EBA欧洲银行-Letter-to-Olivier-Guersent-COM-on-Opinion-and-Report-on-matters-relating-to-the-regulatory-perimeter-under-the-CRDIV-CRR-28OFIs29_4页_220kb

EBA Opinion and Report on Regulatory Perimeter under CRDIV/CRR

Core Content

The European Banking Authority (EBA) has issued an opinion and report on amendments to the regulatory perimeter under the Capital Requirements Directive IV (CRDIV) and the Capital Requirements Regulation (CRR). The focus is on Article 2(5) CRDIV and Article 9(2) CRDIV, which define the scope of the Directive and allow Member States to exclude certain entities from its application.

Main Points

• Article 2(5) CRDIV: This article excludes entities that pursue public policy objectives, such as central banks and post office giro institutions, and others where EU legislation is not necessary to ensure a level playing field for banking services (e.g., friendly societies and cooperative undertakings).
• Proposed Amendments: The EBA supports the Commission's proposals to amend points (16) and (24) of Article 2(5) CRDIV and highlights the need for additional amendments, as outlined in Figure 1 of the Report.
• Delegated Acts: The EBA refrains from commenting on the proposed new paragraphs (5a) and (5b) that would allow the Commission to use delegated acts to exclude specific institutions from the Directive. It considers this a political matter.
• Article 9(2) CRDIV: This article permits Member States to exclude entities from the prohibition on taking deposits and other repayable funds from the public without a banking licence, provided such activities are subject to national regulations protecting depositors and investors.
• Variations in Application: Differences in how Member States interpret the terms 'deposit', 'other repayable funds', and 'public' lead to inconsistencies in the application of the Directive. These variations can result in some entities being inadvertently included in the scope of the CRDIV/CRR.
• Complementary Nature: Articles 2(5) and 9(2) CRDIV are seen as complementary, each providing a mechanism to determine the regulatory perimeter. However, the EBA notes that the Commission's proposed powers under Article 2(5a) and (5b) may not fully account for entities currently excluded via Article 9(2).
• Recommendations for Consistency: The EBA recommends a thorough impact assessment before changing the scope of Article 9(2) CRDIV. It also suggests including a monitoring role for the EBA and requiring Member States to report their use of Article 9(2) to ensure consistency.
• Possible Solutions: Options include:
  • Requiring the EBA to monitor national practices.
  • Mandating Member States to report the use of Article 9(2) CRDIV.
  • The EBA preparing guidance or legislative recommendations based on its findings.

Key Information

• Document Title: EBA Opinion and Report on matters relating to the regulatory perimeter under the CRDIV/CRR
• Date: 9 February 2018
• Recipient: The Chairperson of the European Commission, Olivier Guersent
• EBA Contact: Andrea Enria, Director General, EBA
• EBA Report Reference: EBA/2018/D/1685
• Focus Areas: Regulatory perimeter, interpretation of terms, national discretion, and the impact of FinTech and Brexit

Conclusion

The EBA supports the Commission's objective of ensuring a consistent and effective application of EU banking law but believes that the current legislative proposals are insufficient. It emphasizes the need for harmonized definitions and a more comprehensive approach to monitoring and reporting national practices in order to address the discrepancies across Member States and ensure that entities are not mistakenly included in the regulatory perimeter.