shall set the appropriate ratios between the fixed and the variable component of the total remuneration, whereby the following principles shall apply:
the variable component shall not exceed 100 % of the fixed component of the total remuneration for each individual. Member States may set a lower maximum percentage;
Members States may allow shareholders or owners or members of the institution to approve a higher maximum level of the ratio between the fixed and variable components of remuneration provided the overall level of the variable component shall not exceed 200 % of the fixed component of the total remuneration for each individual. Member States may set a lower maximum percentage.
Any approval of a higher ratio in accordance with the first subparagraph of this point shall be carried out in accordance with the following procedure:
Member States may allow institutions to apply the discount rate referred to in the second subparagraph of this point to a maximum of 25 % of total variable remuneration provided it is paid in instruments that are deferred for a period of not less than five years. Member States may set a lower maximum percentage.
EBA shall prepare and publish, by 31 March 2014, guidelines on the applicable notional discount rate taking into account all relevant factors including inflation rate and risk, which includes length of deferral. The EBA guidelines on the discount rate shall specifically consider how to incentivise the use of instruments which are deferred for a period of not less than five years;
payments relating to the early termination of a contract reflect performance achieved over time and do not reward failure or misconduct;
remuneration packages relating to compensation or buy out from contracts in previous employment must align with the long-term interests of the institution including retention, deferral, performance and clawback arrangements;
the measurement of performance used to calculate variable remuneration components or pools of variable remuneration components includes an adjustment for all types of current and future risks and takes into account the cost of the capital and the liquidity required;
the allocation of the variable remuneration components within the institution shall also take into account all types of current and future risks;
a substantial portion, and in any event at least 50 %, of any variable remuneration shall consist of a balance of the following:
shares or, subject to the legal structure of the institution concerned, equivalent ownership interests; or share-linked instruments or, subject to the legal structure of the institution concerned, equivalent non-cash instruments;
where possible, other instruments within the meaning of Article 52 or 63 of Regulation (EU) No 575/2013 or other instruments which can be fully converted to Common Equity Tier 1 instruments or written down, that in each case adequately reflect the credit quality of the institution as a going concern and are appropriate to be used for the purposes of variable remuneration.
The instruments referred to in this point shall be subject to an appropriate retention policy designed to align incentives with the longer-term interests of the institution. Member States or their competent authorities may place restrictions on the types and designs of those instruments or prohibit certain instruments as appropriate. This point shall be applied to both the portion of the variable remuneration component deferred in accordance with point (m) and the portion of the variable remuneration component not deferred;
a substantial portion, and in any event at least 40 %, of the variable remuneration component is deferred over a period which is not less than four to five years and is correctly aligned with the nature of the business, its risks and the activities of the staff member concerned. For members of the management body and senior management of institutions that are significant in terms of their size, internal organisation and the nature, scope and complexity of their activities, the deferral period should not be less than five years.
Remuneration payable under deferral arrangements shall vest no faster than on a pro-rata basis. In the case of a variable remuneration component of a particularly high amount, at least 60 % of the amount shall be deferred. The length of the deferral period shall be established in accordance with the business cycle, the nature of the business, its risks and the activities of the staff member concerned;
the variable remuneration, including the deferred portion, is paid or vests only if it is sustainable according to the financial situation of the institution as a whole, and justified on the basis of the performance of the institution, the business unit and the individual concerned.
Without prejudice to the general principles of national contract and labour law, the total variable remuneration shall generally be considerably contracted where subdued or negative financial performance of the institution occurs, taking into account both current remuneration and reductions in payouts of amounts previously earned, including through malus or clawback arrangements.
Up to 100 % of the total variable remuneration shall be subject to malus or clawback arrangements. Institutions shall set specific criteria for the application of malus and clawback. Such criteria shall in particular cover situations where the staff member:
participated in or was responsible for conduct which resulted in significant losses to the institution;
failed to meet appropriate standards of fitness and propriety;
the pension policy is in line with the business strategy, objectives, values and long-term interests of the institution.
If the employee leaves the institution before retirement, discretionary pension benefits shall be held by the institution for a period of five years in the form of instruments referred to in point (l). Where an employee reaches retirement, discretionary pension benefits shall be paid to the employee in the form of instruments referred to in point (l) subject to a five-year retention period;
staff members are required to undertake not to use personal hedging strategies or remuneration- and liability-related insurance to undermine the risk alignment effects embedded in their remuneration arrangements;
variable remuneration is not paid through vehicles or methods that facilitate the non-compliance with this Directive or Regulation (EU) No 575/2013.
EBA shall submit those draft regulatory technical standards to the Commission by 31 March 2014.
For the purpose of identifying staff whose professional activities have a material impact on the institution’s risk profile as referred to in Article 92(3), except as regards staff in investment firms, EBA shall develop draft regulatory technical standards setting out the criteria to define the following:
managerial responsibility and control functions;
material business unit and significant impact on the relevant business unit’s risk profile; and
other categories of staff not expressly referred to in Article 92(3) whose professional activities have an impact on the institution’s risk profile comparably as material as that of those categories of staff referred to therein.
EBA shall submit those draft regulatory technical standards to the Commission by 28 December 2019.
Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010. As regards regulatory technical standards applying to investment firms, the empowerment laid down in Article 94(2) of this Directive as amended by Directive (EU) 2018/843 of the European Parliament and of the Council ( 18 ) shall continue to apply until 26 June 2021.
By way of derogation from paragraph 1, the requirements set out in points (l) and (m) and in the second paragraph of point (o) of that paragraph shall not apply to:
an institution that is not a large institution as defined in point (146) of Article 4(1) of Regulation (EU) No 575/2013 and the value of the assets of which is on average and on an individual basis in accordance with this Directive and Regulation (EU) No 575/2013 equal to or less than EUR 5 billion over the four-year period immediately preceding the current financial year;
a staff member whose annual variable remuneration does not exceed EUR 50 000 and does not represent more than one third of the staff member’s total annual remuneration.
By way of derogation from point (a) of paragraph 3, a Member State may lower or increase the threshold referred to therein, provided that:
the institution in relation to which the Member State makes use of this provision is not a large institution as defined in point (146) of Article 4(1) of Regulation (EU) No 575/2013 and, where the threshold is increased:
the institution meets the criteria set out in points (145)(c), (d) and (e) of Article 4(1) of Regulation (EU) No 575/2013; and
the threshold does not exceed EUR 15 billion;
it is appropriate to modify the threshold in accordance with this paragraph taking into account the institution’s nature, scope and complexity of its activities, its internal organisation or, if applicable, the characteristics of the group to which it belongs.
Article 95
Remuneration Committee
Article 96
Maintenance of a website on corporate governance and remuneration
Institutions that maintain a website shall explain there how they comply with the requirements of Articles 88 to 95.
Article 97
Supervisory review and evaluation
Taking into account the technical criteria set out in Article 98, the competent authorities shall review the arrangements, strategies, processes and mechanisms implemented by the institutions to comply with this Directive and Regulation (EU) No 575/2013 and evaluate:
risks to which the institutions are or might be exposed;
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risks revealed by stress testing taking into account the nature, scale and complexity of an institution’s activities;
risks revealed by digital operational resilience testing in accordance with Chapter IV of Regulation (EU) 2022/2554.
When conducting the review and evaluation referred to in paragraph 1 of this Article, competent authorities shall apply the principle of proportionality in accordance with the criteria disclosed pursuant to point (c) of Article 143(1).
Where competent authorities use tailored methodologies pursuant to this paragraph, they shall notify EBA. EBA shall monitor supervisory practices and issue guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010, specifying how similar risk profiles shall be assessed for the purposes of this paragraph and to ensure the consistent and proportionate application of methodologies across the Union that are tailored to similar institutions.
Article 98
Technical criteria for the supervisory review and evaluation
In addition to credit, market and operational risks, the review and evaluation performed by competent authorities pursuant to Article 97 shall include at least:
the results of the stress test carried out in accordance with Article 177 of Regulation (EU) No 575/2013 by institutions applying an internal ratings based approach;
the exposure to and management of concentration risk by institutions, including their compliance with the requirements set out in Part Four of Regulation (EU) No 575/2013 and Article 81 of this Directive;
the robustness, suitability and manner of application of the policies and procedures implemented by institutions for the management of the residual risk associated with the use of recognised credit risk mitigation techniques;
the extent to which the own funds held by an institution in respect of assets which it has securitised are adequate having regard to the economic substance of the transaction, including the degree of risk transfer achieved;
the exposure to, measurement and management of liquidity risk by institutions, including the development of alternative scenario analyses, the management of risk mitigants (in particular the level, composition and quality of liquidity buffers) and effective contingency plans;
the impact of diversification effects and how such effects are factored into the risk measurement system;
the results of stress tests carried out by institutions using an internal model to calculate market risk own funds requirements under Part Three, Title IV, Chapter 5 of Regulation (EU) No 575/2013;
the geographical location of institutions’ exposures;
the business model of the institution.
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The supervisory powers shall be exercised at least in the following cases:
where an institution’s economic value of equity as referred to in Article 84(1) declines by more than 15 % of its Tier 1 capital as a result of a sudden and unexpected change in interest rates as set out in any of the six supervisory shock scenarios applied to interest rates;
where an institution’s net interest income as referred to in Article 84(1) experiences a large decline as a result of a sudden and unexpected change in interest rates as set out in any of the two supervisory shock scenarios applied to interest rates.
Notwithstanding the second subparagraph, competent authorities shall not be obliged to exercise supervisory powers where they consider, based on the review and evaluation referred to in this paragraph, that the institution’s management of interest rate risk arising from non-trading book activities is adequate and that the institution is not excessively exposed to interest rate risk arising from non-trading book activities.
For the purposes of this paragraph, the term ‘supervisory powers’ means the powers referred to in Article 104(1) or the power to specify modelling and parametric assumptions, other than those identified by EBA pursuant to point (b) of paragraph 5a of this Article, to be reflected by institutions in their calculation of the economic value of equity under Article 84(1).
EBA shall develop draft regulatory technical standards to specify for the purposes of paragraph 5:
the six supervisory shock scenarios as referred to in point (a) of the second subparagraph of paragraph 5 and the two supervisory shock scenarios as referred to in point (b) of the second subparagraph of paragraph 5 to be applied to interest rates for every currency;
in light of internationally agreed prudential standards, the common modelling and parametric assumptions, excluding behavioural assumptions, that institutions shall reflect in their calculations of the economic value of equity as referred to in point (a) of the second subparagraph of paragraph 5, which shall be limited to:
the treatment of the institution’s own equity;
the inclusion, composition and discounting of cash flows sensitive to interest rates arising from the institution’s assets, liabilities and off-balance-sheet items, including the treatment of commercial margins and other spread components;
the use of dynamic or static balance sheet models and the resulting treatment of amortised and maturing positions.
in light of internationally agreed standards, the common modelling and parametric assumptions, excluding behavioural assumptions, that institutions shall reflect in their calculations of the net interest income as referred to in point (b) of the second subparagraph of paragraph 5 which shall be limited to:
the inclusion and composition of cash flows sensitive to interest rates arising from the institution’s assets, liabilities and off-balance-sheet items, including the treatment of commercial margins and other spread components;
the use of dynamic or static balance sheet models and the resulting treatment of amortised and maturing positions;
the period over which future net interest income shall be measured;
what constitutes a large decline as referred to in point (b) of the second subparagraph of paragraph 5.
EBA shall submit those draft regulatory technical standards to the Commission by 28 June 2020.
Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
For the purposes of the first subparagraph, EBA’s assessment shall comprise at least the following:
the development of a uniform definition of ESG risks, including physical risks and transition risks; the latter shall comprise the risks related to the depreciation of assets due to regulatory changes;
the development of appropriate qualitative and quantitative criteria for the assessment of the impact of ESG risks on the financial stability of institutions in the short, medium and long term; such criteria shall include stress testing processes and scenario analyses to assess the impact of ESG risks under scenarios with different severities;
the arrangements, processes, mechanisms and strategies to be implemented by the institutions to identify, assess and manage ESG risks;
the analysis methods and tools to assess the impact of ESG risks on lending and financial intermediation activities of institutions.
EBA shall submit a report on its findings to the Commission, the European Parliament and to the Council by 28 June 2021.
On the basis of the outcome of its report, EBA may, if appropriate, issue guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010, regarding the uniform inclusion of ESG risks in the supervisory review and evaluation process performed by competent authorities.
Article 99
Supervisory examination programme
The competent authorities shall, at least annually, adopt a supervisory examination programme for the institutions they supervise. Such programme shall take into account the supervisory review and evaluation process under Article 97. It shall contain the following:
an indication of how competent authorities intend to carry out their tasks and allocate their resources;
an identification of which institutions are intended to be subject to enhanced supervision and the measures taken for such supervision as set out in paragraph 3;
a plan for inspections at the premises used by an institution, including its branches and subsidiaries established in other Member States in accordance with Articles 52, 119 and 122.
Supervisory examination programmes shall include the following institutions:
institutions for which the results of the stress tests referred to in points (a) and (g) of Article 98(1) and Article 100, or the outcome of the supervisory review and evaluation process under Article 97, indicate significant risks to their ongoing financial soundness or indicate breaches of national provisions transposing this Directive and of Regulation (EU) No 575/2013;
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any other institution for which the competent authorities deem it to be necessary.
Where appropriate under Article 97 the following measures shall, in particular, be taken if necessary:
an increase in the number or frequency of on-site inspections of the institution;
a permanent presence of the competent authority at the institution;
additional or more frequent reporting by the institution;
additional or more frequent review of the operational, strategic or business plans of the institution;
thematic examinations monitoring specific risks that are likely to materialise.
Article 100
Supervisory stress testing
EBA shall issue the guidelines referred to in the first subparagraph of this paragraph by 25 June 2026.
Article 101
Ongoing review of the permission to use internal approaches
EBA shall develop guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010, which contain benchmarks on the basis of that analysis.
Competent authorities shall take into account that analysis and those benchmarks for the review of the permissions they grant to institutions to use internal approaches.
Article 102
Supervisory measures
Competent authorities shall require an institution to take the necessary measures at an early stage to address relevant problems in the following circumstances:
the institution does not meet the requirements of this Directive or of Regulation (EU) No 575/2013;
the competent authorities have evidence that the institution is likely to breach the requirements of this Directive or of Regulation (EU) No 575/2013 within the following 12 months.
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Article 104
Supervisory powers
For the purposes of Article 97, Article 98(4) and (5), Article 101(4) and Article 102 of this Directive and of the application of Regulation (EU) No 575/2013, competent authorities shall have at least the power to:
require institutions to have additional own funds in excess of the requirements set out in Regulation (EU) No 575/2013, under the conditions set out in Article 104a of this Directive;
require the reinforcement of the arrangements, processes, mechanisms and strategies implemented in accordance with Articles 73 and 74;
require institutions to submit a plan to restore compliance with supervisory requirements pursuant to this Directive and to Regulation (EU) No 575/2013 and set a deadline for its implementation, including improvements to that plan regarding scope and deadline;
require institutions to apply a specific provisioning policy or treatment of assets in terms of own funds requirements;
restrict or limit the business, operations or network of institutions or to request the divestment of activities that pose excessive risks to the soundness of an institution;
require the reduction of the risk inherent in the activities, products and systems of institutions, including outsourced activities;
require institutions to limit variable remuneration as a percentage of net revenues where it is inconsistent with the maintenance of a sound capital base;
require institutions to use net profits to strengthen own funds;
restrict or prohibit distributions or interest payments by an institution to shareholders, members or holders of Additional Tier 1 instruments where the prohibition does not constitute an event of default of the institution;
impose additional or more frequent reporting requirements, including reporting on own funds, liquidity and leverage;
impose specific liquidity requirements, including restrictions on maturity mismatches between assets and liabilities;
require additional disclosures;
require institutions, where the competent authority considers that there is excessive concentration risk arising from exposures towards a central counterparty, to reduce exposures towards that central counterparty or to realign exposures across their clearing accounts in accordance with Article 7a of Regulation (EU) No 648/2012.
For the purposes of Articles 97 to 102, any additional information that may be required from institutions shall be deemed as duplicative where the same or substantially the same information has already been otherwise reported to the competent authority or may be produced by the competent authority.
The competent authority shall not require an institution to report additional information where it has previously received it in a different format or level of granularity and that different format or granularity does not prevent the competent authority from producing information of the same quality and reliability as that produced on the basis of the additional information that would be otherwise reported.
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Article 104a
Additional own funds requirement
Competent authorities shall impose the additional own funds requirement referred to in point (a) of Article 104(1) where, on the basis of the reviews carried out in accordance with Articles 97 and 101, they determine any of the following situations for an individual institution:
the institution is exposed to risks or elements of risk that are not covered or not sufficiently covered, as specified in paragraph 2 of this Article, by the own funds requirements set out in Parts Three, Four and Seven of Regulation (EU) No 575/2013 and in Chapter 2 of Regulation (EU) 2017/2402 of the European Parliament and of the Council ( 19 );
the institution does not meet the requirements set out in Articles 73 and 74 of this Directive or in Article 393 of Regulation (EU) No 575/2013 and it is unlikely that other supervisory measures would be sufficient to ensure that those requirements can be met within an appropriate timeframe;
the adjustments referred to in Article 98(4) are deemed to be insufficient to enable the institution to sell or hedge out its positions within a short period without incurring material losses under normal market conditions;
the evaluation carried out in accordance with Article 101(4) reveals that the non-compliance with the requirements for the application of the permitted approach will likely lead to inadequate own funds requirements;
the institution repeatedly fails to establish or maintain an adequate level of additional own funds to cover the guidance communicated in accordance with Article 104b(3);
other institution-specific situations deemed by the competent authority to raise material supervisory concerns.
The competent authorities shall only impose the additional own funds requirement referred to in point (a) of Article 104(1) to cover the risks incurred by individual institutions due to their activities, including those reflecting the impact of certain economic and market developments on the risk profile of an individual institution.
For the purposes of the first subparagraph, competent authorities shall assess, taking into account the risk profile of each individual institution, the risks to which the institution is exposed, including:
institution-specific risks or elements of such risks that are explicitly excluded from or not explicitly addressed by the own funds requirements set out in Parts Three, Four and Seven of Regulation (EU) No 575/2013 and in Chapter 2 of Regulation (EU) 2017/2402;
institution-specific risks or elements of such risks likely to be underestimated despite compliance with the applicable requirements set out in Parts Three, Four and Seven of Regulation (EU) No 575/2013 and in Chapter 2 of Regulation (EU) 2017/2402.
To the extent that risks or elements of risk are subject to transitional arrangements or grandfathering provisions laid down in this Directive or in Regulation (EU) No 575/2013, they shall not be considered risks or elements of such risks likely to be underestimated despite compliance with the applicable requirements set out in Parts Three, Four and Seven of Regulation (EU) No 575/2013 and in Chapter 2 of Regulation (EU) 2017/2402.
For the purposes of the first subparagraph, the capital considered adequate shall cover all risks or elements of risks identified as material pursuant to the assessment laid down in the second subparagraph of this paragraph that are not covered or not sufficiently covered by the own funds requirements set out in Parts Three, Four and Seven of Regulation (EU) No 575/2013 and in Chapter 2 of Regulation (EU) 2017/2402.
Interest rate risk arising from non-trading book positions may be considered material at least in the cases referred to in Article 98(5), unless the competent authorities, in performing the review and evaluation, come to the conclusion that the institution’s management of interest rate risk arising from non-trading book activities is adequate and that the institution is not excessively exposed to interest rate risk arising from non-trading book activities.
Where additional own funds are required to address the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013, competent authorities shall determine the level of the additional own funds required under point (a) of paragraph 1 of this Article as the difference between the capital considered adequate pursuant to paragraph 2 of this Article and the relevant own funds requirements set out in Parts Three and Seven of Regulation (EU) No 575/2013.
The institution shall meet the additional own funds requirement imposed by the competent authority under point (a) of Article 104(1) to address risks other than the risk of excessive leverage with own funds that satisfy the following conditions:
at least three quarters of the additional own funds requirement shall be met with Tier 1 capital;
at least three quarters of the Tier 1 capital referred to in point (a) shall be composed of Common Equity Tier 1 capital.
The institution shall meet the additional own funds requirement imposed by the competent authority under point (a) of Article 104(1) to address the risk of excessive leverage with Tier 1 capital.
By way of derogation from the first and the second subparagraphs, the competent authority may require the institution to meet its additional own funds requirement with a higher portion of Tier 1 capital or Common Equity Tier 1 capital, where necessary, and having regard to the specific circumstances of the institution.
Own funds that are used to meet the additional own funds requirement referred to in point (a) of Article 104(1) of this Directive imposed by competent authorities to address risks other than the risk of excessive leverage shall not be used to meet any of the following:
own funds requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013;
the combined buffer requirement;
the guidance on additional own funds referred to in Article 104b(3) of this Directive where that guidance addresses risks other than the risk of excessive leverage.
Own funds that are used to meet the additional own funds requirement referred to in point (a) of Article 104(1) of this Directive imposed by competent authorities to address the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013 shall not be used to meet any of the following:
the own funds requirement set out in point (d) of Article 92(1) of Regulation (EU) No 575/2013;
the leverage ratio buffer requirement referred to in Article 92(1a) of Regulation (EU) No 575/2013;
the guidance on additional own funds referred to in Article 104b(3) of this Directive, where that guidance addresses risks of excessive leverage.
Article 104b
Guidance on additional own funds
Pursuant to that review, competent authorities shall determine for each institution the overall level of own funds they consider appropriate.
The guidance on additional own funds shall be the own funds exceeding the relevant amount of own funds required pursuant to Parts Three, Four and Seven of Regulation (EU) No 575/2013, Chapter 2 of Regulation (EU) 2017/2402, point (a) of Article 104(1) and point (6) of Article 128 of this Directive or pursuant to Article 92(1a) of Regulation (EU) No 575/2013, as relevant, which are needed to reach the overall level of own funds considered appropriate by the competent authorities pursuant to paragraph 2 of this Article.
Own funds that are used to meet the guidance on additional own funds communicated in accordance with paragraph 3 of this Article to address risks other than the risk of excessive leverage shall not be used to meet any of the following:
the own funds requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013;
the requirement laid down in Article 104a of this Directive imposed by competent authorities to address risks other than the risk of excessive leverage and the combined buffer requirement.
Own funds that are used to meet the guidance on additional own funds communicated in accordance with paragraph 3 of this Article to address the risk of excessive leverage shall not be used to meet the own funds requirement set out in point (d) of Article 92(1) of Regulation (EU) No 575/2013, the requirement laid down in Article 104a of this Directive imposed by competent authorities to address the risk of excessive leverage and the leverage ratio buffer requirement referred to in Article 92(1a) of Regulation (EU) No 575/2013.
Article 104c
Cooperation with resolution authorities
Competent authorities shall notify the relevant resolution authorities of the additional own funds requirement imposed on institutions pursuant to point (a) of Article 104(1) and of any guidance on additional own funds communicated to institutions in accordance with Article 104b(3).
Article 105
Specific liquidity requirements
For the purposes of determining the appropriate level of liquidity requirements on the basis of the review and evaluation carried out in accordance with Section III, the competent authorities shall assess whether any imposition of a specific liquidity requirement is necessary to capture liquidity risks to which an institution is or might be exposed, taking into account the following:
the particular business model of the institution;
the institution’s arrangements, processes and mechanisms referred to in Section II and in particular in Article 86;
the outcome of the review and evaluation carried out in accordance with Article 97.
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In particular, without prejudice to Article 67, competent authorities should consider the need to apply administrative penalties or other administrative measures, including prudential charges, the level of which broadly relates to the disparity between the actual liquidity position of an institution and any liquidity and stable funding requirements established at national or Union level.
Article 106
Specific publication requirements
Member States shall empower the competent authorities to require institutions:
to publish information referred to in Part Eight of Regulation (EU) No 575/2013 more than once per year, and to set deadlines for publication;
to use specific media and locations for publications other than the financial statements.
Article 107
Consistency of supervisory reviews, evaluations and supervisory measures
Competent authorities shall inform EBA of:
the functioning of their review and evaluation process referred to in Article 97;
the methodology used to base decisions referred to in Articles 98, 100, 101, 102, 104 and 105 on the process referred to in point (a).
EBA shall assess the information provided by competent authorities for the purposes of developing consistency in the supervisory review and evaluation process. It may request additional information from competent authorities in order to complete its assessment, on a proportional basis in accordance with Article 35 of Regulation (EU) No 1093/2010.
In order to increase the degree of such convergence, EBA shall conduct peer reviews in accordance with Article 30 of Regulation (EU) No 1093/2010.
Article 108
Internal capital adequacy assessment process
Competent authorities may waive the requirements set out in Article 73 of this Directive in regard to a credit institution in accordance with Article 10 of Regulation (EU) No 575/2013.
Where the competent authorities waive the application of own funds requirements on a consolidated basis provided for in Article 15 of Regulation (EU) No 575/2013, the requirements of Article 73 of this Directive shall apply on an individual basis.
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Article 109
Institutions’ arrangements, processes and mechanisms
The remuneration requirements laid down in Articles 92, 94 and 95 shall not apply on a consolidated basis to either of the following:
subsidiary undertakings established in the Union where they are subject to specific remuneration requirements in accordance with other Union legal acts;
subsidiary undertakings established in a third country where they would be subject to specific remuneration requirements in accordance with other Union legal acts if they were established in the Union.
By way of derogation from paragraph 4 of this Article, and in order to avoid circumvention of the rules set out in Articles 92, 94 and 95, Member States shall ensure that the requirements laid down in Articles 92, 94 and 95 apply to members of staff of subsidiaries that are not subject to this Directive on an individual basis where:
the subsidiary is either an asset management company, or an undertaking that provides the investment services and activities listed in points (2), (3), (4), (6) and (7) of Section A of Annex I to Directive 2014/65/EU; and
those members of staff have been mandated to perform professional activities that have a direct material impact on the risk profile or the business of the institutions within the group.
Article 110
Review and evaluation and supervisory measures
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CHAPTER 3
Supervision on a consolidated basis
Article 111
Determination of the consolidating supervisor
Where a parent undertaking is a parent credit institution in a Member State or an EU parent credit institution, supervision on a consolidated basis shall be exercised by the competent authority that supervises that parent credit institution in the Member State or that EU parent credit institution on an individual basis.
Where a parent undertaking is a parent investment firm in a Member State or an EU parent investment firm and none of its subsidiaries is a credit institution, supervision on a consolidated basis shall be exercised by the competent authority that supervises that parent investment firm in the Member State or that EU parent investment firm on an individual basis.
Where a parent undertaking is a parent investment firm in a Member State or an EU parent investment firm, and at least one of its subsidiaries is a credit institution, supervision on a consolidated basis shall be exercised by the competent authority of the credit institution, or where there are several credit institutions, the credit institution with the largest balance sheet total.
Where two or more credit institutions or investment firms authorised in the Union have the same parent financial holding company in a Member State, parent mixed financial holding company in a Member State, EU parent financial holding company or EU parent mixed financial holding company, supervision on a consolidated basis shall be exercised by:
the competent authority of the credit institution where there is only one credit institution within the group;
the competent authority of the credit institution with the largest balance sheet total, where there are several credit institutions within the group; or
the competent authority of the investment firm with the largest balance sheet total, where the group does not include any credit institution.
By way of derogation from the third subparagraph of paragraph 1, from point (b) of paragraph 3 and from paragraph 4, where a competent authority supervises on an individual basis more than one credit institution within a group, the consolidating supervisor shall be the competent authority that supervises on an individual basis one or more credit institutions within the group where the sum of the balance sheet totals of those supervised credit institutions is higher than that of the credit institutions supervised on an individual basis by any other competent authority.
By way of derogation from point (c) of paragraph 3, where a competent authority supervises on an individual basis more than one investment firm within a group, the consolidating supervisor shall be the competent authority that supervises on an individual basis one or more investment firms within the group with the highest balance sheet total in aggregate.
Article 112
Coordination of supervisory activities by the consolidating supervisor
In addition to the obligations imposed by this Directive and by Regulation (EU) No 575/2013, the consolidating supervisor shall carry out the following tasks:
coordination of the gathering and dissemination of relevant or essential information in going concern and emergency situations;
planning and coordination of supervisory activities in going-concern situations, including in relation to the activities referred to in Title VII, Chapter 3, in cooperation with the competent authorities involved;
planning and coordination of supervisory activities in cooperation with the competent authorities involved, and if necessary with ESCB central banks, in preparation for and during emergency situations, including adverse developments in institutions or in financial markets using, where possible, existing channels of communication for facilitating crisis management.
EBA may also assist the competent authorities in the event of a disagreement concerning the coordination of supervisory activities under this Article on its own initiative in accordance with the second subparagraph of Article 19(1) of that Regulation.
Article 113
Joint decisions on institution-specific prudential requirements
The consolidating supervisor and the competent authorities responsible for the supervision of subsidiaries of an EU parent institution or an EU parent financial holding company or EU parent mixed financial holding company shall do everything within their power to reach a joint decision:
on the application of Articles 73 and 97 to determine the adequacy of the consolidated level of own funds held by the group of institutions with respect to its financial situation and risk profile and the required level of own funds for the application of point (a) of Article 104(1) to each entity within the group of institutions and on a consolidated basis;
on measures to address any significant matters and material findings relating to liquidity supervision, including relating to the adequacy of the organisation and the treatment of risks as required pursuant to Article 86 and relating to the need for institution-specific liquidity requirements in accordance with Article 105;
on any guidance on additional own funds referred to in Article 104b(3).
The joint decisions referred to in paragraph 1 shall be reached:
for the purposes of point (a) of paragraph 1 of this Article, within four months of submission by the consolidating supervisor of a report containing the risk assessment of the group of institutions in accordance with Article 104a to the other relevant competent authorities;
for the purposes of point (b) of paragraph 1 of this Article, within four months of submission by the consolidating supervisor of a report containing the assessment of the liquidity risk profile of the group of institutions in accordance with Articles 86 and 105;
for the purposes of point (c) of paragraph 1 of this Article, within four months of submission by the consolidating supervisor of a report containing the risk assessment of the group of institutions in accordance with Article 104b.
The joint decisions referred to in paragraph 1 of this Article shall also duly consider the risk assessment of subsidiaries performed by relevant competent authorities in accordance with Articles 73, 97, 104a and 104b.
The joint decisions referred to in points (a) and (b) of paragraph 1 shall be set out in documents containing full reasons which shall be provided to the EU parent institution by the consolidating supervisor. In the event of disagreement, the consolidating supervisor shall at the request of any of the other competent authorities concerned consult EBA. The consolidating supervisor may consult EBA on its own initiative.
The decision on the application of Articles 73, 86 and 97, point (a) of Article 104(1), Article 104b and Article 105 of this Directive shall be taken by the respective competent authorities responsible for supervision of subsidiaries of an EU parent credit institution or EU parent financial holding company or EU parent mixed financial holding company on an individual or sub-consolidated basis after duly considering the views and reservations expressed by the consolidating supervisor. If, at the end of any of the time periods referred to in paragraph 2 of this Article, any of the competent authorities concerned has referred the matter to EBA in accordance with Article 19 of Regulation (EU) No 1093/2010, the competent authorities shall defer their decision and await any decision that EBA shall take in accordance with Article 19(3) of that Regulation, and shall take their decision in conformity with the decision of EBA. The time periods referred to in paragraph 2 of this Article shall be deemed the conciliation periods within the meaning of that Regulation. EBA shall take its decision within one month of receipt of the referral to EBA. The matter shall not be referred to EBA after the end of the four-month period or after a joint decision has been reached.
The decisions shall be set out in a document containing full reasons and shall take into account the risk assessment, views and reservations of the other competent authorities expressed during the time periods referred to in paragraph 2. The document shall be provided by the consolidating supervisor to all competent authorities concerned and to the EU parent institution.
Where EBA has been consulted, all the competent authorities shall consider its advice, and explain any significant deviation therefrom.
The joint decisions referred to in paragraph 1 of this Article and any decision taken in the absence of a joint decision in accordance with paragraph 3 of this Article, shall be updated on an annual basis or, in exceptional circumstances, where a competent authority responsible for the supervision of subsidiaries of an EU parent institution or, EU parent financial holding company or EU parent mixed financial holding company makes a written and fully reasoned request to the consolidating supervisor to update the decision on the application of point (a) of Article 104(1), Articles 104b and 105. In those exceptional circumstances, the update may be addressed on a bilateral basis between the consolidating supervisor and the competent authority making the request.
EBA shall submit those draft implementing technical standards to the Commission by 1 July 2014.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 114
Information requirements in emergency situations
If an ESCB central bank becomes aware of a situation described in the first subparagraph, it shall alert as soon as is practicable the competent authorities referred to in Article 112, and EBA.
Where possible, the competent authority and the authority referred to in Article 58(4) shall use existing channels of communication.
Article 115
Coordination and cooperation arrangements
Under those arrangements additional tasks may be entrusted to the consolidating supervisor and procedures for the decision-making process and for cooperation with other competent authorities, may be specified.
Article 116
Colleges of supervisors
EBA shall contribute to promoting and monitoring the efficient, effective and consistent functioning of colleges of supervisors referred to in this Article in accordance with Article 21 of Regulation (EU) No 1093/2010. To that end, EBA shall participate as appropriate and shall be considered to be a competent authority for that purpose.
Colleges of supervisors shall provide a framework for the consolidating supervisor, EBA and the other competent authorities concerned to carry out the following tasks:
exchanging information between each other and with EBA in accordance with Article 21 of Regulation (EU) No 1093/2010;
agreeing on voluntary entrustment of tasks and voluntary delegation of responsibilities where appropriate;
determining supervisory examination programmes referred to in Article 99 based on a risk assessment of the group in accordance with Article 97;
increasing the efficiency of supervision by removing unnecessary duplication of supervisory requirements, including in relation to the information requests referred to in Article 114 and Article 117(3);
consistently applying the prudential requirements under this Directive and under Regulation (EU) No 575/2013 across all entities within a group of institutions without prejudice to the options and discretions available in Union law;
applying Article 112(1)(c) taking into account the work of other forums that may be established in that area.
EBA shall submit those draft regulatory technical standards to the Commission by 31 December 2014.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
EBA shall submit those draft implementing technical standards to the Commission by 31 December 2014.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
The competent authority in the Member State where a financial holding company or a mixed financial holding company that has been granted approval in accordance with Article 21a is established may participate in the relevant college of supervisors.
In the event of a disagreement between competent authorities on the functioning of supervisory colleges, any of the competent authorities concerned may refer the matter to EBA and request its assistance in accordance with Article 19 of Regulation (EU) No 1093/2010.
EBA may also assist the competent authorities in the event of a disagreement concerning the functioning of supervisory colleges under this Article on its own initiative in accordance with the second subparagraph of Article 19(1) of that Regulation.
Article 116a
Accessibility of information on the European single access point
From 10 January 2030, Member States shall ensure that the information referred to in Article 68(1) and (2) and Article 131(12) of this Directive is made accessible on the European single access point (ESAP) established under Regulation (EU) 2023/2859 of the European Parliament and of the Council ( 20 ). For that purpose, the collection body as defined in Article 2, point (2), of that Regulation shall be the competent authority or the designated authority.
Member States shall ensure that the information complies with the following requirements:
be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859;
be accompanied by the following metadata:
all the names of the natural person or institution to which the information relates;
where available, the legal entity identifier of the institution, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859;
the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation;
an indication of whether the information contains personal data.
Article 117
Cooperation obligations
The competent authorities shall cooperate with EBA for the purposes of this Directive and Regulation (EU) No 575/2013, in accordance with Regulation (EU) No 1093/2010.
The competent authorities shall provide EBA with all information necessary to carry out its duties under this Directive, under Regulation (EU) No 575/2013, and under Regulation (EU) No 1093/2010, in accordance with Article 35 of Regulation (EU) No 1093/2010.
Information referred to in the first subparagraph shall be regarded as essential if it could materially influence the assessment of the financial soundness of an institution or financial institution in another Member State.
In particular, consolidating supervisors of EU parent institutions and institutions controlled by EU parent financial holding companies or EU parent mixed financial holding companies shall provide the competent authorities in other Member States who supervise subsidiaries of those parent undertakings with all relevant information. In determining the extent of relevant information, the importance of those subsidiaries within the financial system in those Member States shall be taken into account.
The essential information referred to in the first subparagraph shall include, in particular, the following items:
identification of the group’s legal structure and the governance structure including organisational structure, covering all regulated entities, non-regulated entities, non-regulated subsidiaries and significant branches belonging to the group, the parent undertakings, in accordance with Article 14(3), Article 74(1) and Article 109(2), and of the competent authorities of the regulated entities in the group;
procedures for the collection of information from the institutions in a group, and the checking of that information;
adverse developments in institutions or in other entities of a group, which could seriously affect the institutions;
significant penalties and exceptional measures taken by competent authorities in accordance with this Directive, including the imposition of a specific own fund requirement under Article 104 and the imposition of any limitation on the use of the Advanced Measurement Approach for the calculation of the own funds requirements under Article 312(2) of Regulation (EU) No 575/2013.
The competent authorities may refer to EBA any of the following situations:
where a competent authority has not communicated essential information;
where a request for cooperation, in particular to exchange relevant information, has been rejected or has not been acted upon within a reasonable time.
Without prejudice to Article 258 TFEU, EBA may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1093/2010.
EBA may also assist the competent authorities in developing consistent cooperation practices on its own initiative in accordance with the second subparagraph of Article 19(1) of that Regulation.
The competent authorities concerned shall, before taking a decision, consult each other with regard to the following items, ►C2 where such a decision is of importance for other competent authorities’ supervisory tasks: ◄
changes in the shareholder, organisational or management structure of credit institutions in a group, which require the approval or authorisation of competent authorities; and
significant penalties or exceptional measures taken by competent authorities, including the imposition of a specific own funds requirement under Article 104 and the imposition of any limitation on the use of the advances measurement approaches for the calculation of the own funds requirements under Article 312(2) of Regulation (EU) No 575/2013.
For the purposes of point (b), the consolidating supervisor shall always be consulted.
However, a competent authority may decide not to consult other competent authorities in cases of urgency or where such consultation could jeopardise the effectiveness of its decision. In such cases, the competent authority shall, without delay, inform the other competent authorities after taking its decision.
EBA may assist the competent authorities in the event of a disagreement concerning the coordination of supervisory activities under this Article on its own initiative in accordance with the second subparagraph of Article 19(1) of Regulation (EU) No 1093/2010.
Article 118
Checking information concerning entities in other Member States
Where, in applying this Directive and Regulation (EU) No 575/2013, the competent authorities of one Member State wish in specific cases to check the information concerning an institution, a financial holding company, a mixed financial holding company, a financial institution, an ancillary services undertaking, a mixed-activity holding company, a subsidiary as referred to in Article 125 or a subsidiary as referred to in Article 119(3), situated in another Member State, they shall ask the competent authorities of that other Member State to have that check carried out. The authorities which receive such a request shall, within the framework of their competence, act upon it either by carrying out the check themselves, by allowing the authorities who made the request to carry it out, or by allowing an auditor or expert to carry it out. The competent authority which made the request may, if it so wishes, participate in the check where it does not carry out the check itself.
Article 119
Inclusion of holding companies in consolidated supervision
Article 120
Supervision of mixed financial holding companies
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulations (EU) No 1093/2010, (EU) No 1094/2010 and (EU) No 1095/2010.
Article 121
Qualification of directors
Member States shall require that the members of the management body of a financial holding company or mixed financial holding company be of sufficiently good repute and possess sufficient knowledge, skills and experience as referred to in Article 91(1) to perform those duties, taking into account the specific role of a financial holding company or mixed financial holding company.
Article 122
Requests for information and inspections
Article 123
Supervision
Article 124
Exchange of information
Where the competent authorities of the Member State in which a parent undertaking is situated do not themselves exercise supervision on a consolidated basis pursuant to Article 111, they may be invited by the competent authorities responsible for exercising such supervision to ask the parent undertaking for any information which would be relevant for the purposes of supervision on a consolidated basis and to transmit it to those authorities.
Similarly, Member States shall authorise their competent authorities to exchange the information referred to in Article 122 on the understanding that the collection or possession of information does not imply that the competent authorities play a supervisory role in relation to the mixed-activity holding company and those of its subsidiaries which are not credit institutions, or to subsidiaries as referred to in Article 119(3).
Article 125
Cooperation
Where, pursuant to Article 111 of this Directive, the consolidating supervisor of a group with a parent mixed financial holding company is different from the coordinator determined in accordance with Article 10 of Directive 2002/87/EC, the consolidating supervisor and the coordinator shall cooperate for the purpose of applying this Directive and Regulation (EU) No 575/2013 on a consolidated basis. In order to facilitate and establish effective cooperation, the consolidating supervisor and the coordinator shall have written coordination and cooperation arrangements in place.
Article 126
Penalties
In accordance with Chapter 1, Section IV of this Title, Member States shall ensure that administrative penalties or other administrative measures aiming to end observed breaches or the causes of such breaches may be imposed on financial holding companies, mixed financial holding companies, and mixed-activity holding companies, or their effective managers, that breach laws, regulations or administrative provisions transposing this Chapter.
Article 127
Assessment of equivalence of third countries’ consolidated supervision
The assessment shall be carried out by the competent authority which would be responsible for consolidated supervision if paragraph 3 were to apply, at the request of the parent undertaking or of any of the regulated entities authorised in the Union or on its own initiative. That competent authority shall consult the other competent authorities involved.
The competent authority carrying out the assessment referred to in the first subparagraph of paragraph 1 shall take into account any such guidance. For that purpose, the competent authority shall consult EBA before adopting a decision.
Those supervisory techniques shall, after consulting the other competent authorities involved, be agreed upon by the competent authority which would be responsible for consolidated supervision.
Competent authorities may in particular require the establishment of a financial holding company or mixed financial holding company which has its head office in the Union, and apply the provisions on consolidated supervision to the consolidated position of that financial holding company or the consolidated position of the institutions of that mixed financial holding company.
The supervisory techniques shall be designed to achieve the objectives of consolidated supervision as set out in this Chapter and shall be notified to the other competent authorities involved, to EBA and to the Commission.
CHAPTER 4
Capital Buffers
Article 128
Definitions
For the purpose of this Chapter, the following definitions shall apply:
'capital conservation buffer' means the own funds that an institution is required to maintain in accordance with Article 129;
'institution-specific countercyclical capital buffer' means the own funds that an institution is required to maintain in accordance with Article 130;
'G-SII buffer' means the own funds that are required to be maintained in accordance with Article 131(4);
'O-SII buffer' means the own funds that may be required to be maintained in accordance with Article 131(5);
'systemic risk buffer' means the own funds that an institution is or may be required to maintain in accordance with Article 133;
'combined buffer requirement' means the total Common Equity Tier 1 capital required to meet the requirement for the capital conservation buffer extended by the following, as applicable:
an institution-specific countercyclical capital buffer;
a G-SII buffer;
an O-SII buffer;
a systemic risk buffer;
'countercyclical buffer rate' means the rate that institutions must apply in order to calculate their institution-specific countercyclical capital buffer, and that is set in accordance with Article 136, Article 137 or by a relevant third-country authority, as the case may be;
'domestically authorised institution' means an institution that has been authorised in the Member State for which a particular designated authority is responsible for setting the countercyclical buffer rate;
'buffer guide' means a benchmark buffer rate calculated in accordance with Article 135(1).
Institutions shall not use Common Equity Tier 1 capital that is maintained to meet the combined buffer requirement referred to in point (6) of the first paragraph of this Article, to meet any of the requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013, the additional own funds requirements imposed pursuant to Article 104a of this Directive to address risks other than the risk of excessive leverage, and the guidance communicated in accordance with Article 104b(3) of this Directive to address risks other than the risk of excessive leverage.
Institutions shall not use Common Equity Tier 1 capital that is maintained to meet one of the elements of its combined buffer requirement to meet the other applicable elements of its combined buffer requirement.
Institutions shall not use Common Equity Tier 1 capital that is maintained to meet the combined buffer requirement referred to in point (6) of the first paragraph of this Article to meet the risk-based components of the requirements set out in Articles 92a and 92b of Regulation (EU) No 575/2013 and in Articles 45c and 45d of Directive 2014/59/EU.
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Article 129
Requirement to maintain a capital conservation buffer
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Article 130
Requirement to maintain an institution-specific countercyclical capital buffer
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Article 131
Global and other systemically important institutions
G-SIIs shall be any of the following:
a group headed by an EU parent institution, an EU parent financial holding company, or an EU parent mixed financial holding company; or
an institution that is not a subsidiary of an EU parent institution, of an EU parent financial holding company or of an EU parent mixed financial holding company.
O-SIIs may either be an institution or a group headed by an EU parent institution, an EU parent financial holding company, an EU parent mixed financial holding company, a parent institution in a Member State, a parent financial holding company in a Member State or a parent mixed financial holding company in a Member State.
The identification methodology for G-SIIs shall be based on the following categories:
size of the group;
interconnectedness of the group with the financial system;
substitutability of the services or of the financial infrastructure provided by the group;
complexity of the group;
cross-border activity of the group, including cross border activity between Member States and between a Member State and a third country.
Each category shall receive an equal weighting and shall consist of quantifiable indicators.
The methodology shall produce an overall score for each entity as referred to in paragraph 1 assessed, which allows G-SIIs to be identified and allocated into a sub-category as described in paragraph 9.
An additional identification methodology for G-SIIs shall be based on the following categories:
the categories referred to in points (a) to (d) of paragraph 2 of this Article;
cross-border activity of the group, excluding the group’s activities across participating Member States as referred to in Article 4 of Regulation (EU) No 806/2014 of the European Parliament and of the Council ( 21 ).
Each category shall receive an equal weighting and shall consist of quantifiable indicators. For the categories referred to in point (a) of the first subparagraph of this paragraph, the indicators shall be the same as the corresponding indicators determined pursuant to paragraph 2.
The additional identification methodology shall produce an additional overall score for each entity as referred to in paragraph 1 assessed, on the basis of which competent or designated authorities may take one of the measures referred to in point (c) of paragraph 10.
O-SIIs shall be identified in accordance with paragraph 1. Systemic importance shall be assessed on the basis of at least any of the following criteria:
size;
importance for the economy of the Union or of the relevant Member State;
significance of cross-border activities;
interconnectedness of the institution or group with the financial system.
EBA, after consulting the ESRB, shall issue guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010, by 1 January 2015 on the criteria to determine the conditions of application of this paragraph in relation to the assessment of O-SIIs. Those guidelines shall take into account international frameworks for domestic systemically important institutions and Union and national specificities.
After having consulted the ESRB, EBA shall report to the Commission by 31 December 2020 on the appropriate methodology for the design and calibration of O-SII buffer rates.
Within six weeks of receipt of the notification referred to in paragraph 7 of this Article, the ESRB shall provide the Commission with an opinion as to whether the O-SII buffer is deemed appropriate. EBA may also provide the Commission with its opinion on the buffer in accordance with Article 34(1) of Regulation (EU) No 1093/2010.
Within three months of the ESRB forwarding the notification referred to in paragraph 7 to the Commission, the Commission, taking into account the assessment of the ESRB and EBA, if relevant, and if it is satisfied that the O-SII buffer does not entail disproportionate adverse effects on the whole or parts of the financial system of other Member States or of the Union as a whole forming or creating an obstacle to the proper functioning of the internal market, shall adopt an act authorising the competent authority or the designated authority to adopt the proposed measure.
When requiring an O-SII buffer to be maintained the competent authority or the designated authority shall comply with the following:
the O-SII buffer must not entail disproportionate adverse effects on the whole or parts of the financial system of other Member States or of the Union as a whole forming or creating an obstacle to the functioning of the internal market;
the O-SII buffer must be reviewed by the competent authority or the designated authority at least annually.
Before setting or resetting an O-SII buffer, the competent authority or the designated authority shall notify the ESRB one month before the publication of the decision referred to in paragraph 5 and shall notify the ESRB three months before the publication of the decision of the competent authority or the designated authority referred to in paragraph 5a. The ESRB shall forward such notifications to the Commission, to EBA and to the competent and designated authorities of the Member States concerned without delay. Such notifications shall set out in detail:
the justification for why the O-SII buffer is considered likely to be effective and proportionate to mitigate the risk;
an assessment of the likely positive or negative impact of the O-SII buffer on the internal market, based on information which is available to the Member State;
the O-SII buffer rate that the Member State wishes to set.
Without prejudice to Article 133 and paragraph 5 of this Article, where an O-SII is a subsidiary of either a G-SII or an O-SII which is either an institution or a group headed by an EU parent institution, and subject to an O-SII buffer on a consolidated basis, the buffer that applies on an individual or sub-consolidated basis for the O-SII shall not exceed the lower of:
the sum of the higher of the G-SII or the O-SII buffer rate applicable to the group on a consolidated basis and 1 % of the total risk exposure amount calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013; and
3 % of the total risk exposure amount calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013, or the rate the Commission has authorised to be applied to the group on a consolidated basis in accordance with paragraph 5a of this Article.
Without prejudice to paragraphs 1 and 9 and using the sub-categories and cut-off scores referred to in paragraph 9, the competent authority or the designated authority may, in the exercise of sound supervisory judgment:
re-allocate a G-SII from a lower sub-category to a higher sub-category;
allocate an entity as referred to in paragraph 1 that has an overall score as referred to in paragraph 2 that is lower than the cut-off score of the lowest sub-category to that sub-category or to a higher sub-category, thereby designating it as a G-SII;
taking into account the Single Resolution Mechanism, on the basis of the additional overall score referred to in paragraph 2a re-allocate a G-SII from a higher sub-category to a lower sub-category.
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The competent authority or the designated authority shall review annually the identification of G-SIIs and O-SIIs and the G-SII allocation into the respective sub-categories and report the result to the systemically important institution concerned, to the ESRB which shall forward the results to the Commission and to EBA without delay. The competent authority or the designated authority shall publicly disclose the updated list of identified systemically important institutions and the sub-category into which each identified G-SII is allocated.
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Where the sum of the systemic risk buffer rate as calculated for the purposes of Article 133(10), (11) or (12) and the O-SII buffer rate or the G-SII buffer rate to which the same institution is subject to would be higher than 5 %, the procedure set out in paragraph 5a of this Article shall apply. For the purposes of this paragraph, where the decision to set a systemic risk buffer, O-SII buffer or G-SII buffer results in a decrease or no change from any of the previously set rates, the procedure set out in paragraph 5a of this Article shall not apply.
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EBA shall submit those draft regulatory technical standards to the Commission by 30 June 2014.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to14 of Regulation (EU) No 1093/2010.
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Article 133
Requirement to maintain a systemic risk buffer
Institutions shall calculate the systemic risk buffer as follows:
where:
BSR = the systemic risk buffer;
rT = the buffer rate applicable to the total risk exposure amount of an institution;
ET = the total risk exposure amount of an institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013;
i = the index denoting the subset of exposures as referred to in paragraph 5;
ri = the buffer rate applicable to the risk exposure amount of the subset of exposures i; and
Ei = the risk exposure amount of an institution for the subset of exposures i calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013.
A systemic risk buffer may apply to:
all exposures located in the Member State that sets that buffer;
the following sectoral exposures located in the Member State that sets that buffer:
all retail exposures to natural persons which are secured by residential property;
all exposures to legal persons which are secured by mortgages on commercial immovable property;
all exposures to legal persons excluding those specified in point (ii);
all exposures to natural persons excluding those specified in point (i);
all exposures located in other Member States, subject to paragraphs 12 and 15;
sectoral exposures, as identified in point (b) of this paragraph, located in other Member States only to enable recognition of a buffer rate set by another Member State in accordance with Article 134;
exposures located in third countries;
subsets of any of the exposure categories identified in point (b).
When requiring a systemic risk buffer to be maintained the competent authority or the designated authority shall comply with the following:
the systemic risk buffer does not entail disproportionate adverse effects on the whole or parts of the financial system of other Member States or of the Union as a whole forming or creating an obstacle to the proper functioning of the internal market;
the systemic risk buffer is to be reviewed by the competent authority or the designated authority at least every second year;
the systemic risk buffer is not to be used to address risks that are covered by Articles 130 and 131.
Where the institution to which one or more systemic risk buffer rates apply is a subsidiary the parent of which is established in another Member State, the competent authority or the designated authority shall also notify the authorities of that Member State.
Where a systemic risk buffer rate applies to exposures located in third countries, the competent authority or the designated authority, as applicable, shall also notify the ESRB. The ESRB shall forward such notifications without delay to the supervisory authorities of those third countries.
Such notifications shall set out in detail:
the macroprudential or systemic risks in the Member State;
the reasons why the dimension of the macroprudential or systemic risks threatens the stability of the financial system at national level justifying the systemic risk buffer rate;
the justification for why the systemic risk buffer is considered likely to be effective and proportionate to mitigate the risk;
an assessment of the likely positive or negative impact of the systemic risk buffer on the internal market, based on information which is available to the Member State;
the systemic risk buffer rate or rates that the competent authority or the designated authority, as applicable, intends to impose and the exposures to which such rates shall apply and the institutions which shall be subject to such rates;
where the systemic risk buffer rate applies to all exposures, a justification of why the authority considers that the systemic risk buffer is not duplicating the functioning of the O-SII buffer provided for in Article 131.
Where the decision to set the systemic risk buffer rate results in a decrease or no change from the previously set buffer rate, the competent authority or the designated authority, as applicable, shall only comply with this paragraph.
For the purposes of this paragraph, the recognition of a systemic risk buffer rate set by another Member State in accordance with Article 134 shall not count towards the 3 % threshold.
Within a month of receipt of the notification referred to in paragraph 9, the ESRB shall provide the Commission with an opinion as to whether the systemic risk buffer rate or rates are deemed appropriate. Within two months of receipt of that notification, the Commission, taking into account the opinion of the ESRB, shall provide its opinion.
Where the opinion of the Commission is negative, the competent authority or the designated authority, as applicable, of the Member State that sets that systemic risk buffer shall comply with that opinion or give reasons for not doing so.
Where one or more institutions to which one or more systemic risk buffer rates apply is a subsidiary of a parent undertaking established in another Member State, the ESRB and the Commission shall also consider in their opinions whether applying the systemic risk buffer rate or rates to those institutions is deemed appropriate.
Where the authorities of the subsidiary and of the parent undertaking disagree on the systemic risk buffer rate or rates applicable to that institution and in the case of a negative opinion of both the Commission and the ESRB, the competent authority or the designated authority, as applicable, may refer the matter to EBA and request its assistance in accordance with Article 19 of Regulation (EU) No 1093/2010. The decision to set the systemic risk buffer rate or rates for those exposures shall be suspended until EBA has taken a decision.
For the purposes of this paragraph, the recognition of a systemic risk buffer rate set by another Member State in accordance with Article 134 shall not count towards the thresholds referred to in the first subparagraph of this paragraph.
Within six weeks of receipt of the notification referred to in paragraph 9 of this Article, the ESRB shall provide the Commission with an opinion as to whether the systemic risk buffer is deemed appropriate. EBA may also provide the Commission with its opinion on that systemic risk buffer in accordance with Article 16a(1) of Regulation (EU) No 1093/2010, within six weeks of receipt of that notification.
Within three months of receipt of the notification referred to in paragraph 9, the Commission, taking into account the assessment of the ESRB and EBA, where relevant, and where it is satisfied that the systemic risk buffer rate or rates do not entail disproportionate adverse effects on the whole or parts of the financial system of other Member States or of the Union as a whole forming or creating an obstacle to the proper functioning of the internal market, shall adopt an act authorising the competent authority or the designated authority, as applicable, to adopt the proposed measure.
For the purposes of this paragraph, the recognition of a systemic risk buffer rate set by another Member State in accordance with Article 134 shall not count towards the threshold referred to in the first subparagraph of this paragraph.
Each competent authority, or the designated authority, as applicable, shall announce the setting or resetting of one or more systemic risk buffer rates by publication on an appropriate website. That publication shall include at least the following information:
the systemic risk buffer rate or rates;
the institutions to which the systemic risk buffer applies;
the exposures to which the systemic risk buffer rate or rates apply;
a justification for setting or resetting the systemic risk buffer rate or rates;
the date from which the institutions shall apply the setting or resetting of the systemic risk buffer; and
the names of the countries where exposures located in those countries are recognised in the systemic risk buffer.
Where the publication of the information referred to in point (d) of the first subparagraph could jeopardise the stability of the financial system, that information shall not be included in the publication.
Where the application of the restrictions on distributions leads to an unsatisfactory improvement of the Common Equity Tier 1 capital of the institution in light of the relevant systemic risk, the competent authorities may take additional measures in accordance with Article 64.
Article 134
Recognition of a systemic risk buffer rate
Article 135
ESRB guidance on setting countercyclical buffer rates
The ESRB may give, by way of recommendations in accordance with Article 16 of Regulation (EU) No 1092/2010, guidance to authorities designated by Member States under Article 136(1) on setting countercyclical buffer rates, including the following:
principles to guide designated authorities when exercising their judgment as to the appropriate countercyclical buffer rate, ensure that authorities adopt a sound approach to relevant macro-economic cycles and promote sound and consistent decision-making across Member States;
general guidance on:
the measurement and calculation of the deviation from long term trends of ratios of credit to gross domestic product (GDP);
the calculation of buffer guides required by Article 136(2);
guidance on variables that indicate the build-up of system-wide risk associated with periods of excessive credit growth in a financial system, in particular the relevant credit-to-GDP ratio and its deviation from the long-term trend, and on other relevant factors, including the treatment of economic developments within individual sectors of the economy, that should inform the decisions of designated authorities on the appropriate countercyclical buffer rate under Article 136;
guidance on variables, including qualitative criteria, that indicate that the buffer should be maintained, reduced or fully released.
Article 136
Setting countercyclical buffer rates
Each designated authority shall calculate for every quarter a buffer guide as a reference to guide its exercise of judgment in setting the countercyclical buffer rate in accordance with paragraph 3. The buffer guide shall reflect, in a meaningful way, the credit cycle and the risks due to excess credit growth in the Member State and shall duly take into account specificities of the national economy. It shall be based on the deviation of the ratio of credit-to-GDP from its long-term trend, taking into account, inter alia:
an indicator of growth of levels of credit within that jurisdiction and, in particular, an indicator reflective of the changes in the ratio of credit granted in that Member State to GDP;
any current guidance maintained by the ESRB in accordance with Article 135(1)(b).
Each designated authority shall assess the intensity of cyclical systemic risk and the appropriateness of the countercyclical buffer rate for its Member State on a quarterly basis and set or adjust the countercyclical buffer rate, if necessary. In so doing, each designated authority shall take into account:
the buffer guide calculated in accordance with paragraph 2;
any current guidance maintained by the ESRB in accordance with Article 135(1)(a), (c) and (d) and any recommendations issued by the ESRB on the setting of a buffer rate;
other variables that the designated authority considers relevant for addressing cyclical systemic risk.
Each designated authority shall publish quarterly at least the following information on its website:
the applicable countercyclical buffer rate;
the relevant credit-to-GDP-ratio and its deviation from the long-term trend;
the buffer guide calculated in accordance with paragraph 2;
a justification for that buffer rate;
where the buffer rate is increased, the date from which institutions shall apply that increased buffer rate for the purpose of calculating their institution-specific countercyclical capital buffer;
where the date referred to in point (e) is less than 12 months after the date of the publication under this paragraph, a reference to the exceptional circumstances that justify that shorter deadline for application;
where the buffer rate is decreased, the indicative period during which no increase in the buffer rate is expected, together with a justification for that period.
Designated authorities shall take all reasonable steps to coordinate the timing of that publication.
Designated authorities shall notify each change of the countercyclical buffer rate and the required information specified in points (a) to (g) of the first subparagraph to the ESRB. The ESRB shall publish on its website all such notified buffer rates and related information.
Article 137
Recognition of countercyclical buffer rates in excess of 2,5 %
Where a designated authority in accordance with paragraph 1 of this Article recognises a buffer rate in excess of 2,5 % of the total risk exposure amount calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013, it shall announce that recognition by publication on its website. The announcement shall include at least the following information:
the applicable countercyclical buffer rate;
the Member State or third countries to which it applies;
where the buffer rate is increased, the date from which the institutions authorised in the Member State of the designated authority must apply that increased buffer rate for the purposes of calculating their institution-specific countercyclical capital buffer;
where the date referred to in point (c) is less than 12 months after the date of the announcement under this paragraph, a reference to the exceptional circumstances that justify that shorter deadline for application.
Article 138
ESRB recommendation on third country countercyclical buffer rates
The ESRB may, in accordance with Article 16 of Regulation (EU) No 1092/2010, issue a recommendation to designated authorities on the appropriate countercyclical buffer rate for exposures to that third country where:
a countercyclical buffer rate has not been set and published by the relevant third-country authority for a third country ('relevant third-country authority') to which one or more Union institutions have credit exposures;
the ESRB considers that a countercyclical buffer rate which has been set and published by the relevant third-country authority for a third country is not sufficient to protect Union institutions appropriately from the risks of excessive credit growth in that country, or a designated authority notifies the ESRB that it considers that buffer rate to be insufficient for that purpose.
Article 139
Decision by designated authorities on third country countercyclical buffer rates
When exercising the power under the first subparagraph, a designated authority shall not set a countercyclical buffer rate below the level set by the relevant third-country authority unless that buffer rate exceeds 2,5 %, expressed as a percentage of the total risk exposure amount calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013 of institutions that have credit exposures in that third country.
In order to achieve coherence for the buffer settings for third countries the ESRB may give recommendations for such settings.
Designated authorities shall publish any setting of a countercyclical buffer rate for a third country pursuant to paragraph 2 or 3 on their websites, and shall include the following information:
the countercyclical buffer rate and the third country to which it applies;
a justification for that buffer rate;
where the buffer rate is set above zero for the first time or is increased, the date from which the institutions must apply that increased buffer rate for the purposes of calculating their institution-specific countercyclical capital buffer;
where the date referred to in point (c) is less than 12 months after the date of the publication of the setting under this paragraph, a reference to the exceptional circumstances that justify that shorter deadline for application.
Article 140
Calculation of institution-specific countercyclical capital buffer rates
Member States shall require institutions, in order to calculate the weighted average referred to in the first subparagraph, to apply to each applicable countercyclical buffer rate its total own funds requirements for credit risk, determined in accordance with Part Three, Titles II and IV of Regulation (EU) No 575/2013, that relates to the relevant credit exposures in the territory in question, divided by its total own funds requirements for credit risk that relates to all of its relevant credit exposures.
If, in accordance with Article 136(4), a designated authority sets a countercyclical buffer rate in excess of 2,5 % of total risk exposure amount calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013, Member States shall ensure that the following buffer rates apply to relevant credit exposures located in the Member State of that designated authority ('Member State A') for the purposes of the calculation required under paragraph 1 including, where relevant, for the purposes of the calculation of the element of consolidated capital that relates to the institution in question:
domestically authorised institutions shall apply that buffer rate in excess of 2,5 % of total risk exposure amount;
institutions that are authorised in another Member State shall apply a countercyclical buffer rate of 2,5 % of total risk exposure amount if the designated authority in the Member State in which they have been authorised has not recognised the buffer rate in excess of 2,5 % in accordance with Article 137(1);
institutions that are authorised in another Member State shall apply the countercyclical buffer rate set by the designated authority of Member State A if the designated authority in the Member State in which they have been authorised has recognised the buffer rate in accordance with Article 137.
If the countercyclical buffer rate set by the relevant third-country authority for a third country exceeds 2,5 % of total risk exposure amount calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013, Member States shall ensure that the following buffer rates apply to relevant credit exposures located in that third country for the purposes of the calculation required under paragraph 1 including, where relevant, for the purposes of the calculation of the element of consolidated capital that relates to the institution in question:
institutions shall apply a countercyclical buffer rate of 2,5 % of total risk exposure amount if the designated authority in the Member State in which they have been authorised has not recognised the buffer rate in excess of 2,5 % in accordance with Article 137(1);
institutions shall apply the countercyclical buffer rate set by the relevant third-country authority if the designated authority in the Member State in which they have been authorised has recognised the buffer rate in accordance with Article 137.
Relevant credit exposures shall include all those exposure classes, other than those referred to in points (a) to (f) of Article 112 of Regulation (EU) No 575/2013, that are subject to:
the own funds requirements for credit risk under Part Three, Title II of that Regulation;
where the exposure is held in the trading book, own funds requirements for specific risk under Part Three, Title IV, Chapter 2 of that Regulation or incremental default and migration risk under Part Three, Title IV, Chapter 5 of that Regulation;
where the exposure is a securitisation, the own funds requirements under Part Three, Title II, Chapter 5 of that Regulation.
For the purposes of the calculation required under paragraph 1:
a countercyclical buffer rate for a Member State shall apply from the date specified in the information published in accordance with Article 136(7)(e) or Article 137(2)(c) if the effect of that decision is to increase the buffer rate;
subject to point (c), a countercyclical buffer rate for a third country shall apply 12 months after the date on which a change in the buffer rate was announced by the relevant third-country authority, irrespective of whether that authority requires institutions incorporated in that third country to apply the change within a shorter period, if the effect of that decision is to increase the buffer rate;
where the designated authority of the home Member State of the institution sets the countercyclical buffer rate for a third country pursuant to Article 139(2) or (3), or recognises the countercyclical buffer rate for a third country pursuant to Article 137, that buffer rate shall apply from the date specified in the information published in accordance with Article 139(5)(c) or Article 137(2)(c), if the effect of that decision is to increase the buffer rate;
a countercyclical buffer rate shall apply immediately if the effect of that decision is to reduce the buffer rate.
For the purposes of point (b), a change in the countercyclical buffer rate for a third country shall be considered to be announced on the date that it is published by the relevant third-country authority in accordance with the applicable national rules.
EBA shall submit those draft regulatory standards to the Commission by 1 January 2014.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 141
Restrictions on distributions
Where the first subparagraph applies, the institution shall not undertake any of the following actions before it has calculated the MDA:
make a distribution in connection with Common Equity Tier 1 capital;
create an obligation to pay variable remuneration or discretionary pension benefits or pay variable remuneration if the obligation to pay was created at a time when the institution failed to meet the combined buffer requirement; or
make payments on Additional Tier 1 instruments.
The sum to be multiplied in accordance with paragraph 4 shall consist of:
any interim profits not included in Common Equity Tier 1 capital pursuant to Article 26(2) of Regulation (EU) No 575/2013, net of any distribution of profits or any payment resulting from the actions referred to in point (a), (b) or (c) of the second subparagraph of paragraph 2 of this Article;
plus
any year-end profits not included in Common Equity Tier 1 capital pursuant to Article 26(2) of Regulation (EU) No 575/2013 net of any distribution of profits or any payment resulting from the actions referred to in point (a), (b) or (c) of the second subparagraph of paragraph 2 of this Article;
minus
amounts which would be payable by tax if the items specified in points (a) and (b) of this paragraph were to be retained.
The factor shall be determined as follows:
where the Common Equity Tier 1 capital maintained by the institution which is not used to meet any of the own funds requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage set out in point (a) of Article 104(1) of this Directive, expressed as a percentage of the total risk exposure amount calculated in accordance with Article 92(3) of that Regulation, is within the first (that is, the lowest) quartile of the combined buffer requirement, the factor shall be 0;
where the Common Equity Tier 1 capital maintained by the institution which is not used to meet any of the own funds requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage set out in point (a) of Article 104(1) of this Directive, expressed as a percentage of the total risk exposure amount calculated in accordance with Article 92(3) of that Regulation, is within the second quartile of the combined buffer requirement, the factor shall be 0,2;
where the Common Equity Tier 1 capital maintained by the institution which is not used to meet the own funds requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage set out in point (a) of Article 104(1) of this Directive, expressed as a percentage of the total risk exposure amount calculated in accordance with Article 92(3) of that Regulation, is within the third quartile of the combined buffer requirement, the factor shall be 0,4;
where the Common Equity Tier 1 capital maintained by the institution which is not used to meet the own funds requirements set out in points (a), (b) and (c) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage set out in point (a) of Article 104(1) of this Directive, expressed as a percentage of the total risk exposure amount calculated in accordance with Article 92(3) of that Regulation, is within the fourth (that is, the highest) quartile of the combined buffer requirement, the factor shall be 0,6.
The lower and upper bounds of each quartile of the combined buffer requirement shall be calculated as follows:
where:
Qn = the ordinal number of the quartile concerned.
Where an institution fails to meet the combined buffer requirement and intends to distribute any of its distributable profits or undertake an action referred to in points (a), (b) and (c) of the second subparagraph of paragraph 2, it shall notify the competent authority and provide the following information:
the amount of capital maintained by the institution, subdivided as follows:
Common Equity Tier 1 capital,
Additional Tier 1 capital,
Tier 2 capital;
the amount of its interim and year-end profits;
the MDA calculated in accordance with paragraph 4;
the amount of distributable profits it intends to allocate between the following:
dividend payments,
share buybacks,
payments on Additional Tier 1 instruments,
the payment of variable remuneration or discretionary pension benefits, whether by creation of a new obligation to pay, or payment pursuant to an obligation to pay created at a time when the institution failed to meet its combined buffer requirements.
For the purposes of paragraphs 1 and 2, a distribution in connection with Common Equity Tier 1 capital shall include the following:
a payment of cash dividends;
a distribution of fully or partly paid bonus shares or other capital instruments referred to in Article 26(1)(a) of Regulation (EU) No 575/2013;
a redemption or purchase by an institution of its own shares or other capital instruments referred to in Article 26(1)(a) of that Regulation;
a repayment of amounts paid up in connection with capital instruments referred to in Article 26(1)(a) of that Regulation;
a distribution of items referred to in points (b) to (e) of Article 26(1) of that Regulation.
Article 141a
Failure to meet the combined buffer requirement
An institution shall be considered as failing to meet the combined buffer requirement for the purposes of Article 141 where it does not have own funds in an amount and of the quality needed to meet at the same time the combined buffer requirement and each of the following requirements in:
point (a) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage under point (a) of Article 104(1) of this Directive;
point (b) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage under point (a) of Article 104(1) of this Directive;
point (c) of Article 92(1) of Regulation (EU) No 575/2013 and the additional own funds requirement addressing risks other than the risk of excessive leverage under point (a) of Article 104(1) of this Directive.
Article 141b
Restriction on distributions in case of failure to meet the leverage ratio buffer requirement
Where the first subparagraph applies, the institution shall not undertake any of the following actions before it has calculated the L-MDA:
make a distribution in connection with Common Equity Tier 1 capital;
create an obligation to pay variable remuneration or discretionary pension benefits or pay variable remuneration if the obligation to pay was created at a time when the institution failed to meet the leverage ratio buffer requirement; or
make payments on Additional Tier 1 instruments.
The sum to be multiplied in accordance with paragraph 4 shall consist of:
any interim profits not included in Common Equity Tier 1 capital pursuant to Article 26(2) of Regulation (EU) No 575/2013 net of any distribution of profits or any payment related to the actions referred to in point (a), (b) or (c) of the second subparagraph of paragraph 2 of this Article;
plus
any year-end profits not included in Common Equity Tier 1 capital pursuant to Article 26(2) of Regulation (EU) No 575/2013 net of any distribution of profits or any payment related to the actions referred to in point (a), (b) or (c) of the second subparagraph of paragraph 2 of this Article;
minus
amounts which would be payable by tax if the items specified in points (a) and (b) of this paragraph were to be retained.
The factor referred to in paragraph 4 shall be determined as follows:
where the Tier 1 capital maintained by the institution which is not used to meet the requirements under point (d) of Article 92(1) of Regulation (EU) No 575/2013 and under point (a) of Article 104(1) of this Directive when addressing the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013, expressed as a percentage of the total exposure measure calculated in accordance with Article 429(4) of that Regulation, is within the first (that is, the lowest) quartile of the leverage ratio buffer requirement, the factor shall be 0;
where the Tier 1 capital maintained by the institution which is not used to meet the requirements under point (d) of Article 92(1) of Regulation (EU) No 575/2013 and under point (a) of Article 104(1) of this Directive when addressing the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013, expressed as a percentage of the total exposure measure calculated in accordance with Article 429(4) of that Regulation, is within the second quartile of the leverage ratio buffer requirement, the factor shall be 0,2;
where the Tier 1 capital maintained by the institution which is not used to meet the requirements under point (d) of Article 92(1) of Regulation (EU) No 575/2013 and under point (a) of Article 104(1) of this Directive when addressing the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013, expressed as a percentage of the total exposure measure calculated in accordance with Article 429(4) of that Regulation, is within the third quartile of the leverage ratio buffer requirement, the factor shall be 0,4;
where the Tier 1 capital maintained by the institution which is not used to meet the requirements under point (d) of Article 92(1) of Regulation (EU) No 575/2013 and under point (a) of Article 104(1) of this Directive when addressing the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013, expressed as a percentage of the total exposure measure calculated in accordance with Article 429(4) of that Regulation, is within the fourth quartile (that is, the highest) quartile of the leverage ratio buffer requirement, the factor shall be 0,6.
The lower and upper bounds of each quartile of the leverage ratio buffer requirement shall be calculated as follows:
where:
Qn = the ordinal number of the quartile concerned.
Article 141c
Failure to meet the leverage ratio buffer requirement
An institution shall be considered as failing to meet the leverage ratio buffer requirement for the purposes of Article 141b of this Directive where it does not have Tier 1 capital in the amount needed to meet at the same time the requirement laid down in Article 92(1a) of Regulation (EU) No 575/2013 and the requirement laid down in point (d) of Article 92(1) of that Regulation and in point (a) of Article 104(1) of this Directive when addressing the risk of excessive leverage not sufficiently covered by point (d) of Article 92(1) of Regulation (EU) No 575/2013.
Article 142
Capital Conservation Plan
►C2 Competent authorities shall grant such authorisations only on the basis of the individual situation of an institution ◄ and taking into account the scale and complexity of the institution’s activities.
The capital conservation plan shall include the following:
estimates of income and expenditure and a forecast balance sheet;
measures to increase the capital ratios of the institution;
a plan and timeframe for the increase of own funds with the objective of meeting fully the combined buffer requirement;
any other information that the competent authority considers to be necessary to carry out the assessment required by paragraph 3.
If the competent authority does not approve the capital conservation plan in accordance with paragraph 3, it shall impose one or both of the following:
require the institution to increase own funds to specified levels within specified periods;
exercise its powers under Article 102 to impose more stringent restrictions on distributions than those required by Article 141.
TITLE VIII
DISCLOSURE BY COMPETENT AUTHORITIES
Article 143
General disclosure requirements
Competent authorities shall publish the following information:
the texts of laws, regulations, administrative rules and general guidance adopted in their Member State in the field of prudential regulation;
the manner of exercise of the options and discretions available in Union law;
the general criteria and methodologies they use in the review and evaluation referred to in Article 97, including the criteria for applying the principle of proportionality as referred to in Article 97(4);
without prejudice to the provisions set out in Title VII, Chapter 1, Section II of this Directive and where applicable, the provisions set out in Title IV, Chapter 1, Section 2 of Directive (EU) 2019/2034, aggregate statistical data on key aspects of the implementation of the prudential framework in each Member State, including the number and nature of supervisory measures taken in accordance with point (a) of Article 102(1) of this Directive and of administrative penalties imposed in accordance with Article 65 of this Directive.
EBA shall submit those draft implementing technical standards to the Commission by 1 January 2014.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
Article 144
Specific disclosure requirements
For the purpose of Part Five of Regulation (EU) No 575/2013, competent authorities shall publish the following information:
the general criteria and methodologies adopted to review compliance with Articles 405 to 409 of Regulation (EU) No 575/2013;
without prejudice to the provisions laid down in Title VII, Chapter 1, Section II, a summary description of the outcome of the supervisory review and description of the measures imposed in cases of non-compliance with Articles 405 to 409 of Regulation (EU) No 575/2013, identified on an annual basis.
The competent authority of a Member State exercising the discretion laid down in Article 7(3) of Regulation (EU) No 575/2013 shall publish the following information:
the criteria it applies to determine that there is no current or foreseen material practical or legal impediment to the prompt transfer of own funds or repayment of liabilities;
the number of parent institutions which benefit from the exercise of the discretion laid down in Article 7(3) of Regulation (EU) No 575/2013 and the number of those which incorporate subsidiaries in a third country;
on an aggregate basis for the Member State:
the total amount of own funds on the consolidated basis of the parent institution in a Member State, which benefits from the exercise of the discretion laid down in Article 7(3) of Regulation (EU) No 575/2013, which are held in subsidiaries in a third country;
the percentage of total own funds on the consolidated basis of parent institutions in a Member State which benefits from the exercise of the discretion laid down in Article 7(3) of that Regulation, represented by own funds which are held in subsidiaries in a third country;
the percentage of total own funds required under Article 92 of that Regulation on the consolidated basis of parent institutions in a Member State, which benefits from the exercise of the discretion laid down in Article 7(3) of that Regulation, represented by own funds which are held in subsidiaries in a third country.
The competent authority which exercises the discretion laid down in Article 9(1) of Regulation (EU) No 575/2013 shall publish all the following:
the criteria it applies to determine that there is no current or foreseen material practical or legal impediment to the prompt transfer of own funds or repayment of liabilities;
the number of parent institutions which benefit from the exercise of the discretion laid down in Article 9(1) of Regulation (EU) No 575/2013 and the number of such parent institutions which incorporate subsidiaries in a third country;
on an aggregate basis for the Member State:
the total amount of own funds of parent institutions which benefit from the exercise of the discretion laid down in Article 9(1) of Regulation (EU) No 575/2013 which are held in subsidiaries in a third country;
the percentage of total own funds of parent institutions which benefit from the exercise of the discretion laid down in Article 9(1) of Regulation (EU) No 575/2013 represented by own funds which are held in subsidiaries in a third country;
the percentage of total own funds required under Article 92 of Regulation (EU) No 575/2013 of parent institutions which benefit from the exercise of the discretion laid down in Article 9(1) of that Regulation represented by own funds which are held in subsidiaries in a third country.
TITLE IX
DELEGATED AND IMPLEMENTING ACTS
Article 145
Delegated Acts
The Commission shall be empowered to adopt delegated acts in accordance with Article 148 concerning the following:
clarification of the definitions set out in Article 3 and Article 128 to ensure uniform application of this Directive;
clarification of the definitions set out in Article 3 and Article 128 in order to take account, in the application of this Directive, of developments on financial markets;
alignment of terminology on, and the framing of, definitions set out in Article 3 in accordance with subsequent acts on institutions and related matters;
adjustment of the amounts referred to in Article 31(1) to take account of changes in the European Index of Consumer Prices as published by Eurostat, in line with, and at the same time as, the adjustments made under Article 4(7) of Directive 2002/92/EC;
expansion of the content of the list referred to in Articles 33 and 34 and set out in Annex I or adaptation of the terminology used in that list to take account of developments on financial markets;
identification of the areas in which the competent authorities must exchange information as set out in Article 50;
adjustment of the provisions set out in Articles 76 to 88 and Article 98 in order to take account of developments on financial markets (in particular new financial products) or in accounting standards or requirements which take account of Union law, or with regard to the convergence of supervisory practices;
deferral of the disclosure obligations in accordance with the second subparagraph of Article 89(3) where the Commission report submitted pursuant to the first subparagraph of that paragraph identifies significant negative effects;
adjustments of the criteria set out in Article 23(1), in order to take account of future developments and to ensure the uniform application of this Directive.
Article 146
Implementing acts
In accordance with the examination procedure referred to in Article 147(2), an alteration of the amount of initial capital prescribed in Article 12 and Title IV to take account of developments in the economic and monetary field shall be adopted by an implementing act.
Article 147
European Banking Committee
Article 148
Exercise of the delegation
Article 149
Objections to regulatory technical standards
Where the Commission adopts a regulatory technical standard pursuant to this Directive which is the same as the draft regulatory technical standard submitted by EBA, the period during which the European Parliament and the Council may object to that regulatory technical standard shall be one month from the date of notification. At the initiative of the European Parliament or the Council that period shall be extended by one month. By way of derogation from the second subparagraph of Article 13(1) of Regulation (EU) No 1093/2010, the period during which the European Parliament or the Council may object to that regulatory technical standard may, where appropriate, be further extended by one month.
TITLE X
AMENDMENTS OF DIRECTIVE 2002/87/EC
Article 150
Amendments of Directive 2002/87/EC
Article 21a of Directive 2002/87/EC is hereby amended as follows:
in paragraph 2, point (a) is deleted;
paragraph 3 is replaced by the following:
The ESA shall submit those draft regulatory technical standards to the Commission by five months before the date of application referred to in Article 309(1) of Directive 2009/138/EC.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010 respectively.".
TITLE XI
TRANSITIONAL AND FINAL PROVISIONS
CHAPTER 1
Transitional provisions on the supervision of institutions exercising the freedom of establishment and the freedom to provide services
Article 151
Scope
Article 152
Reporting requirements
Host Member States may, for statistical purposes, require that all credit institutions having branches within their territories shall report periodically on their activities in those host Member States to the competent authorities of those host Member States.
In discharging the responsibilities imposed on them in Article 156 of this Directive, host Member States may require that branches of credit institutions from other Member States provide the same information as they require from national credit institutions for that purpose.
Article 153
Measures taken by the competent authorities of the home Member State in relation to activities carried out in the host Member State
Article 154
Precautionary measures
Before following the procedure provided for in Article 153, the competent authorities of the host Member State may, in emergencies, take any precautionary measures necessary to protect the interests of depositors, investors and others to whom services are provided. The Commission and the competent authorities of the other Member States concerned shall be informed of such measures at the earliest opportunity.
The Commission may, after consulting the competent authorities of the Member States concerned, decide that the Member State in question shall amend or abolish those measures.
Article 155
Responsibility
Article 156
Liquidity supervision
Host Member States shall, pending further coordination, retain responsibility in cooperation with the competent authorities of the home Member State for the supervision of the liquidity of the branches of credit institutions.
Without prejudice to the measures necessary for the reinforcement of the European Monetary System, host Member States shall retain complete responsibility for the measures resulting from the implementation of their monetary policies.
Such measures shall not provide for discriminatory or restrictive treatment based on the fact that a credit institution is authorised in another Member State.
Article 157
Collaboration concerning supervision
The competent authorities of the Member States concerned shall collaborate closely in order to supervise the activities of institutions operating, in particular through a branch, in one or more Member States other than that in which their head offices are situated. They shall supply one another with all information concerning the management and ownership of such institutions that is likely to facilitate their supervision and the examination of the conditions for their authorisation, and all information likely to facilitate the monitoring of such institutions, in particular with regard to liquidity, solvency, deposit guarantees, the limiting of large exposures, administrative and accounting procedures and internal control mechanisms.
Article 158
Significant branches
That request shall provide reasons for considering the branch to be significant with particular regard to the following:
whether the market share of the branch in terms of deposits exceeds 2 % in the host Member State;
the likely impact of a suspension or closure of the operations of the institution on systemic liquidity and the payment, clearing and settlement systems in the host Member State;
the size and the importance of the branch in terms of number of clients within the context of the banking or financial system of the host Member State.
The competent authorities of the home and host Member States, and the consolidating supervisor where Article 112(1) applies, shall do everything within their power to reach a joint decision on the designation of a branch as being significant.
If no joint decision is reached within two months of receipt of a request under the first subparagraph, the competent authorities of the host Member State shall take their own decision within a further period of two months on whether the branch is significant. In taking their decision, the competent authorities of the host Member State shall take into account any views and reservations of the consolidating supervisor or the competent authorities of the home Member State.
The decisions referred to in the second and third subparagraphs shall be set out in a document containing full reasons, shall be transmitted to the competent authorities concerned, and shall be recognised as determinative and applied by the competent authorities of the Member States concerned.
The designation of a branch as being significant shall not affect the rights and responsibilities of the competent authorities under this Directive.
Article 159
On-the-spot checks
CHAPTER 1A
Transitional provisions on financial holding companies and mixed financial holding companies
Article 159a
Transitional provisions on approval of financial holding companies and mixed financial holding companies
Parent financial holding companies and parent mixed financial holding companies already existing on 27 June 2019 shall apply for approval in accordance with Article 21a by 28 June 2021. If a financial holding company or mixed financial holding company fails to apply for approval by 28 June 2021, appropriate measures shall be taken pursuant to Article 21a(6).
During the transitional period referred to in the first paragraph of this Article, competent authorities shall have all the necessary supervisory powers conferred on them by this Directive with regard to financial holding companies or mixed financial holding companies subject to approval in accordance with Article 21a for the purposes of consolidated supervision.
CHAPTER 2
Transitional provisions for capital buffers
Article 160
Transitional provisions for capital buffers
For the period from 1 January 2016 until 31 December 2016:
the capital conservation buffer shall consist of Common Equity Tier 1 capital equal to 0,625 % of the total of the risk-weighted exposure amounts of the institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013;
the institution-specific countercyclical capital buffer shall be no more than 0,625 % of the total of the risk-weighted exposure amounts of the institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013.
For the period from 1 January 2017 until 31 December 2017:
the capital conservation buffer shall consist of Common Equity Tier 1 capital equal to 1,25 % of the total of the risk-weighted exposure amounts of the institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013;
the institution-specific countercyclical capital buffer shall be no more than 1,25 % of the total of the risk-weighted exposure amounts of the institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013.
For the period from 1 January 2018 until 31 December 2018:
the capital conservation buffer shall consist of Common Equity Tier 1 capital equal to 1,875 % of the total of the risk-weighted exposure amounts of the institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013;
the institution-specific countercyclical capital buffer shall be no more than 1,875 % of the total of the risk-weighted exposure amounts of the institution calculated in accordance with Article 92(3) of Regulation (EU) No 575/2013.
CHAPTER 3
Final provisions
Article 161
Review and report
By 30 June 2016, the Commission shall, in close cooperation with EBA, submit a report to the European Parliament and to the Council, together with a legislative proposal if appropriate, on the provisions on remuneration in this Directive and in Regulation (EU) No 575/2013, following a review thereof, taking into account international developments and with particular regard to:
their efficiency, implementation and enforcement, including the identification of any lacunae arising from the application of the principle of proportionality to those provisions;
the impact of compliance with the principle in Article 94(1)(g) in respect of:
competitiveness and financial stability; and
any staff working effectively and physically in subsidiaries established outside the EEA of parent institutions established within the EEA.
That review shall consider, in particular, whether the principle set out in Article 94(1)(g) should continue to apply to any staff covered by point (b)(ii) of the first subparagraph.
Article 162
Transposition
Member States shall apply those provisions from 1 January 2014.
Member States shall communicate to the Commission and to EBA the text of the main provisions of national law which they adopt in the field covered by this Directive. Where the documents accompanying notification of transposition measures provided by Member States are not sufficient to assess fully the compliance of the transposing provisions with certain provisions of this Directive, the Commission may, upon EBA’s request with a view to carrying out its tasks under Regulation (EU) No 1093/2010, or on its own initiative, require Member States to provide more detailed information regarding the transposition and implementation of those provisions and this Directive.
By way of derogation from paragraph 1 of this Article, Article 131 shall apply from 1 January 2016. Member States shall implement Article 131(4) from 1 January 2016 in the following manner:
25 % of the G-SII buffer, set in accordance with Article 131(4), in 2016;
50 % of the G-SII buffer, set in accordance with Article 131(4), in 2017;
75 % of the G-SII buffer, set in accordance with Article 131(4), in 2018; and
100 % of the G-SII buffer, set in accordance with Article 131(4), in 2019.
By way of derogation from paragraph 2 of this Article, Article 133 shall apply from 1 January 2014.
◄Article 163
Repeal
Directives 2006/48/EC and 2006/49/EC are repealed with effect from 1 January 2014.
References to the repealed Directives shall be construed as references to this Directive and to Regulation (EU) No 575/2013 and shall be read in accordance with the correlation table set out in Annex II to this Directive and in Annex IV to Regulation (EU) No 575/2013.
Article 164
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 165
Addressees
This Directive is addressed to the Member States.
ANNEX I
LIST OF ACTIVITIES SUBJECT TO MUTUAL RECOGNITION
Taking deposits and other repayable funds.
Lending including, inter alia: consumer credit, credit agreements relating to immovable property, factoring, with or without recourse, financing of commercial transactions (including forfeiting).
Financial leasing.
Payment services as defined in point (3) of Article 4 of Directive (EU) 2015/2366 of the European Parliament and of the Council ( 22 ).
Issuing and administering other means of payment (e.g. travellers’ cheques and bankers’ drafts) insofar as such activity is not covered by point 4.
Guarantees and commitments.
Trading for own account or for account of customers in any of the following:
money market instruments (cheques, bills, certificates of deposit, etc.);
foreign exchange;
financial futures and options;
exchange and interest-rate instruments;
transferable securities.
Participation in securities issues and the provision of services relating to such issues.
Advice to undertakings on capital structure, industrial strategy and related questions and advice as well as services relating to mergers and the purchase of undertakings.
Money broking.
Portfolio management and advice.
Safekeeping and administration of securities.
Credit reference services.
Safe custody services.
Issuing electronic money including electronic-money tokens as defined in Article 3(1), point (7), of Regulation (EU) 2023/1114 of the European Parliament and of the Council ( 23 ).
Issuance of asset-referenced tokens as defined in Article 3(1), point (6), of Regulation (EU) 2023/1114.
Crypto-asset services as defined in Article 3(1), point (16), of Regulation (EU) 2023/1114.
The services and activities provided for in Sections A and B of Annex I to Directive 2004/39/EC, when referring to the financial instruments provided for in Section C of Annex I of that Directive, are subject to mutual recognition in accordance with this Directive.
ANNEX II
CORRELATION TABLE
|
This Directive |
Directive 2006/48/EC |
Directive 2006/49/EC |
|
Article 1 |
Article 1(1) |
|
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Article 2(1) |
|
|
|
Article 2(2) |
|
|
|
Article 2(3) |
|
|
|
Article 2(4) |
Article 1(2) |
|
|
Article 2(5) |
Article 2 |
|
|
Article 2(6) |
Article 1(3) |
|
|
Article 3 |
Article 4 |
|
|
Article 3(1), point (53) |
Article 4, point (49) |
|
|
Article 4(1) |
|
|
|
Article 4(2) |
|
|
|
Article 4(3) |
|
|
|
Article 4(4) |
|
|
|
Article 4(5) |
|
Article 35(1) |
|
Article 4(6) |
|
|
|
Article 4(7) |
|
|
|
Article 4(8) |
|
|
|
Article 5 |
Article 128 |
|
|
Article 6 |
Article 42b(1) |
|
|
Article 7 |
Article 40(3) |
|
|
Article 8(1) |
Article 6(1) |
|
|
Article 8(2) |
Article 6(2) |
|
|
Article 8(3) |
Article 6(3) |
|
|
Article 8(4) |
|
|
|
Article 9 |
Article 5 |
|
|
Article 10 |
Article 7 |
|
|
Article 11 |
Article 8 |
|
|
Article 12(1) |
Article 9(1), first subparagraph |
|
|
Article 12(2) |
Article 9(1), second subparagraph |
|
|
Article 12(3) |
Article 9(1), third subparagraph |
|
|
Article 12(4) |
Article 9(2) |
|
|
Article 13(1) |
Article 11(1) |
|
|
Article 13(2) |
Article 11(2) |
|
|
Article 14(1) |
Article 12(1) |
|
|
Article 14(2) |
Article 12(2) |
|
|
Article 14(3) |
Article 12(3) |
|
|
Article 15 |
Article 13 |
|
|
Article 16(1) |
Article 15(1) |
|
|
Article 16(2) |
Article 15(2) |
|
|
Article 16(3) |
Article 15(3) |
|
|
Article 17 |
Article 16 |
|
|
Article 18 |
Article 17(1) |
|
|
Article 19 |
Article 18 |
|
|
Article 20(1) |
Article 14 |
|
|
Article 20(2) |
Article 14 |
|
|
Article 20(3) |
|
|
|
Article 20(5) |
Article 17(2) |
|
|
Article 21 |
Article 3 |
|
|
Article 22(1) |
Article 19(1) |
|
|
Article 22(2) |
Article 19(2) |
|
|
Article 22(3) |
Article 19(3) |
|
|
Article 22(4) |
Article 19(4) |
|
|
Article 22(5) |
Article 19(5) |
|
|
Article 22(6) |
Article 19(6) |
|
|
Article 22(7) |
Article 19(7) |
|
|
Article 22(8) |
Article 19(8) |
|
|
Article 22(9) |
Article 19(9) |
|
|
Article 23(1) |
Article 19a(1) |
|
|
Article 23(2) |
Article 19a(2) |
|
|
Article 23(3) |
Article 19a(3) |
|
|
Article 23(4) |
Article 19a(4) |
|
|
Article 23(5) |
Article 19a(5) |
|
|
Article 24(1) |
Article 19b(1) |
|
|
Article 24(2) |
Article 19b(2) |
|
|
Article 25 |
Article 20 |
|
|
Article 26(1) |
Article 21(1) |
|
|
Article 26(2) |
Article 21(2) |
|
|
Article 27 |
Article 21(3) |
|
|
Article 28(1) |
|
Article 4 |
|
Article 28(2) |
|
Article 9 |
|
Article 29(1) |
|
Article 5(1) |
|
Article 29(2) |
|
Article 5(2) |
|
Article 29(3) |
|
Article 5(3) |
|
Article 29(4) |
|
Article 5(2) |
|
Article 30 |
|
Article 6 |
|
Article 31(1) |
|
Article 7 |
|
Article 31(2) |
|
Article 8 |
|
Article 32(1) |
|
Article 10(1) |
|
Article 32(2) |
|
Article 10(2) |
|
Article 32(3) |
|
Article 10(3) |
|
Article 32(4) |
|
Article 10(4) |
|
Article 32(5) |
|
Article 10(5) |
|
Article 33 |
Article 23 |
|
|
Article 34(1) |
Article 24(1) |
|
|
Article 34(2) |
Article 24(2) |
|
|
Article 34(3) |
Article 24(3) |
|
|
Article 35(1) |
Article 25(1) |
|
|
Article 35(2) |
Article 25(2) |
|
|
Article 35(3) |
Article 25(3) |
|
|
Article 35(4) |
Article 25(4) |
|
|
Article 35(5) |
Article 25(5) |
|
|
Article 35(6) |
Article 25(5) |
|
|
Article 35(7) |
Article 25(5) |
|
|
Article 36(1) |
Article 26(1) |
|
|
Article 36(2) |
Article 26(2) |
|
|
Article 36(3) |
Article 26(3) |
|
|
Article 36(4) |
Article 26(4) |
|
|
Article 36(5) |
Article 26(5) |
|
|
Article 36(6) |
Article 26(5) |
|
|
Article 36(7) |
Article 26(5) |
|
|
Article 37 |
Article 36 |
|
|
Article 38 |
Article 27 |
|
|
Article 39(1) |
Article 28(1) |
|
|
Article 39(2) |
Article 28(2) |
|
|
Article 39(3) |
Article 28(3) |
|
|
Article 39(4) |
Article 28(4) |
|
|
Article 39(5) |
Article 28(4) |
|
|
Article 39(6) |
Article 28(4) |
|
|
Article 40, first paragraph |
Article 29, first paragraph |
|
|
Article 40, second paragraph |
|
|
|
Article 40, third paragraph |
|
|
|
Article 41(1) |
Article 30(1) and (2) |
|
|
Article 41(2) |
|
|
|
Article 42 |
Article 32 |
|
|
Article 43(1) |
Article 33, first paragraph |
|
|
Article 43(2) |
|
|
|
Article 43(3) |
|
|
|
Article 43(4) |
|
|
|
Article 43(5) |
|
|
|
Article 44 |
Articles 31 and 34 |
|
|
Article 45 |
Article 35 |
|
|
Article 46 |
Article 37 |
|
|
Article 47(1) |
Article 38(1) |
|
|
Article 47(2) |
Article 38(2) |
|
|
Article 47(3) |
Article 38(3) |
|
|
Article 48(1) |
Article 39(1) |
|
|
Article 48(2) |
Article 39(2) |
|
|
Article 48(3) |
Article 39(3) |
|
|
Article 48(4) |
Article 39(4) |
|
|
Article 49(1) |
Article 40(1) |
|
|
Article 49(2) |
Article 40(2) |
|
|
Article 49(3) |
Article 41, third paragraph |
|
|
Article 50(1) |
Article 42, first paragraph |
|
|
Article 50(2) |
|
|
|
Article 50(3) |
|
|
|
Article 50(4) |
|
|
|
Article 50(5) |
Article 42, second paragraph |
|
|
Article 50(6) |
Article 42, third and sixth paragraphs |
|
|
Article 50(7) |
Article 42, fourth and seventh paragraph |
|
|
Article 50(8) |
Article 42, fifth paragraph |
|
|
Article 51(1) |
Article 42a(1) |
|
|
Article 51(2) |
Article 42a(2) |
|
|
Article 51(3) |
Article 42a(3) |
|
|
Article 51(4) |
Article 42a(3) |
|
|
Article 51(5) |
Article 42a(3) |
|
|
Article 51(6) |
|
|
|
Article 52(1) |
Article 43(1) |
|
|
Article 52(2) |
Article 43(2) |
|
|
Article 52(3) |
|
|
|
Article 52(4) |
|
|
|
Article 53(1) |
Article 44(1) |
|
|
Article 53(2) |
Article 44(2) |
|
|
Article 53(3) |
|
|
|
Article 54 |
Article 45 |
|
|
Article 55 |
Article 46 |
|
|
Article 56 |
Article 47 |
|
|
Article 57(1) |
Article 48(1), first subparagraph |
|
|
Article 57(2) |
Article 48(1), second subparagraph |
|
|
Article 57(3) |
Article 48(2), first and second subparagraph |
|
|
Article 57(4) |
Article 48(2), third subparagraph |
|
|
Article 57(5) |
Article 48(2), fifth subparagraph |
|
|
Article 57(6) |
Article 48(2), fourth subparagraph |
|
|
Article 58 |
Article 49, first paragraph |
|
|
Article 58(2) |
Article 49, second paragraph |
|
|
Article 58(3) |
Article 49, fourth paragraph |
|
|
Article 58(4) |
Article 49, fifth paragraph |
|
|
Article 59(1) |
Article 50 |
|
|
Article 59(2) |
|
|
|
Article 60 |
Article 51 |
|
|
Article 61(1) |
Article 52, first paragraph |
|
|
Article 61(2) |
Article 52, second paragraph |
|
|
Article 62 |
|
|
|
Article 63(1) |
Article 53(1) |
|
|
Article 63(2) |
Article 53(2) |
|
|
Article 64 |
|
|
|
Article 65 |
|
|
|
Article 66 |
|
|
|
Article 67 |
|
|
|
Article 68 |
|
|
|
Article 69 |
|
|
|
Article 70 |
|
|
|
Article 71 |
|
|
|
Article 72 |
Article 55 |
|
|
Article 73 |
Article 123 |
|
|
Article 74(1) |
Article 22(1) |
|
|
Article 74(2) |
Article 22(2) |
|
|
Article 74(3) |
Article 22(6) |
|
|
Article 74(4) |
|
|
|
Article 75(1) |
Article 22(3) |
|
|
Article 75(2) |
Article 22(4) |
|
|
Article 75(3) |
Article 22(5) |
|
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Article 76(1) |
Annex V, point 2 |
|
|
Article 76(2) |
|
|
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Article 76(3) |
|
|
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Article 76(4) |
|
|
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Article 76(5) |
|
|
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Article 77 |
|
|
|
Article 78 |
|
|
|
Article 79 |
Annex V, points 3, 4 and 5 |
|
|
Article 80 |
Annex V, point 6 |
|
|
Article 81 |
Annex V, point 7 |
|
|
Article 82(1) |
Annex V, point 8 |
|
|
Article 82(2) |
Annex V, point 9 |
|
|
Article 83(1) |
Annex V, point 10 |
|
|
Article 83(2) |
|
Annex IV, point 5 |
|
Article 83(3) |
|
Annex I, points 38 and 41 |
|
Article 84 |
Annex V, point 11 |
|
|
Article 85(1) |
Annex V, point 12 |
|
|
Article 85(2) |
Annex V, point 13 |
|
|
Article 86(1) |
Annex V, point 14 |
|
|
Article 86(2) |
Annex V, point 14a |
|
|
Article 86(3) |
|
|
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Article 86(4) |
Annex V, point 15 |
|
|
Article 86(5) |
Annex V, point 16 |
|
|
Article 86(6) |
Annex V, point 17 |
|
|
Article 86(7) |
Annex V, point 18 |
|
|
Article 86(8) |
Annex V, point 19 |
|
|
Article 86(9) |
Annex V, point 20 |
|
|
Article 86(10) |
Annex V, point 21 |
|
|
Article 86(11) |
Annex V, point 22 |
|
|
Article 87 |
|
|
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Article 88(1) |
Annex V, point 1 |
|
|
Article 88 (2) |
|
|
|
Article 89 |
|
|
|
Article 90 |
|
|
|
Article 91 |
|
|
|
Article 92(1) |
Annex V, point 23, second paragraph |
|
|
Article 92(2), introductory sentence |
Annex V, point 23, introductory sentence |
|
|
Article 92(2)(a) |
Annex V, point 23(a) |
|
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Article 92(2)(b) |
Annex V, point 23(b) |
|
|
Article 92(2)(c) |
Annex V, point 23(c) |
|
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Article 92(2)(d) |
Annex V, point 23(d) |
|
|
Article 92(2)(e) |
Annex V, point 23(e) |
|
|
Article 92(2)(f) |
Annex V, point 23(f) |
|
|
Article 92(2)(g) |
|
|
|
Article 93 |
Annex V, point 23(k) |
|
|
Article 94(1)(a) |
Annex V, point 23(g) |
|
|
Article 94(1)(b) |
Annex V, point 23(h) |
|
|
Article 94(1)(c) |
Annex V, point 23(i) |
|
|
Article 94(1)(d) |
|
|
|
Article 94(1)(e) |
Annex V, point 23(j) |
|
|
Article 94(1)(f) |
Annex V, point 23(l) |
|
|
Article 94(1)(g) |
|
|
|
Article 94(1)(h) |
Annex V, point 23(m) |
|
|
Article 94(1)(i) |
|
|
|
Article 94(1)(j) |
Annex V, point 23(n) |
|
|
Article 94(1)(k) |
Annex V, point 23(n) |
|
|
Article 94(1)(l) |
Annex V, point 23(o) |
|
|
Article 94(1)(m) |
Annex V, point 23(p) |
|
|
Article 94(1)(n) |
Annex V, point 23(q) |
|
|
Article 94(1)(o) |
Annex V, point 23(r) |
|
|
Article 94(1)(p) |
Annex V, point 23(s) |
|
|
Article 94(1)(q) |
Annex V, point 23(t) |
|
|
Article 94(2) |
Article 150(3)b |
|
|
Article 95 |
Annex V, point 24 |
|
|
Article 96 |
|
|
|
Article 97(1) |
Article 124(1) |
|
|
Article 97(2) |
Article 124(2) |
|
|
Article 97(3) |
Article 124(3) |
|
|
Article 97(4) |
Article 124(4) |
|
|
Article 98(1) |
Annex XI, point 1 |
|
|
Article 98(2) |
Annex XI, point 1a |
|
|
Article 98(3) |
Annex XI, point 2 |
|
|
Article 98(4) |
Annex XI, point 3 |
|
|
Article 98(5) |
Article 124(5) |
|
|
Article 98(6) |
|
|
|
Article 98(7) |
|
|
|
Article 99 |
|
|
|
Article 100 |
|
|
|
Article 101 |
|
|
|
Article 102(1) |
Article 136(1) |
|
|
Article 102(2) |
|
|
|
Article 103 |
|
|
|
Article 104 |
Article 136 |
|
|
Article 105 |
|
|
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Article 106(1) |
Article 149 |
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Article 106(2) |
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Article 107 |
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Article 108(1), first subparagraph |
Article 68(2) |
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Article 108(1), second subparagraph |
Article 3 |
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Article 108(1), third subparagraph |
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Article 108(2) |
Article 71(1) |
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Article 108(3) |
Article 71(2) |
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Article 108(4) |
Article 73(2) |
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Article 109(1) |
Article 68(1) |
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Article 109(2) |
Article 73(3) |
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Article 109(3) |
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Article 110(1) |
Article 124(2) |
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Article 110(2) |
Article 23 |
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Article 111(1) |
Article 125(1) |
Article 2 |
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Article 111(2) |
Article 125(2) |
Article 2 |
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Article 111(3) |
Article 126(1) |
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Article 111(4) |
Article 126(2) |
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Article 111(5) |
Article 126(3) |
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Article 111(6) |
Article 126(4) |
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Article 112(1) |
Article 129(1), first subparagraph |
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Article 112(2) |
Article 129(1), second subparagraph |
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Article 112(3) |
Article 129(1), third subparagraph |
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Article 113(1)(a) |
Article 129(3), first subparagraph |
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Article 113(1)(b) |
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Article 113(2)(a), first subparagraph |
Article 129(3), second subparagraph |
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Article 113(2)(b), first subparagraph |
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Article 113(2), second subparagraph |
Article 129(3), second subparagraph |
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Article 113(3), third subparagraph |
Article 129(3), third subparagraph |
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Article 113(3) |
Article 129(3), fourth to seventh subparagraph |
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Article 113(4) |
Article 129(3), eighth and ninth subparagraph |
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Article 113(5) |
Article 129(3), tenth and eleventh subparagraph |
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Article 114 |
Article 130 |
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Article 115 |
Article 131 |
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Article 116(1) |
Article 131a(1), first, second and third subparagraph |
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Article 116(2) |
Article 131a(1), fourth subparagraph |
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Article 116(3) |
Article 131a(2), first subparagraph |
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Article 116(4) |
Article 131a(2), second and third subparagraph |
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Article 116(5) |
Article 131a(2), fourth and fifth subparagraph |
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Article 116(6) |
Article 131a(2), sixth subparagraph |
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Article 116(7) |
Article 131a(2), seventh subparagraph |
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Article 116(8) |
Article 131a(2), eighth subparagraph |
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Article 116(9) |
Article 131a(2), ninth subparagraph |
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Article 117(1) |
Article 132(1), first to sixth subparagraph |
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Article 117(2) |
Article 132(1), seventh and eighth subparagraph |
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Article 117(3) |
Article 132(2) |
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Article 117(4) |
Article 132(3) |
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Article 118 |
Article 141 |
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Article 119(1) |
Article 127(1) |
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Article 119(2) |
Article 127(2) |
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Article 119(3) |
Article 127(3) |
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Article 120 |
Article 72a |
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Article 121 |
Article 135 |
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Article 122 |
Article 137 |
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Article 123 (1) |
Article 138(1) |
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Article 123(2) |
Article 138(2), first subparagraph |
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Article 124 |
Article 139 |
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Article 125 |
Article 140 |
Article 2 |
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Article 126 |
Article 142 |
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Article 127 |
Article 143 |
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Article 128 |
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Article 129 |
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Article 130 |
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Article 131 |
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Article 132 |
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Article 133 |
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Article 134 |
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Article 135 |
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Article 136 |
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Article 137 |
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Article 138 |
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Article 139 |
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Article 140 |
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Article 141 |
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Article 142 |
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Article 143 |
Article 144 |
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Article 144(1) |
Article 122a(9) |
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Article 144(2) |
Article 69(4) |
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Article 144(3) |
Article 70(4) |
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Article 145 |
Article 150(1) |
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Article 146 |
Article 150(1a) |
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Article 147(1) |
Article 151(1) |
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Article 147(2) |
Article 151(2) |
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Article 148(1) |
Article 151a(3) |
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Article 148(2) |
Article 151a(1) |
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Article 148(3) |
Article 151b |
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Article 148(4) |
Article 151a(2) |
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Article 148(5) |
Article 151c |
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Article 149 |
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Article 150 |
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Article 151 |
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Article 152 |
Article 29 |
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Article 153 |
Article 30 |
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Article 154 |
Article 33 |
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Article 155 |
Article 40 |
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Article 156 |
Article 41 |
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Article 157 |
Article 42 |
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Article 158 |
Article 42a |
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Article 159 |
Article 43 |
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Article 160 |
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Article 161(1) |
Article 156, sixth paragraph |
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Article 161(2) |
Article 156, fourth paragraph |
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Article 161(3) |
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Article 161(4) |
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Article 161(5) |
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Article 161(6) |
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Article 161(7) |
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Article 161(8) |
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Article 161(9) |
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Article 162(1) |
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Article 162(2) |
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Article 162(3) |
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Article 162(4) |
Article 157(1), third subparagraph |
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Article 162(5) |
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Article 162(6) |
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Article 163 |
Article 158 |
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Article 164 |
Article 159 |
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Article 165 |
Article 160 |
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Annex I |
Annex I |
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( 1 ) Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).
( 2 ) OJ L 390, 31.12.2004, p. 38.
( 3 ) Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331, 15.12.2010, p. 48).
( 4 ) Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84).
( 5 ) OJ L 309, 25.11.2005, p. 15.
( 6 ) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
( 7 ) Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014 (OJ L 314, 5.12.2019, p. 1).
( 8 ) Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU (OJ L 314, 5.12.2019, p. 64).
( 9 ) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
( 10 ) OJ L 331, 15.12.2010, p. 48.
( 11 ) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
( 12 ) OJ L 157, 9.6.2006, p. 87.
( 13 ) OJ L 222, 14.8.1978, p. 11.
( 14 ) OJ L 193, 18.7.1983, p. 1.
( 15 ) Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014 and (EU) 2016/1011 (OJ L333, 27.12.2022, p.1).
( 16 ) OJ L 120, 15.5.2009, p. 22.
( 17 ) Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive (OJ L 241, 2.9.2006, p. 26).
( 18 ) Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (OJ L 156, 19.6.2018, p. 43).
( 19 ) Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 (OJ L 347, 28.12.2017, p. 35).
( 20 ) Regulation (EU) 2023/2859 of the European Parliament and of the Council of 13 December 2023 establishing a European single access point providing centralised access to publicly available information of relevance to financial services, capital markets and sustainability (OL L, 2023/2859, 20.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2859/oj).
( 21 ) Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ L 225, 30.7.2014, p. 1).
( 22 ) Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market and amending Directives 2002/65/EC, 2009/110/EC, 2013/36/EU and Regulation (EU) No 1093/2010 and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).
( 23 ) Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets, and amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 (OJ L 150, 9.6.2023, p. 40).