Criteria for identifying shadow banking entities
1. Institutions shall identify as a shadow banking entity:
(a)
any entity that offers banking services or performs banking activities as set out in Article 2 and is not authorised and supervised in accordance with any of the Union acts listed in the Annex to this Regulation;
(b)
any undertaking for collective investment in transferable securities as defined in Article 1(2) of Directive 2009/65/EC of the European Parliament and of the Council ( 7 ) where those undertakings are authorised as money market funds as referred to in Article 4 of Regulation (EU) 2017/1131 of the European Parliament and of the Council ( 8 ) ;
(c)
any alternative investment fund as defined in Article 4(1), point (a), of Directive 2011/61/EU, where any of the following applies:
(i)
the alternative investment fund is authorised as a money market fund as referred to in Article 4 of Regulation (EU) 2017/1131;
(ii)
the alternative investment fund employs leverage on a substantial basis as set out in Article 111(1) of Commission Delegated Regulation (EU) No 231/2013 ( 9 ) ;
(iii)
the alternative investment fund is not prohibited from originating loans in the ordinary course of its business or from purchasing third-party lending exposures for its own account on the basis of its rules or instruments of incorporation.
2. By way of derogation from paragraph 1, institutions shall not identify the following entities as shadow banking entities:
(a)
financial institutions the exposures of which are treated in accordance with Article 119(5) of Regulation (EU) No 575/2013;
(b)
any entity that is excluded from the scope of any of the following:
(i)
Directive 2013/36/EU;
(ii)
Regulation (EU) No 648/2012;
(iii)
Directive 2009/138/EC;
(iv)
Regulation (EU) No 575/2013;
(c)
any entity that is exempted from the application of any of the following:
(i)
Directive 2013/36/EU;
(ii)
Regulation (EU) No 648/2012;
(iii)
Directive 2009/138/EC;
(iv)
Regulation (EU) No 575/2013;
(d)
any entity that is part of a non-financial group whose principal activity is to carry out credit intermediation activities for its parent undertaking or its subsidiaries or other subsidiaries of its parent undertaking;
(e)
any entity that is included in the supervision of an institution on a consolidated basis;
(f)
any entity established in a third-country that meets any of the following criteria:
(i)
the entity has been authorised and is supervised by a third-country supervisory authority in accordance with the Basel Core Principles for effective banking supervision;
(ii)
the third country’s regulatory regime, in accordance with which the entity has been authorised and is supervised, has been recognised as equivalent to the one applied in the Union for such entities in accordance with the equivalence provisions of the applicable Union legal act referred to in the Annex;
(iii)
the entity is included in the supervision on a consolidated basis of an institution that has been authorised and is supervised by a third-country supervisory authority that applies banking regulation and supervision based on the Basel Core Principles for effective banking supervision.
Banking services and activities
1. For the purposes of Article 1, the following shall constitute banking services and activities:
(a)
the activities referred to in points 1, 2, 3, 6, 7, 8 and 10 of Annex I to Directive 2013/36/EU;
(b)
any other service or activity involving maturity transformation, liquidity transformation, leverage or credit risk transfer.
2. By way of derogation from paragraph 1, activities and services consisting of clearing as defined in Article 2, point (3), of Regulation (EU) No 648/2012 shall not constitute banking services and activities.
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 .
ANNEXSupplementary provisions
ANNEX
Union legislation referred to in Article 1(1), point (a) and Article 1(2), point (f)(ii)
1.
Regulation (EU) No 575/2013 of the European Parliament and of the Council ( 1 )
2.
Directive 2013/36/EU of the European Parliament and of the Council ( 2 )
3.
Regulation (EU) 2019/2033 of the European Parliament and of the Council ( 3 )
4.
Directive (EU) 2019/2034 of the European Parliament and of the Council ( 4 )
5.
Regulation (EU) No 600/2014 of the European Parliament and of the Council ( 5 )
6.
Directive 2014/65/EU of the European Parliament and of the Council ( 6 )
7.
Regulation (EU) No 648/2012 of the European Parliament and of the Council ( 7 )
8.
Directive (EU) 2015/2366 of the European Parliament and of the Council ( 8 )
9.
Directive 2009/110/EC of the European Parliament and of the Council ( 9 )
10.
Directive 2009/138/EC of the European Parliament and of the Council ( 10 )
11.
Directive (EU) 2016/2341 of the European Parliament and of the Council ( 11 )
12.
Directive 2014/59/EU of the European Parliament and of the Council ( 12 )
13.
Directive 2009/65/EC of the European Parliament and of the Council ( 13 )
14.
Directive 2011/61/EU of the European Parliament and of the Council ( 14 )
15.
Regulation (EU) 2015/760 of the European Parliament and of the Council ( 15 )
16.
Regulation (EU) No 346/2013 of the European Parliament and of the Council ( 16 )
17.
Regulation (EU) No 345/2013 of the European Parliament and of the Council ( 17 )
( 1 ) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and amending Regulation (EU) No 648/2012 ( OJ L 176, 27.6.2013, p. 1 ).
( 2 ) 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 ).
( 3 ) 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 ).
( 4 ) 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 ).
( 5 ) 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 ).
( 6 ) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU ( OJ L 173, 12.6.2014, p. 349 ).
( 7 ) Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories ( OJ L 201, 27.7.2012, p. 1 ).
( 8 ) Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC ( OJ L 337, 23.12.2015, p. 35 ).
( 9 ) Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC ( OJ L 267, 10.10.2009, p. 7 ).
( 10 ) Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) ( OJ L 335, 17.12.2009, p. 1 ).
( 11 ) Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) ( OJ L 354, 23.12.2016, p. 37 ).
( 12 ) 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 ).
( 13 ) Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) ( OJ L 302, 17.11.2009, p. 32 ).
( 14 ) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 ( OJ L 174, 1.7.2011, p. 1 ).
( 15 ) Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds ( OJ L 123, 19.5.2015, p. 98 ).
( 16 ) Regulation (EU) No 346/2013 of the European Parliament and of the Council of 17 April 2013 on European social entrepreneurship funds ( OJ L 115, 25.4.2013, p. 18 ).
( 17 ) Regulation (EU) No 345/2013 of the European Parliament and of the Council of 17 April 2013 on European venture capital funds ( OJ L 115, 25.4.2013, p. 1 ).
