Can the activity consisting in granting credits on own account without collecting deposits or other repayable funds from the public be subject to the requirements of the CRD IV regarding the freedom to provide services and freedom of establishment?

According to Article 4.1 (1) of the CRR, credit institution means an undertaking the business of which is to take deposits or other repayable funds from the public and to grant credits for its own account. The regulations of the CRR and CRDIV are applicable only to the institutions that fulfill both criteria, i.e. the business of which consist of both activities – taking deposits or other repayable funds from the public and granting credits for own account. Only such types of institutions are obliged to be subject to prudential supervision and only to such types of institutions the requirements of authorization and passporting in case of starting cross-border activity are applicable. In some jurisdictions, however, national legislation requires to obtain authorization and to be under prudential supervision from entities which do not accept deposits or other repayable funds but provide some kind of financial activity, in particular, grant different types of credits. This is for example a case of factoring or leasing firms. In these jurisdictions competent authorities require such firms to use passport notification procedure from the CRD IV to notify the intention to start cross-border activity in other Member State. Moreover, these authorities require relevant firms (i.e. leasing or factoring firms) from other Member State to notify the intention to start cross-border activity in jurisdiction of these authorities, using the procedure from the CRD IV. Notwithstanding of the lack of the EU legal basis for such requirements, it must be also noticed that in jurisdictions where such firms are not subject to authorization and prudential supervision, competent authorities have no mandate either to send or accept any notifications regarding the cross-border activity of such firms.

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