Will Q&A 787 still apply when the amended large exposures rules in accordance with CRR2 are in force?

Q&A 787 refers to Article 390(6)(e) of the CRR, which is amended by CRR2.

The question in Q&A 787 is whether exposures fully covered by own funds (i.e. full deduction from own funds of the large exposure amount) and which are not used otherwise (e.g. for minimum capital requirements) can be excluded from the large exposure calculation. The EBA’s answer is mainly based on the fact that Article 390(6)(e) of the CRR contains an exhaustive list of exposures deducted from own funds and thus excluded from the large exposure regime.

While Article 390(6)(e) of the CRR includes an exhaustive list of deductions, the re-phrased Art. 390(6)(e) of CRR II refers to deductions in accordance with Art. 36 and 56 or any other deduction from Common Equity Tier 1 items or Additional Tier 1 items that reduces the solvency ratio. The new wording is neither an exhaustive list as in the CRR nor does it make explicit reference to those deductions from Common Equity Tier 1 items or Additional Tier 1 items that are required by regulatory requirements.

Furthermore, the EBA’s answer is complemented by a disclaimer, stating that the question goes beyond matters of consistent and effective application of the regulatory framework. The given answer is an unofficial opinion of the Directorate General for Internal Market and Services, which the European Banking Authority published on its behalf. According to Annex 8 of the “EBA’s reply to the European Commission’s request for an overview of possible errors and inconsistencies in Regulation (EU) No 575/2013 (CRR) and Directive 2013/36/EU (CRD) observed via the Single Rulebook Q&A tool” of 5 August 2016, Q&A 787 was therefore categorised as a Q&A with “inconsistency matters” which may have unintended consequences in the application or legal interpretation of the text.

In light of that, it seems important that the re-phrasing of Art. 390(6)(e) was already included by the European Commission in its proposal for an amended CRR of November 2016. We believe that the re-phrasing is consciously intended by the European legislators to solve inconsistency matters and is aimed at eliminating the awkward distinction between deductions required by regulatory requirements and other deductions from Common Equity Tier 1 items or Additional Tier 1 items provided that these items are not used otherwise for regulatory purposes (e.g. for minimum capital requirements). The latter might include “voluntary” deductions to avoid breaches of large exposure limits that would otherwise occur. We believe that such a procedure would also be conservative and risk-averse treatment and be in line with the requirements in accordance with Art. 393 of the CRR (Capacity to identify and manage large exposures). On top of that, all exposures deducted from own funds (Common Equity Tier 1 or Additional Tier 1 items) in accordance with Art. 390(6)(e) of the CRR will continue to be reported separately under CRR II (Column 200 of C 28.00 - Exposures in the non-trading and trading book (LE2) and C 29.00 - Details of the exposures to individual clients within groups of connected clients (LE3) likewise).

We therefore believe that Q&A 2014_787 cannot continue to apply after 28 June 2021 when the CRR II large exposure rules are to be applied for the first time.

This question has been rejected because it is considered that EBA guidance or clarification is not needed with regard to the issue that it raises. For example, this can be the case where it is considered that the existing regulatory framework is sufficiently clear and unambiguous, or where different practices may be possible but it is not currently necessary to harmonise these further through the Q&A process.

The Single Rule Book Q&A tool has been established to provide explanations and non-binding interpretations on questions relating to the practical application or implementation of the provisions of legislative acts referred to in Article 1(2) of the EBA’s founding Regulation, as well as associated delegated and implementing acts, and guidelines and recommendations, adopted under these legislative acts.

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