Commission Delegated Regulation (EU) 2023/2779 of 6 September 2023 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to regulatory technical standards specifying the criteria for the identification of shadow banking entities referred to in Article 394(2) of Regulation (EU) No 575/2013

1 Institutions shall identify as a shadow banking entity: (a) any entity that offers banking services or performs banking activities as set out in Article 2 and is not authorised and supervised in accordance with any of the Union acts listed in the Annex to this Regulation; (b) any undertaking for collective investment in transferable securities as defined in Article 1(2) of Directive 2009/65/EC of the European Parliament and of the Council where those undertakings are authorised as money market funds as referred to in Article 4 of Regulation (EU) 2017/1131 of the European Parliament and of the Council ; (c) any alternative investment fund as defined in Article 4(1), point (a), of Directive 2011/61/EU, where any of the following applies: (i) the alternative investment fund is authorised as a money market fund as referred to in Article 4 of Regulation (EU) 2017/1131; (ii) the alternative investment fund employs leverage on a substantial basis as set out in Article 111(1) of Commission Delegated Regulation (EU) No 231/2013 ; (iii) the alternative investment fund is not prohibited from originating loans in the ordinary course of its business or from purchasing third-party lending exposures for its own account on the basis of its rules or instruments of incorporation.

2 By way of derogation from paragraph 1, institutions shall not identify the following entities as shadow banking entities: (a) financial institutions the exposures of which are treated in accordance with Article 119(5) of Regulation (EU) No 575/2013; (b) any entity that is excluded from the scope of any of the following: (i) Directive 2013/36/EU; (ii) Regulation (EU) No 648/2012; (iii) Directive 2009/138/EC; (iv) Regulation (EU) No 575/2013; (c) any entity that is exempted from the application of any of the following: (i) Directive 2013/36/EU; (ii) Regulation (EU) No 648/2012; (iii) Directive 2009/138/EC; (iv) Regulation (EU) No 575/2013; (d) any entity that is part of a non-financial group whose principal activity is to carry out credit intermediation activities for its parent undertaking or its subsidiaries or other subsidiaries of its parent undertaking; (e) any entity that is included in the supervision of an institution on a consolidated basis; (f) any entity established in a third-country that meets any of the following criteria: (i) the entity has been authorised and is supervised by a third-country supervisory authority in accordance with the Basel Core Principles for effective banking supervision; (ii) the third country’s regulatory regime, in accordance with which the entity has been authorised and is supervised, has been recognised as equivalent to the one applied in the Union for such entities in accordance with the equivalence provisions of the applicable Union legal act referred to in the Annex; (iii) the entity is included in the supervision on a consolidated basis of an institution that has been authorised and is supervised by a third-country supervisory authority that applies banking regulation and supervision based on the Basel Core Principles for effective banking supervision.

1 For the purposes of Article 1, the following shall constitute banking services and activities: (a) the activities referred to in points 1, 2, 3, 6, 7, 8 and 10 of Annex I to Directive 2013/36/EU; (b) any other service or activity involving maturity transformation, liquidity transformation, leverage or credit risk transfer.

2 By way of derogation from paragraph 1, activities and services consisting of clearing as defined in Article 2, point (3), of Regulation (EU) No 648/2012 shall not constitute banking services and activities.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.