Interaction of Articles 36(1)(f) and 42 of CRR regarding equity-settled share-based payments

The answer to this question on share-based payments applies to the specific case where all the related own shares have been already bought by the institution. According to Article 36(1)(f) of Regulation (EU) No 575/2013 (CRR) the institution has to deduct own shares. The amount to be deducted can be calculated on the basis of a net long position instead of a gross long position only if all the conditions of Article 42(a) CRR are fulfilled. In order to apply Article 42 CRR a short position needs to exist. In the case at hand, the contractual obligation to deliver the shares to employees cannot be considered a short position for the purposes of the netting under Article 42 CRR before the moment the vesting conditions are met. Until this moment, the bank has no obligation to deliver the shares to the employees and hence the short position simply does not exist because the bank continues to bear all the risks related to those shares. The fact that the shares are specifically monitored and can’t be used for any other purposes than the employees’ remuneration has no relevance for the assessment of whether a short position exists. In accordance with Article 29(4) of the Commission Delegated Regulation (EU) No 241/2014 (RTS on own funds), a deduction on a corresponding basis is no longer required, where the expenses related to such repurchases are already included in own funds as a result of an interim or a year-end financial report. The remaining part of own shares that has not been expensed shall be deducted.   This would be applicable even after the vesting conditions are met and until the shares are delivered to the employees. Therefore, the provisions of Article 42 CRR are not relevant in the case at stake. In addition, it should be noted that from an accounting perspective (i.e. according to IFRS 2), in case of equity-settled share-based payments, the amounts recognized as “Personnel expenses” during the vesting period result in a corresponding increase in equity. Therefore, the provisions of Article 29(4) of the RTS on own funds, only when increase in equity resulting from the abovementioned accounting treatment is not already included within CET1 items. This, in order to avoid any potential double counting effect in own funds.