REQUIREMENTS FOR OBTAINING A BANK OR FINANCIAL INSTITUTION LICENSE

Transcription

1 REQUIREMENTS FOR OBTAINING A BANK OR FINANCIAL INSTITUTION LICENSE The business of banks (or credit institutions ) and financial institutions is regulated by directive No. 2006/48 EC of 14 June 2006 ("the Directive"). This new Directive replaces the various consolidated directives 1 setting the rules for banking activities within the European Union ("E.U.") and was adopted to clarify the existing regulatory scheme. The Directive simplified the regulations imposed on credit institutions and eliminated the most obstructive differences between the relevant laws of the Member States. The Directive is an essential measure toward achieving a European internal market with the freedom to establish new firms and to provide services. The underlying intent of the Directive is to achieve sufficient harmonization among the Member States to secure mutual recognition of authorizations and prudential supervision systems, making possible a single license that permits home Member State prudential supervision. The Directive requires credit institutions to obtain authorization before commencing their activities. From one country to another, however, the definition of "credit institution" may vary. The Directive does not impose a compulsory definition of credit institution nor, with the exception of deposit taking, does it specifically delineate the regulated banking activities within the E.U. As a result, some Member States regulate a wider range of financial services than others. Depending on the Member State, financial activities such as factoring or leasing may or may not require a license. I. When to Obtain a License? 1 Directive 200/12/EC, Directive 92/121/EEC, Directive 92/30/EEC, Directive 89/646/EEC, Directive 89/299/EEC, Directive 77/780/EEC, Directive 73/183/EEC

2 1. Activities Concerned Pursuant to the Directive, an authorization granted by the relevant national authority is necessary for firms that act as credit institutions. The obligation to obtain such authorization is limited by the definition of credit institution. According to article 4.1, a credit institution means: an undertaking whose business is to receive deposits or other repayable funds from the public and to grant credits for its own account" or an electronic money institution within the meaning of Directive 2000/46/EC. The Directive does not require that financial institutions apply for an authorization to conduct business. According to article 4.5 a financial institution means an undertaking other than a credit institution, the principal activity of which is to acquire holdings or to carry on one or more of the activities listed in points 2 to 12 of Annex I of the Directive. 2 In principle, the main difference between a credit institution and a financial institution is the activity of deposit taking, which is regulated throughout the E.U. All other banking activities may or may not be regulated, depending on each individual Member State regulator. Therefore, in several Member States, the mere granting of credits without receiving funds from the public (e.g. lending to corporates, leasing, factoring) is not a regulated activity, and thus does not require prior authorization. Consequently, institutions carrying out activities listed in points 2 to 12 of the Directive may nonetheless be treated as credit institutions in such Member States. This is the case, for example, in France, where the definition of credit institution is more inclusive than the European definition. Under French law, credit institutions are legal entities whose customary business 2 "Lending including, inter alia: consumer credit, mortgage credit, factoring, with or without recourse, financing of commercial transactions (including forfeiting), financial leasing, money transmission services, issuing and administering means of payment (e.g. credit cards, travellers' cheques and bankers' drafts), guarantees and commitments, trading for own account or for account of customers in (a) money market instruments (cheques, bills, certificates of deposit, etc.); (b) foreign exchange; (c) financial futures and options; (d) exchange and interest rate instruments; or (e) transferable securities, participation in securities issues and the provision of services related to such issues, advice to undertakings on capital structure, industrial strategy and related questions and advice as well as services relating to mergers and the purchase of undertakings, money broking, portfolio management and advice, safekeeping and administration of securities"

3 activity is the carrying out of banking transactions. 3 Banking transactions comprise the receiving of funds from the public, credit transactions and the provision to customers, or administration of, means of payment. 4 Unlike the Directive definition, the French definition includes institutions that do not receive funds from the public. The criteria set forth by the definition are alternative and not cumulative. Moreover, the notion of credit transaction is broader in France, where it includes Any act through which a person, acting in return for payment, makes, or promises to make, funds available to another person or gives an undertaking in favor of that person by signing an aval, a security bond or other guarantee, constitutes a credit transaction. Leasing, and, in general, all rental transactions accompanied by an option to purchase, are treated as credit transactions. 5 Therefore, operations such as leasing or factoring will be considered credit transactions in France and require a regulatory authorization, whereas in some other countries, those activities may be undertaken by financial institutions without any agreement. This is the case in the United Kingdom, Germany and Spain. The flip side of such heavier constraints is that French financial institutions normally qualify as credit institutions when providing services in other Member States or creating branches therein. 2. Territories Concerned As a principle, a license is valid only in the jurisdiction in which it has been obtained. A credit institution (not a financial institution) is nevertheless passportable within the European Economic Area (i.e. the 27 E.U. countries, Iceland, Liechtenstein and Norway). The passport procedure relates to both establishing a branch or providing services. The procedure works on a notice basis. 6 3 Article L of the Monetary and Financial Code 4 Article L of the Monetary and Financial Code 5 Article L313-1 of the Monetary and Financial Code 6 Article 25 of the Directive : " A credit institution wishing to establish a branch within the territory of another Member State shall notify the competent authorities of its home Member State." Article 27 of the Directive : " Any credit institution wishing to exercise the freedom to provide services by carrying on its activities within the territory if another Member State for the first time shall notify the competent authorities of the home Member State ( )"

4 II. How to Obtain a License? Obtaining a license entails either setting up a new regulated entity and applying for a license in one Member State, or passporting a license from one Member State to another. 1. Establishing a New Regulated Entity and Obtaining a License To develop a regulated activity in a Member State, an application file must be submitted to the local competent supervisory authority. The application must be accompanied by a programme of operations setting out, inter alia, the types of business envisaged and the structural organization of the credit institution. 7 The supervisory authority must respond within six months of the application. Applicants must be notified whenever an authorization is refused and the reasons for refusal must be stated. 8 The essential requirements for authorization (subject to the exceptions set out in the Directive) are: the credit institution must have its own funds, separate from any other entity; 9 initial capital of the credit institution must be at least EUR 5 million; 10 there must be at least two persons of sufficiently good reputation and experience effectively directing the business of the credit institution; the relevant authority may 7 Article 7 of the Directive 8 Article 13 of the Directive 9 Article 9 of the Directive 10 Article 9 of the Directive - 4 -

5 consult the authorities of other countries for the purpose of assessing the reputation and experience of such directors; 11 shareholders and/or persons directly or indirectly holding at least 10% of the stock or voting rights (a qualifying holding under the Directive), or such holding as is sufficient to make it possible to exercise a significant influence over the management of the credit institution, must be appropriate for the sound and prudent management of that credit institution 12 ; the relevant authority may consult the authorities of other countries for the purpose of assessing the suitability of such qualified holders ; 13 Organization and resources must be appropriate for the contemplated activities, i.e. the credit institution must have governance arrangements, adequate internal control, sound administrative and accounting procedures, all of which must be proportionate to the nature, scale and complexity of the credit institution's activities. 14 The E.U. Commission must receive notice of all authorizations, and a list of authorized credit institutions must be published in the Official Journal of the E.U Applications by Entities Controlled by Non-EU Persons - Equal Treatment Principle A specific treatment is applied to entities that are direct or indirect subsidiaries of a non-e.u. entity. A license granted by a national regulator to any such entity could be limited in scope or suspended upon request by the E.U. Commission if it appears that E.U. entities do not receive equal treatment in the home country of the entity, or that the conditions of effective market 11 Article 11 and 15.3 of the Directive 12 Article 12 of the Directive 13 Article 15.3 of the Directive 14 Article 22 of the Directive 15 Article 14 of the Directive

6 access are not fulfilled. Nevertheless, the EU Commission has not yet used its power to suspend non-e.u. applications Passport Procedure Within the EEA A credit institution wishing to establish a branch in another Member State must notify the authorities of its home Member State, specifying the Member State in which it plans to establish a branch, a program of operations, the address in the host Member State from which documents may be obtained and the names of the persons responsible for the management of the branch. The home Member State must provide this information to the host Member State within three months. 17 A credit institution wishing to provide services in the territory of another Member State must notify the authorities of its home Member State. Such notification must be forwarded within one month to the host Member State 18. The same provisions apply to financial institutions wishing to establish business or to provide services. For the passport procedure to apply to such financial institutions, however, they must be subsidiaries of one or more credit institutions authorized to carry on the same activities in their home country. 19 III. Subsequent Changes to License Terms Credit or financial institutions must liaise with the relevant regulatory authorities to understand whether their license will remain valid in light of changes that may take place in their business Source: Comité des Etablissements de Crédit et des Entreprises d'investissement 2006 annual report 17 Article 25 of the Directive 18 Article 28 of the Directive 19 Article 24 of the Directive 20 Articles 19, 20 & 21 of the Directive - 6 -

7 In practical terms, credit and financial institutions must either declare or notify local regulators of certain events or seek authorization before taking certain actions, including: - Direct or indirect acquisitions or disposals of equity interests in a licensed entity, when certain thresholds are exceeded; - Changes in the name, legal form, authorized activities, etc. of a licensed entity, changes in the share capital or address, in the identity of directors or other members of the governing bodies of the licensed entity, signing of a shareholders agreement, etc. * * * - 7 -