Can an undertaking for which Directive 2013/34/EU (the “Accounting Directive”) does not apply be considered a parent undertaking for the purposes of CRR?

According to Article 4(1)(15) CRR, a “parent undertaking” means: (a) a parent undertaking within the meaning of Article 1 and 2 of Directive 83/349/EEC; (b) for the purposes of Section II of Chapter 3 and 4 of Title VII and Title VIII of Directive 2013/36/EU and Part Five of this regulation, a parent undertaking within the meaning of Article 1(1) of Directive 83/349/EEC and any undertaking which effectively exercises dominant influence over another undertaking.

Directive 83/349/EEC has been repealed and replaced by Directive 2013/34/EU (the “Accounting Directive”). In accordance with the correlation table in Annex VII of the Accounting Directive, references to Articles 1 and 2 of Directive 83/349/EEC shall be read as references to Article 22(1), (2), (3), (4) and (5) of the Accounting Directive.

Two possible interpretations can be considered:

1. The Accounting Directive only applies to the specific types of undertakings listed in Annex I or II to the Accounting Directive and not to any other undertaking. Recital 30 of the Accounting Directive provides that “this Directive requires only parent undertakings of the types listed in Annex I, or, in certain circumstances, Annex II to draw up consolidated financial statements, but does not preclude Member States from extending the scope of this Directive to cover other situations as well”. Therefore, the cross reference of the CRR to the Accounting Directive needs to be interpreted as limited to the entities mentioned under Annex I or II of the Accounting Directive [and those entities  which under national law have to draw up consolidated financial statements because a Member State has extended the scope of the Accounting Directive to them  I.e., in principle, the Accounting Directive determines the types of undertakings that may qualify as a parent undertaking for the purpose of CRR. Hence entities which are not listed in Annex I or II [and are not required under national law to draw up consolidated financial statements], including entities without autonomous legal personality and without limited liabilities for their partners cannot qualify as parent undertaking;

In contrast to the above argumentation, one may argue that the types of undertakings in respect of which the Accounting Directive applies is not relevant for the purpose of CRR. In fact, an argument could be made that the definition of parent undertaking under CRR refers to the relevant provisions of the Accounting Directive only for the purpose to determine relationships between undertakings but not to determine which type of undertaking, as extended by the national laws of Member States, could be considered to be a parent undertaking. If one is to accept this argument, then the fact that an entity does not fall under the list in Annex I or, in certain circumstances, Annex II of the Accounting Directive or the national rules extending the scope of the Accounting Directive is not relevant for determining whether an entity is a parent undertaking within the meaning of Article 4(1)(15) CRR. Such interpretation entails that a case by case assessment needs to be carried in order to determine whether the qualification as parent of an undertaking is justified for the purposes of CRR and that entities without legal personality or without limited liability for their partners can be classified as parent undertaking