3.1.1 Institutions covered by this chapter

3:1 This chapter applies to the following institutions subject to direct supervision by the NBB:

• credit institutions, stockbroking firms, payment institutions and electronic money institutions governed by Belgian law, and the branches abroad of these institutions,
• branches established in Belgium of credit institutions, stockbroking firms, payment institutions and electronic money institutions governed by the law of a State that is not a member of the European Economic Area,
• central securities depositories and central counterparties governed by Belgian law, as well as their branches abroad,
• institutions providing support to a central securities depository and custodian banks governed by Belgian law, as well as their branches abroad,
• branches established in Belgium that are authorised in Belgium as an institution providing support to a central securities depository or as a custodian bank,
• (mixed) financial holding companies^[1].

3:2 For the sake of consistency and to ensure a level playing field, a cross-sectoral approach to suitability requirements has been adopted to the extent possible. Therefore, the guidelines set out in this chapter apply to all of the above institutions, but only insofar as they are consistent with the national or European legal framework applicable to them. However, for each suitability assessment, the NBB takes into account inter alia the nature, size, complexity, risk profile and organisational structure of the institution in which the person concerned holds a position (see the point on the proportionality principle in the introduction). As supervisor, the NBB considers that there are no compelling reasons for the interpretation of the assessment criteria for the different institutions covered by this chapter to differ even more than on the basis of the above-mentioned parameters.

3:3 In line with the cross-sectoral approach referred to above, it should be noted that some international guidelines and policy documents, although explicitly addressed to credit institutions or stockbroking firms, contain best practices that should be widely implemented. Therefore, the NBB also recommends that the other institutions covered by this chapter apply - within the limits of their respective supervisory laws and taking into account the proportionality principle - mutatis mutandis, to the extent possible, the best practices set out in (i) Guidelines EBA/GL/2021/06 of 2 July 2022 and (ii) the Guide to fit and proper assessments (“SSM Guide”) of December 2021. The NBB draws on Guidelines EBA/GL/2021/06 in its concrete monitoring of compliance with the suitability requirements.

3.1.2 Persons covered by this chapter

3:4 This chapter covers the scope and assessment of the individual and, where applicable, collective suitability of persons who hold or wish to hold the following positions:

• director;
• senior manager^[2]; and
• person responsible for an independent control function^[3].

3:5 Senior managers at “N-1” level (managers who exercise a direct and decisive influence on the management of the institution but who are not members of the management committee), with the exception of branch managers, do not have to be approved by the NBB. Of course, this does not mean that these persons should not have the fitness and propriety required for their position. The principles of this chapter also apply to them but, as they are not assessed by the NBB, institutions are not required to submit the notification forms covered in Chapter 5 of this Manual. For further clarification, please refer to the provisions on assessing the suitability of key function holders in Guidelines EBA/GL/2021/06.

3.1.3 Cross-border context

3:6 For the application of this chapter within a cross-border context, a distinction must be made between the following three situations:

1. Institutions established in the European Economic Area operating in Belgium through a branch or under the freedom to provide services => This chapter does not apply to the managers of institutions established in the European Economic Area operating in Belgium through a branch or under the freedom to provide services.
2. Belgian institutions operating abroad through a branch => This chapter applies to the managers and persons responsible for independent control functions of branches of institutions authorised in Belgium operating abroad through a branch.
3. Institutions governed by the law of a non-Member State of the European Economic Area operating in Belgium through a branch => This chapter applies to the managers and the person responsible for the compliance function of branches established in Belgium of institutions governed by the law of a non-Member State of the European Economic Area.

3.1.4 Group context

3:7 Pursuant to the supervisory laws, the consolidating institution must ensure the implementation of (and compliance with) a consistent and integrated group policy for assessing the suitability of all subsidiaries included in the prudential consolidation. Effective implementation of these obligations is further clarified in Guidelines EBA/GL/2021/06 (paragraphs 117 to 122).

3:8 The persons concerned must be suitable to hold their positions and thus meet the suitability assessment standards, at the level of both the Belgian parent company and all regulated Belgian subsidiaries. If a person holds a position requiring a suitability assessment at both parent and subsidiary level, two separate assessments need to be carried out.

^{[1] More specifically, pursuant to Article 212 of the Banking Law, the rules on suitability set out herein apply to (mixed) financial holding companies governed by Belgian law. The said Article 212 of the Banking Law declares Article 60 of the same law, which concerns fit & proper assessments, applicable to all (mixed) financial holding companies. In addition, Article 168, § 1 declares certain governance aspects as explained in the NBB's Governance Manual applicable to approved or designated (mixed) financial holding companies heading a group or subgroup.}

^{[2] Members of the management committee are subject to the provisions of this chapter, whether or not they are directors. As a reminder, in certain types of holding companies, the management committee may be composed of directors and managers who are not members of the statutory governing body (see Article 212 of the Banking Law). Pursuant to Article 26, second paragraph, 2° of the Banking Law, a similar derogation may be requested for credit institutions, depending on their size and risk profile.}

^{[3] The assessment must pertain to the most senior person responsible for the independent control function.}