Decree No. 380 / 2010 Coll.
Decree amending Decree No. 123 / 2007 Coll., on the rules of prudent business of banks, savings and credit cooperatives and securities dealers, as amended by Decree No. 282 / 2008 Coll.
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Effective from 31.12.2010
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380
DECLARATION
of 18 November 2010
amending Decree No 123 / 2007 Coll., on the rules of prudent business of banks, savings and credit cooperatives and securities dealers, as amended by Decree No 282 / 2008 Coll.
The Czech National Bank provides pursuant to § 8b (5), § 11a (9) (a) and (b), § 12a (8) (a), § 15, § 24 (1) and § 26d (3) of Act No. 21 / 1992 Coll., as amended by Act No. 120 / 2007 Coll., pursuant to § 1a (3), § 7a (5), § 7b (9), § 8 (9) (a), § 11 (3) and § 27 (1) of Act No. 87 / 1995 Coll., and pursuant to § 199 (2) of Act No. 256 / 2004 Coll.
Decree No. 123 / 2007 Coll., on the rules of prudent business of banks, savings and credit cooperatives and securities dealers, as amended by Decree No. 282 / 2008 Coll., is amended as follows:
1. footnote 1 is deleted, including the reference thereto.
2. In Section 1 of the introductory part of the provision, the words "European Community2) 'are replaced by the words" European Union2)';
footnote 2:
"(2) Directive 2004 / 39 / EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85 / 611 / EEC and 93 / 6 / EEC and Directive 2000 / 12 / EC of the European Parliament and of the Council and repealing Council Directive 93 / 22 / EEC. Directive 2006 / 48 / EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast). Directive 2006 / 49 / EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast). Commission Directive 2006 / 73 / EC of 10 August 2006 implementing Directive 2004 / 39 / EC of the European Parliament and of the Council as regards the organisational requirements and operating conditions of investment firms and the definition of terms for the purposes of that Directive. Commission Directive 2007 / 18 / EC of 27 March 2007 amending Directive 2006 / 48 / EC of the European Parliament and of the Council as regards the exclusion or inclusion of certain institutions from or within the scope of that Directive and the treatment of exposures to multilateral development banks. Commission Directive 2009 / 27 / EC of 7 April 2009 amending certain Annexes to Directive 2006 / 49 / EC of the European Parliament and of the Council as regards technical provisions on risk management. Commission Directive 2009 / 83 / EC of 27 July 2009 amending certain Annexes to Directive 2006 / 48 / EC of the European Parliament and of the Council as regards technical provisions on risk management. Directive 2009 / 110 / EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions, amending Directives 2005 / 60 / EC and 2006 / 48 / EC and repealing Directive 2000 / 46 / EC. Directive 2009 / 111 / EC of the European Parliament and of the Council of 16 September 2009 amending Directives 2006 / 48 / EC, 2006 / 49 / EC and 2007 / 64 / EC as regards banks affiliated to central institutions, certain own funds items, large exposures, supervisory arrangements and crisis management. Directive 2010 / 76 / EU of the European Parliament and of the Council of 24 November 2010 amending Directives 2006 / 48 / EC and 2006 / 49 / EC as regards capital requirements for trading book and re-securitisation and the supervision of remuneration policies. ';
3. in Article 1 (e), the words "or audit company (3)" shall be deleted.
4. Paragraph 2 (1) (j) reads as follows:
"(j) an information system, a functional unit ensuring the acquisition, processing, transmission, sharing and storage of information in whatever form.";
5. in Paragraph 2 (2) (c):
"(c) the capital investment of a participating security, a business share, a member's share or a similar asset value, or a subordinated claim,"
6. in Articles 2 (2) (h), 6 (2) (b) (1) and 46 (1) (b) and (c) and (4), "EUR" is replaced by "EUR."
7. in Article 2 (3), point (e) is deleted;
Points (f) to (i) shall be renumbered as points (e) to (h).
8. in Article 2 (4) (b):
"(b) by a obliged person:
1. bank,
2. cooperative reserve,
3. Securities dealer; and
4. investment intermediary, '.
9. in Article 2 (5) (j):
"(j) by a credit institution, a bank, a foreign bank or a cooperative bank."
10. In Article 2, the following paragraph 7 is added:
"(7) For the purposes of this Order, the following definitions shall also apply:
(a) the organisation body of the person or a designated group of persons responsible for carrying out a particular activity of the obliged person;
(b) re-securitisations of a securitisation where the credit risk associated with one or more underlying exposures is spread into tranches and at least one underlying exposure is a securitisation exposure;
(c) the recognised clearing centre of the settlement agent recognised by the competent authorities, the settlement of transactions being run on a regular basis, has rules issued or approved by the competent authorities of the State of its registered office defining the conditions under which the settlement takes place and the conditions for access to settlement. ";
11.
Personal scope
(1) This decree applies to a mandatory person who is a bank or a cooperative reserve.
(2) This decree shall also apply to a mandatory person who is a securities dealer pursuant to § 8a (1), (2) or (3) of the Capital Market Business Act, with the exception of the provisions of Title II of Part Three, Part Six and the provisions on more detailed requirements for managing selected risks as set out in Annex 1 to this Decree.
(3) The mandatory person who is a securities dealer pursuant to § 8a (4) and (7) of the Capital Market Business Act shall be subject to § 7 to 34, with the exception of the provisions on more detailed requirements for managing the selected risks set out in Annex 1 to this Decree.
(4) The compulsory entity which is an investment intermediary under § 29 (1) of the Capital Market Act is subject to § 8, § 9 (1), § 10 to 12, § 14, § 15 (1) to (4), § 16 to 19, § 20 (1), § 21 (1) and (5), § 23, 31, 32 and 34.
(5) A mandatory person who is an investment intermediary who is a natural person and provides investment services exclusively in person,
(a) instead of the requirements laid down in Sections 12, 14, 15 (1) to (4), 19, 21 (1), 23, 31, 32 and 34, it shall record in writing the principles and working procedures for ensuring continuous monitoring of compliance with legal obligations and the performance of business;
(b) capture in writing the principles and working procedures referred to in Articles 9 (1), 10 to 11, 16, 20 (1) and 21 (5); and
(c) monitor on an ongoing basis compliance with legal obligations and the performance of activities in accordance with the principles and working procedures recorded in writing. ";
12. in Articles 4 (1) and 44 (1), the words "the European Communities" shall be replaced by the words "the European Union";
13. In Article 6 (2) of the Final Part of the provision, the words "In the period from 31 December of the calendar year to 30 December of the following year, the amount in euro shall be converted into the amount in Czech crowns at the foreign exchange market rate which the Czech National Bank has declared last in October of the calendar year" shall be replaced by the words "In the period from 31 December to 30 December of the following calendar year, the amount in euro shall be converted into the amount in Czech currency market rate declared last in October of the year in which the period begins."
14. In Part Three of Title I:
"REQUIREMENTS FOR THE MANAGEMENT AND CONTROL SYSTEM
[Paragraph 8b (5) of the Banking Act, Section 7a (5) of the Savings and Credit Cooperatives Act, Section 12f (a) and (b) and Section 32 (8) (a) of the Capital Market Act] '.
15. In § 7 (1), § 9 (4), § 18 (1), § 21 (2) (a), § 24 (4), § 31 (2) and § 33 (6), the words "bank or cooperative reserve" are replaced by the words "obliged persons."
16. in § 7 (2), § 8, 10, § 16 (2) (b), § 20 (1) to (3), § 27 (1) and (4) (d), § 22, § 23 (2) and (4), § 24 (2) and (4), § 25 of the introductory part of the provision, § 26 (1) to (3) and (4) (a), § 27 (1), § 28 (1), § 29 (1), § 3 of the introductory part of the provision and § 30 (1) to (5), § 31 (1), § 33 (1) and (5) and § 34 (1) shall be replaced by "the compulsory person."
17. in Article 8, the words "person" shall be deleted;
18. in Articles 8 and 35 (1) (b) (2), the words "management method, number of employees" shall be replaced by "organisational arrangements."
19. in Article 9 (1) and (2):
"(1) The obliged entity shall ensure that the requirements laid down for the management and control system and procedures of the obliged entity for their fulfilment and in the conduct of other activities are reflected in the organisational rules and other internally defined principles, rules and procedures (hereinafter referred to as" internal regulation ') of the obliged entity and within the regulated consolidation unit. The mandatory person shall establish a procedure for the adoption, amendment, introduction and application of internal rules. The internal rules always include rules for recording complaints and complaints from clients, including potential clients, handling and monitoring of the measures taken.
(2) In order to fulfil the presumption of good governance by applying proper procedures, the obliged entity shall choose and reflect in its internal rules the selected recognised and proven principles and procedures issued by recognised persons and used in activities of a similar nature ("recognised standard"). The obliged entity shall regularly verify that the internal rules and the recognised standards chosen by it remain up-to-date and proportionate to the extent, nature and complexity of the activities of the obliged entity. ';
20. in Articles 9 (4) and 28 (2), the words "bank or cooperative reserve" are replaced by the words "obliged person."
21. Sections 11 and 12, including footnote 8, read:
(1) Where an activity which would otherwise be carried out or could be carried out by a obliged person is carried out by another person on a contractual basis ("outsourcing '), the obliged entity shall not be relieved of any of its responsibilities for outsourcing activities.
(2) The obliged person shall ensure that, in connection with the negotiation or use of outsourcing:
(a) the compliance of activities subject to outsourcing, with the relevant legislation, the possibility of their control by a mandatory person, the fulfilment of information obligations towards the Czech National Bank, the exercise of supervision, including, where appropriate, the control of facts subject to supervision by the outsourcing provider, and the auditing of the accounts and other verifications provided for by other legislation8),
(b) the conditions for the proper and prudent exercise of the activities of the debtor are not jeopardised;
(c) the legal relationship of the obliged entity with the client is not affected; and
(d) rules are laid down for the control of outsourcing activities, including, where appropriate, for the control of outsourcing with its provider.
(3) A contract shall be concluded by the obliged person governing outsourcing in such a way as to permit the recording of its contents, controllability and, where appropriate, enforceability as well as conservation.
The Supervisory Board, the Audit Board or any other body of a obliged entity having similar powers (hereinafter referred to as the Supervisory Authority) shall monitor and evaluate the functioning and effectiveness of the management and control system at least once a year. As part of the fulfilment of this obligation, the supervisory authority shall also regularly discuss matters relating to the strategic direction of the obliged entity and to the direction of the risks to which the obliged entity is or could be exposed.
8) For example Article 22 (2) of Act No. 21 / 1992 Coll., as amended. '
22. In Article 13 (2), the first sentence is replaced by the following: "The supervisory authority shall give its views in advance on a proposal from the Board of Directors or any other body having similar powers (hereinafter referred to as" the Board ") of the obliged entity in charge of the delegation of a natural or legal person by carrying out internal audit or on its appeal. '
23. In Article 13, the following paragraph 4 is added:
"(4) The supervisory authority shall approve and regularly evaluate the aggregated remuneration principles of the selected groups of employees whose activities have a significant impact on the overall risk profile [Paragraph 21 (3) (d)] of the obliged entity. The detailed definition of certain remuneration requirements is set out in Annex 1a to this Decree. '
24.
The Board shall ensure the establishment and evaluation of the management and control system and shall be responsible for the continued maintenance of its functionality and efficiency, including:
(a) compliance of the management and control system with the legislation; the provision of professional care activities is part of this requirement; and
(b) setting up, maintaining and implementing the management and control system to ensure the adequacy of information and communication in the performance of the activities of the obliged entity. ';
25. in Article 15 (1), the words "sufficiently specific" shall be inserted after the words "including."
26. in Article 15 (3) and (4):
"(3) The Board shall ensure that human resources management principles are established, including those for the selection, remuneration, evaluation and motivation of staff in accordance with the approved remuneration system. The principles of the obliged entity shall also include the requirement that all activities, including those of the institutions and committees, where they are established and their members, be carried out by qualified staff with adequate knowledge and experience.
(4) The Board shall ensure that requirements are laid down for the knowledge and experience of persons who ensure the performance of their activities, the way in which they demonstrate the knowledge and experience required and the way in which they verify that the knowledge and experience of persons who ensure the performance of their activities remains up-to-date and proportionate to the extent, nature and complexity of those activities. ';
27. In Article 15, the following paragraph 5 is inserted after paragraph 4:
"(5) The Board of Directors shall ensure that all staff members are familiar with and comply with the relevant internal rules, understand and actively participate in the management and control system; the internal communication system, which is an integral part of the compulsory information system, is also used to ensure this requirement. The Board shall also ensure that proper administrative and accounting procedures are applied. ';
Paragraph 5 shall become paragraph 6.
28. in Article 16 (1) (e):
"(e) the strategy for the development of the information system;"
29. in Article 16 (1) (g):
"(g) security principles including security principles for the information system.";
30. in Articles 16 (2) (a), 27 (1) (b) and 30 (4) (b), the words "bank or cooperative reserve" are replaced by the words "obliged person."
(31) Paragraph 16 (3), including footnote 3, reads as follows:
"(3) The Board shall oversee the implementation of its approved strategies, principles and objectives and other activities, in particular the activities of senior management and its members. The Board shall evaluate the regular reports and the exceptional findings submitted to it by senior management in a timely and sufficient manner, within the framework of internal audit, the supervisory authority, the committees, where they are established, the auditors) or the competent supervisory authorities or from other sources. On the basis of these evaluations, the Board shall take appropriate measures, which shall be implemented without undue delay.
3) Act No. 93 / 2009 Coll., on auditors and amending certain laws (Act on Auditors). '.
32.
(1) Top management means:
(a) management staff directly subordinate to board members;
(b) members of the Board who also carry out activities under Paragraph 18; and
(c) other persons who are included in the senior management by the obliged person. ';
33.
(1) Organisational arrangements and internal rules governing it shall clearly and comprehensively determine the activities, responsibilities, powers, main information flows and links
(a) bodies, staff, departments and committees of the obliged entity, where they are established; and
(b) within a regulated consolidation unit.
(2) The mandatory person shall determine the work content of the organisational bodies to enable effective communication and cooperation at all levels and to promote functional, efficient and prudent management and the pursuit of other activities, including decision-making and control activities, in a manner that does not jeopardise the proper, fair and professional performance of the duties. "
34. In the first sentence of Paragraph 20 (1), the words "their members and others' shall be inserted after the words" institutions'.
35. in Article 20 (2) (d), the words "agreed credit or transaction" are replaced by the words "business."
36. in Paragraph 20 (5):
"(5) The obliged person shall ensure adequate independence of internal control in view of the nature, subject matter and importance of the control and the avoidance of conflicts of interest in ensuring all control mechanisms, including compliance control. The internal audit shall be independent of all executive activities. ';
37. in Article 21 (3) (a):
"(a) compliance with the requirements laid down by the legislation and procedures laid down by internal rules, including an overall assessment of whether the internal rules and standards chosen and applied by the obliged entity pursuant to Article 9 (2) remain up-to-date and proportionate to the extent, nature and complexity of the activities of the obliged entity, including, where appropriate, significant differences in the procedures of the obliged entity compared with those laid down by the legislation and procedures laid down by internal rules,";
38. In Section 21 (4) of the introductory part of the provision, the words "bank or cooperative reserve 'are replaced by the words" obliged person'.
39. In Article 21, the following paragraph 5 is added:
"(5) Compulsory person
(a) lay down the conditions for staff access to the information system and the data recorded therein, the scope of the access rights and the process for determining them, including how to decide on the scope of the access rights of each employee and decide on their changes;
(b) lay down the conditions under which data related to the transactions and services carried out will be stored in the information system and their lawful adjustments, the conditions for handling such data and ensuring that their original content and modifications are easily detected;
(c) ensure protection of the information system from access and interference by unauthorised persons and from damage. ';
40. In Article 26 (4) (d):
"(d) methods of risk management, including stress testing, in which case credit, market, operational, liquidity and concentration risks,"
41. in Paragraph 27 (2), the word "more detailed" shall be replaced by the word "Next."
42. In Article 29 (2), the words "planning and" shall be inserted before the word "maintenance."
43. In Article 30, the following paragraph 6 is added:
"(6) The obligations referred to in paragraphs 1 to 5 shall apply mutatis mutandis to changes in existing products, activities or systems of the obliged entity. ';
44. In Paragraph 32, the following paragraph 2 is inserted after paragraph 1:
"(2) The obliged person shall ensure that the legal and legal obligations arising out of his or her internal rules are checked on an ongoing basis."
Paragraphs 2 and 3 shall become paragraphs 3 and 4.
45. in Article 32 (3) and (4):
"(3) The obliged entity shall ensure compliance and the related checks in such a way as to ensure that:
(a) informing senior management of any discrepancies and discrepancies detected; the Board of Directors shall be informed of significant deviations and discrepancies,
(b) informing senior management of the legislation being prepared or new and recognised standards relating to the activities of the debtor; and
(c) providing additional useful information on compliance with the board of directors and senior management.
(4) The principles and procedures for compliance cover, in a coherent and coherent manner, all activities of the obliged entity. "
46. Paragraph 33 (2) to (4) reads as follows:
"(2) The obliged entity shall ensure that internal audit is carried out in such a way as to provide objective and independent assurance on the activities of the obliged entity.
(3) The internal audit shall be carried out by the obliged entity through at least one employee, outsourcing or combination.
(4) Internal audit is in particular subject to:
(a) compliance with the rules on the prudent conduct of the obliged entity;
(b) compliance with the established principles, objectives and procedures;
(c) risk management and internal control systems;
(d) financial management;
(e) the completeness, evidence and accuracy of the keeping of accounts;
(f) the reliability of accounting, statistical and other information, including that provided to the authorities of the obliged entity; and
g) functionality and security of the information system, including the reliability of the system of compilation and submission of reports to the Czech National Bank. "
47. in Article 33 (5) (d), the words "processing in summary" shall be deleted;
48. in Paragraph 34 (2):
"(2) Where the obliged entity establishes a mechanism to communicate significant concerns to employees about the functionality and effectiveness of the management and control system outside the normal information flows (whistle-blowing), it shall ensure the availability of this mechanism to all employees and the right to confidentiality of the source where the employee makes use of this mechanism. ';
49. Paragraph 34 (3) is deleted.
Paragraphs 4 to 6 shall become paragraphs 3 to 5.
50. in Paragraph 46 (5):
"(5) In the period from 31 December to 30 December of the following calendar year, the amount in euro shall be converted into the amount in the crowns of the Czech foreign exchange market rate announced by the Czech National Bank as last in October of the year in which the period begins."
51. in the first sentence of Article 47 (2), in the first sentence of Article 51 (1) (b) and in the third sentence of Article 51 (2), the words "corresponding to the relevant Directive of the European Communities" shall be replaced by the words "similar European Union law."
52. In Article 48, the sentence "However, an institution may include in a consistent manner all credit derivatives that are included in the trading book and are part of the internal hedge in the calculation of the counterparty capital requirement at the end of paragraph 4, subject to the conditions laid down in paragraph 3. '
53. In Paragraph 54 of the title is read: "Determination of capital on an individual basis."
54. The following group heading is inserted after Paragraph 54: "Original own funds on an individual basis'.
55.
The original capital (original capital) on an individual basis is divided into principal and secondary capital (hybrid capital). '
56. the following Sections 55a and 55b are inserted after Section 55:
The main original capital shall include the paid-up capital entered in the business register and, in the case of a cooperative reserve, the non-registered paid-up capital may not be met by the condition of compliance with accounting standards,
(a) reduced by acquired equity, including items from equity transactions, in particular forward and equity-reducing options;
(b) increased by an emission premium, which is part of this item:
1. a paid-up share premium account related to paid-up capital entered in the business register; and
2. the share premium arising from own shares transactions;
(c) increased by reserves and retained earnings, this item being the sum of the items referred to in points 1 to 4 minus the item referred to in point 5:
1. mandatory reserves and risk funds;
2. other funds which are generated from the distribution of profits and may be used solely to cover the loss shown in the debtor's financial statements;
3. the undistributed profit from previous periods shown in the accounts of the obliged entity certified by the auditor and approved by its highest authority, the division of which has not been decided by the highest authority and which did not belong to the settlement shares,
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Regulation Information
| Citation | Decree No. 380 / 2010 Coll., amending Decree No. 123 / 2007 Coll., on the rules of prudent business of banks, savings and credit cooperatives and securities dealers, as amended by Decree No. 282 / 2008 Coll. |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.12.2010 |
|---|---|
| Effective from | 31.12.2010 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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