Commission Delegated Regulation (EU) 2023/1117 of 12 January 2023 supplementing Directive (EU) 2019/2034 of the European Parliament and of the Council with regard to regulatory technical standards specifying requirements for the type and nature of the information to be exchanged by competent authorities of home and host Member States (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive (EU) 2019/2034 of 27 November 2019 of the European Parliament and of the Council on the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU (1), and in particular to Article 13(7), second subparagraph, thereof,

Whereas:

(1) In order to ensure efficient cooperation between competent authorities of home and host Member States, it is necessary to specify which information concerning investment firms, and where relevant, concerning the functioning of their branches or the exercise of the freedom to provide services in one or more Member States other than those in which their head offices are situated is to be provided by the competent authorities of the home Member State to the competent authorities of the host Member State and conversely.

(2) It is essential to see the exchange of information between competent authorities of home and host Member States in the wider context of the supervision of cross-border investment firm groups. Where relevant, it is therefore appropriate that information is provided at the consolidated level. In particular, if an investment firm operating through a branch has an ultimate parent undertaking in the Member State where it has its head office, and the competent authority concerned is also the group supervisor, it is deemed appropriate to provide information at the consolidated level rather than at the level of the investment firm. However, in that case, the competent authority should notify competent authorities of host Member States that the information is provided at the consolidated level of the investment firm group.

(3) While providing the key elements that should be subject to an exchange of information between competent authorities, it would not be appropriate in the context of an efficient cooperation between competent authorities on a cross-border basis to restrict the scope of such exchange of information. In particular, Article 14 of Directive (EU) 2019/2034 sets out specific provisions for the exchange of information regarding on-the-spot verification of branches that could also be relevant in the context of Article 13 of that Directive.

(4) Cooperation and information exchange requirements regarding notifications of the exercise of the right of establishment and freedom to provide services are set out in Articles 34 and 35 of Directive 2014/65/EU of the European Parliament and of the Council (2), and requirements for cooperation between competent authorities responsible for supervision of markets and instruments in supervisory activities, for on-site verifications or investigations are set out in Article 80 of Directive 2014/65/EU and are further specified in Commission Delegated Regulation (EU) 2017/586 (3). This Regulation does not therefore specify any requirements for exchange of information in those areas.

(5) While the information which needs to be exchanged for the purposes of ensuring an adequate protection of clients and safeguarding the stability of the financial system in the host Member State should be specified in the context of the provision of cross-border services in a host Member State, duplication of information exchange should equally be avoided. Therefore, competent authorities should consider information already available to them, in particular through the mechanism established in accordance with Article 6(2) of Directive (EU) 2019/2034 for the exchange of information between the competent authorities and the authorities designated under Article 67 of Directive 2014/65/EU in a particular Member State, where those authorities differ, Article 80 of Directive 2014/65/EU and Delegated Regulation (EU) 2017/586.

(6) In order to ensure a sufficient convergence of regulatory and supervisory practices across the Union and a minimum level of information exchange enabling competent authorities to fulfil their supervisory duties, it is necessary to lay down minimum requirements for the information to be exchanged between competent authorities of home and host Member States. At a minimum, that information should cover all the areas specified in Article 13 of Directive (EU) 2019/2034, namely information about: the management and ownership structure of the investment firm, compliance with own funds requirements by the investment firm, compliance with the concentration risk requirements and liquidity requirements of the investment firm, the administrative and accounting procedures and internal control mechanisms of the investment firm and any other relevant factors that may influence the risk posed by the investment firm. In order to facilitate an adequate supervision of investment firms, the competent authorities of host and home Member States should keep each other informed about identified situations of non-compliance with national or Union law, where such non-compliance may affect the protection of clients or the stability of the financial system in the host Member State, as well as about supervisory measures and sanctions imposed on investment firms. Furthermore, additional information regarding preparation for emergency situations should be included in the scope of information to be exchanged between competent authorities of home and host Member States so that the latter are able to monitor investment firms efficiently.

(7) To ensure that the relevant information is exchanged within a reasonable timeframe while avoiding situations where the competent authorities of a home Member State are obliged to forward any information about an investment firm, regardless of its nature and importance, to all competent authorities of host Member States, it is appropriate in some specific cases that only information that is relevant to a particular branch should be transmitted exclusively to the competent authorities in charge of supervising this branch. For similar efficiency and proportionality purposes, in a number of specific areas, only information regarding identified situations of non-compliance should be exchanged between competent authorities of home and host Member States, meaning that no information would have to be exchanged where the investment firm is in conformity with national and Union law.

(8) This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Banking Authority (EBA) and developed in consultation with the European Securities and Markets Authority.

(9) The 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 of the European Parliament and of the Council (4),

HAS ADOPTED THIS REGULATION:

Article 1

Information on a consolidated basis

Where the ultimate parent investment firm is established in the same Member State as that in which the investment firm has its head office, and the competent authority of the investment firm’s home Member State is also the group supervisor determined in accordance with Article 46 of Directive (EU) 2019/2034, that competent authority shall provide information regarding that investment firm at the consolidated level for the investment firm group and shall inform the competent authorities of host Member States that the information is provided at the consolidated level.

Article 2

Information about management and ownership structure of investment firms operating through a branch

(a) the structure of the management body and senior management as well as a description of the allocation of responsibilities for the oversight of a branch;

(b) the list of shareholders and members with qualifying holdings.

Article 3

Information about compliance with own funds requirements

(a) the own fund requirements laid down in Article 11 of Regulation (EU) 2019/2033, taking into account the transitional arrangements laid down in Article 57 of that Regulation;

(b) where applicable, any additional own funds requirements imposed in accordance with Article 39(2), point (a), of Directive (EU) 2019/2034;

(c) where applicable, any guidance on additional own funds imposed in accordance with Article 41 of Directive (EU) 2019/2034.

(a) the value of the own funds requirements laid down in Article 11 of Regulation (EU) 2019/2033;

(b) whether the value referred to in point (a) was set on the basis of Article 11(1), points (a), (b) or (c) of Regulation (EU) 2019/2033;

(c) where applicable, the value of any additional own funds requirements imposed in accordance with Article 39(2), point (a), of Directive (EU) 2019/2034, and the grounds for its imposition;

(d) where applicable, the value of any guidance on additional own funds imposed in accordance with Article 41 of Directive (EU) 2019/2034.

Article 4

Information about compliance with concentration risk requirements and liquidity requirements

Article 5

Information about administrative and accounting procedures

Article 6

Information about internal control mechanisms

Article 7

Information about other factors that may influence the risk posed by the investment firm

Article 8

Information about general non-compliance