Can an undertaking over which another undertaking effectively exercises a dominant influence be considered a subsidiary of the undertaking effectively exercising dominant influence over it also for the purposes of the parts of the CRR not explicitly mentioned in Article 4(1)(15)(b) CRR?

Article 4(1)(15) provides the following: “Parent undertaking” means: (a) […] (b) for the purposes of Section II (Financial holding companies, mixed financial holding companies and mixed - activity holding companies) of Chapters 3 (Supervision on a consolidated basis) and 4 (Capital Buffers) of Title VII (PRUDENTIAL SUPERVISION) and Title VIII (DISCLOSURE BY COMPETENT AUTHORITIES) of Directive 2013/36/EU and Part Five (EXPOSURES TO TRANSFERRED CREDIT RISK) of this Regulation, a parent undertaking within the meaning of Article 1(1) of Directive 83/349/EEC and any undertaking which effectively exercises a dominant influence over another undertaking.

Article 4(1)(16) provides the following: “Subsidiary undertaking” means: (a) [… ](b) a subsidiary undertaking within the meaning of Article 1(1) of Directive 83/349/EEC and any undertaking over which a parent undertaking effectively exercises a dominant influence.

It is not clear if a competent authority that deems that an undertaking is subject to effective dominant influence from another undertaking – in cases other than those explicitly mentioned in the Accounting Directive – can consider such undertaking as a subsidiary also for the purposes of other parts of the CRR not explicitly mentioned in Article 4(1)(15)(b) CRR, such as those on the calculation of capital requirements.

This ambiguity comes from a use of the term “parent undertaking” when referring to dominant influence within the definition of subsidiary under Article 4(1)(16) CRR. In other words, it is not clear if undertakings subject to effectively dominant influence can be included in the scope of prudential consolidation even if they do not fall in any of the cases mentioned in the accounting directive or in the national laws transposing the accounting directive.