Decree No. 233 / 2009 Coll.
Ordinance on applications, approval of persons and the manner in which persons can demonstrate competence, credibility and experience
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Order
Effective from 01.08.2009
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233
DECLARATION
of 21 July 2009
on applications, approval of persons and the way in which they demonstrate competence, credibility and experience of persons
The Czech National Bank provides, pursuant to § 4 (1), § 5 (5), § 20 (4) and § 26g (6) of Act No. 21 / 1992 Coll., on banks, as amended, as amended, § 10 (4), § 19 (2), § 28 (3), § 30 (2), § 38 (4) and § 25f (8) of the Act No. 87 / 1995 Coll., on savings and credit cooperatives and on certain measures relating thereto, and on the addition of the Act of the Czech National Council No. 586 / 2004 Coll., as amended by the Act No. 230 / 2009 Coll., as amended, as amended, and pursuant to § 7 (4) and § 19 (2) of the Act No. 199 (2) of the Act No. 256 / 2004 Coll.
GENERAL PROVISIONS
(1) This decree regulates the forms and forms of applications and the content of their annexes where the applicant requests
(a) a licence for the bank;
(b) a licence for a foreign bank from a Member State other than that which intends to establish a branch in the territory of the Czech Republic (hereinafter referred to as "a licence for a branch of a bank from a non-Member State"),
(c) permit for the creation and business of a savings and credit cooperative (hereinafter referred to as "the permit for the cooperative reserve"),
(d) consent to acquire a qualifying holding or to increase the qualifying holding in a legal person who is a bank or a cooperative reserve by reaching or exceeding 20%, 30% or 50%, or to take over that person.
(2) This decree further regulates
(a) supporting documents demonstrating the credibility and experience of persons in charge of the financial holding person of which the bank or cooperative reserve is part;
(b) the documents and annexes thereto to demonstrate the professional competence and credibility of the person elected as members of the Board of Directors, the Audit and the Credit Committee.
Definition of terms
For the purposes of this decree:
(a) a full extract document of the business authorisation, or another document from the business register or other register under another legislation (1), or from similar registers 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 the application;
(b) financial statements
1. annual reports and financial statements for the last 3 financial years or for the period during which the applicant carries on business if that period is less than 3 financial years; where the applicant is part of a consolidation unit, also consolidated annual reports and financial statements for the same period; (2) the financial statements are audited by the auditor, the accounts are presented by the auditor;
2. documents similar to those referred to in point 1, in the case of a foreign legal person or an operating foreign natural person; and
3. evidence of income for the last 3 years, assets and liabilities in the case of a natural person;
(c) proof of integrity issued by a foreign State, a document similar to the extract from the register of criminal offences (3), no more than 3 months old, 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 a legal person has, or has, its registered office in the last 3 years, as well as a foreign State in which a legal person has, or has, a branch in the last 3 years, provided that the law of that State regulates the criminal liability of legal persons;
(d) information on persons closely linked (4) a list of persons closely linked to the applicant, a description of the group structure and the method of interconnection, including graphically illustrated relationships between individual closely linked persons, including a communication as to whether the rule of law 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, if it is a legal person, name or name, and surname, birth number or, where applicable, date of birth and address of the place of permanent residence or place of business, if it is a natural person, subject to the activity of individual persons with close links, including information as to whether the person is authorised by the supervisory authority of another Member State of the European Union or another State constituting the European Economic Area to act as a foreign person with a similar activity as a bank, an electronic money institution, insurance undertaking, reinsurance undertaking, an investment company or an investment service provider or a controlling person of that person;
(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 another legislative act (2), together with a commentary on the different headings of the plan, which always contains the underlying bases on which the plan is based and a description of how the individual activities carried out under the relevant legislative act are secured;
(f) the original of the original of the instrument or an officially certified copy of the instrument,
(g) the strategic purpose of the applicant's intention to agree to acquire or increase the qualifying participation in or control of a legal person in respect of:
1. the period during which qualified participation is to be held or for which a person is to be controlled;
2. anticipated changes to the level of qualifying participation in the short and long term;
3. the estimated level of involvement in the strategic management of a legal entity;
4. any aid to a legal person by additional own resources if necessary for the development of activities or for the maintenance of activities;
5. agreements with other members of a legal entity; and
6. where the qualifying holding exceeds 20% of the share in the capital or voting rights of a legal person or is intended to take over a legal entity, the development of the activity of a legal entity in relation to an existing business plan, the policy on the distribution of profits or remuneration of losses, including dividend policy, how to finance the further development of the legal entity, the management and control system, any changes in the staffing and strategic development of the legal entity,
(h) data on professional experience
1. information on the type of professional experience;
2. an indication of the person with whom he or she has been practised;
3. an indication of the employment classification and, where relevant, the importance of the practice for financial market activity, a description of the activity carried out, including the extent of the powers and responsibilities associated with that activity and the number of persons managed;
4. the definition of the duration of the activity referred to in point 3;
5. consent to the performance of a work assignment required by other legislation, where necessary;
(i) data on education
1. the name and type or type of educational institution, the study programme, the focus of the study programme, the duration of the study programme, the manner and date of completion of the study, and, where appropriate, the titles obtained,
2. an overview of courses, traineeships and study stays of interest in the financial market, with an indication of the year of their completion, focus, duration and, where appropriate, of the titles obtained;
(j) by the lead person, the person referred to in:
1. § 4 (5) (e) or § 5 (4) (c) of the Banking Act; and
2. § 2a (4) (b) of the Act on savings and credit cooperatives,
(k) a person who is a regulated entity on the financial market, a legal person established in a Member State whose business is the activity of a bank, a securities dealer, an investment company, an investment fund, a pension company, an insurance undertaking and a reinsurance undertaking, a payment institution, an electronic money institution or another regulated activity on the financial market and which is subject to supervision by the competent authority of a Member State in its country of residence.
ACCESS TO THE SECTOR
Bank licence and permit for cooperative reserve
(K § 4 (8) of the Banking Act and § 2a (1) and (5) of the Savings and Credit Cooperatives Act)
A licence application for a bank and an authorisation for a cooperative reserve shall be submitted on a form the model of which is set out in Annex 1 to this Order, to which the applicant shall accompany the annexes pursuant to Sections 4 and 5.
(1) Annexes containing basic information on the applicant and information relating to the applicant's activities are:
(a) social contract, charter or statutes;
(b) the original of the business authorisation document [Section 2 (a)],
(c) the original proofs of origin of the initial capital or of the capital or, where applicable, of the applicant's other financial resources and the extent of the paying-up of the capital, unless this information is apparent from the document of the business authorisation;
(d) financial statements [§ 2 (b)];
(e) a list of applications for annulment of the resolutions of the General Assembly, on which the judicial proceedings were not definitively closed at the date of the request, where such proposals were made and where such proposals could have a significant impact on the continued functioning of the company,
(f) the form, the specimen of which is in Annex 4 to this Decree, Part B and D, signed by the applicant; and
(g) proof of integrity issued by a foreign State.
(2) The Annexes containing information on the applicant's managers shall be:
(a) the form referred to in Annex 4, if it is for the applicant referred to in Article 3, completed and signed by each applicant's leading person;
(b) a CV of each applicant's management person containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)],
(c) the original of the proof of integrity issued by the foreign State [Paragraph 2 (c)] by each applicant's manager;
(d) for each manager further:
1. an overview of the functions performed in the elected bodies and functions in other legal persons to which the lead person has been appointed or otherwise called, over the last 10 years, and for each of those legal persons, the business firm or the name of the legal person, its subject matter, the designation of the function performed, the period of its execution and the indication of whether the lead person intends to perform that function in parallel with that of the lead person of the applicant, and whether the function is an executive or non-executive member;
2. a description of the financial and personnel relations of the lead person towards the applicant and other senior persons of the applicant, the controlling person of the applicant and the applicant controlled by the person and managers of those persons, if applicable, and to shareholders or members with qualified participation in the applicant; and
3. the proposed function of the lead person in the organisation of the applicant and a brief description of the performance of that function in terms of delegated powers and responsibilities; and
(e) the applicant's report on the results of the evaluation of the suitability of the lead for the performance of the function to which it is proposed, in terms of compliance with the requirements of credibility, competence and experience of that person.
(3) Annexes containing information on persons having qualified participation in the applicant and persons closely linked to the applicant shall be:
(a) a list of persons with a qualifying participation in the applicant and persons who have a qualifying participation in the applicant by acting in agreement with another person or, where appropriate, the 20 largest shareholders of the bank, including graphically illustrated relationships between those persons with the indication 5), with an indication of the amount of the participation or other form of participation in the applicant and, for persons acting in agreement, the fact on the basis of which the conduct takes place and a form, the model of which is completed and signed in Annex 13 to this Regulation by each person listed therein;
(b) a list of persons who are a statutory authority or a member of a statutory body of a legal person referred to in point (a), including an indication of the function of that person and a form, the specimen of which is in Annex 4 to this Decree, point 1 and Part D, completed and signed for each such natural person;
(c) a form, the specimen of which is in Annex 4 to this Decree, part B and D, signed by each person having qualified participation in the applicant and by each person who has a qualified participation in the applicant by acting in agreement with another person;
(d) the original of a proof of integrity issued by a foreign State [Paragraph 2 (c)] by any person referred to in (a) and any person who is a statutory authority or a member of a statutory body of a legal person referred to in (a);
(e) the original of the document of business authorisation [Paragraph 2 (a)] of each person referred to in point (a);
(f) the financial statements [§ 2 (b)] of each person referred to in (a);
(g) information on persons closely linked to the applicant [§ 2 (d)]; and
(h) the original of the written opinion of the authority which oversees a person with a qualified participation in the applicant in the country of his registered office, on the intention of that person to participate in the business of a legal person in the Czech Republic if the person with a qualified participation in the applicant is a person with a registered office outside the territory of the Member State in which such supervision is exercised in the country of his registered office;
(i) a description of the fact on the basis of which the person listed in point (a) becomes the person controlling the applicant when the control takes place.
(4) Where a person with a qualifying holding in an applicant is a person who is a regulated entity on the financial market, the applicant shall not attach the annexes referred to in paragraph 3 (b) to (d) and (f) to (h).
(5) Where a person with a qualifying holding in an applicant is a person whose qualifying holding is due to an indirect holding through a person who is a regulated entity in the financial market, the applicant shall:
(a) it shall not attach the annexes referred to in paragraph 3 (b) to (d) and (f) to (h); and
(b) attach the original final decision of the competent supervisory authority to which that person has been authorised to acquire a qualifying holding in a person who is a regulated entity on the financial market. Where such a decision is not issued by the competent supervisory authority, the applicant shall submit an opinion to that authority that the person has acquired a qualified participation in the person who is a regulated entity on the financial market, in his knowledge and in accordance with the law of the country of residence of the person who is a regulated entity on the financial market.
The application for a bank licence or an authorisation for a co-operative reserve shall also be accompanied by annexes containing information relating to the performance of the activity:
(a) a business plan [§ 2 (e)];
(b) the concept of the development of the Bank's or the cooperative reserve's activities in particular in relation to the proposed business plan and the medium-term objectives;
(c) a proposal for a bank's management and control system or a cooperative reserve containing in particular:
1. risk management strategy;
2. Capital and capital adequacy strategy;
3. strategy for the development of information systems,
4. the principles of the internal control system, including those to avoid a potential conflict of interest and compliance principles; and
5. security principles including security principles for information systems;
(d) a proposal for the organisation of a bank or cooperative reserve which contains information on the definition of responsibilities, powers, main information flows and links between the authorities, employees and committees of the bank or the cooperative reserve, if any; and
(e) the design of the technical security of the individual activities and the expected number of employees to ensure the planned activities of the bank or cooperative reserve; technical security means, in particular, the corresponding information system6) ensuring the acquisition, processing, transmission, sharing and storage of information by information technology, accounting system and statistical accounting systems.
Licences for a branch of a bank other than a Member State
(K § 5 (1) and (5) of the Banking Act)
(1) In the case of a licence application for a branch of a bank other than a Member State, the application shall be submitted by means of a form the model of which is in Annex 5 to this Order. The application shall be accompanied by annexes in accordance with paragraphs 2 to 6 and Section 7.
(2) The Annexes containing the basic information on the applicant are:
(a) the original of the applicant's business authorisation document [§ 2 (a)],
(b) the original decision of the competent authority of the applicant on the intention to establish a branch in the Czech Republic;
(c) the original of the document proving the existence and actual registered office of the applicant and who may act as the applicant and how,
(d) original proofs of origin of the funds provided for the operation of the branch;
(e) the audited financial statements of the applicant (Article 2 (b)); and
(f) documents demonstrating that the applicant complies with capital requirements comparable to those laid down by banks under the Banking Act and Implementing Legislation (7).
(3) Annexes containing information on persons who are the statutory authority or members of the statutory authority of the applicant shall be:
(a) the list of members of the statutory body of the applicant;
(b) the forms referred to in Annex 4 to this Order completed and signed by each member of the statutory authority of the applicant;
(c) the CV of each member of the statutory body of the applicant containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)],
(d) the original of the proof of integrity issued by the foreign State [§ 2 (c)] by each member of the statutory authority of the applicant.
(4) Annexes containing information on persons having qualified participation in the applicant and persons closely linked to the applicant shall be:
(a) a list of persons with qualified participation in the applicant, including graphically illustrated relationships between those persons, with details of those persons (5), indicating the amount of the proportion or other form of participation in the applicant; and
(b) information on persons closely linked to the applicant [§ 2 (d)].
(5) Annexes containing information on the branch manager shall be:
(a) the form referred to in Annex 4 to this Order, completed and signed by the branch manager;
(b) a CV of the branch manager containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)],
(c) the original proof of integrity issued by a foreign State [§ 2 (c)] by the head of the branch;
(d) a concise conception of the performance of the duties to be performed by the head of the branch; and
(e) the applicant's report on the results of the assessment of the suitability of the branch manager for the performance of the function in terms of compliance with the requirements of credibility, competence and experience of that person.
(6) Annexes containing information on the organisational assumptions of the branch for the performance of the activity are:
(a) the business plan of the branch;
(b) the principles of the applicant's management and control system;
(c) the concept and principles of the development of the branch relating to its activities in particular in relation to the proposed branch plan and its medium-term objectives;
(d) the draft organisational structure of the branch and the definition of the branch's powers in deciding on and implementing banking operations; and
(e) the design of the technical security of the various activities and the expected number of employees to ensure the planned activities of the branch; Technical security means, in particular, the corresponding computer system, information system7), accounting system and statistical accounting systems.
(1) The licence applicant shall also accompany the application referred to in Article 6 (1):
(a) an analysis of the comparability of laws or regulations relating in particular to:
1. the legal and institutional status of the supervisory authority of the State of the applicant's registered office (hereinafter referred to as the "foreign supervisory authority"), its independence, competence and responsibility in the exercise of banking supervision;
2. the arrangements for granting and withdrawing the licence to the bank, the assessment of the person proposed to lead the bank and the acquisition of a qualifying holding in the bank,
3. the exercise of supervision of the Bank and its branch abroad, including the exercise of supervision on a consolidated basis;
4. the prudential rules of banks' business, in particular capital adequacy, engagement, liquidity, management and control system, including risk management system;
5. the system of remedies and penalties;
6. the arrangements for cooperation and exchange of information with other States' supervisory authorities;
7. accounting and adjustments to the obligation to ensure the audit of the Bank's accounts;
8. Modifications of the Bank's information obligation towards the supervisory authority and the public, provision of information obtained in the exercise of supervision to third parties;
9. the definition of banking secrecy and its protection, the use of confidential information and the treatment of confidentiality obligations; and
(b) the original of the written opinion of the foreign supervisory authority on the applicant's intention to establish a branch of the bank in the Czech Republic and his declaration that the branch will be supervised by the bank and that the legal order of the State of the foreign bank's registered office does not provide any obstacles to the effective exchange of information between the Czech National Bank and the foreign supervisory authority.
(2) The analysis of comparability referred to in paragraph 1 (a) shall also be accompanied by an assessment of any differences in the areas referred to in points 1 to 9 as compared to similar provisions in force in the European Union concerning the exercise and supervision of banks. Where an analysis is prepared by a person other than a foreign supervisory authority, such analysis shall be accompanied by a statement from the foreign supervisory authority certifying the accuracy of the information communicated and the conclusions.
Person in charge of the financial holding person
(K § 26g (6) of the Banking Act and Article 25f (8) of the Savings and Credit Cooperatives Act)
(1) In order to demonstrate the credibility and experience of the person proposed in its management, the financial holding person shall provide the supporting documents:
(a) the original of a proof of integrity issued by a foreign State [Paragraph 2 (c)] by a natural person proposed to lead a financial holding person (hereinafter referred to as "the proposed person");
(b) the form set out in Annex 4 to this Order, completed and signed by each proposed person,
(c) a CV containing:
1. data on education [§ 2 (i)]; and
2. data on professional experience [§ 2 (h)].
(2) The financial holding person shall also provide a description of the work to which the proposed person is to be elected or appointed, including its intended competence and competence. This document may be replaced by an internal regulation of the financial holding person, which regulates the content of the function to be performed by the proposed person, including the competence and competence arising from that function.
(3) Where the proposed entity is not a statutory body or a member of a statutory body of a financial holding person or the proposed entity has not been delegated to the statutory authority of a financial holding person, the financial holding person shall indicate on the basis of which fact the proposed entity manages the financial holding person.
Consent to acquire or increase a qualifying holding in a bank or cooperative reserve or to control it
(K § 20 (3) and (4) of the Banking Act and § 2b (3) and (4) of the Savings Bank Act on Credit Cooperatives)
(1) A request for prior consent to acquire or increase a qualifying holding in a legal person which is a bank or cooperative reserve (hereinafter referred to as "regulated legal person") or to control that person shall be submitted on a form, a model of which is given in Annex 7 to this Decree.
(2) The Annexes to the application referred to in paragraph 1 are:
(a) the original of the applicant's business authorisation document [§ 2 (a)],
(b) the originals of the proofs of origin of the financial resources from which the acquisition or increase of the qualifying holding is covered;
(c) the financial statements [§ 2 (b)] of the applicant,
(d) information on persons closely linked [§ 2 (d)] to the applicant;
(e) a description of the relationship between the applicant and the regulated legal person in which the applicant intends to acquire or increase qualified participation or to dominate, and of the relationship of the applicant with persons with a special relationship with that legal person, at least to persons who are leaders, members of the Supervisory Board or members of the Supervisory Board of the regulated legal person, in the case of cooperative advances, also to persons elected to the credit committee;
(f) the original of the written opinion of the authority which oversees the applicant in the country of his registered office for the purpose of obtaining or increasing a qualified participation in or controlling the regulated legal person, if the applicant is located outside the territory of the Member State in which such supervision is exercised in the country of his registered office;
(g) strategic plan [§ 2 (g)];
(h) a list of persons who, acting in agreement with the applicant, have, acquire or increase qualified participation in, or control the regulated legal person, with an indication of 5) those persons, indicating the amount of the share or other form of participation in the regulated legal person, and a description of the fact on which the conduct is based; and
(i) a description of the facts on the basis of which the regulated legal person is controlled, if the applicant is to be the controlling person (15), and of the documents of origin of the financial resources to be used for the purchase of a non-controlling shareholder's share.
(3) Where the applicant is a natural person, the application referred to in paragraph 1 shall be accompanied by:
(a) the original of a proof of integrity issued by a foreign State [Paragraph 2 (c)]; and
(b) the form set out in Annex 4 to this Order, point 1 and part D, completed and signed by the applicant.
(4) Where the applicant is a legal person, the application referred to in paragraph 1 shall be accompanied by:
(a) a list of persons who are a statutory authority or a member of the statutory authority of the applicant, including an indication of the function of that person;
(b) a form, the specimen of which is in Annex 4 to this Decree, Part B and D, completed and signed by the applicant and each natural person referred to in point (a); and
(c) the original of the proof of integrity issued by the applicant's foreign State and each person referred to in (a).
(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).
Specific provisions
(1) If the applicant is a person who has been authorised to acquire or increase a qualifying holding in a regulated legal person or to control the Czech National Bank in the last 5 years to acquire or increase a qualifying holding in a regulated legal person, that person shall submit an application on a form, the model of which is in Annex 7 to this Order, and the application shall be accompanied by only the original written opinion referred to in § 18 (2) (f) and other documents and documents referred to in § 18 (2) to (4), which have been modified in relation to the condition under which the previous consent to acquire or increase of a qualifying holding in a regulated legal person has been granted. In this case, the applicant shall also indicate in the application that the other data and supporting documents submitted to the Czech National Bank in the previous application for approval to acquire or increase the qualifying holding remain unchanged.
(2) Where the applicant is a person who is a regulated entity on the financial market, the applicant shall submit an application on a form, a model of which is set out in Annex 7 to this decree, to obtain or increase a qualifying holding in a regulated legal entity or to control it. The application shall be accompanied by:
(a) the original document of the business authorisation [§ 2 (a)],
(b) strategic plan (§ 2 (g));
(c) the original proofs of origin of the funds from which the acquisition or increase of the qualifying holding is covered; and
(d) a description of the facts on the basis of which the regulated legal person is controlled and of the evidence of the origin of the financial resources to be used to buy up the shareholding of a non-controlling shareholder.
(3) Where an applicant is to acquire or increase a qualifying participation in a regulated legal person through a person who is a regulated entity on the financial market, he shall submit an application on a form, a specimen of which is given in Annex 7 to this Order. The application shall be accompanied by only the original final decision of the competent supervisory authority to which it has been authorised to acquire a qualifying holding in a person who is a regulated entity on the financial market. Where such a decision is not issued by the competent supervisory authority, the applicant shall submit an opinion to that supervisory authority that the applicant has obtained a qualifying participation in a person who is a regulated entity on the financial market, in his knowledge and in accordance with the law of the country of residence of the person who is a regulated entity on the financial market.
COMMON AND FINAL PROVISIONS
Common provisions
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Regulation Information
| Citation | Decree No. 233 / 2009 Coll., on applications, approval of persons and method of demonstrating professional competence, credibility and experience of persons |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.07.2009 |
|---|---|
| Effective from | 01.08.2009 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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