In view of the need for the regular monitoring of credit intermediation activities outside the traditional banking sector and other developments such as the emergence of FinTech, the EBA has undertaken a comprehensive analysis of issues relating to the regulatory perimeter further to the 2014 EBA Opinion and Report on the perimeter of credit institutions.
In terms of the overall scope of the CRDIV/CRR, the EBA observes that Article 2(5) CRDIV (the list of entities excluded from scope, such as central banks and post office giro institutions) remains valid and requires minor update. Also Article 9(2) CRDIV (other exclusions, including where provided for under national law) also appears to continue to have relevance in the Member States and any amendment thereto should be substantiated by a prior and thorough impact assessment.
As for the terms 'financial institution' and 'ancillary services undertaking', which are crucial for the purposes of establishing the scope of prudential consolidation, the EBA observes that these terms are prone to inconsistent interpretation across the EU leading to potential divergences in the application of regulatory consolidation rules.
The EBA observes that Annex I to the CRDIV, which enlists the activities subject to mutual recognition (i.e. activities that credit institutions and financial institutions are permitted to carry out throughout the EU by establishing branches or the cross-border provision of services), has been largely unchanged for 30 years and urges the EU institutions to give consideration to clarifications and updates to the Annex.
Finally, the EBA observes significant variation in the prudential treatment of OFIs (e.g. consumer and corporate lenders and securitisation vehicles) under national law. Although the EBA does not make any specific recommendations at this stage as to the scope of individual prudential regulation under EU law, the Authority notes the need to continue its monitoring work, including in conjunction with the European Systemic Risk Board (ESRB) as part of the annual shadow banking monitoring exercises.
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