61 Amendments of Ashley FOX related to 2011/0203(COD)
Amendment 48 #
Proposal for a directive
Recital 27
Recital 27
(27) For the purposes of strengthening the prudential supervision of institutions and the protection of clients of credit institutions, auditors should have a duty to report promptly to the competent authorities, wherever, during the performance of their tasks, they become aware of certain facts which are liable to have a serious effect on the financial situation or the administrative and accounting organisation of an institution. For that same reason Member States should also provide that such a duty applies in all circumstances where such facts are discovered by an auditor during the performance of his tasks in an undertaking which has close links with a credit institution. The duty of auditors to communicate, where appropriate, to the competent authorities certain facts and decisions concerning an institution which they discover during the performance of their tasks in a non-financial undertaking should not in itself change the nature of their tasks in that undertaking nor the manner in which they should perform those tasks in that undertaking. In the absence of compelling reasons not to do so, auditors should disclose all matters which are disclosed to the competent authorities to the relevant management board contemporaneously.
Amendment 52 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
(44a) Within Member States different governance structures are used, in most cases a unitary and/or a dual board structure. Under a dual board structure, a supervisory board performs the supervisory function of monitoring and overseeing management decisions and the management board performs the managerial function. Under a unitary board structure, one single body performs both functions. The definitions used in this Directive intend to embrace all existing structures without advocating any particular structure. They are purely functional for the purpose of setting out rules aimed at a particular outcome irrespective of the national company law applicable to an institution in each Member State. The definitions should therefore not interfere with the general allocation of competencies according to the national company law.
Amendment 83 #
Proposal for a directive
Article 4 – paragraph 2 – point c a (new)
Article 4 – paragraph 2 – point c a (new)
(ca) 'management body' means the body or bodies of an institution, appointed in accordance with the national law, which is empowered to set the institution's strategy, objectives and overall direction, and which oversees and monitors management decision-making. This shall include persons who effectively direct the business of the institution. In particular, the references to management body shall comprise both the managerial and supervisory functions of the body or bodies referred to in the first sub-paragraph. Where, according to national law, the managerial and supervisory functions of the management body are assigned to different bodies or different members within one body, the Member State shall make the distinction between the responsible bodies or members of the management body in accordance with its national law, unless otherwise specified by the Directive. For the purpose of this Directive 'managerial function' means setting the institution's strategy, objectives and overall direction and 'supervisory function' means overseeing and monitoring management decision-making.
Amendment 114 #
Proposal for a directive
Article 23 – paragraph 1 – point b
Article 23 – paragraph 1 – point b
(b) the reputation and experience of any, as set out in Article 87(1), of any member of the management body and any other person who will direct the business of the credit institution as a result of the proposed acquisition;
Amendment 149 #
Proposal for a directive
Article 63 – paragraph 1 – subparagraph 1 – introductory part
Article 63 – paragraph 1 – subparagraph 1 – introductory part
1. Member States shall provide at least that any person authorised within the meaning of Directive 2006/43/EEC performing in an institution the task described in Article 51 of Directive 78/660/EEC , Article 37 of Directive 83/349/EEC or Article 73 of Directive 2009/65/EC, or any other statutory task, shall have a duty to report promptly to the competent authorities any fact or decision concerning that institution of which that person has become aware while carrying out that task, which is liable tocould:
Amendment 150 #
Proposal for a directive
Article 63 – paragraph 1 – subparagraph 1 – point b
Article 63 – paragraph 1 – subparagraph 1 – point b
(b) affectthreaten the continuous functioning of the institution;
Amendment 151 #
Proposal for a directive
Article 63 – paragraph 2
Article 63 – paragraph 2
2. The disclosure in good faith to the competent authorities, by persons authorised within the meaning of Directive 2006/43/EEC, of any fact or decision referred to in paragraph 1 shall not constitute a breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision and shall not involve such persons in any liability. Such disclosure should also be made contemporaneously to the management body of the institution in the absence of any compelling reason not to do so.
Amendment 157 #
Proposal for a directive
Article 65 – paragraph 2
Article 65 – paragraph 2
2. Member States shall ensure that where obligations apply to institutions, financial holding companies, mixed financial holding companies and mixed-activity holding companies, in case of a breach sanctions can be applied to the members of the management body acting in a senior management capacity, and to any other individuals who under national law are responsible for the breach.
Amendment 160 #
Proposal for a directive
Article 67 – paragraph 2 – point d
Article 67 – paragraph 2 – point d
(d) a temporary ban against any member of the institution's management body or any other natural person, who is held responsible, to exercise functions in institutions in a senior management position;
Amendment 161 #
Proposal for a directive
Article 67 – paragraph 2 – point f
Article 67 – paragraph 2 – point f
(f) in case of a natural person acting fraudulently or recklessly in a senior management position, administrative pecuniary sanctions of up to EUR 5 000 000, or in the Member States where the Euro is not the official currency, the corresponding value in the national currency on the date of entry into force of this Directive;
Amendment 162 #
Proposal for a directive
Article 67 – paragraph 2 – point g
Article 67 – paragraph 2 – point g
(g) administrative pecuniary sanctions of up to twice the amount of the profits gained or losses avoided because of the breach resulting from fraudulent or reckless actions where those can be determined.
Amendment 166 #
Proposal for a directive
Article 68
Article 68
Member States shall ensure that the competent authorities publish any sanction or measure imposed for breach of the provisions of Regulation [inserted by OP(EU) No .../2012 of the European Parliament and of the Council of ... [on prudential requirements for credit institutions and investment firms] or of the national provisions adopted in the implementation of this Directive without undue delay after the completion of any timely appeals process including information on the type and nature of the breach and the identity of persons responsible for it, unless such publication would seriously jeopardise the stability of financial markets. Where publication would cause a disproportionate damage to the parties involved, competent authorities shall publish the sanctions on an anonymous basis.
Amendment 176 #
Proposal for a directive
Article 73 – paragraph 1
Article 73 – paragraph 1
1. Competent authorities shall require every institution toInstitutions shall have robust governance arrangements, which include a clear organisational structure with well- defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks it is or might be exposed to, adequate internal control mechanisms, including sound administration and accounting procedures, and remuneration policies and practices that are consistent with and promote sound and effective risk management.
Amendment 177 #
Proposal for a directive
Article 73 – paragraph 2
Article 73 – paragraph 2
2. The arrangements, processes and mechanisms referred to in paragraph 1 shall be comprehensive and proportionate to the nature, scale and complexity of the institution's activities. The technical criteria established in Sub-sections 2 and 3 shall be taken into account.
Amendment 179 #
Proposal for a directive
Article 73 – paragraph 3
Article 73 – paragraph 3
3. EBA shall develop draft regulatory technical standards to specify the arrangements, processes and mechanisms referred to in paragraph 1, in accordance with the principles of proportionality and comprehensiveness set out in paragraph 2. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure established in Articles 10 to 14 of Regulation (EU) No 1093/2010.The Commission shall ensure that delegated acts, regulatory technical standards and implementing technical standards take into account the principle of proportionality, thus ensuring the proportionate application of this Directive, in particular to smaller institutions. To determine the smaller institutions which are submitted to proportionate requirements both of the following criteria shall be used: (a) a total balance sheet of less than EUR 70 billion, which characterises 'large regulated financial entities' as defined in Article 137(5), and (b) a business model which is 'retail- oriented' as opposed to 'capital markets' oriented. EBA shall submit those draft regulatory technical standards to the Commission by 31 December 2015.
Amendment 181 #
Proposal for a directive
Article 74 – paragraph 1
Article 74 – paragraph 1
1. Competent authorities shall use the information collected in accordance with the criteria for disclosure established in points (f) and (g) of Article 435 (1) of Regulation [inserted by OP(EU) No .../2012 of the European Parliament and of the Council of ... [on prudential requirements for credit institutions and investment firms] to benchmark remuneration trends and practices. The competent authorities shall provide EBA with that information.
Amendment 182 #
Proposal for a directive
Article 74 – paragraph 2 – subparagraph 1
Article 74 – paragraph 2 – subparagraph 1
EBA shall issue guidelines on sound remuneration policies which comply with the principles set out in Articles 88 to 91. The guidelines shall take into account the principles on sound remuneration policies set out in the Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector.
Amendment 183 #
Proposal for a directive
Article 74 – paragraph 2 – subparagraph 3
Article 74 – paragraph 2 – subparagraph 3
EBA shall use the information received from the competent authorities in accordance with paragraph 31 to benchmark remuneration trends and practices at Union level.
Amendment 184 #
Proposal for a directive
Article 74 – paragraph 3
Article 74 – paragraph 3
3. Competent authorities shall collect information on the number of individuals per institution in pay brackets of at least EUR 1 millionbeing remunerated EUR 1 million or more per financial year, including the business area involved and the main elements of salary, bonus, long- term award and pension contribution. That information shall be forwarded to EBA, which shall publish it on an aggregate home Member State basis in a common reporting format. EBA may elaborate guidelines to facilitate the implementation of this paragraph and ensure the consistency of the information collected.
Amendment 189 #
Proposal for a directive
Article 75 – paragraph 2
Article 75 – paragraph 2
2. Competent authorities shall ensure that the management body in its supervisory function devotes sufficient time to consideration of risk issues. It shall be actively involved in and ensure that adequate resources are allocated to the management of all material risks addressed in this Directive and in Regulation (EU) No .../2012 of the European Parliament and of the Council of ... [on prudential requirements for credit institutions and investment firms] as well as in the valuation of assets, the use of external ratings and internal models related to those risks. The institution must establish reporting lines to the management body that cover all material risks and risk management policies and changes thereof.
Amendment 192 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 1
Article 75 – paragraph 3 – subparagraph 1
3. Competent authorities shall ensure that institutions that are significant in terms of size, internal organisation and nature, scope and complexity of their activities establish a risk committee or equivalent body composed of members of the management body who do not perform any executive function in the institution concerned. Members of the risk committee or equivalent body shall have appropriate knowledge, skills and expertise to fully understand and monitor the risk strategy and the risk appetite of the institution.
Amendment 196 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 2
Article 75 – paragraph 3 – subparagraph 2
The risk committee or equivalent body shall advise the management body in its supervisory function on the institution's overall current and future risk appetite and strategy and assist the management body in its supervisory function in overseeing the implementation of that strategy.
Amendment 201 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 3
Article 75 – paragraph 3 – subparagraph 3
Competent authorities may authorise an institution not to establish a separate risk committee or equivalent body taking into account the nature, scale and complexity of credit institution's activities.
Amendment 203 #
Proposal for a directive
Article 75 – paragraph 4 – subparagraph 1
Article 75 – paragraph 4 – subparagraph 1
4. Competent authorities shall ensure that the management body and, when a risk committee, or, when such a committee has not been established, the management body in its supervisory function regularly communicates with the institution's risk management function and shall, where appropriate, have access equivalent body has been established, the risk committee or equivalent body, have adequate access to information on the risk situation of the institution and, if necessary and appropriate, to the risk management function and to external expert advice.
Amendment 205 #
Proposal for a directive
Article 75 – paragraph 4 – subparagraph 2
Article 75 – paragraph 4 – subparagraph 2
The risk committee, or, when such a committee has not been established, the management body in its supervisory functionmanagement body and, when a risk committee or equivalent body has been established, the risk committee or equivalent body, shall determine the nature, the amount, the format, and the frequency of the information on risk it shall receive from senior management.
Amendment 207 #
Proposal for a directive
Article 75 – paragraph 5 – subparagraph 1
Article 75 – paragraph 5 – subparagraph 1
5. Competent authorities shall ensure that institutions have a risk management function with sufficient independentce from the operational and management functions and which shall have sufficient authority, stature, and resources and access to the management bodysubject to Article 7(2) of Directive 2006/73/EC.
Amendment 211 #
Proposal for a directive
Article 75 – paragraph 5 – subparagraph 3
Article 75 – paragraph 5 – subparagraph 3
Amendment 215 #
Proposal for a directive
Article 75 – paragraph 5 – subparagraph 4
Article 75 – paragraph 5 – subparagraph 4
The head of the risk management function shall be an independent senior executivemanager with distinct responsibility for the risk management function. Where the nature, scale and complexity of the activities of the institution do not justify a specially appointed person, another senior person within the institution may fulfil this function, provided there is no unmanageable conflict of interest.
Amendment 218 #
Proposal for a directive
Article 75 – paragraph 5 – subparagraph 5 a (new)
Article 75 – paragraph 5 – subparagraph 5 a (new)
The application of this Directive shall be without prejudice to the application of Directive 2006/73/EC to investment firms.
Amendment 221 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
1. Competent authorities shall ensure that institutions take appropriate steps to developin institutions, which are significant in terms of their size, internal organisation and the nature, scope and complexity of their activities promote internal credit risk assessment capacity and the increased use of the internal ratings based approaches for calculating own funds requirements for credit risk where their exposures are material in absolute terms and where they have at the same time a large number of material counterparties. In order to do this, competent authorities shall enforce sound internal credit policies.
Amendment 224 #
Proposal for a directive
Article 76 – paragraph 2
Article 76 – paragraph 2
2. Competent authorities shall ensure that institutions take appropriate steps to develop an, in institutions, which are significant in terms of their size, internal organisation and the nature, scope and complexity of their activities promote internal specific risk assessment capacity and increased use of internal models for calculating own funds requirements for specific risk of debt instruments in the trading book, together with internal models to calculate own funds requirements for default and migration risk where their exposures to specific risk are material in absolute terms and where they have a large number of material positions in debt instruments of different issuers. In order to do this, competent authorities shall enforce sound internal policies for specific risk as well as for default and migration risk.
Amendment 239 #
Proposal for a directive
Article 86 – paragraph 1 – subparagraph 2 – point a
Article 86 – paragraph 1 – subparagraph 2 – point a
(a) the management body shall have the overall responsibility for the institution, including approvinge and overseeing the implementation of the institution's strategic objectives, risk strategy and internal governance;
Amendment 246 #
Proposal for a directive
Article 86 – paragraph 1 – subparagraph 2 – point c
Article 86 – paragraph 1 – subparagraph 2 – point c
(c) the chairman of the management body, which is responsible for the supervisory function of an institution, shall not exercise simultaneously the functions of a chief executive officer within the same institution, unless justified by the institution and authorised by competent authorities.
Amendment 251 #
Proposal for a directive
Article 86 – paragraph 2 – subparagraph 1
Article 86 – paragraph 2 – subparagraph 1
2. Competent authorities shall ensure that institutions establish a nomination committee composed of members of the management body who do not perform any executive function in the institution concerned, which are significant in terms of their size, internal organisation and the nature, scope and complexity of their activities establish a nomination committee or equivalent body composed of members of the management body.
Amendment 254 #
Proposal for a directive
Article 86 – paragraph 2 – subparagraph 2 – introductory part
Article 86 – paragraph 2 – subparagraph 2 – introductory part
The nomination committee shall carry out the following at the discretion of the management body:
Amendment 255 #
Proposal for a directive
Article 86 – paragraph 2 – subparagraph 2 – point a
Article 86 – paragraph 2 – subparagraph 2 – point a
(a) identify and recommend, for the approval of the management body in its supervisory functionor for approval of the general meeting candidates to fill management body vacancies. In doing so, the nomination committee shall evaluate the balance of knowledge, skills, diversity and experience of the management body,. Further, the committee shall prepare a description of the roles and capabilities for a particular appointment, and assess the time commitment expected;
Amendment 259 #
Proposal for a directive
Article 86 – paragraph 2 – subparagraph 2 – point b
Article 86 – paragraph 2 – subparagraph 2 – point b
(b) periodically assess the structure, size, composition and performance of the management body, and make recommendations to the management body in its supervisory function with regard to any changes;
Amendment 262 #
Proposal for a directive
Article 86 – paragraph 2 – subparagraph 2 – point c
Article 86 – paragraph 2 – subparagraph 2 – point c
(c) periodically assess the knowledge, skills and experience of individual members of the management body and of the management body collectively, and report this to the management body in its supervisory function;
Amendment 266 #
Proposal for a directive
Article 86 – paragraph 2 – subparagraph 3
Article 86 – paragraph 2 – subparagraph 3
In performing its duties, the nomination committee shall be able to use any forms of resources it deems appropriateas provided by the management body, including external advice, and shall receive appropriate funding from the institution to this effect.
Amendment 272 #
Proposal for a directive
Article 87 – paragraph 1 – introductory part
Article 87 – paragraph 1 – introductory part
1. Competent authorities shall require that all mMembers of the management body of any institution shall at all times be of sufficiently good repute, possess sufficient knowledge, skills and experience and commit sufficient time to perform their duties. Members of the management body shall, in particular, fulfil the following requirements:
Amendment 275 #
Proposal for a directive
Article 87 – paragraph 1 – point a – introductory part
Article 87 – paragraph 1 – point a – introductory part
(a) MThe members of the management body shall commit sufficient time to perform their functions in the institution. Theyof an institution, who intends to hold a position in the management body of several institutions at the same time, shall take into account individual circumstances and the nature, scale and complexity of the institution's activities. Members of the management body of institutions that are significant in terms of their size, internal organisation and the nature, the scope and the complexity of their activities shall not combine at the same time more than one of the following combinations unless they can justify this to the relevant competent authority:
Amendment 285 #
Proposal for a directive
Article 87 – paragraph 1 – point a – point ii
Article 87 – paragraph 1 – point a – point ii
(ii) fourive non-executive directorships.
Amendment 290 #
Proposal for a directive
Article 87 – paragraph 1 – point a – subparagraph 2
Article 87 – paragraph 1 – point a – subparagraph 2
Amendment 295 #
Proposal for a directive
Article 87 – paragraph 1 – point a – subparagraph 3
Article 87 – paragraph 1 – point a – subparagraph 3
Amendment 307 #
Proposal for a directive
Article 87 – paragraph 2
Article 87 – paragraph 2
2. Competent authorities shall require institutions toInstitutions shall devote adequate human and financial resources to the induction and training of members of the management body.
Amendment 309 #
Proposal for a directive
Article 87 – paragraph 3
Article 87 – paragraph 3
Amendment 315 #
Proposal for a directive
Article 87 – paragraph 4
Article 87 – paragraph 4
Amendment 317 #
Proposal for a directive
Article 87 – paragraph 5
Article 87 – paragraph 5
Amendment 326 #
Proposal for a directive
Article 88 – paragraph 1
Article 88 – paragraph 1
1. The application of Articles 88(2) to 91 shall be ensured by competent authorities for institutions at group, parent company and subsidiary levels, including those established in offshore financial centres.
Amendment 333 #
Proposal for a directive
Article 88 – paragraph 2 – point c
Article 88 – paragraph 2 – point c
(c) the management body, in its supervisory function, of the institution adopts and periodically reviews the general principles of the remuneration policy and is responsible for its implementation;
Amendment 336 #
Proposal for a directive
Article 88 – paragraph 2 – point d
Article 88 – paragraph 2 – point d
(d) the implementation of the remuneration policy is, at least annually, subject to central and independent internal review for compliance with policies and procedures for remuneration adopted by the management body in its supervisory function;
Amendment 338 #
Proposal for a directive
Article 88 – paragraph 2 – point f
Article 88 – paragraph 2 – point f
(f) the remuneration of the senior officers in the risk management and compliance functions is directly overseen by the remuneration committee referred to in Article 91 or, if such a committee has not been established, by the management body in its supervisory functionto the extent possible under national law.
Amendment 343 #
Proposal for a directive
Article 89 – introductory part
Article 89 – introductory part
In the case of institutions that benefit from exceptional government intervention, the following principles shall apply in addition to and under the same conditions as those set out in Article 88(2):
Amendment 346 #
Proposal for a directive
Article 89 – point b
Article 89 – point b
(b) the relevant competent authorities require institutions to restructure remuneration in a manner aligned with sound risk management and long-term growth, including, where appropriate, establishing limits to the remuneration of the persons who effectively direct the business of the credit institution within the meaning of Article 13(1) of this Directive or Article 9(1) of Directive 2004/39/EC;
Amendment 349 #
Proposal for a directive
Article 90 – paragraph 1 – subparagraph 1 – introductory part
Article 90 – paragraph 1 – subparagraph 1 – introductory part
1. For variable elements of remunerations, the following principles shall apply in addition to and under the same conditions as those set out in Article 88(2):
Amendment 350 #
Proposal for a directive
Article 90 – paragraph 1 – subparagraph 1 – point b
Article 90 – paragraph 1 – subparagraph 1 – point b
(b) the assessment of the performance is set in a multi-year framework in order to ensure that the assessment process is based on longer-term performance and that the actual payment of performance-based components of remuneration is spread over a period which takes account of the underlying business cycle of the credit institution and its business risks;
Amendment 358 #
Proposal for a directive
Article 90 – paragraph 1 – subparagraph 1 – point i
Article 90 – paragraph 1 – subparagraph 1 – point i
(i) the allocation of the variable remuneration components within the credit institution shall also take into account all types of current and future risks;
Amendment 364 #
Proposal for a directive
Article 90 – paragraph 1 – subparagraph 1 – point m – subparagraph 1
Article 90 – paragraph 1 – subparagraph 1 – point m – subparagraph 1
(m) the pension policy is in line with the business strategy, objectives, values and long-term interests of the credit institution;
Amendment 366 #
Proposal for a directive
Article 90 – paragraph 2
Article 90 – paragraph 2
Amendment 369 #
Proposal for a directive
Article 91 – paragraph 2
Article 91 – paragraph 2
2. Competent authorities shall ensure that the remuneration committee is responsible for the preparation of decisions regarding remuneration, including those which have implications for the risk and risk management of the credit institution concerned and which are to be taken by the management body in its supervisory function. The Chair and the members of the remuneration committee shall be members of the management body who do not perform any executive functions in the credit institution concerned. When preparing such decisions, the remuneration committee shall take into account the long- term interests of shareholders, investors and other stakeholders in the institution.
Amendment 370 #
Proposal for a directive
Article 91 – paragraph 2
Article 91 – paragraph 2
2. Competent authorities shall ensure that the remuneration committee is responsible for the preparation of decisions regarding remuneration, including those which have implications for the risk and risk management of the credit institution concerned and which are to be taken by the management body in its supervisory function. The Chair and the members of the remuneration committee shall be members of the management body who do not perform any executive functions in the credit institution concerned. When preparing such decisions, the remuneration committee shall take into account the long- term interests of shareholders, investors and other stakeholders in the institution.