Calculation of the fixed overheads requirement
Article 1
Open ↗1. For the purposes of Article 13(1) of Regulation (EU) 2019/2033, the ‘figures resulting from the applicable accounting framework’ shall refer to figures of an investment firm’s most recent audited annual financial statements after distribution of profits or annual financial statements where investment firms are not obliged to have audited financial statements. 2. Where the investment firm’s most recent audited financial statements do not reflect a 12-month period, the investment firm shall divide the amounts included in those statements by the number of months that are reflected in those financial statements and shall subsequently multiply the result by 12, so as to produce an equivalent annual amount. 3. For the purposes of Article 13(4), first subparagraph, point (b), of Regulation (EU) 2019/2033, employees’, directors’ and partners’ shares in profits shall be calculated on the basis of the net profits. 4. For the purposes of Article 13(4), first subparagraph, point (a), of Regulation (EU) 2019/2033, staff bonuses and other remuneration shall be considered to depend on the net profit of the investment firm in the respective year where both of the following conditions are met: (a) the staff bonuses or other remuneration to be deducted have already been paid to employees in the year preceding the year of payment, or the payment of the staff bonuses or other remuneration to employees will have no impact on the firm’s capital position in the year of payment; (b) with respect to the current year and future years, the firm is not obliged to award or allocate further bonuses or other payments in the form of remuneration unless it makes a net profit in that year. 5. Where third parties, including tied agents, incurred fixed expenses, on behalf of the investment firms, that are not already included within the total expenses in the annual financial statements referred to in paragraph 1, those fixed expenses shall be added to the total expenses of the investment firm. Where a breakdown of the third party’s expenses is available, an investment firm shall add to the figure representing the total expenses only the share of those fixed expenses applicable to the investment firm. Where such a breakdown is not available, an investment firm shall add to the figure representing the total expenses only its share of the third party’s expenses as it results from the business plan of the investment firm. 6. In addition to the items for deduction referred to in Article 13(4) of Regulation (EU) 2019/2033, the following items shall also be deducted from the total expenses, where they are included under total expenses in accordance with the relevant accounting framework: (a) fees, brokerage and other charges paid to central counterparties, exchanges and other trading venues and intermediate brokers for the purposes of executing, registering or clearing transactions, only where they are directly passed on and charged to customers. Those shall not include fees and other charges necessary to maintain membership or otherwise meet loss-sharing financial obligations to central counterparties, exchanges and other trading venues; (b) interest paid to customers on client money, where there is no obligation of any kind to pay such interest; (c) expenditures from taxes where they fall due in relation to the annual profits of the investment firm; (d) losses from trading on own account in financial instruments; (e) payments related to contract-based profit and loss transfer agreements according to which the investment firm is obliged to transfer, following the preparation of its annual financial statements, its annual result to the parent undertaking; (f) payments into a fund for general banking risk in accordance with Article 26(1), point (f), of Regulation (EU) No 575/2013 of the European Parliament and of the Council ( 3 ) ; (g) expenses related to items that have already been deducted from own funds in accordance with Article 36(1) of Regulation (EU) No 575/2013. In addition to the items listed in the first subparagraph, market makers, as defined in Article 4(1), point (7), of Directive 2014/65/EU of the European Parliament and of the Council ( 4 ) , may also deduct the following amount ( A ): A = B – 4 × C, where: B = trading fees paid by the market maker for transactions for which the market maker provides market-making activities (yearly amount), where those fees have not directly been passed on and charged to customers; C = trading fees that would be incurred to sell a portfolio of securities equivalent to the largest end-of-day inventory of securities, held by the market maker for market-making purposes, over the preceding year.