Scope of application

This chapter deals with the assessment of the individual and, where applicable, collective suitability of persons who hold or wish to hold the following positions within the above-mentioned institutions:

  • director;
  • member of the management committee (whether a director or not[1]);
  • responsible person of an independent control function. The assessment must in all cases relate to the persons with the most senior operational responsibility[2] for these supervisory functions;
  • senior manager who is not a director.

With regard to senior managers who are not directors, the NBB/ECB should not, in principle, get involved by way of prior authorisation when they take up their positions. Naturally, this does not mean that these persons, who should be considered as key function holders, do not need to be fit and proper. The principles of this chapter also apply to them, provided that they do not relate to prior authorisation from the NBB/ECB. As, in principle, the NBB/ECB will not be carrying out its own assessment of the suitability of the person in question, institutions do not always have to inform the supervisory authority by using the forms appended to this handbook. For further guidance, reference is also made to the provisions on the assessment of the suitability of key function holders as laid down in Guidelines EBA/GL/2017/12.

[1] A mixed composition (directors/non-directors) is allowed for certain types of holding company, see article 212 of the Banking law.

[2] The so‑called “DC -1 level”.

2.2.1 Cross-border context

For the application of this chapter within a cross-border context, we need to make a distinction between the following two situations:

  • EEA institutions which operate in Belgium via a branch or pursuant to the freedom to provide services (“inward passporting”): this chapter does NOT apply.
  • Consequently, persons who hold or wish to hold any of the above-mentioned positions at institutions which are authorised or registered by the competent supervisory authority of a State of the European Economic Area and which operate in Belgium either through a branch or pursuant to the freedom to provide services do not fall within the scope of this chapter.
  • Belgian institutions which operate abroad through a branch (“outward passporting”) or branches established in Belgium of financial institutions governed by the law of a State that is not a member of the European Economic Area: this chapter DOES apply in this case.
  • Consequently, in-scope persons employed by institutions authorised in Belgium and operating abroad through a branch do fall within the scope of this chapter, as do in-scope persons employed by branches established in Belgium of institutions governed by the law of a non-EEA Member State. For the latter category, in-scope persons are the managers and the compliance officer (Article 335 of the Banking Law). For Belgian institutions operating abroad by way of a branch, they are the senior managers and all local responsible persons of the independent control functions (Article 86 of the Banking Law).

2.2.2 Group context

Pursuant to Article 109(2) and (3) of CRD IV, as transposed in Article 168 of the Banking Law, the consolidating institution shall ensure implementation of a consistent and integrated group policy for assessing the suitability (and compliance herewith) of all subsidiaries included in the prudential consolidation. Effective implementation of these obligations is further clarified in Guidelines EBA/GL/2017/12.

Both in terms of the parent company governed by Belgian law and all regulated Belgian subsidiaries, the persons in question must be fit to hold their positions and must thus meet the fitness and propriety assessment standards. If a person holds a position both with the parent company and the subsidiary which requires a suitability assessment, two separate assessments need to be carried out.