Interpretation of the term ‘ancillary services undertaking’ as defined in point (18) of Article 4 (1) CRR with a view to ‘intermediary undertakings’

Does the term ‘ancillary services undertaking’ as defined in point (18) of Article 4 (1) CRR include undertakings that act as an intermediary of business activities (‘intermediary undertakings’ or ‘brokers’), where those business activities themselves would lead to the qualification as an ‘institution’ as referred to in point (3) or a ‘financial institution’ as referred to in point (26) of Article 4 (1) CRR?

We pose the above question noting that the EBA has already observed that the definition of the term ‘ancillary services undertaking’ as referred to in point (18) of Article 4 (1) CRR is prone to inconsistent interpretation (cp. EBA report on other financial intermediaries (OFIs) and regulatory perimeter issues, p. 8). According to Article 4 (1) (18) CRR an ‘ancillary services undertaking’ means an undertaking the principal activity of which consists of owning or managing property, managing data-processing services, or a similar activity which is ancillary to the principal activity of one or more institutions. Within this definition especially the term ‘or a similar activity which is ancillary to the principal activity’ is prone to inconsistent interpretation, because the CRR does not provide a definition of ‘similar activity’. We assume that intermediary/brokerage activities pertaining to business activities that themselves would lead to the qualification as an ‘institution’ or ‘financial institution’ under CRR should fall under the notion of ‘similar activity which is ancillary to the principal activity’, because they are clearly supportive and even more bank-like/comparable in kind and essential to the principal activity of institutions than the business activities of explicitly spelled out ‘ancillary service undertakings’, such as property managers or data-processing services. There can be a strong business dependency on the ‘acquiring’ activities undertaken by ‘intermediary undertakings’, meaning that if they were not undertaken by these ‘intermediary undertakings’ they would have to be instead performed by the institution itself. Furthermore, we see a strong supervisory interest from a risk perspective to include such ‘intermediary undertakings’ that form part of a banking group also into the scope of regulatory consolidation. Undoubtedly, the intermediation of financial businesses through group entities affects the operational risks of a group. It should therefore correspondingly affect the received commissions/fees of a group, which have to be included into the relevant indicator according to Article 316 CRR, thereby determining the own funds requirement for operational risk under the Basic Indicator Approach. To subsume such ‘intermediary undertakings’ under the term ‘ancillary services undertaking’ would ensure that, to the extent and in the manner prescribed in Article 18 CRR, they would have to be included into the consolidated situation of their parent undertaking in accordance with Article 11 CRR (unless they are exempted in accordance with Article 19 CRR).