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What are the principal governmental and regulatory policies that govern the banking sector?
The Monegasque banking sector is governed by three main sources of policies.
According to an agreement in the form of an exchange of letters between France and Monaco dated 20 October 2010, Monegasque credit institutions are submitted to a limited number of French legislations and related general regulations (provided primarily in the French Monetary and Finance Code) (MFC). Consequently, Monegasque credit institutions shall be authorised by the French banking regulator before carrying out a banking activity within the jurisdiction of Monaco.
In addition, Monaco and the European Union have entered into a Monetary Agreement in 2011 whereby some EU policies and regulations are applicable to Monegasque banks when falling within the scope of application defined in article 11 of this Agreement (see question 2).
Furthermore, several local rules regulate the banking sector. Each Monegasque bank must comply with the Monegasque anti-money laundering (AML) regulation (Law No. 1.362 of 3 August 2009 (as amended)) and the Monegasque regulations relating to the performance of financial activities in Monaco (Law No. 1.338 of 7 September 2007 (as amended)). The proper performance of these regulations is respectively overseen by the Financial Circuits Information and Control Department (SICCFIN) (for the AML requirement) and the Monegasque Supervisory Committee for Financial Activities (CCAF) (for the financial activities). These two regulators produced each year an annual report describing the main regulatory policies and guidelines for the implementation of these regulations.
Primary and secondary legislation
Summarise the primary statutes and regulations that govern the banking industry.
The primary statutes and regulations framework that govern the banking industry in Monaco is rather complex since they come from different sources:
- European Union rules: the Monaco and the European Union have concluded on 29 November 2011 a revised Monetary Agreement (the former one had been concluded in 2001). This agreement is composed of a core agreement and two appendixes (Appendix A and Appendix B). Under this agreement, Monaco must apply the measures taken by France to transpose the directives listed in Appendix A of the Monetary Agreement when relating to the activity, the control of credit institutions or the prevention of systemic risk in payment and settlement systems. The Monetary Agreement also established a list of directives and EU regulations in Appendix B for which Monaco is compelled to take equivalent effects measures (for instance, the Fourth EU Directive relating to anti money laundering of 20 May 2015);
- French legislation: the treaty between Monaco and France on exchange control dated 14 April 1945 established the principle of the application in Monaco of French banking regulations. Subsequent agreements in the form of exchange of letters have amended and defined the practical details of such application. The latest one was signed in 2010. In a nutshell, under these exchange of letters, the general French banking regulations are applicable to Monegasque banks when regarding the internal organisation of the bank. Therefore, French banking law is partially governing the Monegasque banks’ activities;
- Monegasque legislation: the ordinance on the banking activity dated 4 August 1899 requires an authorisation of the Monegasque government for the performance of banking activity in Monaco. Local law also provides some rules governing the relation between a Monegasque bank and its clients (mainly governed by the Civil Code and Commercial Code provisions). Moreover, Monegasque laws govern any financial activities carried out by a Monegasque bank. These financial activities are listed in article 1 of Law No. 1.338 dated 7 September 2007 and encompass: discretionary asset management, portfolios management, management of local or foreign funds and assistance and advice in relation with the aforementioned activities. Finally, Monaco provides its own local AML regulation (Law No. 1.362 of 3 August 2009), which is substantially similar to EU AML requirements.
Which regulatory authorities are primarily responsible for overseeing banks?
Credit institutions in Monaco are licensed by the French Prudential Control and Resolution Authority (ACPR) for the banking services they render and by the CCAF regarding their financial activities including discretionary asset management, management of foreign and Monegasque funds, reception and transmission of orders, advice and assistance in these matters.
Monegasque banks are also supervised and controlled by two local entities: SICCFIN, for the compliance by the banks to their AML obligations and the Supervisory Commission on Personal Data for data protection obligations.
Government deposit insurance
Describe the extent to which deposits are insured by the government. Describe the extent to which the government has taken an ownership interest in the banking sector and intends to maintain, increase or decrease that interest.
The Monegasque government has no duty to insure deposits and has no ownership in the banking sector.
Monegasque credit institutions are affiliated to the French Deposit Guarantee and Resolution Fund (FGDR) created by the French law dated 25 June 1999. The FGDR is a private-law legal entity that aims at indemnifying depositors and investors in the event of an unavailability of their deposits or other repayable funds. The FGDR’s intervention is triggered when a bank is no longer able, immediately or in the near future, to return the funds it has received from the public. Besides, the FGDR might intervene as soon as it is expected that the repayable funds held by a bank may not be available when due.
The FGDR compensates depositors under the conditions set out by the regulations (eg, some depositors cannot benefit from this guarantee) and up to a maximum limit of €100,000 per depositor. Securities are also guaranteed under several conditions set out by the regulations and up to a maximum limit of €70,000 per investor.
Transactions between affiliates
Which legal and regulatory limitations apply to transactions between a bank and its affiliates? What constitutes an ‘affiliate’ for this purpose? Briefly describe the range of permissible and prohibited activities for financial institutions and whether there have been any changes to how those activities are classified.
Under Monegasque law, there are no specific limitations that apply to transaction between a bank and its affiliates other than the general corporate law rules applicable to Monegasque corporations.
According to the Comité de la Réglementation Regulation No. 96-21, dated 24 November 1986, banks are authorised to carry out ancillary activities to the banking activity. These ancillary activities are described in article 2 of this regulation and encompass, activities of representation, commissioning and brokerage for subsidiaries and any activities of real estate management or service providing (if linked to its banking activities). However, the performance of these activities shall not be in contradiction with its banking activities or harm the reputation of the bank. Furthermore, their incomes generated from these ancillary activities cannot exceed 10 per cent of the net banking income of the bank.
What are the principal regulatory challenges facing the banking industry?
The principal regulatory challenges facing the banking industry in Monaco are the implementation of recovery plans required by the article 613-35-IV to VII MFC, strengthening of cybersecurity and the adoption of a new anti-money laundering regulation. In that regard, a proposed bill to amend the existing AML requirements is currently under discussion in the Monegasque parliament. The coming amending AML regulation would be based on the Fourth EU Directive, dated 20 May 2015, on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing. Indeed, this Directive is listed in Appendix B of the Monetary Agreement and as such, the Monegasque government is constrained to adopt equivalent effect measures (see question 2). Monegasque banks will have to implement in the near future the new Monegasque AML regulation, which is due to enter into force during 2018.
Are banks subject to consumer protection rules?
There are no specific consumer protection rules provided by Monegasque body of laws other than the general rules provided by the Monegasque Civil Code.
Nevertheless, one should note that Monegasque case law imposes on credit institutions a stronger obligation of information and a duty of advice in the presence of an unadvised customer.
In what ways do you anticipate the legal and regulatory policy changing over the next few years?
Since 18 March 2015, Monaco and the European Union have entered into negotiation to implement an association agreement to further integrate Monaco into the European Union market. We consider that the conclusion of this agreement will have important consequences on the domestic legal framework.
Extent of oversight
How are banks supervised by their regulatory authorities? How often do these examinations occur and how extensive are they?
Monegasque banks are supervised and controlled by the ACPR for their banking activities and by the CCAF for their financial activities.
The CCAF is empowered to supervise and control on an ongoing basis Monegasque banks carrying out financial activities. As such, the CCAF operates a permanent control based on the annual report communicated by the banks on their financial activities in Monaco (this report is communicated quarterly for banks monitoring Monegasque funds). These reports are examined by the CCAF and the latter can request written explanations or conduct deeper investigations. Besides, authorised Monegasque companies are subject to periodic control of the CCAF, which is likely to take place every three to five years. The CCAF is also vested with a general power to obtain the communication of any relevant documents, to summon any directors of the banks and to get access to any bank’s premises to investigate.
The ACPR has responsibility for supervising the banks that it has authorised to conduct business in Monaco. Its mission includes the supervision of the financial situation, the operational arrangements of the banks and their solvency and liquidity. The powers of the ACPR relating to the supervision of the rules protecting the clients are not applicable to Monegasque banks. Monegasque banks are subject to onsite and offsite document inspections. To enable offsite document inspections, Monegasque banks are also compelled to transmit information and documents to the ACPR on a periodic basis. According to the exchange of letters dated 20 October 2010 the conclusions of these inspections are disclosed by the ACPR to the Monegasque authorities.
In addition, the SICCFIN supervises the proper performance of AML obligations by, among other entities, Monegasque banks. As such, the SICCFIN can carry out onsite and offsite controls. The purpose of these controls is to ensure the follow up and the proper implementation of AML requirements by Monegasque banks.
How do the regulatory authorities enforce banking laws and regulations?
The enforcement of French banking laws and regulations applicable to Monegasque banks under the exchange of letters dated 20 October 2010 is ensured by the powers of sanction of the ACPR. Indeed, the latter may impose an injunction in the event a Monegasque bank does not comply with its obligations to notice, to declare or to transmit information and documents (article 612-25 of the MFC). The ACPR can also resort to administrative police measures provided by article L 612-30 and following of the MFC. For instance, under article L 612-31 of the MFC, the ACPR may order any Monegasque banks to adopt measures to achieve compliance with its obligations. Ultimately, the ACPR may contemplate to initiate disciplinary proceedings on the basis of its general power of supervision or the report following an on-site document inspection. The list of sanctions that can be taken against a credit institution is set out in article L 612-39 of the MFC. However, under article 2 of the exchange of letters dated 20 October 2010, the ACPR has no power to execute such sanctions. The enforceability of ACPR’s decisions is solely ensured by the Monegasque government.
The CCAF is also vested with a range of tools to ensure that the obligations relating to the performance of financial activities in Monaco are enforced. These sanctions are provided by Law No. 1.338. dated 7 September 2007, and can be:
- a reprimand or a warning;
- a temporary suspension of the approval; or
- a withdrawal of the approval.
Besides, in case of emergency, a temporary and motivated suspension of the approval for a maximum of three months can be decided by the Commission in case of non-compliance with one or several obligations set out by Law No. 1.338. The administrative sanctions decided by the Commission do not exclude possible additional criminal sanctions by the Monegasque criminal jurisdictions.
The SICCFIN contols the AML compliance of Monegasque banks. To enable the enforcement of the provisions of Law No. 1.362 on AML requirements, the SICCFIN regularly controls Monegasque banks’ AML obligations. In case of a violation, the SICCFIN is entitled to deliver a warning or, if serious misconduct is detected, to refer to the Minister of State of Monaco. This referral can lead to several penalties decided by the Minister of State (eg, warning, financial penalties or withdrawal of its authorisation to carry a commercial activity in Monaco). Such violations can also result in criminal prosecution.
What are the most common enforcement issues and how have they been addressed by the regulators and the banks?
The most common issue for banks in Monaco remains the applicability or not of some EU directives and regulations. The legal architecture of banking laws in Monaco can convey Monegasque banks with uncertainty on the application and enforceability of some EU regulations and directives. While listing in Appendix A of the Monetary Agreement, it appears that some of the EU directive and regulation might not fall within the scope of application of this agreement. As a result, it can be sometimes difficult to consider the applicability of some EU bodies of law in Monaco.
In what circumstances may banks be taken over by the government or regulatory authorities? How frequent is this in practice? How are the interests of the various stakeholders treated?
In accordance with the Bank Recovery and Resolution Directive (2014/59/EU) (BRRD) of 15 May 2014, transposed into French law by the Ordinance of 20 August 2015 and the Decree of 17 September 2015, the ACPR has sole power to launch and supervise the resolution procedure against a credit institution based in Monaco. As EU Regulation (EU) No. 906/2014 is not binding under Monegasque law, the single resolution mechanism does not apply in Monaco.
Alongside the power of the ACPR to require any entity subject to its supervision to submit to its approval a preventive recovery programme (see question 13), the ACPR must establish a preventive resolution plan for credit institutions subject to its supervision. In this regard, the ACPR was committed to drafting a preventive resolution plans for credit institutions under its supervision as a priority in 2017.
Once the ACPR has been seized (either by the Governor of the Banque de France or by the General Directorate of the Treasury or by the European Central Bank or by the directors of the defaulting bank), the Resolution Commission must determine whether the entity, taken individually or within its group, is defaulting and whether there is any perspective of this default being avoided within a reasonable time frame without implementing any resolution measures. If these conditions are fulfilled the Resolution Committee is entitled to take resolution measures that can affect the administration of the bank, the activity and the capital structure of the bank (bridge institution, sale of assets, split of activities, etc) and the shareholders and creditors’ interests (bail-in measures).
When implementing resolution measures, the ACPR shall observe the following guidelines:
- ensure the business operation’s flow;
- avoid any negative impacts on financial stability and;
- above all, safeguard state resources and clients’ assets.
The resolution measures must be taken in a way that first affect the shareholders’ rights and then the creditors’ rights in accordance with the order of priority of their receivables. The core objective of the implementation of resolution measures is to protect customers’ deposits and, if need be, the FGDR would intervene to indemnify the depositors in the conditions set out in question 4. To date, the implementation of resolution measures has never been adopted for a Monegasque bank.
What is the role of the bank’s management and directors in the case of a bank failure? Must banks have a resolution plan or similar document?
The bank’s management and directors have the obligation to draft a preventive recovery plan, ie, a living will, covering a large range of measures enabling the bank to face any significant deterioration of its financial situation. The content of the preventive recovery plan is detailed in the regulation dated 11 September 2015. This plan must be updated every year.
As soon as a quick degradation of the financial situation of the bank comes up, some early intervention measures may be taken, among which is the removal of the management and directors. Once a proven or predictable failure has materialised, the management is required to refer to the ACPR that may decide to adopt resolution measures.
By principle, the implementation of resolution measures leads up to the replacement of the management and directors. However, their retention can be decided by the ACPR if it is necessary to achieve the resolution of the failed bank.
Are managers or directors personally liable in the case of a bank failure?
Resolution measures shall be implemented, in spite of the ordinary legal rules, as regard civil, commercial and criminal liability of natural and legal persons.
Moreover, managers or directors of failing banks can be liable under the general Monegasque bankruptcy law, especially in case of:
- a shortfall of assets (unless due activity and diligence is proved by the managers;
- mismanagement; or
- abusive continuation of operation at deficit, which could lead to the default.
In addition, managers and directors of failing banks are subject to ACPR’s disciplinary power. As such, and in accordance with article L 612-39 etc, severe penalties can be taken against managers and directors of bank.
Describe any resolution planning or similar exercises that banks are required to conduct.
Monegasque credit institutions are required to adopt a preventive recovery plan to face any significant deterioration of their financial situation (see question 13). The ACPR reiterated its expectations regarding this recovery plan in 2017. A large panel of preventive measures has to be taken with a necessary coordination and consistency with the measures taken at the group level. The preventive recovery plan shall also provide for specific procedures enabling a swift implementation of the plan. In addition, several crisis scenarios shall be contemplated in the plan.
The ACPR has raised the preparation of the preventive recovery plan as a priority for Monegasque credit institutions for 2017.
Describe the legal and regulatory capital adequacy requirements for banks. Must banks make contingent capital arrangements?
Concerning initial capital requirements French banking regulations apply to credit institutions based in Monaco. Therefore, the latter must have an initial paid-up capital or an endowment of at least €5 million in accordance with article 1 of CRBF Regulation N. 92-14, dated 23 December 1992.
Furthermore, under the revised Monetary Agreement between the European Union and Monaco, the Capital Requirements Regulation (Regulation (EU) No. 575/2013) (CRR) and CRD IV (Directive 2013/36/EU), except provisions related to freedom of establishment and freedom to provide services, are applicable in Monaco, through French transposition acts.
Therefore, credit institutions are required to comply with management standards to ensure their liquidity and solvency in respect of depositors and, more broadly, third parties, and the balance of their financial structure. To this end, credit institutions must comply with prudential ratios to guarantee their liquidity and solvency, in accordance with article L511-41 of the MFC, which transposes CRD IV. The main requirement is that credit institution need to be permanently solvent. To that extent, a solvency ratio must be observed, which consists of a minimal level of equity capital requirement to cover the total risk exposure faced by credit institutions. Under article L 511-41-1-A of the MFV, credit institutions must always maintain a total capital ratio of 8 per cent, a common equity Tier 1 capital ratio of 4.5 per cent and a Tier 1 capital ratio of 6 per cent. Besides, as contingent capital arrangement, article L 511-41-A of the MFC require credit institutions to be able to justify of a capital conservation buffer of Common Equity Tier 1 capital equal to 2.5 per cent of their total risk exposure calculated in accordance with article 92(3) of the CRR. In addition, depending on the type of credit institutions, four additional capital buffers can be requested:
- the countercyclical buffer;
- the systemic risk buffer;
- the global systemic institutions buffer; and
- the other systemic institutions buffer.
How are the capital adequacy guidelines enforced?
According to article L 511-41-1 B of the MFC, every bank must implement strategies and processes subject to a constant evaluation of the internal control in order to identify, quantify and monitor the risk connected to its banking activities.
Credit institutions based in Monaco are also submitted to ACPR’s supervision and control.
As a consequence, the ACPR receives monthly, quarterly and bi-annually accounting and prudential reports, allowing for the periodic assessment of compliance with capital adequacy guidelines. Every bank must ensure at all times that its assets exceed the minimum share capital amount. To ensure such compliance, credit institutions are annually subject to stress tests to examine their capital adequacy’s strength.
Specifically, for capital adequacy requirements, the ACPR is vested with several powers aiming at adopting preventive measures to restore the compliance with capital requirements (articles L 511-41-3, L 511-41-4 and L 541-41-5 of the MFC). Furthermore, a wide range of administrative remedies or sanctions are granted to the ACPR to ensure that the capital adequacy guidelines are fully observed and that Monegasque banks implement an effective internal control system. Sanctions range from simple warnings to the withdrawal of the banking licence (article L 612-39 of the MFC).
The Monegasque law regulating financial activities also provides capital adequacy requirements. However, these capital requirements are not applicable to Monegasque banks (as they are subject to stronger capital requirements adequacy under ACPR’s supervision).
What happens in the event that a bank becomes undercapitalised?
Monegasque banks that become undercapitalised ought to be treated similarly to French banks.
Therefore, in accordance with article L 511-41-3 of the MFC, the ACPR may require the necessary measures to re-establish its liquidity or its financial situation. These measures can also aim at improving its management methodology and insuring the adequacy of its organisation to the activities performed.
If the measures taken by the bank are considered not sufficient to restore the liquidity or the financial situation, the ACPR is entitled to use its administrative police powers provided by article L 612-30 et seq of the MFC to ensure that the bank overcomes a lack of capitalisation.
What are the legal and regulatory processes in the event that a bank becomes insolvent?
If a bank is defaulting, pursuant to article L 613-48 of the MFC, the resolution procedures should apply (see question 12). More broadly, general Monegasque bankruptcy law may apply. However, article L 613-24 et seq of the MFC provide for specific rules to coordinate any resolution procedure with the ordinary rules applicable to insolvency proceedings:
- a slightly different definition of ‘insolvency’ for credit institutions to enable the implementation of resolution measures before any opening of standard insolvency proceedings;
- the ACPR may appoint a liquidator that can transfer all powers of administration, management and representation of the corporation; and
- some insolvency proceedings cannot be opened against a credit institution without prior notice and approval of the ACPR.
Moreover, on the basis of the revised Monetary Agreement between the European Union and Monaco, Directive 2001/24/EC of 4 April 2001 on the reorganisation and winding-up of credit institutions is applicable under Monegasque law through French transposition acts. The regulation provides, inter alia, for a single bankruptcy proceeding when a bank with branches in several EU member states becomes insolvent.
Finally, the FGDR Funds may intervene upon ACPR’s request in order to compensate depositors subject to the questions set forth in question 4.
Recent and future changes
Have capital adequacy guidelines changed, or are they expected to change in the near future?
It is not expected that capital adequacy guidelines will change in the near future. However, negotiations are currently in progress at EU level to build up a new generation of CRD and regulation. Indeed, on 23 November 2016, the European Commission published a set of legislative proposals, including amendments of the existing CRD and the CRR.
Ownership restrictions and implications
Describe the legal and regulatory limitations regarding the types of entities and individuals that may own a controlling interest in a bank. What constitutes ‘control’ for this purpose?
There is no specific definition of ‘control’ under Monegasque law. Also, there is no formal restriction regarding the types of entities and individuals that can control bank. The only limit remains on ACPR’s veto power for the acquisition and control of a bank. Indeed, in accordance with article L 511-12-1 MFC, any project to acquire at least 10 per cent of a Monegasque bank shall be first notice to the ACPR. The ACPR will then evaluate among other criteria the conditions of the operations and the respectability of the acquirer (article R 511-3-2 of the MFC). If it appears that the intended acquisition would not comply with the conditions set out in the aforementioned articles, the ACPR might decide not to authorise this acquisition. Besides, from a Monegasque perspective, under article 8 of Law No. 1.338, dated 7 September 2007, the modification of the share capital would also require notifying the CCAF that is entitled to request the bank to submit for a new authorisation application.
Are there any restrictions on foreign ownership of banks?
There are no formal restrictions concerning foreign ownership of banks. However, it should be noted that any acquisition of banks shall be de facto authorised by the ACPR (see question 20).
Implications and responsibilities
What are the legal and regulatory implications for entities that control banks?
There are no specific implications for entities that control banks. The only indirect obstacle for the controlling entity is the formalism applicable to the sale of its shares. Indeed, the selling process would require a prior notice of the ACPR that can veto such selling if the conditions set out in article R 511-3-2 of the MFC are not reached. Consequently, the liquidity of the shares would be affected. Moreover, as part as the process of the supervisions of a bank, controlling entities might have to disclose information concerning their activity and governance.
What are the legal and regulatory duties and responsibilities of an entity or individual that controls a bank?
Under Monaco laws, the main responsibilities of an entity or an individual remains on the event of default and the implementation of resolution measures. In such a case, the shareholders might be solicited by the ACPR to financially support the defaulting bank as set out in article L 511-42 of the MFC.
What are the implications for a controlling entity or individual in the event that a bank becomes insolvent?
It should be noted that some resolution measures can affect the rights of the shareholders on the insolvent credit institutions (right of disposal of shares, designation of a mandatory in charge of the management of the bank, forced sale of shares, etc) (see question 23).
Changes in control
Describe the regulatory approvals needed to acquire control of a bank. How is ‘control’ defined for this purpose?
Under Monegasque law, there is no definition of ‘control’. In our opinion, this concept shall be understood as any person who held more than 50 per cent of the bank’s share capital. The acquisition of a Monegasque bank would require several types of approvals. First, the modification of the share capital would require notifying the CCAF, which could ask for a new application to be authorised to carry out financial activities in Monaco. Besides, in accordance with article L 511-12-1 of the MFC, any intention to acquire more than 10 per cent of the equity capital of a Monegasque bank, the ACPR shall be given prior notice. In this regard, the ACPR benefits from the right to veto, under certain circumstances, the acquisition’s project (see question 20).
Are the regulatory authorities receptive to foreign acquirers? How is the regulatory process different for a foreign acquirer?
Regulatory authorities in Monaco are quite receptive to foreign acquirers. The acquisitions process for a foreign investor is similar to the one applicable to national investors.
Factors considered by authorities
What factors are considered by the relevant regulatory authorities in an acquisition of control of a bank?
The ACPR is cautious with the following criteria in case of an acquisition of the control of a bank (credit institution):
- the reputation of the proposed acquirer;
- the reputation and the experience and skills of any person who, as a result of the proposed acquisition, perform the effective direction of the credit institution’s activities;
- the reputation and the experience and skills of key functions such as internal control or compliance of the credit institution;
- the financial soundness of the proposed acquirer;
- the ability of the proposed acquirer to comply with the prudential requirements (eg, if the credit institution’s group has a structure that enables an effective supervision and the exchange of information between the competent authorities); and
- the existence or not of reasonable grounds to suspect the existence of money laundering or terrorist financing in connection with the proposed acquisition.
The CCAF will also be mindful of the acquirer’s background, its reputation, skills and experience of financial activities. However, it should be noted that, for a bank, it is likely that the CCAF will follow the ACPR’s position.
Describe the required filings for an acquisition of control of a bank.
For an acquisition of control of a bank, the proposed acquirer must receive authorisation from the ACPR. The acquirer must fill an application available on the ACPR’s website (www.acpr.banque-france.fr). This application includes, inter alia, information regarding the target, the acquirer, the shareholders agreement, the ability to comply with the prudential requirements, etc.
Timeframe for approval
What is the typical time frame for regulatory approval for both a domestic and a foreign acquirer?
The regulatory approvals from the ACPR and CCAF alike take at least six months from the date of application submission. Foreign acquirers should anticipate a similar time frame.