Scope of application

These guidelines apply to institutions on an individual and consolidated or sub-consolidated basis, in accordance with the level of application set out in Articles 2 and 109 of Directive 2013/36/EU.

When meeting the requirements under Title VII, Chapter 2, Section II of Directive 2013/36/EU in line with Article 109 of this Directive at the consolidated or sub-consolidated level, parent undertakings and subsidiaries subject to Directive 2013/36/EU should ensure that the arrangements, processes and mechanisms set out in the Directive and these guidelines are implemented in and complied with on a consolidated basis by their subsidiaries not subject to this Directive that are within the scope of prudential consolidation, including:

• (a) any subsidiary undertaking and its staff (including identified staff), where this undertaking is established in the Union and is not subject to specific remuneration requirements in accordance with other instruments of Union legal acts;
• (b) any subsidiary undertaking and its staff (including identified staff), where this undertaking is established in a third country and it would not be subject to specific remuneration requirements in accordance with other Union legal acts, were it established in the Union, unless the application of the requirements is unlawful under the laws of the third country where the subsidiary is established;
• (c) any subsidiary and its staff (including identified staff), where this undertaking is subject to specific remuneration requirements in accordance with other instruments of Union legal acts or would be subject to such requirements if it were established in the Union with regard to gender-neutral remuneration policies under Article 74 of Directive 2013/36/EU, but excluding the remuneration requirements under Articles 92, 94 and 95 of Directive 2013/36/EU and the related guidelines;
• (d) where the discretion set out in Article 109(6) of the CRD has been invoked by the Member State of the consolidating undertaking, to any subsidiary undertaking and its staff (including identified staff) with the broader scope of application set out by that Member State; and
• (e) to the branches and their members of staff (including identified staff) of the consolidating undertaking or of any undertaking set out in points (a) to (e), where this branch is established in a third country.

The exception regarding the non-application of the requirements under Articles 92, 94 and 95 as further specified in paragraph 9(c) does not apply with regard to individual members of staff in the case of a subsidiary that is an asset management company, or an undertaking that provides the investment services and activities listed in points (2), (3), (4), (6) and (7) of Section A of Annex 1 to Directive 2014/65/EU, where those members of staff have been mandated to perform professional activities that have a direct material impact on the risk profile or the business of the institutions within the group.