EBA欧洲银行-cebs15_Guidelines

CEBS Guidelines on Revised Article 3 of Directive 2006/48/EC

Introduction

• Revised Article 3 of Directive 2006/48/EC allows Member States to provide special prudential regimes for credit institutions permanently affiliated to a central body, provided that such regimes were introduced into national law by 15 December 1979.
• The time limits in the original Article 3 prevented newer Member States from introducing similar regimes for affiliated institutions established after 1979.
• In 2009, the European Parliament and Council decided to remove these time limits, enabling all Member States to apply the special prudential regime from 31 December 2010.
• CEBS was invited to develop guidelines to enhance supervisory convergence in this area.
• CEBS published a draft proposal for consultation on 13 July 2010, receiving six responses, and has now finalized its guidelines.

Objectives, Methodology and Scope

• The objectives of the guidelines are to:
  • Enhance the convergence of supervisory practices across the EU.
  • Increase transparency for market participants.
• CEBS emphasizes that the main purpose of Article 3 is to ensure equal treatment of Groups and credit institutions with a significant number of branches.
• While the decision on applying Article 3 lies with national competent authorities, the guidelines aim to provide common understanding and consistency in its implementation.

Implementation Date

• Member States wishing to apply the special prudential regime under the revised Article 3 must transpose it into national law.
• CEBS expects its Members to apply its final guidelines at the latest six months after publication, which was on 13 July 2010.
• If a Member applies the revised Article 3 after 31 December 2010, it should implement the guidelines by the time of national implementation.

Guidelines for Convergent Application

A) Concept of 'permanently affiliated to a central body'

• Permanence of affiliation is essential for the stability of the Group.
• In specific circumstances, an affiliated institution may voluntarily exit or be excluded from the Group.
• The central body should communicate in advance its intention to exclude an institution and ensure that the decision is publicly disclosed.
• The impact on solvency and liquidity of the Group and its entities must be considered before any exclusion.

B) Guarantee

• Article 3 (1) (a) allows for joint and several liabilities or full guarantees by the central body.
• The guarantee system may include:
  • A guarantee by the central body of each affiliated institution.
  • A two-way guarantee between the central body and its affiliates.
  • A cross-guarantee among all Group members.
• The Group must ensure that no unresolved liabilities exist when an affiliated institution exits.
• Supervisors may allow a short period for compliance with this requirement.

C) Relation of Requirements and Exemptions in Article 3 (1) and (2)

• Article 3 (1) exempts affiliated institutions from certain prudential requirements (Articles 7 and 11(1)) under specific conditions.
• Article 3 (2) provides more comprehensive exemptions from other provisions, including Articles 9 and 10, and Title V, Chapter 2, Sections 2–6, and Chapter 3.
• CEBS views Article 3 (2) as an extension of Article 3 (1), meaning that exemptions under Article 3 (2) require compliance with Article 3 (1) first.

D) Consolidated Financial Statements vs. Consolidated Prudential Reporting

• Article 3 (1) (b) requires the monitoring of solvency and liquidity using consolidated accounts.
• For prudential supervision, consolidated accounts must be prepared in accordance with Article 133 et seq. of Directive 2006/48/EC.
• The assessment of whether consolidated financial accounts are required should be based on the accounting framework under Regulation n° 1606/2002 or Directive 86/635/EEC.

E) Type of 'instructions' issued by the central body

• The central body may issue instructions to affiliated institutions to ensure compliance with legal and prudential requirements.
• These instructions should cover:
  • Administrative, technical, and financial supervision of affiliated institutions.
  • Compliance with prudential rules, including liquidity and capital adequacy.
  • Ensuring fit and properness of senior management.
  • Preparation of prudential reports for supervisors.
  • Risk evaluation, measurement, and control procedures.
  • Internal control procedures.
  • Business criteria for credit granting, monitoring, and investments.
  • Financial assistance criteria.
  • Rules for new establishments and cross-border activities.

F) Use of the EU Passport

• If an exemption under Article 3 (2) is granted, the EU passport under Article 23 of Directive 2006/48/EC applies to the whole Group.
• The Group must be regulated and supervised as a whole on a consolidated basis and fulfill the requirements of the Directive.
• Affiliated institutions may apply to the central body for the use of the EU passport, and the central body must accept or reject the application.
• The central body may also use the EU passport on its own if it is licensed as a credit institution and meets prudential requirements.
• There is no distinction between the freedom to provide services and the establishment of a branch in the context of Article 3.
• Affiliated institutions not relying on Article 3 can use the EU passport individually, but must reapply if they intend to use Article 3.