Response to consultation on Joint ESMA EBA Guidelines on suitability of management body
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the management body in its supervisory function and its committees. Within public institutions
like Savings Banks representatives of the municipal trustees are by law members of the management
body in its supervisory function. This also leads to the institutions have no influence to the
adequate knowledge, skills, experience and diversity.
management body can create conflict of interests. This leaves out of consideration that within
public institutions like Savings Banks the management body in its supervisory function is
democratically legitimized.
Savings Banks in Germany do not have members; instead they operate under “municipal
trusteeship” (Trägerschaft"). The elected mayor of the town, district etc. is by law member of
the management body in its supervisory function. The municipal trustee (town, city, districts or
special-purpose associations) can - mediated through its representatives in the supervisory board
- safeguard that the Savings Bank fulfills its public mandate for the population of the
municipality.
Since the representatives (e.g. mayor) have political influence, it is very important to withdraw
point (f.) or at least to add an exception for representatives of municipal trustees ("Träger"),
as these persons are not shareholder representatives."
159) is not compatible with the principles of public sector banks in Germany. In Savings Banks a
number of members of the management body in its supervisory function are elected by the local
parliament and the head of the municipality’s administration (e.g. the mayor) usually – by act of
law – chairs the management body in its supervisory function. A previous assessment therefore is
not possible in these cases.
In addition, a few months long lasting assessment before the appointment makes the membership
less attractive for potential applicants. An ex –ante assessment with a duration of 4 months
would prevent that members of the management body change or apply for positions in management
bodies of other institutions. That is counterproductive.
We prefer an open handling and ask for clarification, that an assessment after appointment is
sufficient.
Question 1: Are there any conflicts between the responsibilities assigned by national company law to a specific function of the management body and the responsibilities assigned by the Guidelines to either the management or supervisory function?
It must be considered, that in some cases the institutions have no influence on the occupation ofthe management body in its supervisory function and its committees. Within public institutions
like Savings Banks representatives of the municipal trustees are by law members of the management
body in its supervisory function. This also leads to the institutions have no influence to the
adequate knowledge, skills, experience and diversity.
Question 7: Are the guidelines within Title II regarding the notions of suitability appropriate and sufficiently clear?
The draft says in Article 77 lit. f) political influence of the members of an institutionsmanagement body can create conflict of interests. This leaves out of consideration that within
public institutions like Savings Banks the management body in its supervisory function is
democratically legitimized.
Savings Banks in Germany do not have members; instead they operate under “municipal
trusteeship” (Trägerschaft"). The elected mayor of the town, district etc. is by law member of
the management body in its supervisory function. The municipal trustee (town, city, districts or
special-purpose associations) can - mediated through its representatives in the supervisory board
- safeguard that the Savings Bank fulfills its public mandate for the population of the
municipality.
Since the representatives (e.g. mayor) have political influence, it is very important to withdraw
point (f.) or at least to add an exception for representatives of municipal trustees ("Träger"),
as these persons are not shareholder representatives."
Question 12: Are the guidelines with regard to the timing (ex-ante) of the competent authority’s assessment process appropriate and sufficiently clear?
An assessment procedure by competent authorities before the appointment of the member (Article159) is not compatible with the principles of public sector banks in Germany. In Savings Banks a
number of members of the management body in its supervisory function are elected by the local
parliament and the head of the municipality’s administration (e.g. the mayor) usually – by act of
law – chairs the management body in its supervisory function. A previous assessment therefore is
not possible in these cases.
In addition, a few months long lasting assessment before the appointment makes the membership
less attractive for potential applicants. An ex –ante assessment with a duration of 4 months
would prevent that members of the management body change or apply for positions in management
bodies of other institutions. That is counterproductive.
We prefer an open handling and ask for clarification, that an assessment after appointment is
sufficient.