Does the discretion of article 94(3) (a) provide the member states of the EU with the option to set the said threshold to the ultimate minimum (i.e. to set the threshold at zero)?
And if the answer to the above question is yes, does the option not to transpose at all the wording of subparagraph (a) described above, effectively set the threshold at zero?
Article 94 (4) of the Capital Requirements Directive (EU) 878/2019 contains a national discretion/option which may be applied on the basis of national circumstances. More specifically, article 94 (4) states as follows:“By way of derogation from point (a) of paragraph 3, a Member State may lower or increase the threshold referred therein, provided that: […]”
Article 94 (3) (a) states as follows:
“By way of derogation from paragraph 1, the requirements set out in points (l) and (m) and in the second paragraph of point (o) of that paragraph shall not apply to:
(a) an institution that is not a large institution as defined in point (146) of Article 4(1) of Regulation (EU) No 575/2013 and the value of the assets of which is on average and on an individual basis in accordance with this Directive and Regulation (EU) No 575/2013 equal to or less than EUR 5 billion over the four-year period immediately preceding the current financial year;”
It is our understanding that the discretion provided in the phrase “may lower or increase the threshold” refers to the “EUR 5 billion” of Article 94 (3)(a).
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.
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