BAKGRUNN (fra kommisjonsforordningen)

(1) To specify the details of the scope of prudential consolidation of an investment firm group as referred to in Article 7 of Regulation (EU) 2019/2033, it is necessary to determine, on the basis of Directive 2013/34/EU of the European parliament and of the Council, the links on the basis of which ancillary services undertakings, financial institutions, investment firms, and tied agents related to a particular investment firm, investment holding company or mixed financial holding company, should be included in that scope. 

(2) To ensure the effectivity and neutrality of the supervision on a consolidated basis, it is necessary to lay down criteria for competent authorities to determine where parentsubsidiary links exist for all investment firm groups across the Union. 

(3) To take into account the links for consolidated supervision, ancillary services undertakings, financial institutions, investment firms, and tied agents should be included in the scope of prudential consolidation of the Union parent undertaking where control is established, dominant influence is exercised, or unified management or horizontal links are identified. 

(4) To respect the principle of proportionality, and in particular to take into account the diversity in size of undertakings and their scale of operations, a Union parent undertaking should be allowed to exclude small undertakings from the scope of prudential consolidation. 

(5) Pursuant to Article 22(2), point (b), of Directive 2013/34/EU, the scope of prudential consolidation of an investment firm group is to include cases where investment firm group entities are managed on a unified basis. To determine that such entities are managed on a unified basis, competent authorities should have concrete evidence that there is an effective coordination of the financial and operating policies of such entities. 

(6) Pursuant to Article 22(7), points (a) and (b), of Directive 2013/34/EU, the scope of prudential consolidation of an investment firm group is to include cases of horizontal links where two entities are related, whereby one entity is not a subsidiary of the other and it thus is impossible to determine a Union parent undertaking. In such cases, the competent authority or, where applicable, the group supervisor as defined in Article 3(1), point (15), of Directive (EU) 2019/2034 of the European Parliament and of the Council4 should determine the entity that should perform the consolidation and take on the role of Union parent undertaking. 

(7) To ensure effective application of the prudential requirements at consolidated level, full consolidation of all entities included within the scope of prudential consolidation should be applied as a general rule. Where two undertakings are related as referred to in Article 22(7) of Directive 2013/34/EU, consolidation in accordance with Article 22(8) and (9) of Directive 2013/34/EU should be applied (‘aggregation method’). 

(8) It is necessary to prevent the multiple use of elements eligible for own funds’ calculation. Union parent undertakings, when calculating the consolidated permanent minimum capital requirement for an investment firm group, should therefore add the individual permanent minimum capital requirements for individual investment firms to the initial capital of those financial institutions that are subject to that type of capital requirement, in particular asset management companies, payment institutions, and electronic money institutions. 

(9) Consolidated expenditure figures from the application of the relevant accounting framework do not exist in every case. To determine the consolidated fixed overheads requirement for the purpose of prudential consolidation, a Union parent undertaking should therefore calculate the amount of expenditure needed by the investment firm group by adding up the expenditure of the Union parent undertaking, and of the entities that are prudentially consolidated in the investment firm group and, where not already included in the costs of the investment firms, the costs of tied agents. 

(10) Changes, including shifts in business models, or mergers and acquisitions, may result in significant variations in the projected fixed overhead. For the determination of own funds requirements on the basis of fixed overheads, it is therefore necessary to establish objective thresholds of projected fixed overheads. 

(11) For the calculation of the consolidated K-factors, those activities and services that are included in Annex I to Directive 2014/65/EU of the European Parliament and of the Council, or associated activities and services, should also be taken into account, regardless of whether those activities and services are carried out or performed by the investment firms or by other entities of the investment firm group. It is therefore necessary to include in the calculation of the consolidated K-factors the activities and services referred to in Article 6(3), points (a), (b)(i), and (b)(ii), of Directive 2009/65/EC of the European Parliament and of the Council and in Article 6(4), points (a), (b)(i), (b)(ii), and (b)(iii), of Directive 2011/61/EU of the European Parliament and of the Council7 carried out or performed by any entities of the investment firm group included in the consolidation. 

(12) According to the definition of ‘consolidated situation’, laid down in Article 4(1), point (11), of Regulation (EU) 2019/2033, financial institutions are part of the scope of consolidation of an investment firm group. However, not all activities carried out by different financial institutions contribute to the calculation of consolidated K-factor requirements. It is therefore necessary to specify which activities of those financial institutions are relevant for specific K-factors. 

(13) It is necessary to avoid the double-counting of elements eligible for own funds’ calculation. Intragroup services and transactions should therefore be excluded for the calculation of certain consolidated K-factor requirements, and more in particular for the calculation of the K-factors ‘assets safeguarded and administered’ (K-ASA), ‘client orders handled’ (K-COH), and ‘daily trading flow’ (K-DTF). 

(14) An investment firm can delegate assets’ management to another entity that is part of the same investment firm group. To avoid double-counting, it is necessary to specify how those assets should be accounted for in the total amount of assets under management when calculating the consolidated K-factor ‘assets under management’ (K-AUM). 

(15) Client money held by entities in the scope of consolidation may derive from the services and activities referred to in Annex I to Directive 2014/65/EU or from other services and activities which entities in the investment firm group lawfully perform. It is therefore necessary to ensure that the calculation of the K-factor ‘client money held’ (CMH) does not include client money derived from services and activities other than the ones listed in Annex I to that Directive. Against that background, “client money held” (CMH) of the investment firm group should be the sum of the CMH of all group entities included in the consolidation other than payment institutions and asset management companies. 

(16) To ensure proportionality and to avoid double counting, intra-group activities and services taken into account for the calculation of the K-AUM of an investment firm group should be excluded from the calculation of K-COH. 

(17) Dealing on own account and providing underwriting or placement services presents the same risk when performed by entities of an investment firm group included in the consolidation, regardless of whether those entities are investment firms or financial institutions. For that reason, when calculating the consolidated K-factor ‘net position risk’ (K-NPR), Union parent undertakings should take all such activities and services into account, having also regard to Article 325b of Regulation (EU) No 575/2013 of the European Parliament and of the Council, in accordance with which the use of positions in one entity of the group to offset positions in another entity of that group is only allowed where the Union parent undertaking has obtained the permission of the relevant competent authority. 

(18) This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Banking Authority. 

(19) The European Banking Authority has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council