According to Article 325 (3) letter b CRR undertakings located in third countries have to comply, on an individual basis, with own funds requirements "equivalent to those laid down in this Regulation". To assess whether this condition is fulfilled by the third country institution, is it sufficient for the institution to look only on Article 92 CRR, or has the assessment to be based on e.g. Article 25, 51 et seq., 63 et seq, 102 and 325 CRR or even on the CRR as a whole? In particular, is there a relation to the Commission´s delegated act on third country equivalence that will be issued by the end of 2014? Once the delegated act on third country equivalence is issued, will supervisors and institutions be able to treat exposures to the third countries mentioned therein as equivalent without effecting further analyses under Article 325 (3) letter b CRR? With regard to Article 325 (3) letter c CRR: what proof of evidence is deemed necessary to assess the fulfillment of this condition? Is this Article fulfilled if a lawyer located in the respective third country states that there is no regulation in place which might significantly affect the transfer of funds within the group? Does this opinion have to be given e.g. by a lawyer resident in the home country of the third country institution or the country of the institution wanting to apply Article 325 CRR or the third country regulator? As we are of the opinion that letter c is hard to be fulfilled (or rather evidence is hard to provide) we would like to understand the rationale behind this condition.
Article 325 (3) CRR states that for the purpose of calculating net positions and own funds requirements on a consolidated basis institutions may use positions in one institution or undertaking to offset positions in another institution or undertaking. Where the undertakings are located in third countries undertakings have to comply, on an individual basis, with own funds requirements equivalent to those laid down in this Regulation and no regulation exists in the third countries in question which might significantly affect the transfer of funds within the group. As regulator in Austria we have asked credit institutions to submit proof of evidence that those conditions are fulfilled. With regard to fulfillment of Art Article 325 (3) letter b CRR institutions looked only on the fulfillment of Article 92 CRR. With regard to the fulfillment of Article 325 (3) letter c CRR institutions submitted a document by a lawyer domiciled in Austria based on the opinion of a lawyer located in the respective third country and upon request of FMA also – where available – the opinion of the local regulator in question, in some cases resulting in two different opinions.
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