(fra kommisjonsforordningen)

(1) Directive 2013/36/EU lays down rules concerning supervisory powers and tools for the prudential supervision of credit institutions by competent authorities. Colleges of supervisors are the vehicles through which supervisory activities are coordinated. Pursuant to Article 116 of Directive 2013/36/EU, the consolidating supervisors are to establish colleges of supervisors to facilitate certain supervisory tasks and to ensure appropriate coordination and cooperation with relevant third-country supervisory authorities. In addition, the competent authorities supervising an institution with significant branches in other Member States are, pursuant to Article 51(3) of Directive 2013/36/EU, required to establish and chair colleges of supervisors where Article 116 of that Directive is not applicable. 

(2) Commission Delegated Regulation (EU) 2016/98 lays down general conditions for the functioning of the colleges of supervisors to be established in accordance with Article 51(3) and Article 116 of Directive 2013/36/EU. New provisions were introduced in Directive 2013/36/EU on the authorisation of certain financial holding companies and mixed financial holding companies, on the establishment of intermediate EU parent undertakings and on colleges for groups headed in the Union, the subsidiaries of which are established in third countries. In addition, investment firms were removed from the scope of Directive 2013/36/EU as the definition of the term institution no longer includes investment firms, while some of the provisions of Directive 2013/36/EU still apply to them. To account for those multiple amendments and for the sake of legal certainty, it is necessary to repeal and replace Delegated Regulation (EU) 2016/98.

(3) The mapping of a group, which would identify the group entities in the Union or in a third country and which would describe for each group entity its nature, location, the authorities involved in its supervision, the applicable prudential exemptions, its importance for the group and its importance for the country in which it is authorised or established, as well as the criteria for determining that importance, is considered a vital element for the identification of members of the college of supervisors and potential observers. In that context, information on the importance of a branch for the group and the importance of that branch for the Member State in which it is established is essential in order to determine the participation of the competent authorities of that Member State in college activities. Information on the nature of the group entities, whether institutions, branches or other financial sector entities, as well as on their country of authorisation or establishment, whether a Member State or a third country, is also important for identifying members of the college of supervisors and potential observers. For that importance to be determined, certain criteria should be set out. 

(4) In accordance with Article 21b(2) of Directive 2013/36/EU, competent authorities may allow institutions to have two intermediate EU parent undertakings, which will entail the establishment of two colleges of supervisors. Where two colleges of supervisors have been established, close cooperation between them needs to be ensured. To that end, the consolidating supervisor or the group supervisor of one college should participate as observer in the other college. 

(5) In accordance with Article 116(1a) of Directive 2013/36/EU, the consolidating supervisor is also to establish colleges of supervisors where all the cross-border subsidiaries of an EU parent institution or of an EU parent financial holding company or an EU parent mixed financial holding company have their head offices in third countries. For colleges of supervisors established under that Article, there is a need to ensure that the consolidating supervisor invites all third-country authorities where subsidiaries of the group exist to become observers in the relevant college of supervisors, as that will be key in determining their importance and in enabling prudent management of risk at the level of the EU parent undertaking. However, in all other colleges of supervisors established under Article 116(1) of Directive 2013/36/EU, only authorities of third countries where a significant presence of the group exists should be invited to become observers of the college of supervisors. To ensure that the professional secrecy requirements set out in Union law are met, in all cases, third-country authorities should only be allowed to become observers of colleges of supervisors if they are subject to confidentiality requirements that are at least equivalent to those applicable in the Union. 

(6) To enhance the cooperation and the exchange of information between the competent authorities responsible for the prudential supervision and other authorities involved in the supervision of a group, and to ensure the sharing of information for the fulfilment of their respective tasks, the consolidating supervisor should request the group-level resolution authority, the lead supervisor of the college established for the purpose of facilitating cooperation between AML/CFT authorities (the ‘AML/CFT college’), the supervisory authorities of third countries where important institutions or branches are established, the supervisory authority of a Member State where a second intermediate EU parent undertaking is established, and the coordinator of the financial conglomerate, where those authorities are identified by the consolidating supervisor, to become observers in the college of supervisors. The status of observer should enable those authorities to be invited to meetings of the college of supervisors by the consolidating supervisor, where their presence is relevant considering the agenda of those meetings. 

(7) Under Article 21 of Regulation (EU) 1093/2010 of the European Parliament and of the Council, the European Banking Authority (EBA) is to monitor the functioning of colleges of supervisors and to foster consistency and coherence with regard to the application of Regulation (EU) No 575/2013 of the European Parliament and of the Council, Directive 2013/36/EU, Delegated Regulation (EU) 2016/98 and Commission Implementing Regulation (EU) 2016/99. The results of that monitoring showed that certain aspects of the operational arrangements of colleges of supervisors, including the regular exchange of the early warning indicators, or the cooperation with the resolution authorities or the anti-money laundering and counter-terrorism financing (AML/CFT) authorities, still require further strengthening. Therefore, it is necessary to enhance the role of colleges of supervisors as a tool for the exchange of information among their members and the cooperation and coordination with observers, including other sectoral colleges. 

(8) To strengthen the efficiency of colleges of supervisors, the written coordination and cooperation arrangements referred to in Article 115 of Directive 2013/36/EU should cover all areas of college work. The written arrangements should also cover arrangements between some college members involved in specific college activities, such as those performed through specific substructures of the college. The written arrangements should also include operational aspects of college work as those aspects are essential for facilitating the functioning of the college of supervisors, both in going concern and during emergency situations. As it is essential to ensure cooperation within the college before and for the purpose of providing input for group resolution issues, the written arrangements should provide for the processes of coordinating the relevant input as well as the responsibilities and role of the consolidating supervisor in communicating that input through the group-level resolution authority as defined in Article 2(1), point (44), of Directive 2014/59/EU of the European Parliament and of the Council to the resolution college. The written arrangements should be comprehensive, coherent and exhaustive and should provide an adequate and appropriate basis to the competent authorities in order for them to discharge their relevant duties and tasks within, rather than outside the college of supervisors.

(9) Members of the college of supervisors should discuss and agree on the scope and level of involvement of observers, if any, in the college of supervisors. To enhance the cooperation and the exchange of information with the observers, including with the group-level resolution authority and the AML/CFT lead supervisor where relevant, the written coordination and cooperation arrangements should establish the framework for cooperation and information to be exchanged with each of those observers. The written arrangements should also cover agreements between members of the college of supervisors involved in specific activities of the college, including activities carried out through specific substructures of the college of supervisors. 

(10) To perform all college activities, the consolidating supervisor and the other members of the college should have an overview of the activities carried out by all group entities, including by those carrying out financial activities without being qualified as institutions and by those operating outside the Union. Interaction between the consolidating supervisor, college members, third-country supervisory authorities, public authorities or bodies which are responsible for or involved in the supervision of a group entity, including authorities responsible for the prudential supervision of the group's financial sector entities or competent authorities responsible for the supervision of markets in financial instruments, the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, or consumer protection, should be promoted by allowing those third-country supervisory authorities and public authorities or bodies to participate in college work as observers, as appropriate. 

(11) To facilitate the identification of early warning signs, potential risks and vulnerabilities for the group and its entities, including any event of adverse material effect on the risk profile of the group or its entities and the imposition of early intervention measures; or for the system in which the group and its entities operate, and in case of emergency situations, the exchange of information in colleges of supervisors should be enhanced. 

(12) Members of the college of supervisors participating in the performance of the tasks referred to in Article 113 of Directive 2013/36/EU should use the college of supervisors as the main platform for information exchange on the assessment of the main elements of the supervisory review and evaluation process as referred to in Article 97 of that Directive, where a cross-border group is concerned, recognising at the same time that the supervisory review and evaluation process may be performed differently across Member States depending on the transposition of those Union rules into national legislation, taking also into account the guidelines issued by EBA under Article 107(3) of Directive 2013/36/EU. 

(13) To facilitate cooperation between competent authorities and to coordinate any decisions intended to address issues of compliance by an institution with the requirements regarding approaches that need permission by competent authorities before being used for the calculation of own fund requirements (use of internal models for credit risk, market risk, counterparty risk and operational risk), the conditions of cooperation between the consolidating supervisor and the relevant competent authorities for exchanging information on the performance of those internal approaches, and for discussing and reaching agreement on measures to address inefficiencies identified, should be specified. 

(14) To promote cooperation within the college of supervisors and to increase the effectiveness and efficiency of the group supervision, the consolidating supervisor and the members of the college of supervisors should discuss, and on a voluntary basis, agree on the entrustment of tasks and delegation of responsibilities, where relevant. 

(15) Each college of supervisors should decide on the information to be exchanged and periodically updated and should list that information in the written coordination and cooperation arrangements. To enhance the capacity of the college of supervisors to identify increasing risks and vulnerabilities, members of the college of supervisors and, where relevant, observers should regularly exchange quantitative and qualitative information. Furthermore, the written coordination and cooperation arrangements should provide for the procedure for coordinating the relevant input, and the responsibilities and role of the consolidating supervisor in communicating that input to observers. To ensure that the exchange of information is triggered between the consolidating supervisors and the members of the college of supervisors where the group or its entities are impacted by an event of adverse material effect, the consolidating supervisor and the members of the college of supervisors should specify the main characteristics of such event in the written coordination and cooperation arrangements, taking into account the specificities of the group, and should agree on the information to be exchanged, where such event of adverse material effect arises. 

(16) To facilitate the collection and sharing of the relevant information within the college of supervisors, members of the college of supervisors should exchange all information necessary to facilitate the exercise of the tasks of the college of supervisors referred to in Articles 112 and 113 of Directive 2013/36/EU. For the same purpose, the consolidating supervisor should share with the members of the college of supervisors information received from the college established in accordance with Article 119(1) of Regulation (EU) 2023/1114, where that information is relevant for the performance of the tasks referred to in Article 112 of Directive 2013/36/EU, in particular for the planning and coordination of supervisory activities and for the tasks referred in Article 113 of that Directive, in particular for performing the group risk assessment and reaching joint decisions. 

(17) Members of the college of supervisors should coordinate their activities in preparation for and during emergency situations, including adverse developments which may seriously jeopardise the orderly function and the integrity of the financial markets or the stability of the whole or part of the financial system of the Union, or other situations that affect or might explicitly affect the financial and economic situation of a banking group or any of its subsidiaries. Therefore, the planning and coordination of the competent authorities' activities in preparation for and during emergency situations should include, but not be limited to the activities referred to in the relevant provisions of Directive 2014/59/EU, in particular activities aiming at coordinating the group recovery planning and at providing coordinated input to resolution authorities, where needed, in preparation for and during emergency situations. 

(18) When dealing with an emergency situation, members of the college of supervisors, under the coordination of the consolidating supervisor, should develop a coordinated supervisory assessment of the situation, agree on a coordinated supervisory response and monitor the implementation of their response to ensure that the emergency situation is properly assessed and addressed. Members of the college of supervisors should also ensure that any external communication is done in a coordinated way and covers elements which are agreed ex-ante between the members of the college. 

(19) Given the several amendments to be made, Delegated Regulation 2016/98 should be repealed and replaced in the interest of clarity. Therefore, references to Delegated Regulation 2016/98 should be construed as references to this Regulation. 

(20) This Regulation is based on the draft regulatory technical standards submitted to the Commission by EBA. 

(21) EBA 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,