Question ID:
2015_2460
Legal Act:
Directive 2013/36/EU (CRD)
Topic:
Colleges of supervisors
Article:
116
COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations:
Not applicable
Article/Paragraph:
N/A
Disclose name of institution / entity:
No
Type of submitter:
Competent authority
Subject Matter:
Article 116 Colleges of Supervisors
Question:

When conducting supervision on a consolidated basis, is the consolidating supervisor of an EU-headed banking group with subsidiaries only in third countries subject to the provisions of EU law, notably to the provisions of Regulation (EU) No 575/2013, Directive 2013/36/EU and the relevant delegated and implementing acts? If so, how is Article 116 of Directive 2013/36/EU to be applied in that case, in particular under the considerations that there is no need for a joint decision and that third-country supervisors are not subject to EU law? How does the situation change when the ECB is the consolidating supervisor and the banking group has subsidiaries only in participating Member States and in third countries?

Background on the question:

EU law governs supervision on a consolidated basis of an EU-headed banking group regardless of the place of establishment of its subsidiaries: accordingly, the consolidating supervisor, including the ECB, shall apply all relevant provisions of Regulation (EU) No 575/2013, of Directive 2013/36/EU, and of the relevant delegated and implementing acts. The alternative view, notably that consolidated supervision in the absence of EU subsidiaries is governed by national law, cannot be accepted. Nor can it be accepted that consolidated supervision is performed away from any legal regime.

Date of submission:
05/11/2015
Published as Final Q&A:
04/03/2016
EBA Answer:

The consolidating supervisor of an EU-headed banking group is subject to provisions of Regulation (EU) No 575/2013, Directive 2013/36/EU and the relevant delegated and implementing acts regardless of the country where its subsidiaries are authorised or located (inside or outside the EU). Article 116 of Directive 2013/36/EU provides that the consolidating supervisor shall establish a supervisory college for the performance of its tasks referred to in Articles 112 to 114 (1) of that Directive and to ensure appropriate coordination and cooperation with relevant third-country supervisory authorities where appropriate. Competent authorities and third-country supervisors may, and the EBA shall, participate in those colleges. Participation of third-country supervisors is foreseen as a general possibility, notwithstanding them not being directly subject to EU law: their voluntary adherence to the colleges 19 written arrangements settles the issue. Even when no joint decision is required, the establishment of supervisory college remains relevant for consolidated supervision, in particular concerning information exchange and emergency planning.

The situation is no different when the ECB is the consolidating supervisor and the banking group has subsidiaries only in participating Member States and in third countries.
 
 
DISCLAIMER
 
This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission (Directorate General for Financial Stability, Financial services and Capital Markets Union) 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.
Status:
Final Q&A
Answer prepared by:
Answer prepared by the European Commission because it is a matter of interpretation of Union law.
Note to Q&A:
Update 26.03.2021: This Q&A has not yet been reviewed by the European Commission in the light of the changes introduced to Directive 2013/36/EU (CRD).
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