Does Article 11(2) CRR2 establish a “waiver” or an additional requirement?
Article 11(2) CRR2 states that “for the purpose of ensuring that the requirements of this Regulation are applied on a consolidated basis, the terms ‘institution’, ‘parent institution in a Member State’, ‘EU parent institution’ and ‘parent undertaking’, as the case may be, shall also refer to: [...] [financial holding companies, etc] [...]”.
According to this provision it is clear that “as the case may be” a financial holding company (or other companies listed in para 2 lit a to c) shall comply with the obligations laid down in Parts Two, Three, Four, Seven and Seven A on the basis of their consolidated situation.
However it is unclear what the wording “shall ALSO refer to” exactly means.
First Option: The wording “also” means that both the institution (para 1) as well as the financial holding company (or other companies listed in para 2 lit a to c) shall comply with the obligations laid down in Parts Two, Three, Four, Seven and Seven A on the basis of their consolidated situation (“three level supervision”).
Second Option: The wording “also” does not refer to the requirements according to article 11(1) CRR but only focuses on the definition of “institution”. This means that only the financial holding company (or other companies listed in para 2 lit a to c) shall comply with the obligations laid down in Parts Two, Three, Four, Seven and Seven A on the basis of their consolidated situation (“dual level supervision”). The (subordinated) institution “as the case may be” shall be waived from requirements according to article 11 para 1 CRR.
From a pure grammatical view, the wording “also” usually means the enlargement or expansion of some-thing or somewhat, not “substitution”. From a systemical perspective, the wording “for the purpose of ensuring that the requirements of this Regulation are applied on a consolidated basis” suggests that CRR II establish stricter rules than the requirements de lege lata, and not the pure substitution of current requirements. In order to establish a waiver from consolidated requirement it can also be claimed from a systemical view (see article 7, 8 and 10 CRR) that the legislator well have fixed a respective wording wîthout using “also”. In the absence of further guidance (eg from the recitals) a teological interpretation (what is the will of the legislator?) may fail.
Considering the arguments above, the first option seems to be more feasible than the second option.
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