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Q&As refer to the provisions in force on the day of their publication. The EBA does not systematically review published Q&As following the amendment of legislative acts. Users of the Q&A tool should therefore check the date of publication of the Q&A and whether the provisions referred to in the answer remain the same.

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List of Q&A's

Exemption for Non-EU ICT Intra-group Service Providers

Is it accurate to interpret that an ICT intra-group service provider established outside the EU (non-EU country), providing critical services to an EU-based financial institution (parent undertaking), falls within the exemption outlined in Article 31(8) of DORA, thereby exempting the need for establishing a subsidiary within the EU?

  • Legal act: Regulation (EU) No 2022/2554 (DORA)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7096
  • Topic: Oversight framework of CTPPs
  • Date of submission:

Article 444f in CRR and ITS on public disclosures are not consistent with the mapping tool for the key metric LCR in KM1

It is clear in article 447f in CRR and in the ITS on public disclosures by institutions under Part Eight of Regulation (EU) N0 575/2013 (annex II) that average LCR should be reported in KM1 (as well as average of liquidity buffer, outflows and inflows). However, in the mapping tool the references to the LCR numbers in KM1 are to LCR numbers in templates C72, C73, C74 and C76, which are the templates where the regular LCR is reported.  The weighted average numbers for LCR are found in template LIQ1. So what is correct and what should be reported in KM1?

  • Legal act: Regulation (EU) No 575/2013 (CRR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2021/637 - ITS with regard to disclosures of information referred to in Titles II and III of Part Eight CRR
  • ID: 2024_7092
  • Topic: Transparency and Pillar 3
  • Date of submission:

Legal persons to whom the requirement to comply with reporting requirements under Article 54 of the IFR on a consolidated basis applies.

In case Article 7(1) of the IFR applies, does the requirement to comply with the reporting requirements under Article 54 of the IFR rest exclusively on either a Union parent investment firm, Union parent investment holding company or Union parent mixed financial holding company?

  • Legal act: Regulation (EU) No 2019/2033 (IFR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2021/2284 - ITS on Reporting
  • ID: 2024_7091
  • Topic: K-factor requirements
  • Date of submission:

Issuers of EMTs and scope of application AML requirements

To what extent should electronic money institutions (EMIs) that issue e-money tokens (EMTs) under MiCAR comply with the obligations in relation to anti-money laundering and terrorist financing under Directive 2015/849/EU (as amended, AMLD5)? More specifically, should holders of EMTs be considered as clients of the EMI within the meaning of AMLD5, so that the relevant KYC requirements apply on an ongoing basis in respect of holders of EMTs (not only at the time of issuing but also following trading on the secondary market)?

  • Legal act: Regulation (EU) No 2023/1114 (MiCAR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7078
  • Topic: Other MiCAR topics
  • Date of submission:

Validation rules in Reporting Framework 3.4

The question concerns the EBA Reporting Framework 3.4, Validation Rules (March 22, 2024), rule v22161_m. This rule applies to the calculation of 'Net interest rate position with derivatives', {r0560}, in the context of 'ITS on Supervisory Reporting with Regard to IRRBB', Annex 28, form J02.00. It defines {r0560} to be {r0560} = {r0010} + {r0190} + {r0200} + {r0520} + {r0530}, the sum of 'Total Assets', 'Off-balance sheet assets: contingent assets', 'Total liabilities', 'Off-balance sheet liabilities: Contingent liabilities', and 'Other derivatives (Net asset/liability)'. Are the signs in front of {r0200} and {r0520} correct in this formulation? We would appreciate affirmation by EBA. Similar observations may also apply to rules v22159_m and v22160_m.

  • Legal act: Directive 2013/36/EU (CRD)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Draft ITS on Supervisory Reporting of Institutions (for benchmarking the internal approaches)
  • ID: 2024_7077
  • Topic: Supervisory reporting - IRRBB
  • Date of submission:

Scope of application of recital 54 of MICAR

Question 1: Recital 54 MiCAR seems to presume that the same ART may be issued by EU and third country entity, when speaking of "Issuers of asset-referenced tokens that are marketed both in the Union and in third countries". Does recital 54 mean a technically same fungible token not (externally) attributable to a particular issuer or does this only mean that the token has the same rights attached and is marketed under the same name but is not technically identical and should be attributable to one issuer (in Union or in third countries)? Question 2: Does Recital 54 MiCAR, while referring to ART issuers and their reserve of assets requirements, also apply to EMT issuers (including cases where no reserve requirements under MiCAR apply) and should it be used to interpret prudential requirements for EMT issuers (including Article 54 MiCAR and EMD)? Question 3: if ever recital 54 was to be extended to all EMT issuers, how would this recital have to be interpreted in relation with article 54, which foresees that EMT issuers should safeguard funds received by issuers of e-money tokens in exchange for e-money tokens in accordance with Article 7(1) of Directive 2009/110/EC? 

  • Legal act: Regulation (EU) No 2023/1114 (MiCAR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7069
  • Topic: Other MiCAR topics
  • Date of submission:

One leg out Multi EMT issuance – legal possibility and related issues

Question 1: Can a technically identical and fully fungible EMT based on a non EU currency be issued by, on one hand, a EU-based entity licensed as an electronic money institution or credit institution (therefore complying with MICAR) and, on the other hand, by an entity based in another non EU jurisdiction and non regulated under EU law?  Question 2: If ever the preceding arrangement was possible under MICAR, then would it be compliant with Article 48(1) MiCAR in case a person on the EU territory was to offer or seek admission to trading on EU markets for tokens issued by the entity not authorised as an electronic money institution or credit institution?  Question 3: [This question is to be read in light of associated QA on scope of recital 54] If ever the preceding arrangement was possible under MICAR, given that this technically identical and fully fungible EMT would freely circulate on the secondary market and would actually be marketed both in the EU and in non EU jurisdictions, should competent authorities apply to this arrangement provisions set by recital 54?  Question 4: [This question is to be read in light of associated QA on scope of recital 54] If ever the preceding arrangement was possible under MICAR and recital 54 could be applied, then would competent authorities have to apply safeguarding requirements for the EU licensed entity based on the volume of tokens this entity issued (as per MICAR article 54) or on the “issuers’ liability towards Union holders”, based on “the share of […] tokens that is expected to be marketed in the Union” (as per MICAR recital 54)? Question 5: In order to mitigate potential regulatory arbitrage and capital flight in the context of a one leg out multi EMT issuance, would it be compliant with MICAR to allow only EU-based residents to present redemption requests to the EU-based entity

  • Legal act: Regulation (EU) No 2023/1114 (MiCAR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7068
  • Topic: Other MiCAR topics
  • Date of submission:

Liabilities related to the reserve of assets managed by issuers of asset-referenced tokens in case of resolution of the issuer

Please clarify whether liabilities related to the reserve of assets under Article 36 (2) MiCAR have to be treated as secured liabilities and therefore cannot be subject to write-down and conversion or bail-in in case of resolution in the meaning of the BRRD.

  • Legal act: Regulation (EU) No 2023/1114 (MiCAR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7066
  • Topic: Other MiCAR topics
  • Date of submission:

Provision of external payroll accounting services to an employer

Does the activity of external payroll processing for an employer constitute a payment service under PSD2, if it consists of receiving funds for wages and related deductions (taxes, health and social insurance) in the payroll processor’s payment account from the employer, and transferring these to employees, tax authorities, insurance companies etc.? Would the answer change depending on whether the payroll processor  maintains an account separately for each employer?   

  • Legal act: Directive 2015/2366/EU (PSD2)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7065
  • Topic: Authorisation and registration
  • Date of submission:

Credit

Does this credit qualify as consumer credit, exclusively available to individual consumers? Or can it also be extended to legal entities?

  • Legal act: Directive 2015/2366/EU (PSD2)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7056
  • Topic: Other topics
  • Date of submission:

Capital requirements and Investment policy - Articles 47 and 46 of CSDR

Taking into account the applicable legal provisions of Article 46(4) and 47(1) of CSDR and RTS (EU) 2017/390 and the need to ensure a reasonable level playing field between banking and non-banking CSDs, how should the provision of the RTS on Prudential Requirements for CSDs (RTS (EU) 2017/390) apply to the treatment of investments in tangible assets for non-banking CSDs that are not considered eligible to cover a CSD's capital requirements, and are therefore filtered out?

  • Legal act: Regulation (EU) No 909/2014 (CSDR) - only RTS 2017/390
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2017/390 - RTS on prudential requirements of CSDs (CSDR-related)
  • ID: 2024_7054
  • Topic: Market infrastructures
  • Date of submission:

Interest flows

Interest flows for retail on sight accounts (without contractual maturity)

  • Legal act: Regulation (EU) No 575/2013 (CRR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7052
  • Topic: Liquidity risk
  • Date of submission:

Duplicate ICT Incident Reporting

Is duplicate incident reporting via the ECB SSM Cyber Incident Reporting Framework required, alongside DORA incident reporting under Article 19?

  • Legal act: Regulation (EU) No 2022/2554 (DORA)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7050
  • Topic: ICT-related incidents (management / classification / reporting)
  • Date of submission:

Critical Services Affected

Article 6 of the Delegated Act on the Classification of Major Incidents states that: "For the purpose of determining the criticality of the services affected as referred to in Article 18(1), point (e), of Regulation (EU) 2022/2554, financial entities shall assess whether the incident:(a) affects or has affected ICT services or network and information systems that support critical or important functions of the financial entity;(b) affects or has affected financial services provided by the financial entity that require authorisation, registration or that are supervised by competent authorities;(c) constitutes or has constituted a successful, malicious and unauthorised access to the network and information systems of the financial entity." Can you confirm please that ALL three of the components are cumulatively required to trigger the criteria on Critical Services Affected?

  • Legal act: Regulation (EU) No 2022/2554 (DORA)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7047
  • Topic: ICT-related incidents (management / classification / reporting)
  • Date of submission:

Net position risk - K-NPR

We understand that rTM measures are for firms that deal on their own account. The relevant K-Factor for position risk, K-NPR falls under rTM, therefore the assumption would be that K-NPR refers only to firms dealing on their own account. However, Article 21(4) sets out that for purpose of calculating the rTM K-factor requirement, firms should also include positions other than trading book positions where it gives rise to foreign exchange or commodity risk.  Does then Article 21(4)  bring firms that do not deal on their own account into the scope of K-NPR or is it an additional requirement only for firms that deal on their own account?

  • Legal act: Regulation (EU) No 2019/2033 (IFR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7043
  • Topic: K-factor requirements
  • Date of submission:

Assets which are not immediately available for monetisation in C 66.01

In relation to the reporting of the C 66.01 maturity ladder template, how should encumbered assets be reported in terms of maturity buckets and amount, based on the definition of these assets of the Regulation EU/2021/451 on supervisory reporting and which refers to Commission Delegated Regulation (EU) 2015/61 and (EU) 2022/786 on LCR?

  • Legal act: Regulation (EU) No 575/2013 (CRR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2021/451 – ITS on supervisory reporting of institutions
  • ID: 2024_7042
  • Topic: Supervisory reporting - Liquidity (LCR, NSFR, AMM)
  • Date of submission:

Can a CASP receive / transmit / execute orders for non-EUR denominated EMTs, whose issuers are not authorised as a credit institution or as an electronic money institution?

Article 48 of MiCA states that: “A person shall not make an offer to the public or seek the admission to trading of an e-money token, within the Union, unless that person is the issuer of such e-money token and: (a) is authorised as a credit institution or as an electronic money institution...”.  The cited part of first paragraph of Art 48 of MiCA allows an interpretation in accordance with which a MiCA registered CASP can still either receive and transmit (to a non EU entity) or execute an order (on a non EU trading platform) to buy or sell a non-EUR denominated EMT whose issuer is not MiCA compliant. Namely, it seems that the provision of either of the two mentioned crypto asset services does not fall either under offer to the public nor under admission to trading.  It is quite clear that the provision of the two described crypto asset services does not fall under “seek the admission to trading.”  Nevertheless, an argument can be made that the provision of the two described crypto asset services  does not fall under “offer to public” as well. Namely, MiCA defines offer to the public “a communication (...) in any form presenting (...) sufficient information on the terms of the offer. When a CASP receives and transmits an order or when a CASP executes it, a CASP usually only receives order instructions and does not provide any information on the asset that will be bought. Consequently, it can be argued, that when acting as described, a CASP does not offer an EMT to public. This interpretation is further supported by the Recital 28. This one states that “The mere admission to trading or the publication of bid and offer prices should not, in and of itself, be regarded as an offer to the public of crypto-assets.”. Therefore, one could argue that a CASP can execute orders for non-EUR denominated EMTs, whose issuers are not authorised as a credit institution or as an electronic money institution.

  • Legal act: Regulation (EU) No 2023/1114 (MiCAR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable
  • ID: 2024_7027
  • Topic: Scope and definitions (MiCAR)
  • Date of submission:

Legal requirement for ASPSPs to provide for cancellation of future dated pay-ments through its dedicated payment initiation services interface

Is there a legal requirement for ASPSPs to allow its PSU to cancel/revoke future dated payments via a payment initiation service provider, using the ASPSPs dedicated payment initiation services interface?

  • Legal act: Directive 2015/2366/EU (PSD2)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2018/389 - RTS on strong customer authentication and secure communication
  • ID: 2024_7017
  • Topic: Strong customer authentication and common and secure communication (incl. access)
  • Date of submission:

Template C90 at consolidated level

Should the threshold template for market risk at the consolidated level, C90, be filled out netting intra-group positions even if one does not have the permission required by Article 325b? Or should it be compiled as the sum of the individual templates in this case?

  • Legal act: Regulation (EU) No 575/2013 (CRR)
  • COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2021/451 – ITS on supervisory reporting of institutions
  • ID: 2024_7008
  • Topic: Market risk
  • Date of submission: