1. Credit institutions
shall comply with the obligations laid down in Articles 22 and 75
and Section 5 on an individual basis.
2. Every credit institution
which is neither a subsidiary in the Member State where it is
authorised and supervised, nor a parent undertaking, and every
credit institution not included in the consolidation pursuant to
Article 73, shall comply with the obligations laid down in Articles
120 and 123 on an individual basis.
3. Every credit institution
which is neither a parent undertaking, nor a subsidiary, and every
credit institution not included in the consolidation pursuant to
Article 73, shall comply with the obligations laid down in Chapter 5
on an individual basis.
Article 69
1. The Member States may
choose not to apply Article 68(1) to any subsidiary of a credit
institution, where both the subsidiary and the credit institution
are subject to authorisation and supervision by the Member State
concerned, and the subsidiary is included in the supervision on a
consolidated basis of the credit institution which is the parent
undertaking, and all of the following conditions are satisfied, in
order to ensure that own funds are distributed adequately among the
parent undertaking and the subsidiaries:
(a) there is no current or
foreseen material practical or legal impediment to the prompt
transfer of own funds or repayment of liabilities by its parent
undertaking;
(b) either the parent
undertaking satisfies the competent authority regarding the prudent
management of the subsidiary and has declared, with the consent of
the competent authority, that it guarantees the commitments entered
into by the subsidiary, or the risks in the subsidiary are of
negligible interest;
(c) the risk evaluation,
measurement and control procedures of the parent undertaking cover
the subsidiary; and
(d) the parent undertaking
holds more than 50 % of the voting rights attaching to shares in the
capital of the subsidiary and/or has the right to appoint or remove
a majority of the members of the management body of the subsidiary
described in Article 11.
2. The Member States may
exercise the option provided for in paragraph 1 where the parent
undertaking is a financial holding company set up in the same Member
State as the credit institution, provided that it is subject to the
same supervision as that exercised over credit institutions, and in
particular to the standards laid down in Article 71(1).
3. The Member States may
choose not to apply Article 68(1) to a parent credit institution in
a Member State where that credit institution is subject to
authorisation and supervision by the Member State concerned, and it
is included in the supervision on a consolidated basis, and all the
following conditions are satisfied, in order to ensure that own
funds are distributed adequately among the parent undertaking and
the subsidiaries:
(a) there is no current or
foreseen material practical or legal impediment to the prompt
transfer of own funds or repayment of liabilities to the parent
credit institution in a Member State; and
(b) the risk evaluation,
measurement and control procedures relevant for consolidated
supervision cover the parent credit institution in a Member State.
The competent authority
which makes use of this paragraph shall inform the competent
authorities of all other Member States.
4. Without prejudice to the
generality of Article 144, the competent authority of the Member
States exercising the discretion laid down in paragraph 3 shall
publicly disclose, in the manner indicated in Article 144:
(a) criteria it applies to
determine that there is no current or foreseen material practical or
legal impediment to the prompt transfer of own funds or repayment of
liabilities;
(b) the number of parent
credit institutions which benefit from the exercise of the
discretion laid down in paragraph 3 and the number of these which
incorporate subsidiaries in a third country; and
(c) on an aggregate basis
for the Member State:
(i) the total amount of own
funds on the consolidated basis of the parent credit institution in
a Member State, which benefits from the exercise of the discretion
laid down in paragraph 3, which are held in subsidiaries in a third
country;
(ii) the percentage of
total own funds on the consolidated basis of parent credit
institutions in a Member State which benefits from the exercise of
the discretion laid down in paragraph 3, represented by own funds
which are held in subsidiaries in a third country; and
(iii) the percentage of
total minimum own funds required under Article 75 on the
consolidated basis of parent credit institutions in a Member State,
which benefits from the exercise of the discretion laid down in
paragraph 3, represented by own funds which are held in subsidiaries
in a third country.
Article 70
1. Subject to paragraphs 2
to 4 of this Article, the competent authorities may allow on a case
by case basis parent credit institutions to incorporate in the
calculation of their requirement under Article 68(1) subsidiaries
which meet the conditions laid down in points (c) and (d) of Article
69(1), and whose material exposures or material liabilities are to
that parent credit institution.
2. The treatment in
paragraph 1 shall be allowed only where the parent credit
institution demonstrates fully to the competent authorities the
circumstances and arrangements, including legal arrangements, by
virtue of which there is no material practical or legal impediment,
and none are foreseen, to the prompt transfer of own funds, or
repayment of liabilities when due by the subsidiary to its parent
undertaking.
3. Where a competent
authority exercises the discretion laid down in paragraph 1, it
shall on a regular basis and not less than once a year inform the
competent authorities of all the other Member States of the use made
of paragraph 1 and of the circumstances and arrangements referred to
in paragraph 2.
Where the subsidiary is in
a third country, the competent authorities shall provide the same
information to the competent authorities of that third country as
well.
4. Without prejudice to the
generality of Article 144, a competent authority which exercises the
discretion laid down in paragraph 1 shall publicly disclose, in the
manner indicated in Article 144:
(a) the criteria it applies
to determine that there is no current or foreseen material practical
or legal impediment to the prompt transfer of own funds or repayment
of liabilities;
(b) the number of parent
credit institutions which benefit from the exercise of the
discretion laid down in paragraph 1 and the number of these which
incorporate subsidiaries in a third country; and
(c) on an aggregate basis
for the Member State:
(i) the total amount of own
funds of parent credit institutions which benefit from the exercise
of the discretion laid down in
paragraph 1 which are held in subsidiaries in a third country;
(ii) the percentage of
total own funds of parent credit institutions which benefit from the
exercise of the discretion laid down in
paragraph 1 represented by own funds which are held in subsidiaries
in a third country; and
(iii) the percentage of
total minimum own funds required under Article 75 of parent credit
institutions which benefit from the exercise
of the discretion laid down in paragraph 1 represented
by own funds which are held in subsidiaries in a
third country.
Article 71
1. Without prejudice to
Articles 68 to 70, parent credit institutions in a Member
State shall comply, to the extent and in the manner prescribed in
Article 133, with the obligations laid down in Articles 75, 120,
123 and Section 5 on the basis of their consolidated financial
situation.
2. Without prejudice to
Articles 68 to 70, credit institutions controlled by a parent
financial holding company in a Member State shall comply, to the
extent and in the manner prescribed in Article 133, with the
obligations laid down in Articles 75, 120, 123 and Section 5 on the
basis of the consolidated financial situation of that financial
holding company.
Where more than one credit
institution is controlled by a parent financial holding company
in a Member State, the first subparagraph shall apply
only to the credit institution to which supervision on a
consolidated basis applies in accordance with Articles 125 and 126.
Article 72
1. EU parent credit
institutions shall comply with the obligations laid down in
Chapter 5 on the basis of their consolidated financial
situation.
Significant subsidiaries of
EU parent credit institutions shall disclose the information
specified in Annex XII, Part 1, point 5, on an individual or
sub-consolidated basis.
2. Credit institutions
controlled by an EU parent financial holding company shall
comply with the obligations laid down in Chapter 5 on the basis of
the consolidated financial situation of that financial holding
company.
Significant subsidiaries of
EU parent financial holding companies shall disclose the
information specified in Annex XII, Part 1, point 5, on an individual
or sub‑consolidated basis.
3. The competent
authorities responsible for exercising supervision on a consolidated basis
pursuant to Articles 125 and 126 may decide not to apply in
full or in part paragraphs 1 and 2 to the credit institutions
which are included within comparable disclosures provided on a
consolidated basis by a parent undertaking established in
a third country.
Article 73
1. The Member States or the
competent authorities responsible for exercising supervision
on a consolidated basis pursuant to Articles 125 and 126 may
decide in the following cases that a credit institution,
financial institution or ancillary services undertaking which is a
subsidiary or in which a participation is held need not be
included in the consolidation:
(a) where the undertaking
concerned is situated in a third country where there are
legal impediments to the transfer of the necessary
information;
(b) where, in the opinion
of the competent authorities, the undertaking concerned is of
negligible interest only with respect to the objectives
of monitoring credit institutions and in any event where the
balance-sheet total of the undertaking concerned is
less than the smaller of the following two amounts:
(i) EUR 10 million, or
(ii) 1 % of the
balance-sheet total of the parent undertaking or the undertaking that
holds the participation,
(c) where, in the opinion
of the competent authorities responsible for exercising
supervision on a consolidated basis, the consolidation of
the financial situation of the undertaking concerned would
be inappropriate or misleading as far as the objectives of
the supervision of credit institutions are concerned.
If, in the cases referred
to in point (b) of the first subparagraph, several
undertakings meet the above criteria set out therein, they shall
nevertheless be included in the consolidation where
collectively they are of non-negligible interest with respect to
the specified objectives.
2. Competent authorities
shall require subsidiary credit institutions to apply the
requirements laid down in Articles 75, 120 and 123 and Section 5
on a sub-consolidated basis if those credit institutions, or the
parent undertaking where it is a financial holding company,
have a credit institution or a financial institution or an asset
management company as defined in Article 2(5) of Directive
2002/87/EC as a subsidiary in a third country, or hold a
participation in such an undertaking.
3. Competent authorities
shall require the parent undertakings and subsidiaries subject to
this Directive to meet the obligations laid down in Article 22 on
a consolidated or sub‑consolidated basis, to ensure that their
arrangements, processes and mechanisms are consistent
and well-integrated and that any data and information
relevant to the purpose of supervision can be produced.
