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    EBA Issues Guidelines on Internal Governance and Remuneration Policies

    July 02, 2021

    EBA and ESMA revised the joint guidelines on the assessment of the suitability of members of the management body and key function holders. In addition, EBA revised the guidelines on internal governance and on sound remuneration policies. The guidelines on internal governance and fit-and-proper assessments take into account the amendments introduced by the revised Capital Requirements Directive (CRD5) and the Investment Firms Directive (IFD) while the revised guidelines on sound remuneration policies incorporate amendments introduced by CRD5. The ESMA-EBA joint guidelines and the EBA guidelines on internal governance consider amendments with respect to gender diversity and money laundering and financing terrorism risks. The guidelines on sound remuneration policies consider amendments related to institutions’ sound remuneration policies and the requirement that remuneration policies should be gender-neutral. All three guidelines will apply from December 31, 2021.

    Joint guidelines on fit-and-proper requirements. These joint guidelines take into account the recovery and resolution framework introduced by the Bank Recovery and Resolution Directive (BRRD) and provide further guidance in this regard. As part of early intervention measures and during resolution, the suitability of newly appointed members of the management body and the management body collectively are relevant and require an assessment. The guidelines provide further details on how the exchange of information between resolution authorities and competent authorities should work. The guidelines clarify, in line with CRD5, that assessing the knowledge, experience, and skill requirements include identifying, managing, and mitigating money laundering and financing of terrorism risks, as these aspects are part of the assessments of the suitability of members of the management body and key function holders. In addition, the guidelines specify that a gender-balanced composition of the management body is of particular importance. Institutions should respect the principle of equal opportunities for any gender and take measures to improve a more gender-balanced composition of staff in management positions, to ensure a more gender-balanced pool of candidates for positions in the management body. The joint guidelines also consider the new legislative framework for investment firms for the identification of the investment firms subject to the various guidelines. Annex I to the guidelines presents template for suitability matrix to assess the collective competence of members of the management body; the Annex has been amended to include compliance with the requirements related to anti-money laundering and combating of terrorist financing.

    Guidelines on internal governance. These guidelines clarify that identifying, managing, and mitigating money laundering and financing of terrorism risk is part of sound internal governance arrangements and credit institutions’ risk management framework. The revised guidelines further specify and reinforce the framework regarding loans to members of the management body and their related parties. Those loans may constitute a specific source of actual or potential conflict of interest and, therefore, specific provisions have been explicitly included in the CRD. Similarly, other transactions with members of the management body and their related parties have the potential to create conflicts of interest and, therefore, EBA is providing guidance on how to properly manage them. Also, in line with the requirement to have a gender-neutral remuneration policy, the revised guidelines provide new guidance on the code of conduct to ensure that credit institutions take all necessary measures to avoid any form of discrimination and guarantee equal opportunities to staff of all genders; institutions should monitor the gender pay-gap. Annex I to the guidelines specifies the aspects that institutions should consider when developing an internal governance policy.

    Guidelines on sound remuneration policies. These guidelines stipulate that institutions have to apply sound remuneration policies to all staff and specific requirements for the variable remuneration of staff whose professional activities have a material impact on their risk profile (identified staff). The revised guidelines specify all those requirements, along with the waivers, that apply to institutions based on their total balance sheet and to staff with a low variable remuneration. The waivers only apply to the deferral arrangements and payout in instruments. The revised guidelines also clarify how the remuneration framework applies on a consolidated basis to financial institutions that are subject to a specific remuneration framework (for example, firms subject to the IFD, the Undertakings for Collective Investment in Transferable Securities Directive or UCITS, and/or the Alternative Investment Fund Managers Directive or AIFMD). The sections on severance payments and retention bonus have been also revised, based on the supervisory experience regarding cases of where such elements have been used by institutions to circumvent requirements regarding the link to performance or the maximum ratio.

     

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    Keywords: Europe, EU, Banking, Securities, Governance, CRD5, BRRD, Suitability Assessment, IFD, Operational Risk, Basel, Remuneration, Fit and Proper Assessments, ESMA, EBA

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