Should the Additional Tier 1, Tier 1 ,Tier 2 and own funds stemming from undertakings of third countries outside Europe and subject to local requirements equivalent to those requirements under Regulation (EU) No 575/2013 (CRR) and Directive (EU) 2013/36 (CRD), be included in the consolidated own funds?
Under Article 82 it is understood that qualifying additional Tier1, Tier1, Tier2, and qualifying own funds for inclusion in consolidated own funds should stem from: - an institution (credit institution or an investment firm), or - an undertaking that is subject by virtue of applicable national law to the requirements of CRR and CRD In the latter situation, it can be assumed that undertakings of third countries outside Europe that are subject to requirements that are equivalent to CRR and CRD should be included.
No. Article 82(a)(ii) of Regulation (EU) No 575/2013 (CRR) only includes undertakings that are subject by virtue of applicable national law to the requirements of CRR and CRD. It does not include undertakings that are only subject to equivalent provisions (there is also no equivalence assessment process in place foreseen by CRR for this purpose, as it is the case for e.g. Article 107(3) CRR concerning equivalent provisions in third countries).
This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission (Directorate General for Internal Market and Services) has prepared the answer, albeit that only the Court of Justice of the European Union can provide definitive interpretations of EU legislation. This is an unofficial opinion of that Directorate General, which the European Banking Authority publishes on its behalf. The answers are not binding on the European Commission as an institution. You should be aware that the European Commission could adopt a position different from the one expressed in such Q&As, for instance in infringement proceedings or after a detailed examination of a specific case or on the basis of any new legal or factual elements that may have been brought to its attention.
Update 26.03.2021: This Q&A has not yet been reviewed by the European Commission in the light of the changes introduced to Regulation (EU) No 575/2013 (CRR).