Question ID:
2018_3739
Legal Act:
Directive 2013/36/EU as amended by Directive (EU) 2019/878 – CRD5
Topic:
Other topics
Article:
140
Paragraph:
7
COM Delegated or Implementing Acts/RTS/ITS/GLs:
Regulation (EU) No 1152/2014 - RTS on the identification of the geographical location of relevant credit exposures for institution-specific countercyclical capital buffer rate
Article/Paragraph:
Article 1(4)
Type of submitter:
Credit institution
Subject Matter:
Location of the obligor for the calculation of the countercyclical capital buffer
Question:

What is the definition of “actual place of administration” in Article 1(4) of Regulation (EU) 1152/2014?

Background on the question:

Article 1(4) of Regulation (EU) 1152/2014 defines “location of the obligor” for a legal person whose centre of actual administration is in a Member State or in a third country other than the Member State or the country of its registered office, as the “actual place of administration”.

The definition of “place of administration” is open for interpretation, as it Is not defined by Delegated Regulation 1152/2014. The chosen place of administration has an impact on the countercyclical capital buffer.

Date of submission:
27/02/2018
Published as Final Q&A:
11/10/2019
EBA Answer:
 

According to Art 1 (4) of Regulation (EU) 1152/2014, the ‘location of the obligor’ for a legal person means the Member State or the third country, where the legal person has its registered office. If a legal person has its centre of actual administration in a Member State or in a third country other than the Member State or the country of its registered office, then ‘location of the obligor’ means the Member State or the third country of its actual place of administration.

This follows from Recital (5) of the same Regulation, which states that exposures to a legal person should, in principle, be allocated to the Member State or to the third country in which that person has its registered office. However, if a legal person’s actual centre of administration is not in the same place as its registered office, then institutions which are aware that such a discrepancy exists with regard to an obligor should allocate the relevant exposures to the place of the actual centre of the administration of the relevant legal person. This is to ensure the proper allocation of the countercyclical capital buffer.

The recital refers to the relevant case law concerning discrepancies between the location of centres of administration and registered offices: cases C-81/87 (Daily Mail), C-212/97 (Centros), C-208/00 (Überseering), C-167/01 (Inspire Art), C-411/03 (Sevic) and C-210/06 (Cartesio). According to these Court rulings, the actual place of administration is the Member State or respectively the third country where the legal person has its central administration. C-81/87 (Daily Mail) refers to the central administration as the real head office of a company. Similarly, C-212/97 (Centros) refers to the central administration as the real seat of a company.

Disclaimer:

This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission (Directorate General for Financial Stability, Financial services and Capital Markets Union) has prepared the answer, albeit that only the Court of Justice of the European Union can provide definitive interpretations of EU legislation. This is an unofficial opinion of that Directorate General, which the European Banking Authority publishes on its behalf. The answers are not binding on the European Commission as an institution. You should be aware that the European Commission could adopt a position different from the one expressed in such Q&As, for instance in infringement proceedings or after a detailed examination of a specific case or on the basis of any new legal or factual elements that may have been brought to its attention.

 

Status:
Final Q&A