Is a tied agent of the investment firm a financial institution and should it be included in prudential consolidation

1. Should a company acting as a tied agent of the investment firm be included in prudential consolidation according to Art. 18 of CRR, if the tied agent is controlled by the same holding company as the investment firm (or by the investment firm itself)? 2. Should the company acting as a tied agent be included in the prudential consolidation a) because it is an ancillary services undertaking in accordance with Art. 4(1) point 18 of CRR, b) because it is a financial institution in accordance with Art. 4 (1) point 26 of CRR, or c) because of some other justification to require the consolidation, or d) should it not be consolidated at all in accordance with Art. 18(1) nor (8) of CRR.

Obligations of investment firms when appointing tied agents are defined in Directive 2004/39/EU (MiFID). According to Art. 23 of MiFID, the Member States may decide to allow an investment firm to appoint tied agents for the purposes of promoting the services of the investment firm, soliciting business or receiving orders from clients or potential clients and transmitting them, placing financial instruments and providing advice in respect of such financial instruments and services offered by that investment firm. The questions above relate to a situation where the investment firm and the company acting as its tied agent are both controlled by the same holding company (parent). The same questions arise also when the investment firm is the parent company and the tied agent is controlled by the investment firm. The tied agent provides the services of the investment firm on investment firm 19s account, not for its own, and receives a commission for that. The services performed by the tied agent could be performed by the investment firm itself, but the investment firm has decided to outsource the service to the tied agent. According to Art. 18(1) of CRR the institutions or their parent holding companies shall carry out a full consolidation of all institutions and financial institutions that are subsidiaries. According to Art. 18(8) the ancillary services undertakings shall be included in the consolidation. We wonder, whether the tied agent which is a subsidiary, is a financial institution according to Art. 4(1) Point 26 of CRR or an ancillary services undertaking according to Art. 4(1) Point 18 of CRR, and should therefore be included in prudential consolidation according to Art. 18(1) or Art. 18(8). The definition of the ancillary services in Art. 4(1) point 18 of CRR has not any link to MiFID nor to its definition of a tied agent. The activities of the tied agent are different from the activities described in Art. 4(1) point 18 of CRR regarding ancillary services undertaking. Therefore we wonder whether the definition of ancillary services in CRR can be applied to the tied agents. The definition of the financial institution in Art. 4(1) point 26 of CRR has not either any link to MiFID nor to its definition of a tied agent. The definition has a link to some of the activities in Annex I of Directive 2013/36/EU (CRD IV) but the activities referred to do not as such include the activities of a MiFID tied agent. Therefore we wonder whether the definition of the financial institution can be applied to the tied agents. Or might there be an unintended gap in the CRR 19s references to MiFID regarding the activities of a tied agent or are the tied agents intentionally left outside of the definition of the financial institution and the prudential consolidation? Own funds of the tied agent in this case at solo level are very small because of losses made in recent years. Therefore it has significance for the own funds of the consolidated level whether the tied agent is or is not included in prudential consolidation. If the tied agent were not included in the prudential consolidation, we should find some other way to follow-up the financial situation and own funds of the whole group.