The Central Bank has introduced new minimum competency standards, which will come into force on 3 January 2018, to take account of recent EU developments in relation to professional knowledge and competency. The new standards comprise a revised Minimum Competency Code 2017 (the New MCC) and new Minimum Competency Regulations (the Central Bank (Supervision and Enforcement) Act 2013 (Section 48(2)) Minimum Competency Regulations 2017) (the New Regulations).
This follows the Central Bank’s November 2016 Consultation Paper on proposed changes to its existing Minimum Competency Code 2011. For further information on that consultation, please read our briefing: Minimum Competency Code to be updated (November 2016).
The Central Bank has also published a set of Questions and Answers in response to points raised in the 26 industry submissions received by it in relation to the consultation.
SCOPE OF NEW FRAMEWORK
The standards set out in the New MCC apply to those who exercise a controlled function on a professional basis, including in relation to the provision of advice or information to consumers on retail financial products, arranging or offering to arrange retail financial products for consumers, providing advice or information to retail clients or elected-up professional clients on MiFID investment products or certain other services or activities listed in MiFID II, or arranging or offering to arrange MiFID investment products for retail clients or elected-up professional clients.
The New MCC does not apply to persons who exercise controlled functions solely in relation to the provision of a retail financial product free of charge in conjunction with another financial product.
NEW EU REQUIREMENTS
As mentioned above, the minimum competency standards have been amended to take account of professional knowledge and competency requirements arising from:
» the European Union (Consumer Mortgage Credit Agreements) Regulations 2016, which transposed the Mortgage Credit Directive into Irish law (the Mortgage Credit Regulations);
» MiFID II (which will come into force in Ireland on 3 January 2018);
» ESMA’s MiFID II Guidelines for the assessment of knowledge and competence (which will apply from 3 January 2018); and
» the Insurance Distribution Directive (due to be transposed into Irish law by 23 February 2018).
The key changes to the existing minimum competency framework are:
» regulated firms must ensure that their staff have obtained competence and skills that are appropriate to the function that they carry out through experience or training gained in an employment context, in addition to obtaining a relevant recognised qualification;
» employees of MiFID firms must have a qualification and at least 6 months’ experience, on a full time equivalent basis, relevant to the function to be exercised by 3 January 2018;
» (re)insurers and intermediaries directly involved in (re)insurance distribution whose customers are not consumers are now required to complete 15 hours of CPD each year in accordance with the CPD requirements provided for in the New MCC;
» a Certificate of Experience has been developed for new entrants carrying out MiFID services or activities which can be signed by the regulated firm to show that the minimum experience requirement has been met;
» at least one key staff member with material influence on the final decision regarding the design of a retail financial product must meet a prescribed standard of minimum competency. The question of who has “material influence” is at the discretion of the relevant firm; and
» regulated firms must carry out an annual review of the development and experience needs of their staff.
STRUCTURE OF THE NEW MCC
The New MCC is divided into 3 parts.
Part 1 deals with minimum competency standards in respect of certain controlled functions, mainly in respect of retail financial products and will capture the provision of certain MiFID II services or activities to retail clients and elected-up professional clients. Mortgage credit agreements (within the meaning of the Mortgage Credit Regulations) and structured deposits have now been included as retail financial products.
Part 2 deals with minimum competency standards in respect of certain additional functions which largely relate to non-consumer activities, and will capture the provision of certain MiFID II services or activities to per se professional clients.
Part 3 deals with the recognition of qualifications in relation to retail financial products. No additional qualifications have been recognised.
“ADVICE” AND “INFORMATION”
The definitions of “advice” and “information” have been changed to better align them with MiFID II, ESMA’s MiFID II Guidelines for the assessment of knowledge and competence, the Mortgage Credit Regulations and the Insurance Distribution Directive.
“Advice” is now defined as “the provision of a personal recommendation to a person, whether at the person’s request or at the initiative of the firm, in the course of performing a relevant function.”
“Information” is now defined as “the provision of information to a person, whether at the person’s request or at the initiative of the firm, that may assist the person in the choice of retail financial product, or in the context of the provision of MiFID services or activities…” There are various exceptions from what constitutes “information”, including pointing out where clients can find information, providing information of a general nature, providing a brochure without giving information or providing any follow up investment advice, information provided in newspapers, journals and lectures, information given on television, information provided on an incidental basis and information provided by back-office staff who do not deal directly with clients.
THE NEW REGULATIONS
The New Regulations contain provisions that:
» impose general obligations on regulated firms to ensure compliance with the New MCC, and to ensure appropriate competence and skills;
» require regulated firms that provide services via online platforms to ensure that the product selection process, and the manner in which advice and information is provided, are approved in writing by a person who meets specific standards;
» set out conditions that must be satisfied when a prescribed script function is performed on behalf of a regulated firm;
» require regulated firms to set up and maintain registers of accredited persons;
» impose requirements on regulated firms regarding the supervision of new entrants and require that particular written records are maintained in respect of those new entrants;
» require that firms provide statements of grandfathered status to grandfathered individuals who leave the firm, and keep such records and documents as may be needed to confirm the content of a duplicate of any such statement;
» require that internal annual reviews be carried out to ensure that employees hold the right qualifications, and their development and experience needs;
» set out requirements regarding continuing professional development and related record retention; and
» impose more general record retention requirements.