In accordance with the requirements of the Qualifying
Holdings Directive (Directive 2007/44/EC amending Council Directive
92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and
2006/48/EC on prudential assessment of acquisitions and increase of
holdings in the financial sector) the Commission presents a report
describing the impact of and compliance with the Directive, and
identifies the main issues emerging from the application of the
Directive.
Impact and compliance:
following a public consultation held by the Commission, responses
indicate that the Directive contributed to the reduction of
barriers for acquisitions in the financial sector and that
domestic and cross-border transactions are treated equally across
the EU. Most responses confirm that the Directive has been
conducive in reaching a common understanding on the prudential
assessment of acquisitions in the financial sector across Europe
and to a level playing field. No substantial compliance issue
has emerged in relation to the application of the legal
framework in Member States. However, the report closely examines
emerging minor issues.
Emerging issues: these
include the following:
- there are concerns as regards the legal certainty of
the definition of the notification requirement and its application
by national supervisors which can potentially cause inconsistent
application among the Member States;
- further action is needed to ensure coherent
application of the proportionality principle;
- some assessment criteria laid down in the Directive
need to be further clarified, particularly with regard to documents
required by national supervisory authorities and whether the
solvency of the proposed acquirer should be assessed;
- there are inconsistencies with regard to application
of the provisions on time limits;
- diverging practices among Member States as regards
conditional approvals of the acquisitions have been
observed;
- cooperation between different (sectoral and/or
national) supervisory authorities is perceived in some cases as
formalistic and time-consuming;
- the Directive does not contain an explicit assessment
criterion allowing competent authorities to assess the impact of
the proposed acquisition on the stability of the financial
system.
The Commission discusses ways of rectifying
shortcomings, suggesting, amongst other things:
- asking the ESAs to update the 3L3 guidelines, and
working with national authorities and ESMA with a view to
developing guidance to clarify certain rules;
- carrying out an analysis in the course of 2013
assessing the different options regarding incorporating
financial stability aspects more explicitly in the assessment
process, perhaps through the introduction of a resolvability
assessment before transactions take place. A similar legal
framework for the assessment of acquisitions and increase of
holdings could also be introduced for regulated markets, as defined
in MiFID (Markets in Financial
Instruments Directive).
All interested parties are invited to submit their
views on the review by 31 March 2013.