(fra kommisjonsforordningen)

(1) The prudential framework for investment firms introduced by Directive (EU) 2019/2034 of the European Parliament and of the Council and Regulation (EU) 2019/2033 of the European Parliament and of the Council requires certain amendments to Commission Delegated Regulation (EU) 2015/63 . In particular, Directive (EU) 2019/2034 has amended the definition of investment firms set out in Directive 2014/59/EU. It is therefore necessary to amend the definition of investment firms set out in Delegated Regulation (EU) 2015/63 accordingly. The amended definition should preserve the exclusions set out in Delegated Regulation (EU) 2015/63. Given that investment firms authorised to operate a multilateral trading facility without performing risk-relevant activities 3 or 6 referred to in Section A of Annex I to Directive 2014/65/EU of the European Parliament and of the Council are no longer within the scope of the amended definition set out in Directive 2014/59/EU, the corresponding exclusion in Article 3(2) of Delegated Regulation (EU) 2015/63 has  become obsolete and should be deleted. By contrast, the exclusion of certain low-risk investment firms covered by Article 96(1), points (a) and (b), of Regulation (EU) No 575/2013 of the European Parliament and of the Council remains necessary to maintain the original scope of Delegated Regulation (EU) 2015/63. Since Article 96 of Regulation (EU) No 575/2013 has ceased to apply as of 1 January 2026, Delegated Regulation (EU) 2015/63 should incorporate the substantive criteria of that provision. Member States retain the power to establish the risk adjustment for the referred excluded investment firms, which are subject to the obligation to pay ex ante contributions pursuant to Article 103(1) of Directive 2014/59/EU, but are authorised to carry out only limited services and activities and are not subject to certain capital and liquidity requirements, in order to not to disproportionately burden them. Those investment firms should therefore continue to be excluded from the scope of Delegated Regulation (EU) 2015/63. 

(2) Directive (EU) 2019/2034 has introduced a new definition of competent authority empowered with the supervision of investment firms subject to the prudential framework laid down in that Directive and in Regulation (EU) 2019/2033. The definition of competent authority in Delegated Regulation (EU) 2015/63 should therefore be amended to include both competent authorities, which are respectively empowered with the supervision of credit institutions or investment firms, as applicable.

(3) Due to the prudential framework introduced by Directive (EU) 2019/2034 and Regulation (EU) 2019/2033, investment firms that have total consolidated assets below certain thresholds are in principle no longer subject to the capital and liquidity requirements laid down in Directive 2013/36/EU of the European Parliament and of the Council and Regulation (EU) No 575/2013 and to the related reporting obligations. Consequently, many of the risk adjustment metrics set out in Delegated Regulation (EU) 2015/63, which are based on such requirements, do not apply anymore to those investment firms. Those investment firms, which are subject to the obligation to contribute to resolution financing arrangements pursuant to Article 103(1) of Directive 2014/59/EU, generally have a lower risk profile and are less systemic than larger investment firms, and are less likely to be placed under resolution, as they are subject to a fixed overheads requirement that should enable them to be liquidated under normal insolvency in case of failure. In line with the principle of proportionality, those investment firms should therefore be subject to a simplified calculation of their contributions to resolution financing arrangements. It is appropriate to subject those investment firms only to the risk adjustment method based on their size (basic annual contribution). To ensure that those investment firms are not placed at a disadvantage compared to how they would be treated under the methodology applicable to all institutions, those investment firms should have the possibility to request the application of the additional risk adjustment based on risk factors, where the application of that methodology would result in a lower contribution amount. To enable resolution authorities to determine which methodology results in the lower contribution, investment firms should in such cases provide resolution authorities with the necessary information. That amendment should not concern small investment firms currently subject to the lump sum regime laid down in Article 10 of Delegated Regulation (EU) 2015/63, that should continue to apply to the investment firms that fall within the scope of that Article. That is justified by the very small size of those investment firms, which entails a lower likelihood of being put into resolution and a limited impact on financial stability and on the resolution financing arrangements in case of resolution.

(4) Under the prudential framework introduced by Directive (EU) 2019/2034 and Regulation (EU) 2019/2033, competent authorities may nevertheless decide, under certain conditions, to apply the prudential requirements set out in Directive 2013/36/EU and in Regulation (EU) No 575/2013 also to certain investment firms that are in principle not subject to those requirements, where such investment firms pose a higher risk, or to allow investment firms to apply those prudential requirements. Delegated Regulation (EU) 2015/63 should take into account that flexibility and in those cases the method of calculation of the contributions should reflect the prudential treatment of those investment firms. In such cases, the investment firms concerned should no longer be subject only to the basic annual contribution but also to the additional risk adjustment based on risk factors. 

(5) Directive (EU) 2019/879 of the European Parliament and of the Council8 and Directive (EU) 2024/1174 of the European Parliament and of the Council9 have extensively amended the minimum requirement for own funds and eligible liabilities (MREL) laid down in Directive 2014/59/EU. As a consequence of those amendments, MREL, originally construed as a general requirement applicable to all institutions, is to be tailored to each institution depending on the specific resolution strategy chosen for the institution or group of which the institution is part. Liquidation entities are not anymore subject to MREL and in case of groups, institutions may be or may not be subject to MREL depending on whether they are liquidation or resolution entities. In addition, MREL is to be composed of different financial instruments and is to be calibrated differently (external or internal MREL) depending on whether the institution is the point of entry for the resolution of the group or not. As a result, the risk indicator “Own funds and eligible liabilities held by the institution in excess of MREL” laid down in Delegated Regulation (EU) 2015/63, as part of the risk pillar “Risk exposure”, which was designed for an MREL uniformly applicable to all institutions, is not anymore suitable to be applied to all institutions to adjust the contributions of those institutions in proportion to their risk profiles. In particular, that risk indicator might penalise liquidation entities, as they have no MREL. The risk pillar “Additional risk indicators to be determined by the resolution authority”, providing, among other things, for the resolvability risk indicator, takes more appropriately into account MREL for all institutions. The risk indicator “Own funds and eligible liabilities held by the institution in excess of MREL” in the risk pillar “Risk exposure”, and related provisions and references, should therefore be deleted.