What changed between the draft committee report and the plenary report

Added:*8 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation).

Added:1. In assessing the notification provided for in Article 27k(1) and the information referred to in Article 27k(3), competent authorities shall, in order to ensure the soundness of the prudential profile of the financial stakeholders after the completion of the proposed operation and in particular the risks to which the financial stakeholder is or might be exposed in the course of the proposed operation and the risks to which the financial stakeholder resulting from the proposed operation might be exposed, assess the proposed operation in accordance with the following criteria:

Added:(a) the reputation of entities involved in the proposed operation;

Added:(b) the sufficiently good repute and sufficient knowledge, skills and experience, as set out in Article 91(1), of any member of the management body who will direct the business of the financial stakeholder resulting from the proposed operation;

Added:(c) the financial soundness of entities involved in the proposed operation, in particular in relation to the type of business pursued and envisaged for the financial stakeholder resulting from the proposed operation;

Added:(d) whether the entity resulting from the proposed operation will be able to comply and continue to comply with the prudential requirements laid down in this Directive and Regulation (EU) No 575/2013, and where applicable, other acts of Union law, in particular Directives 2002/87/EC and 2009/110/EC;

Added:(e) whether the implementation plan of the proposed operation is realistic, sound and efficient from a prudential perspective;

Added:(f) whether there are reasonable grounds to suspect that, in connection with the proposed operation, money laundering or terrorist financing within the meaning of Article 1 of Directive (EU) 2015/849 is being or has been committed or attempted, or that the proposed operation could increase the risk thereof.

Added:The implementation plan referred to in point (e) shall be subject to appropriate monitoring by the competent authority until completion of the proposed operation.

Added:2. For the purposes of assessing the criterion laid down in paragraph 1, point (f), competent authorities shall consult, in the context of their verifications, the authorities competent for the supervision of the undertakings under Directive (EU) 2015/849.

Added:3. The competent authorities may issue a negative opinion to the proposed operation only if the criteria set out in paragraph 1 are not met or where the information provided by the financial stakeholder is incomplete despite a request made in accordance with Article 27k.

Added:With regard to the criterion laid down in paragraph 1, point (f), an objection ▌by the authorities competent for the supervision of the undertakings in line with Directive (EU) 2015/849 received by the competent authorities within 30 days of the initial request shall be duly considered by the competent authorities when assessing the proposed acquisition and may constitute a reasonable ground for negative opinion.

Added:4. Member States shall not allow their competent authorities to examine the proposed operation in terms of the economic needs of the market.

Added:5. Member States shall publish a list of information items that are necessary to carry out the assessment referred to in Article 27k(1) and that must be provided to the competent authorities at the time of notification referred to that Article. The information required shall be proportionate and appropriate to the proposed operation. Member States shall not require information that is not relevant for a prudential assessment.

Added:1. The relevant competent authorities shall consult each other when carrying out the assessment referred to in Article 27l where the proposed operation involves, in addition to the financial stakeholder, entities that are one of the following:

Added:(a) a credit institution, insurance undertaking, reinsurance undertaking, investment firm or asset management company ▌authorised in another Member State or in a sector other than that in which the acquisition is proposed;

Added:(b) a parent undertaking of a credit institution, insurance undertaking, reinsurance undertaking, investment firm or asset management company authorised in another Member State or in a sector other than that in which the acquisition is proposed;

Added:(c) a legal person controlling a credit institution, insurance undertaking, reinsurance undertaking, investment firm or asset management company authorised in another Member State or in a sector other than that in which the acquisition is proposed.

Added:2. The competent authorities shall, without undue delay, provide each other with any information which is relevant for the assessment. In that regard, the competent authorities shall communicate to each other upon request all relevant information and shall communicate on their own initiative all essential information. A decision by the competent authority of the financial stakeholder shall indicate any views or reservations expressed by the competent authority that supervise one or several of the entities listed above and involved in the proposed operation.

Added:3. The competent authorities shall seek to coordinate their assessment and ensure the consistency of their opinions. Moreover, the competent authorities shall indicate in their opinions any views or reservations made by the competent authority supervising other financial stakeholders.

Added:4. EBA shall develop draft implementing technical standards to establish common procedures, forms and templates for the consultation process between the relevant competent authorities as referred to in this Article.

Added:EBA shall submit those draft implementing technical standards to the Commission by [OP please insert the date = 18 months from the date of entry into force of this amending Directive].

Added:Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.

Added:Member States shall require that, where the financial stakeholders fail to provide prior notification of the proposed operation in accordance with Article 27k(1) or have carried out the proposed operation as referred to that Article without prior positive opinion by the competent authorities, the competent authorities shall take appropriate measures. Such measures may consist in injunctions, periodic penalty payments, penalties, subject to Articles 65 to 72, against members of the management body and managers of the financial stakeholders or of the entity resulting from the proposed operation.’;

Added:(8) Title VI is replaced by the following:

Added:‘Title VI PRUDENTIAL SUPERVISION OF THIRD COUNTRY BRANCHES AND RELATIONS WITH THIRD COUNTRIES’

Added:Prudential supervision of third-country branches

Added:General provisions

Added:1. This Chapter lays down the minimum requirements concerning the carrying out in a Member State of the following activities by a third-country branch:

Added:(a) any of the activities referred to in points 2 to 6 and 13 to 15 of Annex I to this Directive by an undertaking established in a third country that would qualify as a credit institution or that would fulfil the criteria laid down in points (i) to (iii) of Article 4(1), point (b) of Regulation (EU) 575/2013, if it were established in the Union;

Added:(b) the activity referred to in ▌point 1 of Annex I to this Directive by an undertaking established in a third country ▌.

Added:2. By derogation from paragraph 1, an undertaking established in a third country providing activities and services listed in Annex I, Section A of Directive 2014/65/EU and the services listed in Annex I, Section B of Directive 2014/65/EU for the sole purpose of conducting the activities and services listed in Annex I, Section A of Directive 2014/65/EU, shall not be included into the scope outlined in paragraph 1.

Added:3. For the purposes of this Title, the following definitions shall apply:

Added:(a) ‘third country branch’ shall mean branches established in a Member State by either:

Added:(i) an undertaking which has its head office in a third country, for the purpose of carrying out any of the activities referred to in paragraph 1;

Added:(ii) a credit institution which has its head office in a third country;

Added:(b) ‘head undertaking’ shall mean the undertaking with its head office in the third country that has established the third country branch in the Member State, and the undertaking’s intermediate and ultimate parent undertakings, as the case may be.

Added:Member States shall not apply to third country branches, when commencing or continuing to carry out their business, provisions which result in a more favourable treatment than that accorded to branches of institutions having their head office in another Member State of the European Union.

Added:1. Member States shall classify third country branches as class 1 where those branches meet any of the following conditions:

Added:(a) the total value of the assets booked or originated by the third country branch in the Member State is equal to or higher than EUR 5 billion, as reported for the immediately preceding annual reporting period in accordance with Section II, Sub-section 4;

Added:(b) the third country branch’s authorised activities include taking deposits and other repayable funds from retail customers;

Added:(c) the third country branch is not a qualifying third country branch in accordance with Article 48b.

Added:2. Member States shall classify third country branches that do not meet any of the conditions laid out in paragraph 1 as class 2.

Added:3. Competent authorities shall update the classification of third country branches as follows:

Added:(a) where a class 1 third country branch ceases to meet the conditions laid down in paragraph 1, it shall immediately be considered as class 2;

Added:(b) where a class 2 third country branch starts to meet one of the conditions laid down in paragraph 1, it shall be considered as class 1 only after a period of three months from the date on which it started to meet those conditions.

Added:3a. Member States may apply a stricter regulatory regime to all third country branches or branches from specific third countries. Paragraphs 1 to 3 of this Article shall not apply if the Member State subjects branches from the relevant third country to authorisation requirements and other regulatory requirements in line with the requirements for institutions authorised under this Directive.

Added:1. Where the following conditions are met in relation to a third country branch, that branch shall be regarded as a ‘qualifying third country branch’ for the purposes of this Title:

Added:(a) the head undertaking of the third country branch is established in a country that applies prudential standards and a supervisory oversight in accordance with the third country’s banking regulatory framework that are at least equivalent to this Directive and Regulation (EU) No 575/2013;

Added:(b) the supervisory authorities of the third country branch’s head undertaking are subject to confidentiality requirements that are at least equivalent to the requirements laid down in Title VII, Chapter 1, Section II of this Directive;

Added:(c) the country where the third country branch’s head undertaking is established is not listed as a high-risk third country that has strategic deficiencies in its regime on anti-money laundering and counter terrorist financing, in accordance with Article 9 of Directive (EU) 2015/849;

Added:2. The Commission may adopt, by means of implementing acts, decisions as to whether the conditions laid down in paragraph 1, points (a) and (b) of this Article are met in relation to a third country’s banking regulatory framework. For those purposes, the Commission shall comply with the examination procedure referred to in Article 464(2) of Regulation (EU) No 575/2013.

Added:3. Before adopting the decision referred to in paragraph 2, the Commission may request the EBA’s assistance in accordance with Article 33 of Regulation (EU) No 1093/2010 to conduct an assessment of the relevant third country’s banking regulatory framework and confidentiality requirements and to issue a report on that framework’s compliance with the conditions laid down in paragraph 1, points (a) and (b), of this Article. EBA shall publish the outcome of its assessment on its website.

Added:4. EBA shall keep a public register of the third countries and third country authorities that meet the conditions laid down in paragraph 1.

Added:5. Upon receiving an application for authorisation in accordance with Article 48c, competent authorities shall assess the conditions laid down in paragraph 1 of this Article and in Article 48a to classify the third country branch as class 1 or class 2. Where the relevant third country is not recorded on the register referred to in paragraph 4 of this Article, the competent authority shall request the Commission to assess the third country’s banking regulatory framework and confidentiality requirements for the purposes of paragraph 2 of this Article, provided that the condition referred to paragraph 1, point (c), of this Article is met. The competent authority shall classify the third country branch as class 1 pending the Commission’s adoption of a decision in accordance with paragraph 2 of this Article.

Added:Authorisation and regulatory requirements

Added:Sub-section 1 Authorisation requirements

Added:1. Member States shall require that third country undertakings establish a branch in their territory before commencing or continuing the activities referred to in Article 47(1). The establishment of a third country branch shall be subject to prior authorisation in accordance with this Chapter.

Added:The first sentence of the first subparagraph of this paragraph shall not apply to the provision of any service or activity referred to in Article 47(1) at the exclusive initiative of a client or counterparty in the Union in accordance with Article 21c(1) and (2).

Added:1a. New third country branches shall not commence their activities in a Member State until the EBA and the third country competent authority have concluded a Memorandum of Understanding (‘MoU’). The MoU shall provide a clear cooperation framework between the competent authorities, including exchange of information in on-going supervision, crisis management and resolution.