(62) Remuneration policies which encourage excessive risk- taking behaviour can undermine sound and effective risk management of credit institutions and investment firms. Members of the G-20 committed themselves to implementing the Financial Stability Board (FSB) Principles for Sound Compensation Practices and Implementing Standards, which address the potentially detrimental effect of poorly designed remuneration structures on the sound management of risk and control of risk- taking behaviour by individuals. This Directive aims to implement international principles and standards at Union level by introducing an express obligation for credit institutions and investment firms to establish and maintain, for categories of staff whose professional activities have a material impact on the risk profile of credit institutions and investment firms, remuneration policies and practices that are consistent with effective risk management.
(63) In order to ensure that institutions have in place sound remuneration policies, it is appropriate to specify clear principles on governance and on the structure of remuneration policies. In particular, remuneration policies should be aligned with the risk appetite, values and long-term interests of the credit institution or investment firm. For that purpose, the assessment of the performance-based component of remuneration should be based on long-term performance and take into account the current and future risks associated with that performance.
(64) When considering the policy on variable remuneration a distinction should be made between fixed remuneration, which includes payments, proportionate regular pension contributions, or benefits (where such benefits are without consideration of any performance criteria), and variable remuneration, which includes additional payments, or benefits depending on performance or, in exceptional circumstances, other contractual elements but not those which form part of routine employment packages (such as healthcare, child care facilities or proportionate regular pension contributions). Both monetary and non-monetary benefits should be included.
(65) In any event, in order to avoid excessive risk taking, a maximum ratio between the fixed and the variable component of the total remuneration should be set. It is appropriate to provide for a certain role for the shareholders, owners or members of institutions in that respect. Member States should be able to set stricter requirements as regards the relationship between the fixed and the variable components of the total remuneration. With a view to encouraging the use of equity or debt instruments which are payable under long-term deferral arrangements as a component of variable remuneration, Member States should be able, within certain limits, to allow institutions to apply a notional discount rate when calculating the value of such instruments for the purposes of applying the maximum ratio. However, Member States should not be obliged to provide for such a facility and should be able to provide for it to apply to a lower maximum percentage of total variable remuneration than set out in this Directive. With a view to ensuring a harmonised and coherent approach which guarantees a level playing field across the internal market, EBA should provide appropriate guidance on the applicable notional discount rate to be used.
(66) In order to ensure that the design of remuneration policies is integrated in the risk management of the institution, the management body should adopt and periodically review the remuneration policies in place. The provisions of this Directive on remuneration should reflect differences between different types of institutions in a proportionate manner, taking into account their size, internal organisation and the nature, scope and complexity of their activities. In particular it would not be proportionate to require certain types of investment firms to comply with all of those principles.
(67) In order to protect and foster financial stability within the Union and to address any possible avoidance of the requirements laid down in this Directive, competent authorities should ensure compliance with the principles and rules on remuneration for institutions on a consolidated basis, that is at the level of the group, parent undertakings and subsidiaries, including the branches and subsidiaries established in third countries.
(68) Since poorly designed remuneration policies and incentive schemes are capable of increasing to an unacceptable extent the risks to which credit institutions and investment firms are exposed, prompt remedial action and, if necessary, appropriate corrective measures should be taken. Consequently, it is appropriate to ensure that competent authorities have the power to impose qualitative or quantitative measures on the relevant institutions that are designed to address problems that have been identified in relation to remuneration policies in the supervisory review.
(69) The provisions on remuneration should be without prejudice to the full exercise of fundamental rights guaranteed by Article 153(5) TFEU, general principles of national contract and labour law, Union and national law regarding shareholders' rights and involvement and the general responsibilities of the management bodies of the institution concerned, and the rights, where applicable, of the social partners to conclude and enforce collective agreements, in accordance with national law and customs.
(70) Own funds requirements for credit risk and market risk should be based on external credit ratings only to the extent necessary. Where credit risk is material, institutions should therefore generally seek to implement internal ratings-based approaches or internal models. However, standardised approaches that rely on external credit ratings could be used where credit risk is less material, which is typically the case for less sophisticated institutions, for insignificant exposure classes, or in situations where using internal approaches would be overly burdensome.
(71) Directives 2006/48/EC and 2006/49/EC are one of the pillars upon which the overreliance on external credit ratings was built. This Directive should take into account the G-20 conclusions and the FSB principles for Reducing Reliance on external credit ratings. Institutions should therefore be encouraged to use internal ratings rather than external credit ratings even for the purpose of calculating own funds requirements.
(72) Overreliance on external credit ratings should be reduced and the automatic effects deriving from them should be gradually eliminated. Institutions should therefore be required to put in place sound credit-granting criteria and credit decision-making processes. Institutions should be able to use external credit ratings as one of several factors in that process but they should not rely solely or mechanistically on them.
(73) The recognition of a credit rating agency as an external credit assessment institution (ECAI) should not increase the foreclosure of a market already dominated by three undertakings. EBA, the Member States' central banks and the ECB, without making the process easier or less demanding, should provide for the recognition of more credit rating agencies as ECAIs in order to open the market to other undertakings.
(74) Given the wide range of approaches adopted by institutions using internal modelling approaches, it is important that competent authorities and EBA have a clear view of the range of values for risk-weighted assets and own funds requirements that arise for similar exposures under such approaches. To that end, institutions should be required to provide competent authorities with the results of internal models applied to EBA-developed benchmark portfolios covering a wide range of exposures. Based on the information received, competent authorities should take appropriate steps to ensure that similarities or differences in results for the same exposure are justifiable in terms of the risks incurred. More generally, the competent authorities and EBA should ensure that the choice between an internal modelling approach and a standardised approach does not result in the under-estimation of own funds requirements. While own funds requirements for operational risk are more difficult to allocate at individual exposure level and it is therefore appropriate to exclude this risk category from the benchmarking process, competent authorities should nevertheless keep abreast of developments in internal modelling approaches to operational risk, with the aim of monitoring the range of practices employed and improving supervisory approaches.
(75) The development of relationship-based lending should be encouraged where information gleaned from a continuing business relationship with clients is used to get a better quality of due diligence and risk assessment than is available purely from standardised information and credit scores.
(76) With respect to the supervision of liquidity, responsibility should lie with home Member States as soon as detailed criteria for the liquidity coverage requirement apply. It is therefore necessary to accomplish the coordination of supervision in this field in order to introduce supervision by the home Member State by that time. In order to ensure effective supervision, the competent authorities of the home and host Member States should further cooperate in the field of liquidity.
(77) Where within a group liquid assets in one institution will under stress circumstances match liquidity needs of another member of that group, competent authorities should be able to exempt an institution from liquidity coverage requirements and apply those requirements on a consolidated basis instead.
(78) Measures taken on the basis of this Directive should be without prejudice to measures taken in accordance with Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions(1). Supervisory measures should not lead to discrimination among creditors from different Member States.
(79) In the light of the financial crisis and the pro-cyclical mechanisms that contributed to its origin and aggravated its effect, the FSB, the Basel Committee on Banking Supervision (BCBS), and the G-20 made recommendations to mitigate the pro-cyclical effects of financial regulation. In December 2010, the BCBS issued new global regulatory standards on bank capital adequacy (the Basel III rules), including rules requiring the maintenance of capital conservation and countercyclical capital buffers.
(80) It is therefore appropriate to require credit institutions and relevant investment firms to hold, in addition to other own fund requirements, a capital conservation buffer and a countercyclical capital buffer to ensure that they accumulate, during periods of economic growth, a sufficient capital base to absorb losses in stressed periods. The countercyclical capital buffer should be built up when aggregate growth in credit and other asset classes with a significant impact on the risk profile of such credit institutions and investment firms are judged to be associated with a build-up of system-wide risk, and drawn down during stressed periods.
(81) In order to ensure that countercyclical capital buffers properly reflect the risk to the banking sector of excessive credit growth, credit institutions and investment firms should calculate their institution-specific buffers as a weighted average of the countercyclical buffer rates that apply in the countries where their credit exposures are located. Every Member State should therefore designate an authority responsible for the quarterly setting of the countercyclical buffer rate for exposures located in that Member State. That buffer rate should take into account the growth of credit levels and changes to the ratio of credit to GDP in that Member State, and any other variables relevant to the risks to the stability of the financial system.
(82) In order to promote international consistency in setting countercyclical buffer rates, the BCBS has developed a methodology on the basis of the ratio between credit and GDP. This should serve as a common starting point for decisions on buffer rates by the relevant national authorities, but should not give rise to an automatic buffer setting or bind the designated authority. The buffer rate should reflect, in a meaningful way, the credit cycle and the risks due to excess credit growth in the Member State and should duly take into account specificities of the national economy.
(83) Restrictions on variable remuneration are an important element in ensuring that credit institutions and investment firms rebuild their capital levels when operating within the buffer range. Credit institutions and investment firms are already subject to the principle that awards and discretionary payments of variable remuneration to those categories of staff whose professional activities have a material impact on the risk profile of the institution have to be sustainable, having regard to the financial situation of the institution. In order to ensure that an institution restores its levels of own funds in a timely manner, it is appropriate to align the award of variable remuneration and discretionary pension benefits with the profit situation of the institution during any period in which the combined buffer requirement is not met, taking into account the long- term health of the institution.
(84) Institutions should address and control all concentration risks by means of written policies and procedures. Given the nature of public sector exposures, controlling concentration risks is more effective than risk weighting those exposures, given their size and the difficulties in calibrating own funds requirements. The Commission should, at an appropriate time, submit a report to the European Parliament and the Council about any desirable changes to the prudential treatment of concentration risk.
(85) Member States should be able to require certain institutions to hold, in addition to a capital conservation buffer and a countercyclical capital buffer, a systemic risk buffer in order to prevent and mitigate long-term non-cyclical systemic or macroprudential risks not covered by Regulation (EU) No 575/2013, where there is a risk of disruption in the financial system with the potential to have serious negative consequences for the financial system and the real economy in a specific Member State. The systemic risk buffer rate should apply to all institutions, or to one or more subsets of those institutions, where the institutions exhibit similar risk profiles in their business activities.
(86) In order to ensure consistent macroprudential oversight across the Union, it is appropriate that the European Systemic Risk Board (ESRB) develop principles tailored to the Union economy and be responsible for monitoring their application. This Directive should not prevent the ESRB from taking any actions that it considers necessary under Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macroprudential oversight of the financial system and establishing a European Systemic Risk Board(1).
(87) Member States should be able to recognise the systemic risk buffer rate set by another Member State and apply that buffer rate to domestically authorised institutions for the exposures located in the Member State setting the buffer rate. The Member State setting the buffer rate should also be able to ask the ESRB to issue a recommendation as referred to in Article 16 of Regulation (EU) No 1092/2010, addressed to one or more Member States which are in a position to recognise the systemic risk buffer rate recommending that they do so. Such a recommendation is subject to the "comply or explain" rule set out in Article 3(2) and Article 17 of that Regulation.
(88) It is appropriate that decisions of Member States on countercyclical buffer rates are coordinated as far as possible. In that regard, the ESRB, if requested to do so by competent or designated authorities, could facilitate discussions between those authorities about setting proposed buffer rates, including relevant variables.
(89) Where a credit institution or investment firm fails to meet in full the combined buffer requirement, it should be subject to measures designed to ensure that it restores its levels of own funds in a timely manner. In order to conserve capital, it is appropriate to impose proportionate restrictions on discretionary distributions of profits, including dividend payments and payments of variable remuneration. So as to ensure that such institutions or firms have a credible strategy to restore levels of own funds, they should be required to draw up and agree with the competent authorities a capital conservation plan that sets out how the restrictions on distributions will be applied and other measures that the institution or firm intends to take to ensure compliance with the full buffer requirements.
(90) Authorities are expected to impose higher own funds requirements on global systemically important institutions (G-SIIs) in order to compensate for the higher risk that G-SIIs represent for the financial system and the potential impact of their failure on taxpayers. Where an authority imposes the systemic risk buffer and the G-SII buffer is applicable, the higher of the two should apply. Where the systemic risk buffer only applies to domestic exposures, it should be cumulative with the G-SII buffer or the buffer relating to other systemically important institutions (O-SIIs) which is applied in accordance with this Directive.
(91) Technical standards in financial services should ensure consistent harmonisation and adequate protection of depositors, investors and consumers across the Union. As a body with highly specialised expertise, it would be efficient and appropriate to entrust EBA with the elaboration of draft regulatory and implementing technical standards which do not involve policy choices, for submission to the Commission. EBA should ensure efficient administrative and reporting processes when drafting technical standards.
(92) The Commission should adopt regulatory technical standards developed by EBA in the areas of authorisations and acquisitions of significant holdings in credit institutions, information exchanges between competent authorities, the exercise of the freedom of establishment and the freedom to provide services, supervisory collaboration, remuneration policies of credit institutions and investment firms and the supervision of mixed financial holding companies by means of delegated acts pursuant to Article 290 TFEU and in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010. The Commission and EBA should ensure that those standards can be applied by all institutions concerned in a manner that is proportionate to the nature, scale and complexity of those institutions and their activities.
(93) Given the detail and number of regulatory technical standards that are to be adopted pursuant to this Directive, where the Commission adopts a regulatory technical standard which is the same as the draft regulatory technical standard submitted by EBA, the period within which the European Parliament or the Council may object to a regulatory technical standard should, where appropriate, be further extended by one month. Moreover, the Commission should aim to adopt the regulatory technical standards in good time to permit the European Parliament and the Council to exercise full scrutiny, taking account of the volume and complexity of regulatory technical standards and the details of the European Parliament's and the Council's rules of procedure, calendar of work and composition.
(94) The Commission should also be empowered to adopt implementing technical standards developed by EBA in the areas of authorisation of and acquisitions of significant holdings in credit institutions, information exchange between competent authorities, supervisory collaboration, specific prudential requirements and disclosure of information by supervisory authorities by means of implementing acts pursuant to Article 291 TFEU and in accordance with Article 15 of Regulation (EU) No 1093/2010.
(95) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 on laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers(1).
(96) In order to specify the requirements set out in this Directive, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of clarifying the definitions and the terminology used in this Directive, expanding the list of activities subject to mutual recognition and improving the exchange of information concerning branches of credit institutions. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
(97) References to Directives 2006/48/EC and 2006/49/EC should be construed as references to this Directive and to Regulation (EU) No 575/2013.
(98) Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate(1), Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market(2), 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)(3), 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(4) and Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers(5) refer to provisions of Directives 2006/48/EC and 2006/49/EC concerning own funds requirements which should be set out in this Directive and in Regulation (EU) No 575/2013. Consequently, references in those Directives to Directives 2006/48/EC and 2006/49/EC should be construed as references to the provisions governing own funds requirements in this Directive and in Regulation (EU) No 575/2013.
(99) In order to allow for technical standards to be developed so that institutions that are part of a financial conglomerate apply the appropriate calculation methods for the determination of required capital on a consolidated basis, Directive 2002/87/EC should be amended accordingly.
(100) In order for the internal banking market to operate with increasing effectiveness and for citizens of the Union to be afforded adequate levels of transparency, it is necessary that competent authorities publish, in a manner which allows for meaningful comparison, information on the manner in which this Directive is implemented.
(101) With respect to the supervision of liquidity, there should be a period of time within which Member States effect transition towards the regulatory regime under which detailed criteria for the liquidity coverage requirement apply.
(102) In order to ensure a stable, smooth and progressive transition by institutions to new liquidity and stable funding requirements at Union level, competent authorities should make full use of their supervisory powers under this Directive and under any applicable national law. In particular, competent authorities should assess whether there is a need to apply administrative penalties or other administrative measures, including prudential charges, the level of which should broadly relate to the disparity between the actual liquidity position of an institution and the liquidity and stable funding requirements. In making this assessment, competent authorities should have due regard to market conditions. Such administrative penalties or other administrative measures should apply until detailed legal acts on liquidity and stable funding requirements are implemented at Union level.
(103) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(6) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(7), should be fully applicable to the processing of personal data for the purposes of this Directive.
(104) Since the objectives of this Directive, namely the introduction of rules concerning access to the activity of institutions, and the prudential supervision of institutions, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and the effects of the proposed action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(105) In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
(106) The European Data Protection Supervisor has been consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and has adopted an opinion(8).
(107) Directive 2002/87/EC should be amended accordingly and Directives 2006/48/EC and 2006/49/EC should be repealed,
HAVE ADOPTED THIS DIRECTIVE: