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Article 5 - Conditions in accordance with which the consolidation is to be carried out in cases where an institution exercises a significant influence over one or more institutions or financial institutions, but without holding a participation or other capital ties in those institutions

Article 5

Conditions in accordance with which the consolidation is to be carried out in cases where an institution exercises a significant influence over one or more institutions or financial institutions, but without holding a participation or other capital ties in those institutions

1.   Where an institution exercises a significant influence over one or more institutions or financial institutions, but without holding a participation or other capital ties in those institutions, competent authorities may determine the full consolidation of the institutions or financial institutions concerned pursuant to Article 18(6), point (a), of Regulation (EU) No 575/2013, on the basis of an assessment of the risks posed by those institutions or financial institutions to the institution exercising the significant influence, taking into account the extent and the effectiveness of any risk mitigants and the impact on the prudential requirements of that institution on a consolidated basis that could result from the application of full consolidation.

2.   For the purposes of the assessment referred to in paragraph 1, the institution shall provide the competent authority, upon request, with all necessary information, in particular with regard to the elements referred to in Article 4(3), points (a) to (i).

3.   Competent authorities may, in particular, require full consolidation of the institutions or financial institutions referred to in paragraph 1 where, as a consequence of the organisational and financial relationships between the institution exercising the significance influence and the institutions or financial institutions concerned, the institution is exposed to the majority of the risks or the benefits arising from the relevant activities of those institutions or financial institutions.

4.   For the purposes of this Article, elements to be taken as indications of significant influence shall include the following:

(a)

the institution has appointed or has the right to appoint a member of the administrative, management or supervisory body of the institution or financial institution concerned;

(b)

the institution is effectively involved in the decision-making process of the institution or financial institution concerned, including in decisions about dividends and other distributions;

(c)

existence of material transactions with the institution or financial institution concerned;

(d)

the institution has exchanged managerial personnel with the institution or financial institution concerned;

(e)

the institution provides essential technical information or critical services to the institution or financial institution concerned;

(f)

the institution has additional rights in the institution or financial institution concerned, pursuant to a contract, clauses of their memoranda or articles of association that could affect the management or the decision-making process of that institution or financial institution.

5.   The existence of share warrants, share call options, debt instruments that are convertible into ordinary shares or other similar instruments that are currently exercisable or convertible and have the potential, if exercised or converted, to give the institution voting power or to reduce another party’s voting power over the financial and operating policies of the institution or financial institution concerned shall also be considered in the assessment of significant influence.