Question ID
2017_3587
Legal act
Regulation (EU) No 575/2013 (CRR)
Topic
Own funds
Article
52, 63, 78
Paragraph
b, b, 1
COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
Regulation (EU) No 241/2014 - RTS for Own Funds requirements for institutions
Article/Paragraph
28
Name of institution / submitter
Autorité de contrôle prudentiel et de résolution
Country of incorporation / residence
France
Type of submitter
Competent authority
Subject matter
Subsidiary repurchasing AT1 or Tier 2 instruments before five years from the date of issuance
Question

1/ Could an institution’s subsidiary subject to prudential supervision purchase Additional Tier 1 or Tier 2 instruments issued by the institution before five years from the date of issuance of the instruments, given that this purchase would lead to a disqualification of the instruments?

2/ Could an institution’s subsidiary not subject to prudential supervision purchase Additional Tier 1 or Tier 2 instruments issued by the institution before five years from the date of issuance of the instruments, given that this purchase would lead to a disqualification of the instruments?

Background on the question

Articles 52(b) and 63(b) CRR state that capital instruments and subordinated loans cannot classify, respectively, as Additional Tier 1 or Tier 2 instruments of an institution if they are purchased by the institution or its subsidiaries (whatever the nature and situation of the subsidiary).

Articles 77 and 78 CRR state that the competent authority has to grant prior permission for an institution to reduce, repurchase, call or redeem Common Equity Tier 1, Additional Tier 1 or Tier 2 instruments. Article 78(4) CRR sets specific conditions for institutions to be allowed to redeem Additional Tier 1 or Tier 2 instruments before five years from the date of issuance. Certain specific conditions have to be met (change in regulatory classification or change in the applicable tax treatment).

Article 28(3) of Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 states that the process and data requirements for an application by an institution to carry out redemptions, reductions and repurchases — for the purposes of Article 77 CRR shall apply at the consolidated, sub-consolidated and individual levels of application of prudential requirements, where applicable.

Submission date
Final publishing date
Final answer

According to Article 52(b)(i) and 63(b)(i) of Regulation (EU) No 575/2013 (CRR) instruments cannot classify as Additional Tier 1 or Tier 2 instruments of an institution if they are purchased by the institution or its subsidiaries regardless of the subsidiary being subject to prudential supervision following Article 11 of the CRR or not. Hence, an institution’s subsidiary could purchase Additional Tier 1 or Tier 2 instruments issued by the institution during the before five years fromfollowing  their date of issuance of the instrument only if where the conditions of Article 78(1) of the CRR and one of the conditions of Article 78(4) of the CRR are met (includingor in the context of market making activities, in accordance with point (e) of Article 78(4) of the CRR)Article 29(3) of the Commission Delegated Regulation 241/2014 and EBA Q&A 2015_1791. The prior permissionrequest tof to the competent authority shall be requested pursuant to Article 78(4) CRR has to be filed by the institution and not itsthe subsidiary, in accordance with the provisions of Article 77 (1)(c) and Article 78(4) of the CRR. 

Status
Final Q&A
Answer prepared by
Answer prepared by the EBA.
Note to Q&A

Update 26.03.2021: This Q&A has been updated in the light of the changes introduced to Regulation (EU) No 575/2013 (CRR).

Disclaimer

The Q&A refers to the provisions in force on the day of their publication. The EBA does not systematically review published Q&As following the amendment of legislative acts. Users of the Q&A tool should therefore check the date of publication of the Q&A and whether the provisions referred to in the answer remain the same.