Commission Delegated Regulation (EU) 2022/676 of 3 December 2021 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to regulatory technical standards specifying the conditions in accordance with which consolidation is to be carried out in the cases referred to in Article 18(3) to (6) and Article 18(8) of that Regulation (Text with EEA relevance)

• CELEX: Delegated Regulation (EU) 2022/676
• Articles: 9

Article 1 Definitions

For the purposes of this Regulation, the following definitions shall apply:

(1)

‘relevant activities’ means relevant activities as defined in Appendix A to the Annex to Commission Regulation (EC) 1254/2012  ( 8 ) (Annex relating to IFRS 10);

(2)

‘risk mitigants’ means any applicable laws, regulations, rules or contractual arrangements that restrict an institution’s ability to provide financial support to an undertaking in stressed conditions;

(3)

‘participating undertakings’ means the undertakings that jointly control any of the following:

(a)

an institution or financial institution as referred to in Article 3(1) of this Regulation; or

(b)

an undertaking which is not an institution, financial institution or ancillary services undertaking as referred to in Article 7(3), point (a), of this Regulation;

(4)

‘capital ties’ means the ownership, direct or indirect, of capital of an undertaking, including a participation as defined in Article 4(1), point (35), of Regulation (EU) No 575/2013;

(5)

‘significant influence’ means the power to participate in the financial and operating policy decisions of an undertaking, where that undertaking does not qualify as a subsidiary as defined in Article 4(1), point (16), of Regulation (EU) No 575/2013 and is not jointly controlled as referred to in Article 3(1) or in Article 7(3), point (a), of this Regulation.

Article 2 Conditions in accordance with which the consolidation is to be carried out in the case of groups of undertakings that are related within the meaning of Article 22(7) of Directive 2013/34/EU

1.   Where consolidation is required pursuant to Article 18(3) of Regulation (EU) No 575/2013, the following entity shall be responsible for ensuring compliance with the requirements laid down in Part One, Title II, Chapter 2, Section 1, of Regulation (EU) No 575/2013 on the basis of the consolidated situation of all undertakings of the group:

(a)

the institution, where there is only one institution within the group;

(b)

the credit institution with the largest balance sheet total, where there are several credit institutions within the group;

(c)

the investment firm subject to Regulation (EU) No 575/2013 with the largest balance sheet total, where the group does not include any credit institution.

2.   For the purposes of paragraph 1, the balance sheet total shall be calculated on the basis of the latest audited consolidated financial statements or, where consolidated financial statements are not required to be prepared in accordance with the applicable accounting framework, the latest audited individual financial statement of the institution.

3.   Where the application of the criteria referred to in paragraph 1 of this Article would be inappropriate, the competent authorities responsible for exercising supervision on a consolidated basis pursuant to Article 111(4), (5), and (6) of Directive 2013/36/EU of the European Parliament and of the Council  ( 9 ) may waive those criteria, and designate another entity within the group subject to Regulation (EU) No 575/2013 as responsible for ensuring compliance with the requirements referred to in Part One, Title II, Chapter 2, Section 1, of that Regulation on the basis of the consolidation situation of all undertakings of the group.

When assessing the appropriateness of the application of the criteria referred to in paragraph 1 of this Article, those competent authorities shall take into account any decision taken in accordance with Article 111(6) of Directive 2013/36/EU or, in the absence of such decision, the institutions concerned and the relative importance of their activities in the relevant Member States or whether they are required to prepare consolidated financial statements for the group in the cases referred to in Article 22(7) of Directive 2013/34/EU. In such cases, the institution with the largest balance sheet total shall have the right to be heard, before the competent authorities take the decision.

4.   In the cases referred to in this Article, the competent authorities responsible for exercising supervision on a consolidated basis pursuant to Article 111(4), (5) and (6) of Directive 2013/36/EU shall permit or require the use of the method of consolidation provided for in Article 22(8) and (9) of Directive 2013/34/EU.

5.   An undertaking that is related to one or more undertakings within the meaning of Article 22(7) of Directive 2013/34/EU need not be included in the consolidation pursuant to this Article in the same cases and in accordance with the same criteria as set out in Article 19 of Regulation (EU) No 575/2013.

Article 3 Conditions in accordance with which the consolidation is to be carried out in the case of institutions or financial institutions managed by an undertaking included in the consolidation together with one or more undertakings not included in the consolidation

1.   In the case of participations in institutions or financial institutions managed by an undertaking included in the consolidation together with one or more undertakings not included in the consolidation, the consolidating supervisor shall require proportional consolidation pursuant to Article 18(4) of Regulation (EU) No 575/2013, where all of the following conditions are met:

(a)

the participating undertakings jointly control a majority of the shareholders’ or members’ voting rights in the institution or financial institution concerned or have the ability to direct jointly that institution’s or financial institution’s relevant activities, pursuant to a legally enforceable contractual arrangement between them or to clauses of the institution’s or financial institution’s memoranda or articles of association;

(b)

the decisions about the institution’s or financial institution’s relevant activities require the unanimous consent of all the participating undertakings;

(c)

the contractual arrangement referred to in point (a) or the clauses of the institution’s or financial institution’s memoranda or articles of association stipulate that the liability of the participating undertakings is limited to the share of capital they hold in the institution or financial institution concerned.

2.   In the cases referred to in this Article, proportional consolidation shall be carried out on the basis of the share of capital held in the concerned institution or financial institution and in accordance with Article 26(2) of Directive 2013/34/EU.

Article 4 Conditions in accordance with which the consolidation is to be carried out in the case of participations or capital ties in institutions or financial institutions other than those referred to Article 18(1) and (4) of Regulation (EU) No 575/2013

1.   Where competent authorities determine that consolidation is to be carried out in accordance with Article 18(5) of Regulation (EU) No 575/2013, they may permit or require the use of the equity method pursuant to that Article unless they determine the proportional or full consolidation of the institution or financial institution concerned to be required in accordance with the conditions set out in paragraphs 2 to 5 of this Article.

2.   The competent authority shall make the determination referred to in paragraph 1 on the basis of an assessment of the risks posed by the institution or financial institution concerned to the institution, taking into account the extent and the effectiveness of any risk mitigants and the impact on the prudential requirements of the institution on a consolidated basis that could result from the application of full or proportional consolidation.

3.   For the purposes of the assessment referred to in paragraph 2, the institution shall provide the competent authority, upon request, with all necessary information in particular with regard to the following elements:

(a)

the overall ownership structure of the institution or financial institution concerned, having regard, in particular, to whether shares or equivalent ownership rights and voting rights, including potential voting rights as referred to in Article 5(5), are distributed across a large number of shareholders, owners or members, or whether the institution is the main shareholder, owner or member of the institution or financial institution;

(b)

whether the institution acts as sponsor by managing or advising the institution or financial institution concerned, placing the institution’s or financial institution’s securities into the market, or providing liquidity and or credit enhancements to the institution or financial institution, or whether the institution is an important investor in its debt or equity instruments, or there is other contractual and non-contractual involvement exposing the institution to the risks or to equity-like returns from the assets of the institution or financial institution concerned or related to its performance;

(c)

whether the institution is effectively involved in the decision-making process of the institution or financial institution concerned, the degree to which the institution exercises influence over it, or whether the institution or financial institution is considered to be controlled in accordance with the applicable accounting framework;

(d)

whether the institution receives critical operational services from the institution or financial institution concerned which cannot be replaced in a timely fashion without excessive cost;

(e)

whether the credit rating of the institution or financial institution concerned is based on the institution’s own rating;

(f)

whether specific features relating to the composition of the investor base of the institution or financial institution concerned exist, with particular reference to whether the other investors in the institution or financial institution have a close commercial relationship with the institution, their ability to bear losses or their ability to dispose of their financial instruments;

(g)

whether the institution or financial institution concerned and the institution have a common customer base or are involved in the commercialisation of each other’s products;

(h)

whether the institution and the institution or financial institution concerned have the same brand;

(i)

whether the institution has already provided financial support to the institution or financial institution concerned in case of financial difficulties.

4.   Competent authorities may, in particular, require proportional consolidation of the institution or financial institution concerned according to the share of capital held in that undertaking where there is a contractual agreement between the institution and one or more shareholders, owners or members of the institution or financial institution concerned to jointly provide financial support to the institution or financial institution or there is strong evidence that they would financially support the institution or financial institution according to the share of capital held in it.

5.   Competent authorities may, in particular, require full consolidation of the institution or financial institution concerned where, as a consequence of the organisational and financial relationships between the institution and the institution or financial institution concerned, the institution is exposed to the majority of the risks or the benefits arising from the relevant activities of that institution or financial institution.

Article 5 Conditions in accordance with which the consolidation is to be carried out in cases where an institution exercises a significant influence over one or more institutions or financial institutions, but without holding a participation or other capital ties in those institutions

1.   Where an institution exercises a significant influence over one or more institutions or financial institutions, but without holding a participation or other capital ties in those institutions, competent authorities may determine the full consolidation of the institutions or financial institutions concerned pursuant to Article 18(6), point (a), of Regulation (EU) No 575/2013, on the basis of an assessment of the risks posed by those institutions or financial institutions to the institution exercising the significant influence, taking into account the extent and the effectiveness of any risk mitigants and the impact on the prudential requirements of that institution on a consolidated basis that could result from the application of full consolidation.

2.   For the purposes of the assessment referred to in paragraph 1, the institution shall provide the competent authority, upon request, with all necessary information, in particular with regard to the elements referred to in Article 4(3), points (a) to (i).

3.   Competent authorities may, in particular, require full consolidation of the institutions or financial institutions referred to in paragraph 1 where, as a consequence of the organisational and financial relationships between the institution exercising the significance influence and the institutions or financial institutions concerned, the institution is exposed to the majority of the risks or the benefits arising from the relevant activities of those institutions or financial institutions.

4.   For the purposes of this Article, elements to be taken as indications of significant influence shall include the following:

(a)

the institution has appointed or has the right to appoint a member of the administrative, management or supervisory body of the institution or financial institution concerned;

(b)

the institution is effectively involved in the decision-making process of the institution or financial institution concerned, including in decisions about dividends and other distributions;

(c)

existence of material transactions with the institution or financial institution concerned;

(d)

the institution has exchanged managerial personnel with the institution or financial institution concerned;

(e)

the institution provides essential technical information or critical services to the institution or financial institution concerned;

(f)

the institution has additional rights in the institution or financial institution concerned, pursuant to a contract, clauses of their memoranda or articles of association that could affect the management or the decision-making process of that institution or financial institution.

5.   The existence of share warrants, share call options, debt instruments that are convertible into ordinary shares or other similar instruments that are currently exercisable or convertible and have the potential, if exercised or converted, to give the institution voting power or to reduce another party’s voting power over the financial and operating policies of the institution or financial institution concerned shall also be considered in the assessment of significant influence.

Article 6 Conditions in accordance with which the consolidation is to be carried out in cases where two or more institutions or financial institutions are placed under single management other than pursuant to a contract, clauses of their memoranda or articles of association

1.   A competent authority shall determine the consolidation of two or more institutions or financial institutions that are placed under single management other than pursuant to a contract, clauses of their memoranda or articles of association for the purposes of Article 18(6), point (b), of Regulation (EU) No 575/2013, where the following conditions are met:

(a)

the competent authority has carried out an assessment aimed at verifying that the institutions’ or financial institutions’ financial and operating policies are effectively coordinated; and

(b)

the institutions or financial institutions concerned are not related within the meaning of Article 22(1), (2) and Article 22(7), point (b), of Directive 2013/34/EU.

2.   For the purposes of paragraph 1, point (a), competent authorities may, in particular, take into account the following elements as indications of the existence of the situation referred to in that point:

(a)

the institutions or financial institutions concerned are controlled directly or indirectly, by the same natural person or persons, or by the same entity or entities;

(b)

a majority of the members of the institutions’ or financial institutions’ administrative, management or supervisory body consists of persons appointed by the same natural person or persons or by the same entity or entities, even if those members do not consist of the same persons.

3.   In the cases referred to in this Article, competent authorities shall permit or require the use of the method of consolidation provided for in Article 22(8) and (9) of Directive 2013/34/EU.

4.   Article 2(1), (2) and (3) of this Regulation shall apply for the purposes of determining the entity responsible for ensuring compliance with the requirements referred to in Part One, Title II, Chapter 2, Section 1, of Regulation (EU) No 575/2013 on the basis of the consolidation situation of all institutions and financial institutions referred to in paragraph 1 of this Article.

Article 7 Conditions in accordance with which the consolidation is to be carried out in cases where a subsidiary or an undertaking in which an institution holds a participation is not an institution, financial institution or ancillary services undertaking

1.   A competent authority may require the full or proportional consolidation of a subsidiary or an undertaking in which an institution holds a participation where that subsidiary or undertaking is not an institution, financial institution or ancillary services undertaking pursuant to Article 18(8) of Regulation (EU) No 575/2013, provided that it carries out an assessment that verifies that the condition set out in Article 18(8), point (b), of Regulation (EU) No 575/2013 is being met. For that purpose, Article 4(2) and (3) of this Regulation shall apply.

2.   Competent authorities may, in particular, require full consolidation of the subsidiary or undertaking referred to in paragraph 1 where, as a consequence of the organisational and financial relationships between the institution and the subsidiary or undertaking concerned, the institution is exposed to the majority of the risks or the benefits arising from the relevant activities of that subsidiary or undertaking.

3.   Competent authorities may in particular require proportional consolidation of an undertaking referred to in paragraph 1 according to the share of capital held in that undertaking where either of the following conditions is met:

(a)

the undertaking is jointly controlled by the institution together with one or more undertakings not included in the consolidation pursuant to a legally enforceable contractual arrangement between them or to clauses of the undertaking’s memoranda or articles of association and the decisions about the undertaking’s relevant activities require the unanimous consent of all the participating undertakings;

(b)

there is a contractual agreement between the institution and one or more shareholders, owners or members of the undertaking to jointly provide financial support to that undertaking or there is strong evidence that they would financially support the undertaking according to the share of capital held in it.

Article 8 Conditions for the inclusion in consolidated Common Equity Tier 1, Additional Tier 1 and Tier 2 capital of instruments owned by persons other than the undertakings included in the prudential scope of consolidation

1.   In cases where the method of consolidation provided for in Article 22(8) and (9) of Directive 2013/34/EU is used pursuant to Article 18(3) or (6), point (b), of Regulation (EU) No 575/2013, an institution may include the Common Equity Tier 1 items and Additional Tier 1 and Tier 2 capital instruments and the related share premium accounts of the undertakings included in the prudential scope of consolidation which are owned by persons other than those undertakings in consolidated Common Equity Tier 1, Additional Tier 1 and Tier 2 capital, provided that those capital items are available to cover the losses of all the undertakings included in the consolidation.

Where the Common Equity Tier 1 items and the Additional Tier 1 and Tier 2 capital instruments and the related share premium accounts referred to in the first subparagraph are not available to cover the losses of all the undertakings included in the prudential scope of consolidation, the institution shall determine the amount of the Common Equity Tier 1 items and of the Additional Tier 1 and Tier 2 capital instruments and the related share premium accounts to be included in consolidated Common Tier 1, Additional Tier 1 and Tier 2 capital in accordance with Articles 81 to 88 of Regulation (EU) No 575/2013.

2.   For the purposes of paragraph 1, the Common Equity Tier 1 items and the Additional Tier 1 and Tier 2 capital instruments and the related share premium accounts referred to in paragraph 1, first subparagraph, which are owned by the person or persons or the entity or entities which manage the undertakings on a unified basis pursuant to Article 18(3) of Regulation (EU) No 575/2013 or exercise single management over the undertakings pursuant to Article 18(6), point (b), of that Regulation, shall be deemed to be available to cover the losses of all the undertakings included in the prudential scope of consolidation.

3.   In cases where full consolidation is required pursuant to Article 18(5), Article 18(6), point (a), or Article 18(8) of Regulation (EU) No 575/2013, the institution shall determine the amount of Common Equity Tier 1 items and of the Additional Tier 1 and Tier 2 capital instruments and the related share premium accounts of the undertakings included in the prudential scope of consolidation which are owned by persons other than those undertakings, to be included in consolidated Common Equity Tier 1, Additional Tier 1 and Tier 2 capital in accordance with Articles 81 to 88 of Regulation (EU) No 575/2013. For that purpose, the undertakings for which full consolidation is required shall be considered to be subsidiaries.

4.   In cases where proportional consolidation is required pursuant to Article 18(4), (5) or (8) of Regulation (EU) No 575/2013, institutions shall determine the amount of Additional Tier 1 and Tier 2 capital instruments issued by the undertakings proportionally included in the prudential scope of consolidation which are owned by persons other than those undertakings as well as the related share premium accounts, to be included in consolidated Additional Tier 1 and Tier 2 capital in accordance with Articles 82, 83, and 85 to 88 of Regulation (EU) No 575/2013.

5.   For the purposes of paragraph 4, the following shall apply:

(a)

the undertakings for which proportional consolidation is required shall be considered to be subsidiaries;

(b)

references to the full inclusion in the consolidation pursuant to Part One, Title II, Chapter 2, of Regulation (EU) No 575/2013 shall be construed as references to the proportional inclusion in the consolidation pursuant to Article 18(4), (5) or (8) of that Regulation; and

(c)

the amounts referred to in Articles 82, 83 and 85 to 88 of Regulation (EU) No 575/2013 shall be determined taking into account the share of capital held by the institution in those undertakings.

Article 9 Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .