Response to consultation on draft RTS on criteria for the identification of shadow banking entities

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Question 1: Do you agree with the conditions of Article 1 paragraph 2 for identifying an entity as a non-shadow banking entity? Please provide reasons if you do not agree with any of the conditions or have comments with regard to any of them.

N/A (see our specific response to Question 5)

Question 2: Have you got any comments regarding the list of entities that, being exempted or optionally excluded from those four legal acts in Annex I, should not be considered as shadow banking entities?


Question 3: Conversely, what are your views concerning other entities exempted or optionally excluded from the other legal acts in Annex I and that would be identified as shadow banking entities? Please provide reasons in case you view that any of those entities should fall under the exemption in Article 1 paragraph 3 and therefore not be treated as shadow banking entities.


Question 4: Have you got any other comments with regard to the content of Article 1 of the draft RTS? In your view, is it clear and easy to implement for the purposes of the reporting obligation of Article 394(2) of Regulation (EU) No 575/2013?


Question 5: In general, what are your views on the treatment of funds in these draft RTS? Do you agree with the approach adopted in these draft RTS, that follows the approach in the EBA Guidelines on limits on exposures to shadow banking entities, or alternatively should it be extended to capture those funds as shadow banking entities?

While our members, European managers of private equity funds, will not be captured as shadow banking entities under the proposed approach, we did want to share our thoughts on the potential implications of the EBA’s method.

First, we provide our full support to the EBA’s decision, in Article, paragraph 5, section ii) of the RTS that only funds that are substantially leveraged should be considered as shadow bank entities. The AIFMD cross-reference represents a substantial improvement compared to previous EBA guidance. We however note that a more complete, “self-standing” reference to “AIFs with an exposure (calculated according to the commitment method under Article 8 of Regulation Commission Delegated Regulation (EU) 231/2013) which exceeds three times its net asset value” would likely provide more clarity than a simple cross-reference.

We also appreciate the statement made in the Consultation paper Background & Rationale (Section 3, paragraph 76) that "only exposures to AIFs that do not employ leverage on a basis according to Article 111(1) of Delegated Regulation 231/2013 and that do not grant loans or purchase third parties’ lending exposures onto their balance sheet should be excluded from being identified as shadow banking entities".

An RTS based on this statement would have ensured that only AIFs that generate their own exposures while being substantially leveraged would be deemed as shadow banks. This would in our view have put under the right amount of scrutiny non-bank entities effectively performing banking services that are prone to create a systemic risk. Finally, it would also have been closest to the limits of Article 394(4)’s mandate as it would have best " take[n] into account international developments and internationally agreed standards on shadow banking".

It is therefore disappointing that, in the actual draft of the RTS, the EBA appears to have taken a stricter approach, and introduced a simple positive step (as opposed to a double negative one) where any AIFMD manager is, irrespective of its other activities, considered as a shadow bank as soon as the fund it is managing is substantially leveraged.
We do not question that the use of substantial leverage in a fund context can give rise to systemic concerns and that this should be addressed as part of the relevant EU law.

Nonetheless, the approach chosen will lead to a situation where entities will be deemed “shadow banks” irrespective of whether:
- they are regulated under EU law
- they are or not involved in lending activities
- they are effectively interconnected with the rest of the financial system

While the proposed EBA definition of a shadow banking entity may be relevant for the purpose of Article 394, it is in our view not sufficiently sophisticated and could as such constitute an unhelpful precedent for the future, leading to regulatory confusion as to the actual risk these funds pose. This is certainly true from the perspective of the private equity industry, where funds are rarely using debt at fund level other than when such debt is backed by uncalled commitments, and which, could in exceptional situations be deemed “shadow banks”.

Perhaps one of the major concerns we have as alternative investment fund representatives is the description the EBA makes of the AIFMD as a framework where "some risks arising directly from the funds themselves are not mitigated satisfactorily". As we show in the regulatory table attached, AIFMD and UCITS introduced similar rules when it comes to the use of leverage – and we see no reason to distinguish the two from a prudential perspective.

Question 6: What would be the advantages and disadvantages of taking a broader approach with respect to the scope of funds included as shadow banking entities?

See our response to Question 5 for more details. Overall, we would see many disadvantages in adopting a broader approach.

Question 7: What are your views with regard to the consideration of money market funds as shadow banking entities?


Question 8: Do you face any difficulties identifying whether an alternative investment fund (AIF) should be considered as a shadow banking entity?

See our response to Question 5.

Question 9: Have you got any specific comments with regard to AIFs and in particular, with points (b) and (c) of Article 1 paragraph 5?

See our response to Question 5. Only covering substantially leveraged AIFs is a step in the right direction but it is not clear to us why the EBA feels that any funds regulated under AIFMD - and subject to specific leverage rules - shall be deemed shadow banks - especially if they are not engaged in any lending activities.

Question 10: Do you agree with the description of banking services and activities as included in Article 2 of the draft RTS? Have you got any specific comments regarding any of the points included?


Question 12: Have you got any comments regarding the approach set out in paragraph 2 of Article 3 for other entities established in third countries to prevent their identification as shadow banking entities?


Question 13: Do you agree with the list of legal acts included in Annex I?


Question 14: Is there any other legal act that should be included in Annex I? If yes, please mention the act and legal reference, and provide reasons to support it based on the criteria included in Article 394(4) of Regulation (EU) No 575/2013.


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Invest Europe