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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 subject to a limited number of French legislation and related general regulations (primarily from 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 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 the Monetary 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). Both of these regulators produce and annual report setting out the main regulatory policies and guidelines for the implementation of the regulations.
Primary and secondary legislation
Summarise the primary statutes and regulations that govern the banking industry.
The primary statutes and regulations framework that governs the Monegasque banking industry is rather complex because they come from the following differing sources:
- European Union rules: Monaco and the European Union 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 establishes a list of directives and EU regulations in Appendix B for which Monaco is compelled to take equivalent measures in effect (for instance, the Fourth EU Directive relating to anti-money laundering of 20 May 2015). These two appendixes have been amended by Ordinance No. 7.114, dated 14 September 2018. Thus, new EU Directives and Regulations have been added to these appendices, notably EU Directive 2015/2366/EU, dated 25 November 2015 (DSP 2);
- 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 an exchange of letters have amended and defined the practical details of such an application - the most recent was signed in 2010. Briefly, under the exchange of letters, the general French banking regulations are applicable to Monegasque banks regards the internal organisation of the bank. Therefore, French banking law partially governs Monegasque banking activity;
- Monegasque legislation: an ordinance on the banking activity, dated 4 August 1899, requires authorisation by the Monegasque government for the performance of banking activity in the principality. Local law also provides some rules governing the relationship between a Monegasque bank and its clients (mainly governed by the Civil Code and Commercial Code provisions). Moreover, Monegasque law governs any financial activity 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 and 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 requirements.
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) since 25 June 1999. The FGDR is a private-law legal entity that aims to indemnify 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. The FGDR might intervene as soon as 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 transactions 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 conflict its banking activities or harm the reputation of the bank. Furthermore, the income 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 challenge facing the banking industry in Monaco is the implementation of the new Monegasque AML legislation, which was adopted in 2018. In substantive terms, Monegasque anti-money laundering measures have now been strengthened: the scope of the law has been widened, identification and vigilance obligations have been tightened, and there are now a number of new organisational requirements to be implemented by entities such as credit institutions.
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 unaccustomed 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 within Monaco (the report is communicated quarterly for banks monitoring Monegasque funds). This report is examined by the CCAF, which can request written explanations or conduct deeper investigations if need be. Authorised Monegasque companies are subject to periodic control of the CCAF, which are 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 on-site and off-site document inspections. To enable off-site 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 on-site and off-site controls. The purpose of these controls is to ensure the follow-up of 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 controls 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, as the case may be, in criminal prosecutions.
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 EU directives and regulations 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 a resolution procedure against a credit institution based in Monaco. As 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.
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 impact on financial stability; and
- above all, safeguard state resources and clients’ assets.
The resolution’s measures must be taken in a way that affect shareholders’ rights first, 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, resolution measures have never been taken 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 to 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?
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 the ACPR’s disciplinary powers. As such, and in accordance with article L 612-39, severe penalties can be taken against the 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 described in a report dated 20 June 2017 its expectations regarding this recovery plan. 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 its swift implementation. In addition, several crisis scenarios shall be contemplated in the plan.
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 No. 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 the Capital Requirements Directive IV (Directive 2013/36/EU) (CRD IV), 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 institutions 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 requires 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 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 subject to annual stress tests to examine their capital adequacy’s strength.
Specifically, for capital adequacy requirements, the ACPR is vested with several powers aimed at adopting preventative measures to restore 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 benefit from 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 for capital adequacy requirements. However, these capital requirements are not applicable to Monegasque banks (because they are subject to stronger capital requirements adequacy under the ACPR’s supervision).
What happens in the event that a bank becomes undercapitalised?
Monegasque banks that become undercapitalised will 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 insure the adequacy of the organisation to its activities.
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 policing 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 defaults, 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 provides for specific rules to coordinate any resolution procedure with the ordinary rules applicable to insolvency proceeding as follows:
- 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 on the reorganisation and winding up of credit institutions is applicable under Monegasque law through French transposition acts. The Directive 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 the ACPR’s request in order to compensate depositors subject to the conditions 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 progressing 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 with the ACPR’s power of veto over 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 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 bureaucracy in selling its shares. Indeed, the selling process requires prior notice of the ACPR that can veto such a sale 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 of the process of bank supervision, 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 Monegasque laws, the main responsibilities of an entity or an individual remain lie in 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?
According to Monegasque law, there is no definition of ‘control’. In our opinion, this concept shall be understood as any person who holds 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. In accordance with article L 511-12-1 of the MFC, if there is 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, and under certain circumstances, the ACPR benefits from the right to veto 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?
Monegasque regulatory authorities are receptive to foreign acquirers. The acquisitions process for a foreign investor is similar to the one applicable to Monegasque 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 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;
- information regarding the acquirer;
- the shareholders’ agreement; and
- 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 take at least six months from the date of application submission. Foreign acquirers should anticipate a similar time frame.
Update and trends
Update and trends
In 2018, the Monegasque parliament adopted a new bill amending AML obligations for entities such as credit institutions. This bill was enacted by Sovereign Order No. 7065, dated 3 August 2018. The new AML legal framework strengthens the previous obligations (identification process, risk assessment, reporting to the SICCFIN, etc.) and imposes new internal requirements (eg, implementation of a whistleblowing system). The powers of the Monegasque AML regulator (SICCFIN) have also been significantly increased where it is expected to start controlling the proper application of these requirements during the course of this year.