LCR: Eligibility of HQLA held at EU subsidiary level for the consolidated HQLA liquidity buffer

Do credit institutions need to take into consideration as potential restrictions on the transferability of liquidity within the EU the (national) prudential rules that are not intended to restrict transferability of liquid assets but in practice may do so when assessing whether or not a liquid asset can be deemed readily accessible to a credit institution at consolidated level within the meaning of Article 8(2) LCR DR? For instance, do national statutory large exposures limits established by Member States pursuant to Article 493(3) CRR or statutory capital requirements at individual level more generally constitute such practical or legal impediment from consolidated perspective?

Article 8(2) LCR DR specifies that: credit institutions should have ready access to their holdings of liquid assets and be able to monetise them at any time during the 30 calendar day stress period and that a liquid asset shall be deemed readily accessible to a credit institution where there are no legal or practical impediments to the credit institution's ability to monetise such an asset in a timely fashion; and   assets held in a third country where there are restrictions to their free transferability shall be deemed readily accessible only insofar as the credit institution uses those assets to meet liquidity outflows in that third country. In principle, the first bullet point exclusively focusses on potential impediments to the monetisation of liquid assets. However, in view of the fact that the ultimate purpose of liquid assets is the possibility to use them to cover net liquidity outflows, any constraints practically limiting the extent to which such assets can actually be used to cover net outflows could also fall within the assessment of accessibility referred to in Article 8(2) LCR DR. Following this reasoning, in order to determine whether or not a liquid asset can be deemed readily accessible within the meaning of the first bullet point, it is unclear if supervisory rules (e.g. on large exposure limits) which may result in potential practical restrictions on the transferability of liquidity between group members within the EU may constitute an impediment on the accessibility of liquid assets at consolidated level. Such rules may be, for instance, national statutory large exposures limits established by Member States pursuant to Article 493(3) CRR or statutory capital requirements at individual level more generally as those requirements may limit the extent to which available excess liquidity held at individual level can be transferred from one group member to others and to cover net outflows arising for those other group entities (and may therefore question to what extent such excess liquidity may be considered readily accessible from consolidated perspective). On the one hand, explicit reference to constraints on the transferability of liquid assets is only made with respect to assets held in a third country. In contrast, the LCR DR does not include reference to constraints on the transferability of liquid assets within the EU, thus suggesting that these will not need to be taken into consideration. Moreover, a mere application of the CRR provisions, including national laws exercising options or discretions granted to competent authorities or Member States under the CRR, should not be per se interpreted as an obstacle to application of another provision of the CRR. In addition, with respect to national statutory large exposures limits established by Member States pursuant to Article 493(3) CRR, the European Commission stated in its report “Legal Obstacles to the Free Movement of Funds between Institutions within a Single Liquidity Sub-Group” that  “the mere fact that their use may result in a negative effect on the possibility to transfer funds within a group does not justify their automatic categorisation as legal obstacles in the sense of Article 8 CRR" which might also allow concluding that such requirements do not constitute a legal impediment within the meaning of Article 8(2) LCR DR.   On the other hand, the availability of high-quality liquid assets at consolidated level is practically constrained where (excess-)liquidity at one group member cannot be transferred to another member (and to cover net outflows of that entity) without breaching any statutory capital requirements at individual level (incl. statutory national large exposures limits). Moreover, the conclusion in the report of the European Commission only touched upon legal impediments but did not assess whether or not such requirements may constitute a practical impediment. As a matter of principle and going beyond this specific question, the EBA may also consider providing examples on such legal or practical impediments referred to in Article 8(2) LCR DR, e.g. in the context of future editions of the EBA Report on the implementation of the LCR in the EU.