Is Article 131(8) of Directive 2013/36/EU applicable on a situation, where an Other Systematically Important (“OSII“) institution in a member state is a member of a OSII group with no EU parent institution, but with an EU parent financial holding company in another member state instead?
OSII bank in a member state is about to be obliged to hold OSII buffer on an individual and subconsolidated basis (set by its local competent authority) of 2%.
Its EU parent financial holding company in another member state is recognised as an OSII, but with OSII buffer set at 0% (set by its local competent authority).
Neither of these entities are required to fulfil any systemic risk buffer. Is our assumption correct that Article 131(8) CRD cannot be applied on OSII group with EU parent financial holding company (only applicable on OSII group with EU parent institution)?
The current text of Article 131(8) CRD is clearly stating that "[…] where an O-SII is a subsidiary of either a G-SII or an O-SII which is an EU parent institution[…]" without any further reference to an EU parent financial holding company or an EU parent mixed financial company. Therefore, considering the present legislative text, it cannot be concluded that Article 131(8) CRD applies to O-SIIs which are subsidiaries of an EU parent financial holding company as proposed by the submitter.
For further reference about the applicable buffer, please see also Q&A 2309.
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.
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).