Group of connected customers
A group of connected customers is a specific legal term in banking and, according to Art. 4 Para. 1 No. 39 Capital Adequacy Ordinance (CRR), exists when two or more natural or legal persons form a unit in that one of them is a direct one or has indirect control over the other or if there are dependencies between these persons that make it seem likely that if one of these customers has financial difficulties, other customers will also find themselves in financing or repayment difficulties.
Summary based on mastery
According to Art. 4 Paragraph 1 No. 39 CRR, control in the sense of a group of affiliated customers is either the relationship between a parent company and a subsidiary in accordance with Article 22 Paragraph 1, 2 of the Accounting Directive 2013/34 / EU or the international accounting standards (IFRS ) in accordance with EU Regulation 1606/2002 or a comparable control relationship between a natural or legal person and a company .
Control or dominant influence exists when a natural or legal person has the ability to permanently determine the financial and business policy of another company in order to benefit from its activities. From a regulatory point of view, the imponderables in the credit decision resulting for the creditors from the risk of benefit being drawn from a third party and thus an uncertainty-related credit risk ( risk of deviation) are in the foreground. As a result, there are significant overlaps in the provisions of stock corporation, accounting and banking law; to be similar as shown by the commercial entity theory, the Group companies as a single entity ( § 297 para. 3 German Commercial Code ), the regulatory law ruling People and companies controlled regarded as a single risk ( "single risk").
Control according to accounting guidelines
According to the regulations of the accounting guideline, there is usually control if someone has the majority of the voting rights or has the opportunity to name the majority of the governing bodies ( management board or supervisory board ). Furthermore, according to the accounting guidelines, there is control in the case of uniform management of a subsidiary by a parent company.
Control according to international accounting rules
According to the definition in the international accounting rules (IFRS 10.7), control exists when a shareholder has power over the investee, is exposed to a risk burden from fluctuating returns from the investee and is able to has to use his power of disposal to influence the amount of the return ("link between power and returns"). This means that in the case of broadly operating companies, the control question - as in Art. 22 Para. 1 BRL - is answered in accordance with IFRS 10.B16 on the question of voting rights majorities and the right to appoint bodies, since voting rights are mostly associated with share rights and thus variable dividends and over the voting rights and the returns can be influenced. In contrast, in structured companies with a narrow purpose ( special-purpose vehicles), the activities are usually determined in advance by contractual and corporate law regulations, so that the voting rights are less important because the decision-making power i. d. Usually exercised by establishing the structure and purpose of the entity. As a result, it is assumed that if an investor has a high degree of participation in the risks and opportunities of a special purpose vehicle, he has also exercised his influence in his favor in the formation agreements.
Control offense according to the capital adequacy regulation
With regard to the question of control, the Capital Adequacy Ordinance largely refers to the group accounting rules, but in Art. 4 Para. 1 No. 37 CRR in the third alternative "or a comparable relationship between a natural or legal person and a company" leaves the question open, what is meant by a comparable relationship. According to the EBA's interpretation in the EBA guidelines 2017/15 of November 14, 2017, this primarily refers to the facts as in the accounting guideline or § 290 HGB, with the only difference that the controlling person is not an accounting entity Company, but z. B. is a natural person, central government or customer who prepare their consolidated financial statements in accordance with the accounting regulations of a third country. In addition to the facts of Section 290 of the German Commercial Code (HGB), the new EBA guidelines in point 13 provide a catalog of evidence, on the basis of which control could possibly exist. Indications are, for example, the determination of the strategy of a company or equality of persons at the management level.
Summary based on risk exposure
In addition, according to Art. 4 (1) No. 39 (b) CRR, a group of affiliated customers (“risk group”) must be formed if economic difficulties of one company lead to economic difficulties for another company (so-called “ domino effect ”). For the interpretation of the risk group, the European supervisory authority a. Statements in the EBA guidelines on affiliated customers in accordance with Article 4 Paragraph 1 Number 39 of Regulation (EU) No. 575/2013 . After this u. a. in paragraph 23 of the EBA guidelines suspects a risk group if a person renders or purchases supplies or services to another company and this other company cannot easily be replaced by another, so that payment difficulties of one company lead to payment difficulties for the other company . Further facts are, for example, if a company has significant claims against the other company, or loss coverage commitments , liabilities , guarantees , letters of comfort or similar letters of support exist towards the other company, which are so significant that they can lead to economic difficulties for the guarantor or lender.
scope of application
The main area of application of the group of affiliated customers is the regulation of the Capital Adequacy Ordinance in Art. 395 CRR, according to which the granting of loans to a group of affiliated customers should not exceed 25 percent of the credit-granting institution's own funds . In addition to these large exposure rules, the group of affiliated customers in Art. 123 CRR is important for the application of the so-called retail weighting. In the German regulatory law refers to § 19 para. 3 Banking Act for the purpose of organ credit rules and the disclosure requirements pursuant to § 18 KWG also on the rules governing the group of connected clients.
literature
- Nikolaus Demmelmair: The large loan, million dollar and organ loan regulations. Deutscher Sparkassen Verlag, Stuttgart 2018, ISBN 978-3-09-304790-9 .
- Beck / Samm / Kokemoor, Banking Act with CRR . CF Müller Verlag, Heidelberg, loose-leaf collection, commentary on Section 19 KWG in 198. Supplementary delivery, ISBN 978-3-8114-5670-9