Decree No. 192 / 2011 Coll.
Decree amending Decree No. 233 / 2009 Coll., on applications, approval of persons and the method of demonstrating the professional competence, credibility and experience of persons and on the minimum amount of financial resources provided to a branch of a foreign bank
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Effective from 15.07.2011
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192
DECLARATION
of 27 June 2011
amending Decree No 233 / 2009 Coll., on applications, approval of persons and the method of demonstrating the professional competence, credibility and experience of persons and on the minimum amount of financial resources provided to a branch of a foreign bank
The Czech National Bank provides pursuant to Article 5 (5) of Act No. 21 / 1992 Coll., on Banks, as amended, hereinafter referred to as "the Banking Act," pursuant to § 139 (2) of Act No. 189 / 2004 Coll., on Collective Investment, as amended by Act No. 188 / 2011 Coll., as amended by Act No. 139 (3), § 61 (1), § 63 (2), § 64 (2), § 64a (2), § 65, § 66 (3), § 67 (2), § 68 (3), § 71b (4), § 72 (6), § 84a (10), § 96 (2), § 97a (3), § 100b (3) and § 100m (3) of Act No. 189 / 2004 Coll.
Decree No 233 / 2009 Coll., on applications, approval of persons and the method of demonstrating the professional competence, credibility and experience of persons and on the minimum amount of financial resources provided to a branch of a foreign bank, is amended as follows:
1. in Article 1 (1) (f):
"(f) authorisation to operate a settlement system with a settlement finality (hereinafter referred to as the settlement system),";
2. in Article 1 (1) (h) to (o):
"(h) an authorisation to provide investment services through an organisational component of a foreign person who is established in a State which is not a Member State of the European Union or another State constituting the European Economic Area (hereinafter referred to as" Member State "),
(i) authorisation to operate an investment company;
(j) authorisation to operate the IF;
(k) prior agreement on the performance of the management function under the Capital Market Act or the Collective Investment Act;
(l) consent to the acquisition or increase of a qualifying holding in a regulated legal person who is a bank, cooperative reserve, a securities trader, an organised market operator, a CSD, an investment firm or an investment fund (hereinafter referred to as a regulated legal entity) or to the control of such persons;
(m) an authorisation to convert a company or to conclude a contract to transfer, stop or rent a company;
(n) the registration of an investment intermediary;
(o) entry in the list of tied agents. ';
3. In Paragraph 1 (1), at the end of point (o), the dot is replaced by a comma and the following points (p) to (x) are added:
"(p) entry in the list of liquidators and forced administrators;
(q) registration of other business activities;
(r) authorisation to create an open holding fund or closed holding fund;
(s) authorisation to transfer the holding fund to the management of another investment company;
(t) authorisation for the merging or merging of mutual funds;
(u) approval of the amendment to the Statute of the collective investment fund;
(v) approval of the change of the depositary of the collective investment fund;
(w) a permit for the public offering of securities issued by a foreign special fund in the Czech Republic; or
(x) the withdrawal of authorisation for the activities of an investment company, an investment fund or a holding fund. ';
4. in Article 2 (a), including footnote 1,
"(a) a document of entitlement to an enterprise's full statement or other document from a business register or other register under another legislation (1), or from similar records abroad, containing the information in force at the time of the application, including information on the application for registration in the relevant register which was not made at the date of application;
1) For example, Act No. 513 / 1991 Coll., Commercial Code, as amended, Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended, Act No. 111 / 2009 Coll., on Basic Registers, as amended. '
5. in Article 2 (c), including footnote 3,
"(c) proof of integrity issued by a foreign State, a document similar to that of the Register of Crimes (3), not earlier than 3 months, issued by a foreign State;
1. where the natural person is a citizen and a foreign State in which the natural person has remained continuously for more than 6 months during the last 3 years;
2. in which the legal person has its registered office or has had its registered office in the last 3 years as well as the foreign State in which the legal person has, or has, an organisational component of the undertaking in the last 3 years, provided that the legal system of that State regulates the criminal liability of legal persons;
3) Act No. 269 / 1994 Coll., on the Register of Penalties, as amended. '
6. in Article 2 (d), including footnote 4:
"(d) information on persons closely linked (4) a list of persons closely linked to the applicant, a description of the structure of the group and the method of interconnection, including graphically illustrated relationships between individual closely linked persons, including a communication as to whether the legal order of the State in whose territory the group has close links does not prevent the supervision of the Czech National Bank; for persons closely linked to the applicant, the business firm or name, the identification number of the person or the date of establishment and the registered office, if any, being the legal person, the name or names, and surname, birth number or, where applicable, the date of birth and, where applicable, the address of the place of residence or place of business, if any, the natural person, the object of the activities of individual persons with close links, including the person who is authorised by the supervisory authority of another Member State to act as a foreign person having similar activities as a bank, an electronic money institution, insurance undertaking, a reinsurance undertaking, an investment firm or an investment service provider, or is a controlling party to that person;
4) Article 4 (6) of Act No. 21 / 1992 Coll., on Banks, as amended. § 1 (9) of Act No. 87 / 1995 Coll., on savings and credit cooperatives and certain measures related thereto and on supplementing the Act of the Czech National Council No. 586 / 1992 Coll., on income taxes, as amended, as amended. § 2 (1) (f) of Act No. 256 / 2004 Coll., on Capital Market Business, as amended. § 2 (1) (u) of Act No. 189 / 2004 Coll., on Collective Investment, as amended. '
7. in Article 2 (e):
"(e) the business plan actually envisaged for the first 3 financial years of activity, based on realistic economic calculations, in the scope of the financial statements data under other legislation2), together with a commentary on the different headings of the plan, which always contains the basic bases on which the plan is based and a description of the way in which the individual activities carried out under the relevant legislation are ensured, ';
8. In Article 2 (j), at the end of point 3, the dot is replaced by a comma and the following point 4 is added:
"Article 4 (2) (1) (r) of the Collective Investment Act."
9. in Article 3 (2) and (3):
"(2) The application for authorisation pursuant to § 7 (2), § 38 (2), § 90a (3) and § 103 (3) of the Capital Market Enterprise Act shall be made on a form, the specimen of which appears in Annex 2 to this Decree.
(3) The application for authorisation pursuant to Articles 61 (1) and 65 of the Collective Investment Act is made on a form, a model of which is set out in Annex 2a to this Order. "
10. In Article 3, the following paragraph 4 is added:
"(4) The applicant to whom the licence or authorisation referred to in paragraphs 1 to 3 is to be granted shall accompany the application with the annexes referred to in Paragraph 4, unless this decree provides otherwise."
11. in Article 4 (2) (a), the words "and (3)" shall be inserted after the words "in respect of the applicant referred to in Article 3 (2)."
12. in § 4 (2) (c), § 4 (3) (d), § 6 (3) (d), § 6 (5) (c), § 14 (2) (c), § 14 (4) (c), § 15 (2) (b), § 16 (1) (a), § 17 (1) (a), § 18 (3) (a), § 18 (4) (c), § 21 (2) (f), § 22 (2) (c), § 22 (3) (e), § 24 (2) (b) and § 27 (4), the words "issued by a foreign State" shall be inserted after the words "document of good faith."
13. in Article 4 (3) (d), the word "physical" shall be deleted;
14. in Article 4 (3), at the end of point (h), the dot is replaced by a comma and the following point (i) is added:
"(i) the contract on the basis of which the person referred to in (a) becomes the person controlling the applicant, where such a contract is concluded, or the draft contract.";
15. in Paragraph 4, paragraphs 4 and 5 are added:
"(4) Where a person with a qualified participation in an applicant is the person referred to in Article 20 (3) (a) or (b), the annexes containing information on persons with a qualified participation in the applicant and persons closely linked to the applicant shall be the annexes referred to in paragraph 3 (a), (e) and (h), and where that person becomes the person controlling the applicant on the basis of a control contract, the Annex referred to in paragraph 3 (i).
(5) Where a person with a qualified participation in an applicant is the person referred to in Article 20 (3) (a) or (b) whose qualifying participation in an applicant is due to an indirect share through a person referred to in paragraph 4, the annexes containing information on persons with a qualified participation in the applicant and persons closely linked to the applicant shall be the annexes referred to in paragraph 3 (a), (e) and the original of the opinion of the authority referred to in paragraph 3 (h), which shall supervise the person referred to in paragraph 4, and, where that person becomes the person controlling the applicant under the control contract, the Annex referred to in paragraph 3 (i). ';
16. In footnote 5, the words "Paragraph 2 (1) (m) of Act No. 189 / 2004 Coll., on Collective Investment, as amended, shall be added to the separate line. ';
17. In § 7, the amount "CZK 150,000" is replaced by "CZK 500,000."
18. In the title of Section 11, "Paragraph 83 (4) 'is replaced by" Paragraph 90a (3)'.
19. in Article 11 (a), "§ 83 (9)" is replaced by "§ 85";
20. in Part Two, the following Title IV is inserted after Title III, including the title and footnotes 14a to 14e:
INVESTMENT COMPANY AND INVESTMENT FUND
Investment company
(Paragraph 61 (1) of the Collective Investment Act)
(1) In the case of an application for authorisation to operate an investment company, the applicant shall, in accordance with Article 3 (3) and shall also accompany the application in addition to the annexes referred to in Article 4.
(a) a business plan [§ 2 (e)];
(b) a proposal for internal rules for an investment company involving in particular:
1. organization14a),
2. Rules for the prudent exercise of the business and management of an investment company 14b) a
3. rules of conduct in the performance of the activities of the investment company and in the provision of other services 14c),
(c) a list of persons who will be provided as heads of organisation or as separate persons
1. the pursuit of the activities of an investment company consisting of the management of collective investment funds;
2. Continuous monitoring of compliance with the obligations of the investment company arising from the legislation and internal rules of the investment company and from contractual relations with the funds and depositories managed;
3. risk management; and
4. performance of internal audit,
(d) biographies of all persons included in the list referred to in (c) containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)],
(e) the intention to use investment intermediaries;
(f) the list of activities which the investment firm intends to carry out through another person and the manner in which the conditions (14d) are met for the execution of activities through another person; and
(g) the Annexes referred to in paragraphs 2 and 3.
(2) According to the scope of the activities and services provided by the investment company, the applicant shall add:
(a) evidence of technical and programming means for the processing and recording of information, communication with holders of securities issued by collective investment funds, the keeping of accounts and economic records, and the keeping of other records (14e), to the extent of information on the characteristics, manner of use, administration and maintenance of the means transmitted by their supplier;
(b) design of technical security for the performance of activities and the provision of services via the Internet;
(c) evidence of ensuring a direct link with the depositary or other persons, as appropriate, to carry out trading in or keeping records of the collective investment fund; and
(d) evidence of ensuring a direct or brokering relationship with persons handling transactions in investment vehicles.
(3) If the applicant intends to provide services pursuant to § 15 (3) and (4) of the Collective Investment Act, he shall add:
(a) the business plan for the provision of such services and their scope in relation to each type of investment instrument;
(b) rules on risk management with regard to the provision of services;
(c) a description of the personnel, organisational and material provision of services, and, where appropriate, of the documents proving such provision, taking into account the scope of the services which the investment firm intends to provide;
(d) a list of persons who will provide such services as separate persons or as heads of organisational units;
(e) biographies of all persons included in the list referred to in (d) containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)],
(f) rules on the development of investment strategies in the portfolio management, the possibility of changing investment strategies and the ability of customers to influence such strategies; and
(g) rules on the internal control of an investment company in relation to the provision of services.
Investment fund
(Paragraph 65 of the Collective Investment Act)
(1) In the case of an application for authorisation to operate an investment fund, the applicant shall, in accordance with § 3 (3) and in addition to the annexes referred to in § 4 (1) (a) to (d), also accompany the application:
(a) a business plan [Paragraph 2 (e)] of the Investment Fund;
(b) a proposal for the Statute of the Investment Fund;
(c) the depositary's contract or, where appropriate, its proposal, together with the depositary's written promise to conclude the contract or future contract concluded with the Bank, which will carry out the activity of the depositary for the Investment Fund;
(d) information on education [§ 2 (i)] and data on professional practice [§ 2 (h)] of the head of the organisation body of the depositary, or other persons who will provide for the investment fund the activity of the depositary under § 21 of the Collective Investment Act; and
(e) the list of activities which the IF intends to carry out through another person and the manner in which the conditions (14d) are met for the performance of its activities through another person.
(2) Where the application referred to in paragraph 1 concerns an authorisation for an investment fund whose assets will not be managed by an investment company, the applicant shall also:
(a) the Annexes referred to in Article 4 (2) and (3);
(b) a proposal for internal rules of the IF covering in particular:
1. organization14a); and
2. rules for the prudent exercise and management of the Investment Fund14b);
(c) a list of persons who will be provided as heads of organisation or as separate persons
1. the pursuit of activities involving the management of the assets of the IF;
2. Continuous monitoring of compliance with the obligations of the IF under the legislation and internal rules of the IF, including the Statute, and contractual relations with depositories;
3. risk management; and
4. performance of internal audit,
(d) biographies of all persons included in the list referred to in (c) containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)]; and
(e) the particulars and documents, mutatis mutandis, pursuant to Article 14a (2).
(3) Where the application referred to in paragraph 1 concerns an authorisation for the activity of an investment fund whose assets will be managed by an investment company, the applicant shall also:
(a) the draft contract for the management of the assets of the investment fund, together with the written promise of the investment company to conclude the contract or future contract concluded with the investment firm to manage the assets of the investment fund;
(b) a list of the managers of the IF with details of those persons, defining their functions and indicating the powers associated with those functions;
(c) a list of persons with a qualifying participation in the investment fund, including graphically displayed relationships between such persons, with details of such persons;
(d) a list of persons closely linked to the IF, including data on such persons;
(e) the confirmation by the investment company that the assets of the investment fund have the knowledge, experience and credibility required for the management of such investment fund; and
(f) evidence of compliance with the investment firm's factual, personnel and organisational assumptions for the management of the investment fund, mutatis mutandis, pursuant to Articles 14a (1) (b) to (d) and 14a (2).
14a) § 5 of Decree No. 194 / 2011 Coll., on a more detailed regulation of certain rules in collective investment.
14b) § 74a of Act No. 189 / 2004 Coll., on Collective Investment, as amended. Part of Second Decree No. 194 / 2011 Coll.
14c) § 75 of Act No. 189 / 2004 Coll. Part of Fourth Decree No. 194 / 2011 Coll.
14d) § 4 of Decree No. 194 / 2011 Coll.
14e) Decree No. 194 / 2011 Coll. '.
Title IV shall be renumbered Title V.
21. In Article 15, the words "and Article 72 (6) of the Collective Investment Act 'shall be inserted after the words" the Capital Market Enterprise Act'.
22. V shall be referred to as Title VI.
23. In sections 18 and 19, the words "and Article 71b (4) of the Collective Investment Act 'are inserted after the words" the Capital Market Enterprise Act'.
24. in Paragraph 18 (4) (c), the word "physical" shall be deleted;
25. In Article 18, paragraphs 5 and 6 are added:
"(5) If a change is to take place in the context of the acquisition of a qualifying holding in the entity in which the qualifying holding is acquired, it shall form part of the application for an annex containing information on those managers in accordance with Article 4 (2).
(6) Where the applicant is a person seeking approval solely for the purpose of the management of the client's assets, the applicant shall not be obliged to attach the documents referred to in paragraph 2 (b). ';
26. Paragraph 20 (3), including footnote 16, reads:
"(3) Where the applicant is authorised to acquire or increase a qualifying holding in a regulated legal person or to control a regulated legal person, the person who:
(a) is a financial institution (16) or a bank or another regulated entity on the financial market established in the territory of a Member State (hereinafter referred to as "financial institution"); and
(b) be subject to supervision by the competent authority in the country of its registered office and inform the Czech National Bank that it has no objection to the applicant's intention to acquire or increase qualified participation in a regulated legal person or to control a regulated legal person;
the applicant submits an application on a form, a specimen of which appears in Annex 7 to this Order, and the application shall be accompanied by only the original of the document of business authorisation [§ 2 (a)] of the applicant, the strategic plan [§ 2 (g)], the originals of the documents of origin of the funds from which the acquisition or increase of qualifying holdings is covered, and the contract on the basis of which the person referred to in point (a) becomes the person controlling the applicant, where such a contract is concluded, or the draft of such a contract.
16) Article 17a (2) of Act No. 21 / 1992 Coll., as amended. '
27. In the title of Section 21, the words "Paragraph 85 (2)," shall be deleted and the words "Section 96 (2) of the Collective Investment Act" shall be inserted after the words "The Capital Market Enterprise Act";
28. in Article 21 (2) (g) and (h):
"(g) the company's transformation project or detailed information on the transfer, cessation or lease of an undertaking or part of an undertaking and its consequences, including in particular the applicant's intention, changes to the business plan, timing, description of the effects on the performance of activities and the provision of services, description of the integration of organisational units and working arrangements into the new organisational structure and description of the transfer of competences, unless such information is already contained in other documents submitted,
(h) joint reports by the statutory authorities or reports by the statutory bodies of the participating companies on the conversion or, where appropriate, approval to refrain from processing them, ';
29. in Article 21 (2), the following points (i) and (j) are inserted after point (h):
"(i) an expert report or reports, or, where appropriate, a waiver from the processing of an expert report or reports;
(j) an expert opinion or an opinion, if it is not part of an expert report or reports, if required; ';
Points (i) to (l) shall be renumbered as points (k) to (n).
30. In Article 21, paragraphs 3 and 4 are added:
"(3) In the case of an application for a conversion permit under the Collective Investment Act, the annexes to the application referred to in paragraph 1 in addition to the Annexes referred to in paragraph 2 shall be:
(a) the written opinion of the depositary of the collective investment fund on the conversion in relation to each collective investment fund affected by the conversion;
(b) consent to the transformation granted by all shareholders of the investment fund in the case of a merger of the investment fund with a person not authorised to operate the investment fund;
(c) consent to a transformation granted by an investment company in the case of an investment fund whose assets are managed by that investment company;
(d) an overview of the changes in the facts assessed in accordance with the Annexes required by § 14a or, as the case may be, § 14b resulting from the transformation and the Annexes pursuant to § 14a or, as the case may be, § 14b which are affected by the amendments in connection with the conversion;
(e) in the case of a transformation of an investment fund which does not have a contract concluded for the management of its assets, a list of persons having a qualifying holding in the investment fund, including graphically displayed links between such persons, with details of such persons, which shall be submitted instead of the Annex referred to in paragraph 2 (n);
(f) in the case of a transformation of an investment fund the assets of which will be managed by an investment company, the annexes referred to in points (d) to (f) of paragraph 2 may be replaced by a confirmation by an investment company pursuant to Paragraph 14b (3) (e); and
(g) in the case of a transformation of an investment company, the conversion project referred to in paragraph 2 (g) shall contain information on which of the acquiring companies will manage the assets of the mutual funds or the assets of the investment funds still under management by the participating company, as well as on which of the acquiring companies will provide services related to the assets entrusted to the customers of the participating company.
(4) Where an investment fund participates in a division in which it is combined with a split part of the split-up company, it shall submit the documents mutatis mutandis to the merger conversion. ';
31. in Article 23 (2), the words "to the e-mail office" shall be deleted;
32. In Section 25, the word "a 'is replaced by a comma and after the words" capital market business law' the words "and Article 61 (1) of the Collective Investment Act 'are added.
33. After the fourth part, the following parts shall be inserted:
LEVEL FUNDS, CHANGE OF STATUTE AND DESIGNIFICANT FUND OF COLLECTIVE INVESTMENT AND FOREIGN SPECIFIC FUNDS
LEVEL FUNDS
Authorisation to create an open holding fund or closed holding fund
(Paragraph 66 (3) of the Collective Investment Act)
(1) An application for authorisation to establish an open holding fund or closed holding fund shall be made on a form, a model of which is given in Annex 14.
(2) The application referred to in paragraph 1 shall be accompanied by:
(a) a list of the managers of the investment firm to manage the holding fund;
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Regulation Information
| Citation | Decree No. 192 / 2011 Coll., amending Decree No. 233 / 2009 Coll., on applications, approval of persons and method of demonstrating the professional competence, credibility and experience of persons and on the minimum amount of financial resources provided to a branch of a foreign bank |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.07.2011 |
|---|---|
| Effective from | 15.07.2011 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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