Are the implementation guidelines on Article 106(2)(c) and (d) of Directive 2006/48/EC (CRD) of the Committee of European Banking Supervisors applicable for interpreting Regulation (EU) No 575/2013 as amended by Regulation (EU) 2019/876?

The Committee of European Banking Supervisors 28 July 2010 Implementation guidelines on Article 106(2)(c) and (d) of Directive 2006/48/EC recast (herein ‘Guidelines’) set out eligibility criteria for when exemptions from the Capital Requirements Directive (herein ‘CRD’) can be applied. 

The Guidelines provide that to be eligible for the exemption in Article 106(2) (c) of the CRD, “exposures shall… (a) arise from the provision of specific types of services; (b) arises from client activity; and (c) not last longer than the following business day.” The Guidelines then detail what each of these conditions comprise.

Given that no later guidance replaced this element of the Guidelines when the CRD was amended and repealed, it could be argued that the Guidelines apply to operations and exposure calculations under the relevant provisions of CRR and CRR2.

Pursuant to Article 76 of Regulation (EU) No 1093/2010 (EBA Regulation) the EBA is the legal successor of the Committee of European Banking Supervisors (CEBS) and therefore assumes all of its tasks and competences as stated in recital (10) of that Regulation. Therefore, Guidelines issued by the CEBS are still applicable unless expressly repealed. References in the CEBS Implementation Guidelines on Article 106(2)(c) and (d) of Directive 2006/48/EC recast (CRD) are to be understood to be to Article 390(6)(c) and (d) of Regulation (EU) No 575/2013 (CRR), the terms of which are identical to the text in Article 106(2)(c) and (d) Directive 2006/48, in accordance with the correlation table of Annex IV of Regulation (EU) No 575/2013.