(1)

Decision (EU) 2017/935 of the European Central Bank (ECB/2016/42) (3) specifies the criteria for the delegation of decision-making powers to the heads of work units of the European Central Bank (ECB) for the adoption of fit and proper decisions and the assessment of fit and proper requirements. The experience gained in the application of that Decision has shown that certain clarifications and technical amendments are necessary, in particular for reasons of consistency and certainty in the application of those criteria.

(2)

The procedure for delegating decision-making powers should be clarified in relation to fit and proper decisions where heads of work units have concerns with regard to the interconnectedness of such a decision with one or more other decisions requiring supervisory approval. This may be the case where the outcome of the relevant supervisory assessment directly impacts one or more of those other decisions and therefore the decisions should be considered simultaneously by the same decision-maker in order to prevent conflicting outcomes. Nevertheless, this clarification of the procedure for delegating decision-making powers should not interfere with the possibility of splitting a decision on the appointment of several members of a management body where for one or more appointees the delegation criteria are not met.

(3)

On 24 June 2020, the Governing Council decided to establish close cooperation between the ECB and the Republic of Bulgaria (4), and between the ECB and the Republic of Croatia (5). Article 7(1) of Regulation (EU) No 1024/2013 provides that to carry out certain tasks in relation to credit institutions established in a Member State whose currency is not the euro where close cooperation has been established in accordance with that Article, the ECB may address instructions to the national competent authority of the relevant Member State. It is therefore appropriate to include such instructions among the acts that the ECB may adopt by means of delegation to heads of work units pursuant to the relevant provisions of Decision (EU) 2017/935 (ECB/2016/42).

(4)

A fit and proper decision in a case where the complexity of the assessment so requires is not adopted by means of a delegated decision, but is adopted instead under the non-objection procedure. It should be clarified that, in addition there may be cases in which the sensitivity of the matter – in terms of impact on the ECB’s reputation and/or on the functioning of the Single Supervisory Mechanism – may require that a fit and proper decision should be adopted under the non-objection procedure and not by means of a delegated decision.

(5)

The scope of fit and proper decisions that are delegated should be extended to include (a) decisions authorising additional non-executive directorships within the meaning of Article 91(6) of Directive 2013/36/EU of the European Parliament and of the Council (6); (b) decisions as to whether branch managers – as defined in accordance with applicable law – fulfil the fit and proper requirements; and (c) decisions as to whether persons to whom the management body delegates, partially or fully, the executive function – whether or not the persons have been proposed or appointed as formal members of the institution’s governing body or bodies under national law – fulfil the fit and proper requirements. This extension of the scope of fit and proper decisions that are delegated is appropriate, as the underlying assessments of such decisions are similar in nature to assessments undertaken in connection with standard fit and proper decisions.

(6)

Further, the scope of fit and proper decisions that are delegated should be extended to include decisions concerning reappointments where the ECB has not objected to the previous appointment and no material new facts have occurred since the last assessment that affect one or more of the assessment criteria.

(7)

To simplify the criteria applied to determine whether a fit and proper decision is delegated and to bring the present delegation scheme in line with other delegation schemes, a definition of ‘negative decision’ should be added. For the same reason of alignment with other delegation schemes, the requirement – applicable in the case a fit and proper decision to be adopted by means of a delegated decision – that the relevant national competent authority submits to the ECB a draft delegated decision 20 working days prior to the expiry of the deadline for the adoption of the fit and proper decision under applicable law, should be removed.

(8)

In cases where a fact or facts related to criminal or administrative proceedings is or are submitted to the ECB in connection with a fit and proper decision, the criterion applied to determine whether that decision is adopted by means of a delegated decision should be clarified to focus on proceedings that have an impact on the suitability of the appointee.

(9)

Therefore, Decision (EU) 2017/935 (ECB/2016/42) should be amended accordingly,