CRD 6 national discretions published by Ireland’s Department of Finance

Following a public consultation in 2025, Ireland’s Department of Finance has published the decisions of the Minister for Finance in relation to the national discretions in Directive 2024/1619 (CRD 6), which amended Directive 2013/36/EU (CRD 4).

A summary of the national discretions and the decisions taken by the Minister are set out below.

It should be noted that, at the time of publication of this client insight, Ireland has not yet published measures to transpose CRD 6 into Irish law, notwithstanding that the transposition deadline (10 January 2026) has passed. Additionally, while one of the national discretions relates to the new third country branch regime under Article 21c of CRD 4, there has been no formal indication from the Department as to how Ireland will implement the Article 21c regime and its related exemptions.

Discretion in Article 91(1a)

This discretion allows an EU Member State, under certain conditions, to permit the suitability assessment of members of the management body to take place after (instead of before) the newly appointed members have taken up their positions. The discretion can only be permitted in circumstances where the majority of the members of the management body is to be replaced, at the same time, by newly appointed members and where requiring the suitability assessment to take place beforehand would lead to a situation where the suitability assessment of the incoming members would be carried out by the outgoing members.

Ireland will not exercise this discretion.

Discretion in Article 48a(4)

This discretion allows a Member State to apply to third-country branches authorised in an EU Member State in accordance with Article 21c of CRD 4 (or to certain categories thereof) the same requirements that apply to EU credit institutions authorised under CRD 4, instead of the requirements applicable to third-country branches that are set out in amended Title VI of CRD 4.

Ireland will not exercise this discretion.

Discretion in Article 76(1)

This discretion allows an EU Member State to permit the management bodies of small and non-complex credit institutions to review the strategies and policies for taking-up, monitoring, managing and mitigating relevant risks the institution is, or might be exposed to, every two years (instead of reviewing and approving these strategies and policies every two years).

Ireland will not exercise this discretion.

Discretion in Article 66(2)

This discretion relates to Article 66(2)(b)(i) of CRD 4. It allows an EU Member State to set a higher maximum amount for periodic penalty payments to be applied per day of breach.

The discretion also allows an EU Member State to apply periodic payments on a weekly or monthly basis instead of a daily basis. If the discretion is applied, the maximum amount of periodic penalty payments to be applied for the relevant weekly or monthly period when a breach takes place must not exceed the maximum amount of periodic penalty payments that would apply on a daily basis for the relevant period.

Ireland will not exercise the discretion to set a higher maximum amount for periodic daily penalty payments. However, Ireland will exercise the discretion to apply periodic payments on a weekly or monthly basis.

Discretion in Article 4a(4)

This discretion relates to the cooling-off period referred to in Article 4a(3)(b)(i) of CRD 4. The discretion allows an EU national regulator (called a NCA) to subject its members of staff and members of its governance bodies to a cooling-off period in the event of their hiring by direct competitors.

Ireland will not exercise this discretion.

Discretion in Article 4a(5)

This discretion relates to the cooling-off period referred to in Article 4a(3)(b)(i) of CRD 4. The discretion allows a NCA to apply a shorter cooling-off period, of a minimum of three months (instead of a minimum of six months), for staff members directly involved in the supervision of credit institutions in circumstances where a longer cooling-off period would:

(a) unduly restrict the NCA’s ability to hire new staff members with the adequate or necessary skills to exercise its supervisory functions, in particular taking into account the small size of the national labour market

or

(b) constitute a breach of any relevant fundamental right recognised by the relevant EU Member State, the EU’s Charter of Fundamental Rights, or any relevant national labour law rights.

Ireland will not exercise this discretion.

For further information on what your institution should be doing to implement the new regulatory requirements in CRD 6 or the Capital Requirements Regulation 3, please contact  Eoin O’Connor, Partner Patrick Brandt, Partner, Eimear O’Brien, Partner, Louise Hogan, Partner, Sarah Lee, Senior Practice Development Lawyer or your usual ALG contact.

Date published: 22 January 2025