Published legislation and draft legislation - European Union
Guide to fit and proper assessments
The European Central Bank
On 15th May, the European Central Bank (ECB) published its guide to fit and proper assessments (suitability) of members of boards of directors and senior positions in the significant credit institutions over which it exercises direct supervision.
This assessment, over which the ECB has exclusive authority, checks that credit institutions’ decision-makers are properly qualified to carry out their roles. The composition of boards should be such that it contributes towards the efficient management of the entity, and informed decision-making, all designed to strengthen the safety and robustness of the banking sector as a whole.
With these guidelines, the ECB intends to clarify in details the policies, practices and processes that should be applied when vetting the suitability of said posts, and to unify the criteria used in order to achieve consistent supervisory practices, while still respecting national differences that may exist between eurozone countries.
The guide include the following principles:
- Primary responsibility. Credit institutions bear the primary responsibility of selecting and nominating members of the Board of Directors who comply with the requirements for fitness and propriety; entities are required to provide all information to the supervisory authorities that may be necessary to assess their appropriateness in all cases.
- Gatekeeper. The ECB has a safeguarding function, to guarantee that institutions meet the requirements of implementing solid governance structures and thus avoid the possibility of individuals posing a risk to the proper functioning of the management body.
- Harmonisation of criteria and assessment models in eurozone countries, to reduce variations when assessing the suitability of candidates.
- Proportionality and case-by-case assessment. Proportionality applies in all phases of the assessment, with the supervising authority taking into account the size, nature and significance of the institution, as well as the complexity of the candidate’s activities and the position being filled.
- Due process and fairness. A well-defined process that ensures that the person is being assessed impartially.
- Interaction with ongoing supervision of the institution’s governance, particularly in relation to the composition and functioning of the management body.
The ECB will assess the suitability of the members of the management body, bearing in mind the following criteria:
They should have the theoretical (knowledge and skills) and practical experience (previous occupations) that are indispensable to carry out their functions, which will vary according to the specific role and the institution. As a minimum, members of the management body must have basic theoretical experience in banking and additional experience may be required depending on other factors that are important to the particular institution (nature, size, complexity, etc).
Experience will be assessed, in the first place, by taking as a reference thresholds that indicate sufficient experience. If these are not met, the person may still be considered suitable if this can be justified after a supplementary assessment.
Those being assessed will necessarily have a reputation that ensures sound and prudent management of the institution; good reputation will be considered if there is no evidence to suggest and no reason to have a reasonable doubt about his/her repute.
Should legal proceedings be underway that might have an impact on the reputation of the designated person and on the regulated entity, the supervising body may study the circumstances that have given rise to the proceeding, to establish whether these are relevant in establishing the candidate’s reputation.
- Conflicts of interest and Independence of mind
The institution must have policies that identify, disclose, mitigate and prevent conflicts of interest, both actual and potential. The institution and the designated person should notify the competent authority about any perceived conflict, with a view to assessing whether the risk is relevant, in which case measures will be taken to assess the specific situation and preventative or mitigating measures taken, if necessary (unless national legislation has already defined the measures that should be taken).
Should the measures taken or the conditions imposed be insufficient to control the risks inherent to the conflict, the designated person cannot be deemed suitable.
- Time commitment
Members of the governing body will dedicate the time necessary for performing their functions in the institution. To analyse the time they put in, a quantitative assessment will be made, indicating whether the number of “directorships” that one person can hold in significant entities has been breached (the limit is one executive position and two non-executive positions) and a qualitative assessment, taking into account other factors that determine the amount of time that an officer can dedicate to their role (size and circumstances of the institutions in which they hold the position, the nature, scale and complexity of their activities, location or country in which these are based, etc).
- Collective suitability
The regulated entity must conduct a self-assessment to identify any deficiencies in the suitability of its management body taken as a whole.
The assessment process will be triggered by a new appointment, a change in role or a renewal, by new facts or by licensing or qualifying holding procedure.
The supervisory body may interview the parties being assessed to complete or verify certain information, with a proportionate, risk-based approach. An initial interview will normally take place for the purpose of information gathering; in the event of further clarity being required, another, more specific, one will be held. Interviews will be conducted by a panel of 2 or 3 people.
The supervisor will decide whether the individual is fit and proper to occupy the position on the institution’s management body. Favourable decisions may be made with: i) recommendations, ii) conditions, or iii) obligations.
Non-compliance with the conditions will render the person concerned unsuitable and they must resign from their post or not accept it.
Non-compliance with the requirements of the Framework Regulation for the Single Supervisory Market the ECB has the power to remove anytime members of the management body.