IFPRU 8.1 Prudential consolidation

This section contains:

1. (1)

   rules that exercise the discretion afforded to the FCA as competent authority under article 18 of the EU CRR (Methods of prudential consolidation); and

2. (2)

   guidance on the criteria that the FCA will take into account when considering whether to grant a permission to a firm on a case-by-case basis for the individual consolidation method under article 9 of the EUCRR (Individual consolidation method).

Article 9(2) of the EU CRR (Individual consolidation method) requires a firm, which is a parent institution, to demonstrate fully to the FCA, as competent authority, that there are no material practical or legal impediments to the prompt transfer of own funds of the subsidiary referred to in article 9(1) of the EUCRR, or repayment of liabilities when due by that subsidiary to the firm.

The FCA will assess an application for individual consolidation against articles 9 and 396(2) (Compliance with large exposure requirements) of the EU CRR on a case-by-case basis. The FCA will assess whether it is still appropriate to permit the treatment if doing so risks conflict with its statutory objectives. The FCA will apply a high level of scrutiny to applications under article 9 of the EU CRR, consistent with the previous solo consolidation regime.

When making its assessment, the FCA will consider whether any minority interest may represent an impediment of any kind to the prompt transfer of own funds or repayment of liabilities from the subsidiary to the parent undertaking. To reassure the FCA, the parent institution should demonstrate that any minority interest in a subsidiary will not result in the potential blocking or delay of prompt transfer of own funds or repayment of liabilities. Therefore, it may be possible for a firm to meet the condition in article 7(1)(d) of the EU CRR but not meet the condition in article 9(2).

The FCA will consider the non-exhaustive criteria below when determining whether the condition in article 9(2) of the EU CRR is met:

1. (1)

   the speed with which funds can be transferred or liabilities repaid to the firm and the simplicity of the method for the transfer or repayment;

2. (2)

   whether there are any interests other than those of the firm in the subsidiary and what impact those other interests may have on the firm's control over the subsidiary and the ability of the firm to require a transfer of funds or repayment of liabilities. As part of the FCA's overall assessment, it would consider ownership of 75% or more of the subsidiary as one of the indicators that prompt transfer of own funds is likely to be achieved;

3. (3)

   whether the prompt transfer of funds or repayment of liabilities to the firm might harm the reputation of the firm or its subsidiary;

4. (4)

   whether there are any tax disadvantages for the firm or the subsidiary as a result of the transfer of funds or repayment of liabilities;

5. (5)

   whether there are any exchange controls that may have an impact on the transfer of funds or repayment of liabilities;

6. (6)

   whether there are assets in the subsidiary available either to be transferred or liquidated for the purposes of the transfer of funds or repayment of liabilities;

7. (7)

   whether any regulatory requirements impact on the ability of the subsidiary to transfer funds or repay liabilities promptly;

8. (8)

   whether the purpose of the subsidiary prejudices the prompt transfer of funds or repayment of liabilities;

9. (9)

   whether the legal structure of the subsidiary prejudices the prompt transfer of funds or repayment of liabilities;

10. (10)

    whether the contractual relationships of the subsidiary with the firm and other third parties prejudices the prompt transfer of funds or repayment of liabilities;

11. (11)

    whether past and proposed flows of funds between the subsidiary and the firm demonstrate the ability to make prompt transfer of funds or repayment of liabilities; and

12. (12)

    whether the degree of individual consolidation by the firm undermines the FCA's ability to assess the soundness of the firm as a legal entity (taking into account any other subsidiary to which the individual consolidation method under article 9(1) of the EU CRR is being applied).

The FCA will assess applications to exclude entities from the scope of prudential consolidation against article 19(2) of the EU CRR on a case-by-case basis. The FCA will only grant this treatment with respect to undertakings where one of the conditions in article 19(2) is met. The FCA will still make a judgement as to whether it is appropriate to grant this treatment even where one of the conditions in article 19(2) is met.

Article 19(2) of the EU CRR allows the consolidating supervisor to decide in the following cases that an institution, financial institution or ancillary servicesundertaking which is a subsidiary or in which a participation is held need not be included in the consolidation in the following cases:

1. (1)

   where the undertaking concerned is situated in a third country where there are legal impediments to the transfer of necessary information;

2. (2)

   where the undertaking concerned is of negligible interest only with respect to the objectives of monitoring institutions;

3. (3)

   where, in the opinion of the competent authorities responsible for exercising supervision on a consolidated basis, the consolidation of the financial situation of the undertaking concerned would be inappropriate or misleading as far as the objectives of the supervision of credit institutions are concerned.

If several undertakings meet the criteria in IFPRU 8.1.11 G (2) and are collectively of non-negligible interest with respect to the specified objectives, the FCA will not agree to exclude them all from the consolidation.

The FCA may request a firm to provide information about the undertakings excluded from consolidation.

Article 113(6) of the EU CRR (Intra-group credit risk exemption) permits a firm, subject to conditions, to apply a 0% risk-weighting for exposures to certain entities within its FCAconsolidation group, namely its parent undertaking, its own subsidiaries and subsidiaries of its parent undertaking. Article 400(1)(f) of the EU CRR then fully exempts such exposures from the large exposures limit stipulated in article 395(1) of the EUCRR (Limits to large exposures).

The FCA will assess core UK group applications against article 113(6) on a case-by-case basis. The FCA expects to approve this treatment for core UK groupundertakings if the conditions stipulated in article 113(6) are met. A firm should note that the FCA will still make a wider judgement whether it is appropriate to grant this treatment even where the conditions in article 113(6) are met. It is the FCA's intention to continue to apply a high level of scrutiny to applications under this article.

In relation to article 113(6)(d), the FCA expects the condition to be satisfied if the counterparty is:

1. (1)

   incorporated in the UK; or

2. (2)

   an undertaking of a type that falls within the scope of the Council Regulation of 29 May 2000 on insolvency proceedings (Regulation 1346/2000/EC) and it is established in the UK other than by incorporation, and if the firm can demonstrate that the counterparty's centre of main interests is situated in the UK within the meaning of that Regulation.

In relation to article 113(6)(e), the FCA will consider the following non-exhaustive criteria when assessing whether this condition has been met:

1. (1)

   the speed with which funds can be transferred or liabilities repaid to the firm and the simplicity of the method for the transfer or repayment. As part of the FCA's overall assessment, it would consider ownership of 100% of the subsidiary as one of the indicators that prompt transfer of own funds is likely to be achieved;

2. (2)

   whether there are any interests other than those of the firm in undertaking and what impact those other interests may have on the firm's control over the undertaking and the ability of the firm to require a transfer of funds or repayment of liabilities;

3. (3)

   whether there are any tax disadvantages for the firm or the counterparty as a result of the transfer of funds or repayment of liabilities;

4. (4)

   whether the purpose of the undertaking prejudices the prompt transfer of funds or repayment of liabilities;

5. (5)

   whether the legal structure of the undertaking prejudices the prompt transfer of funds or repayment of liabilities;

6. (6)

   whether the contractual relationships of the undertaking with the firm and other third parties prejudices the prompt transfer of funds or repayment of liabilities; and

7. (7)

   whether past and proposed flows of funds between the undertaking and the firm demonstrate the ability to make prompt transfer of funds or repayment of liabilities.

For the purpose of article 113(6)(e) of the EU CRR, for an undertaking that is a firm, the requirement for the prompt transfer of funds refers to own funds in excess of the capital and financial resources requirements to which it is subject under the regulatory system.

When demonstrating how article 113(6)(e) of the EU CRR is met, the FCA considers that, for a counterparty which is not a firm, the application should include a legally binding agreement between the firm and the counterparty. This agreement will be to promptly, on demand, by the firm increase the firm'sown funds by an amount required to ensure that the firm complies with the provisions contained in Part Two of the EU CRR (Own funds) and any other requirements relating to capital resources concentration risk imposed on the firm by, or under, the regulatory system.

For the purpose of article 113(6)(e), the FCA considers that the agreement to increase the firm'sown funds may be limited to capital resources available to the undertaking and may reasonably exclude such amount of capital resources that, if transferred to the firm, would cause the undertaking to become balance sheet insolvent in the manner contemplated in section 123(2) of the Insolvency Act 1986.

The FCA will expect a firm to which this section applies not to use any member of its core UK group (which is not a firm) to route lending or to have exposures to any third party in excess of the limits stipulated in article 395(1) of the EU CRR (Limits to large exposures).