Commission Delegated Regulation (EU) 2023/1117 of 12 January 2023 supplementing Directive (EU) 2019/2034 of the European Parliament and of the Council with regard to regulatory technical standards specifying requirements for the type and nature of the information to be exchanged by competent authorities of home and host Member States (Text with EEA relevance)

• CELEX: Delegated Regulation (EU) 2023/1117
• Articles: 13

Article 1 Information on a consolidated basis

Where the ultimate parent investment firm is established in the same Member State as that in which the investment firm has its head office, and the competent authority of the investment firm’s home Member State is also the group supervisor determined in accordance with Article 46 of Directive (EU) 2019/2034, that competent authority shall provide information regarding that investment firm at the consolidated level for the investment firm group and shall inform the competent authorities of host Member States that the information is provided at the consolidated level.

Article 2 Information about management and ownership structure of investment firms operating through a branch

1.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with the organisational structure of an investment firm, its business lines and its relationships to entities within the group.

2.   In addition to the type of information referred to in paragraph 1, the competent authorities of the home Member State supervising an investment firm not identified as small and non-interconnected investment firm in accordance with Article 12 of Regulation (EU) 2019/2033 of the European Parliament and of the Council  ( 5 ) shall provide the competent authorities of the host Member State with the following information in relation to the investment firm:

(a)

the structure of the management body and senior management as well as a description of the allocation of responsibilities for the oversight of a branch;

(b)

the list of shareholders and members with qualifying holdings.

Article 3 Information about compliance with own funds requirements

1.   The competent authorities of the home Member State shall inform the competent authorities of the host Member State about whether an investment firm is compliant with the following requirements:

(a)

the own fund requirements laid down in Article 11 of Regulation (EU) 2019/2033, taking into account the transitional arrangements laid down in Article 57 of that Regulation;

(b)

where applicable, any additional own funds requirements imposed in accordance with Article 39(2), point (a), of Directive (EU) 2019/2034;

(c)

where applicable, any guidance on additional own funds imposed in accordance with Article 41 of Directive (EU) 2019/2034.

2.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with the following information regarding own funds requirements applicable to an investment firm:

(a)

the value of the own funds requirements laid down in Article 11 of Regulation (EU) 2019/2033;

(b)

whether the value referred to in point (a) was set on the basis of Article 11(1), points (a), (b) or (c) of Regulation (EU) 2019/2033;

(c)

where applicable, the value of any additional own funds requirements imposed in accordance with Article 39(2), point (a), of Directive (EU) 2019/2034, and the grounds for its imposition;

(d)

where applicable, the value of any guidance on additional own funds imposed in accordance with Article 41 of Directive (EU) 2019/2034.

3.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with information regarding any situation in respect of which the competent authorities of the home Member State have determined that an investment firm has not complied with applicable own funds requirements referred to in paragraph 1. The information provided shall explain the situation and supervisory measures taken or planned to be taken.

4.   Where an investment firm has been exempted from the application of Part Two of Regulation (EU) 2019/2033 in accordance with Article 6(1) of that Regulation, the competent authorities of the home Member State shall provide the information referred to in paragraphs 1 and 2 of this Article at the consolidated level.

5.   Where an investment firm has been allowed to apply Article 8 of Regulation (EU) 2019/2033, the competent authorities of the home Member State shall inform the competent authorities of the host Member State about whether the investment firm is compliant with the own funds requirements laid down in Article 8(3) and (4) of that Regulation.

Article 4 Information about compliance with concentration risk requirements and liquidity requirements

1.   The competent authorities of the home Member State shall inform the competent authorities of the host Member State about whether an investment firm is compliant with the concentration risk requirements laid down in Part Four of Regulation (EU) 2019/2033.

2.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with information regarding any situation in respect of which the competent authorities of the home Member State have determined that an investment firm has not complied with the applicable concentration risk requirements, as laid down in Part Four of Regulation (EU) 2019/2033. The information provided shall explain the situation and supervisory measures taken or planned to be taken.

3.   The competent authorities of the home Member State shall inform the competent authorities of the host Member State about whether an investment firm is compliant with the liquidity requirements laid down in Part Five of Regulation (EU) 2019/2033, taking into account the transitional provisions laid down in Article 57(1) of that Regulation and the application of any exemptions in accordance with Article 43(1), second subparagraph of that Regulation.

4.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with information regarding any situation in respect of which the competent authorities of the home Member State have determined that an investment firm has not complied with applicable liquidity requirements, as laid down in Part Five of Regulation (EU) 2019/2033. The information provided shall explain the situation and supervisory measures taken or planned to be taken.

5.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with their overall assessment of an investment firm’s liquidity risk profile and risk management, taking into account the transitional provisions laid down in Article 57(1) of Regulation (EU) 2019/2033 and the application of any exemptions in accordance with Article 43(1), second subparagraph of that Regulation.

6.   Where the competent authorities have exempted an investment firm from the application of Part Five of Regulation (EU) 2019/2033 in accordance with Article 6(3) of that Regulation, the competent authorities of the home Member State shall provide the information referred to in paragraph 2 of this Article at the consolidated level.

Article 5 Information about administrative and accounting procedures

1.   The competent authorities of the home Member State shall provide the competent authorities of the host Member State with information regarding any situation where the competent authorities of the home Member State have determined that an investment firm has not complied with applicable accounting standards and procedures to which the investment firm is subject in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council  ( 6 ) . The information to be provided shall explain the situation and supervisory measures taken or planned to be taken.

2.   Where the information referred to in paragraph 1 is relevant to a particular branch only, the competent authorities of the home Member State shall only provide the information to the competent authorities of the host Member State in which that branch is established.

Article 6 Information about internal control mechanisms

1.   The competent authorities of the home Member State shall provide to the competent authorities of the host Member State information regarding any situation in respect of which the competent authorities of the home Member States have determined that an investment firm has not complied with requirements concerning internal control mechanisms, including risk management, risk control and internal audit arrangements pursuant to Regulation (EU) 2019/2033 and Directive (EU) 2019/2034. The information to be provided shall explain the situation and the supervisory measures taken or planned to be taken.

2.   Where the information referred to in paragraph 1 is relevant to a particular branch only, the competent authorities of the home Member State shall only provide the information to the competent authorities of the host Member State in which that branch is established.

Article 7 Information about other factors that may influence the risk posed by the investment firm

1.   In addition to the information and findings provided for in accordance with Article 13(2) of Directive (EU) 2019/2034, the competent authorities of the home Member State shall provide to the competent authorities of the host Member State information regarding any material risks and their supervisory assessment as revealed by the supervisory review and evaluation carried out in accordance with Article 36 of Directive (EU) 2019/2034, or through any other supervisory activity carried out by the competent authorities of the home Member State.

2.   Where the information referred to in paragraph 1 is relevant to a particular branch only, the competent authorities of the home Member State shall only provide the information to the competent authorities of the host Member State in which that branch is established.

Article 8 Information about general non-compliance

1.   Where Articles 3 to 7 of this Regulation or the relevant provisions on information exchange of Directive 2014/65/EU or Delegated Regulation (EU) 2017/586 do not apply, the competent authorities of the home Member State shall provide the competent authorities of the host Member State with information regarding any situation in respect of which they have determined that an investment firm has not complied with any of the following requirements, where such non-compliance might affect the protection of clients or the stability of the financial system in the host Member State:

(a)

requirements related to the prudential supervision of investment firms laid down in Regulation (EU) No 575/2013 of the European Parliament and of the Council  ( 7 ) , Directive 2013/36/EU of the European Parliament and of the Council  ( 8 ) , Directive 2014/59/EU of the European Parliament and of the Council  ( 9 ) , Regulation (EU) 2019/2033 and Directive (EU) 2019/2034;

(b)

requirements on the basis of other relevant national law.

2.   The information referred to in paragraph 1 shall explain the non-compliance and the supervisory measures taken or planned to be taken.

3.   Where the information referred to in paragraph 1 is relevant only to a particular branch, the competent authorities of the home Member State shall only provide the information to the competent authorities of the host Member State in which that branch is established.

Article 9 Communication of supervisory measures and sanctions

1.   The competent authorities of the home Member State shall inform the competent authorities of the host Member State of any administrative sanctions or administrative measures, or supervisory measures imposed on an investment firm related to breaches of requirements laid down in Regulation (EU) 2019/2033 or in Directive (EU) 2019/2034 and which affect the operations of its branch.

2.   Where the information specified in paragraph 1 is relevant only to a particular branch, the competent authorities of the home Member State shall only provide the information to the competent authorities of the host Member State in which that branch is established.

Article 10 Information about the arrangements for preparing for emergency situations

The competent authorities of the home Member State and the competent authorities of the host Member State shall exchange information regarding the arrangements for preparing for emergency situations. In particular, they shall keep one another informed of the following:

(a)

the emergency contact details of persons within the competent authorities who are responsible for handling emergency situations;

(b)

the communication procedures that shall apply in emergency situations.

Article 11 Information from authorities of the host Member State

The competent authorities of the host Member State shall provide the competent authorities of the home Member State with the following information:

(a)

a description of any situation in respect of which the competent authorities of the host Member State have determined that a branch has not complied with any requirements which relate to the prudential supervision of investment firms, including the requirements of Regulation (EU) No 575/2013, Directive 2013/36/EU, Directive 2014/59/EU, Regulation (EU) 2019/2033 and Directive (EU) 2019/2034, together with information on the supervisory measures taken or planned to be taken to address the non-compliance;

(b)

any information and findings about any potential problems and risks posed by the branch or its activities in the host Member State having significant impact on the protection of clients or the stability of the financial system in the host Member State as identified by the competent authorities of the host Member State.

Article 12 Information about cross-border service providers

Upon receiving a request for information from the competent authorities of a host Member State in relation to an investment firm that is carrying on its activities under the freedom to provide services in that host Member State, the competent authorities of the home Member State shall provide to them information specified in Article 3(1) and 3(3), Article 4(1), (2) and (3), Article 5(1), Article 6(1) and Article 8.

Article 13 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 .