REGULATION ON
THE COLLECTION OF SAVINGS
AND BANKING ACTIVITY
UPDATE NO. II
year 2011 / number 02
Consolidated text as of 30/06/2012 – Update I
Central Bank of the Republic of San Marino
Regulation No. 2011-02: Update II of Regulation No. 2007-07 (Update I)
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Article 1 – Amendments to Regulation No. 2007-07 regarding the collection of savings and banking activity.
- Article I.I.2 is replaced as follows:
“Article I.I.2 - Definitions
- For the purposes of this Regulation, the expressions used shall be understood with the following meaning:
- “currency authorization”: authorization issued by the Central Bank pursuant to Article 2, third paragraph, of the Currency Law;
- “Chief Executive Officer”: member of the Board of Directors, however named, endowed with delegated powers pursuant to Article 49, fourth paragraph, of the Companies Law;
- “advertising announcement”: message, disseminated in any way, aimed at promoting the sale of products and the provision of services;
- “internal audit activity”: third-level control activity conducted continuously, periodically, or by exception, by organizational structures different and independent from those productive, also through on-site inspections, aimed at identifying abnormal trends, violations of procedures and regulations, as well as evaluating the completeness, functionality, and adequacy of the internal control system and bringing to the attention of the Board of Directors and the head of the executive structure possible improvements to risk management policies, measurement tools, and procedures;
- “company”: a set of assets organized for the exercise of business;
- “bank authorized for currency activity”: bank that can conduct activities with foreign countries related to cross-border payments;
- “Central Bank”: the Central Bank of the Republic of San Marino;
- “existing banks”: entities authorized to exercise banking activity pursuant to Article 156, paragraph 1 of the LISF;
- “head of the executive structure”: General Manager or, in the absence thereof, an administrator with delegation to perform the functions of General Manager;
- “parent company”: bank or holding company meeting the requirements of Article 54 of the LISF and located within the group architecture in such a position that the sum of its own balance sheet assets and those of the companies and entities it controls realizes the condition required for the existence of a banking group;
- “foreign parent company”: foreign bank or other foreign financial enterprise that, based on the legislation in force in its country of establishment, appears at the head of a group also composed of San Marinese banks;
- “customer”: any subject, natural or legal person, who has an existing contractual relationship or intends to enter into relationships with the bank regarding banking products and/or services;
- “components”: companies or entities, other than the parent company, forming part of the group;
- “derivative contracts”: financial contracts whose value depends on the value of one or more underlying assets or indices;
- “long-term contracts”: contracts whose direct legal effects extend over time, with or without predetermined deadlines (for example: bank current account, savings deposit, credit opening, loan, subscription of deposit certificates and bonds issued by the bank, repurchase agreements with obligation to repurchase);
Central Bank of the Republic of San Marino
Regulation No. 2011-02: Update II of Regulation No. 2007-07 (Update I)
- “risk controls”: second-level controls aimed at contributing to the definition of risk measurement methodologies, verifying compliance with limits assigned to various operational structures, and controlling the consistency of the operations of individual productive areas with the risk-return objectives assigned;
- “compliance controls”: second-level controls aimed at verifying the conformity of the activity carried out with every provision of law, statute, supervision, and self-regulation applicable, also with reference to the fight against financial crime regarding money laundering, usury, terrorism financing, and other financial crimes;
- “first-level or line controls”: checks carried out both by those who carry out a specific activity and by those who have supervisory responsibility, generally within the same organizational structure; they are carried out by the same productive organizational structures or incorporated into automated procedures, or executed within the back-office activity;
- “second-level controls”: controls entrusted to organizational structures different from those operational;
- “accounting control”: function described by Article 68 of the Companies Law and regulated by Article 34 of the LISF;
- “qualified counterparties”: subjects belonging to one of the following categories:
1 authorized subjects;
2 foreign subjects that carry out, under the legislation in force in their State of origin, the activities carried out by the subjects referred to in the previous point 1;
3 companies issuing financial instruments quoted on regulated markets;
4 companies that meet at least two of the following requirements:
I) total balance sheet assets exceeding five million euros;
II) annual turnover exceeding ten million euros;
III) net equity exceeding half a million euros;
5 States, central banks, international and supranational institutions.
- “doubtful credits”: the set of non-performing loans, impaired loans, overdue and/or overdrawn credits, and unsecured credits towards risky countries, as defined below;
- “impaired loans”: the entire exposure of on-balance sheet and off-balance sheet credits towards subjects in a temporary situation of objective difficulty, which can, predictably, be removed in a reasonable period of time. The existence of any guarantees (real or personal) securing the exposures is disregarded. The entire exposure includes capitalized interest and other pending items for which definitive attribution is certain, even if temporarily posted in transitional accounts. Also subject to detection, unless the prerequisites for their classification as non-performing loans exist:
- exposures towards issuers who have not punctually honored payment obligations (principal or interest) regarding debt financial instruments;
Central Bank of the Republic of San Marino
Regulation No. 2011-02: Update II of Regulation No. 2007-07 (Update I)
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- the value of the residual debt (posted in fixed assets) for active financial leasing contracts increased by unpaid installments for expired rents and related default interest;
- loans to natural persons, even fully secured by mortgage guarantee, if recovery proceedings for the credit have been initiated;
- exposures, not classified as non-performing, which include financing for which installments have expired and not been paid, even partially:
a) 3 semi-annual installments or 5 quarterly installments or 7 monthly installments for financing with an original duration exceeding 36 months;
b) 2 semi-annual installments or 3 quarterly installments or 5 monthly installments for financing with an original duration equal to or less than 36 months;
c) 1 annual installment expired for at least 6 months.
- “non-performing loans”: the entire exposure of on-balance sheet and off-balance sheet credits towards subjects in a state of insolvency, even if not judicially established, or in substantially equivalent situations, independent of the loss provisions formulated by the bank as well as any restructuring of the aforementioned credits. The existence of any guarantees (real or personal) securing the exposures is disregarded. Exposures towards public entities in a state of financial distress are included. The entire exposure includes capitalized interest and expenses incurred for recovery activities;
- “unsecured credits towards risky countries”: the entire unsecured exposure of on-balance sheet and off-balance sheet credits towards subjects belonging to Zone B countries;
- “overdue and/or overdrawn credits”: the entire exposure towards customers holding individual on-balance sheet and off-balance sheet credits, other than those non-performing or impaired, which have been overdue or overdrawn continuously for more than 90 days, if such credits represent more than 20% of the total exposure, understood as the sum of the utilized on-balance sheet amount and signature, debt securities subscribed by the bank, as well as creditor positions on derivatives.
For overdue credits, the following formula applies:
(overdue debts over 90 days - default interest) / total exposure
In particular, for the detection as “overdue” of exposures with installment repayment, the unpaid installment with the greatest delay must be considered.
For overdrawn credits, the following formula applies:
Summation [(utilized - default interest) - (approved operational limit) if > 0 ] / total exposure.
Compensations between overdue positions and overdrafts with any available margins on other credit lines granted to the same debtor are not permitted.
In the case of overdrafts occurring after the granting of extra credit, the calculation of the days of overdraft runs from the date on which the extra credit was formally granted.
If the relationships outlined above exceed 20 percent of the total exposure, the entire exposure is classified as overdue and/or overdrawn credit;
- “sanctions decree”: Decree 30 May 2006 n.76 and subsequent modifications and integrations;
Central Bank of the Republic of San Marino
Regulation No. 2011-02: Update II of Regulation No. 2007-07 (Update I)
- “bank deposit”: contract by which the customer transfers ownership of a sum of money to the bank with the obligation of restitution in the same currency, at term or at the customer’s request (so-called “demand deposits”);
- “identification document”: document, containing the photograph and indication of all personal details of a natural person and issued by a national or foreign public authority;
- “fiscal year”: calendar year;
- “company executives”: natural persons holding the offices of director, auditor, or general manager;
- “indirect exposure”: exposures assumed through controlled financial enterprises;
- “medium-long term financing”: credits with a residual duration of not less than 18 months;
- “short-term financing”: credits with an original or residual duration of less than 18 months;
- “personal details”:
a) first and last name, place and date of birth, address of residence, and nationality of the natural person;
b) name with legal form, address of registered office and administrative office, and identification code attributed by the legal system of the country of origin, for subjects other than natural persons;
- “large risks”: risk positions of a bank towards a counterparty or group of connected counterparties when the total exposure (on-balance sheet and signature; direct and indirect) is greater than 10% of the supervisory capital;
- “banking group”: group or conglomerate, pursuant to Articles 53 and 60 of the LISF, whose asset equity is represented, to a non-lower extent than 50% of the total, by the balance sheet assets of banks;
- “group of connected customers or connected counterparties”: two or more subjects that constitute a unitary set from a risk perspective because:
1 one of them has control power over the other or others (“legal” connection);
2 there are links between the considered subjects such that, with all probability, if one of them were in financial difficulty, the other, or all others, might encounter difficulties in repaying debts (“economic” connection). As an example of such interconnection, the bank may take into consideration the following elements:
I) common ownership;
II) same administrators or managers;
III) guarantee relationships;
IV) direct productive and/or commercial interdependence that cannot be replaced in the short term;
V) common controlling subjects;
- “IAS”: international accounting standards adopted from time to time by the body named International Accounting Standards Board (IASB), headquartered in London;
- “financial enterprises”: San Marinese or foreign subjects that carry out, in an entrepreneurial form, activities included in the list of Annex 1 of the LISF, or activities equivalent to them, and subject to supervision;
Central Bank of the Republic of San Marino
Regulation No. 2011-02: Update II of Regulation No. 2007-07 (Update I)
- “non-financial enterprise”: San Marinese or foreign enterprise not falling within the definition of financial enterprises;
- “instrumental company”: company that carries out one or more non-financial activities, instrumental to those exercised by the commissioning bank and exclusively in favor of the same;
- “independent intermediary”: authorized subject, or financial promoter, or insurance or reinsurance intermediary pursuant to the LISF, operating in the Republic of San Marino on behalf of foreign banks authorized to provide services without a branch, provided it is in independent form; the intermediary is instead qualified as a branch where the following conditions are realized jointly, none excluded:
1 operates exclusively for a single upstream bank;
2 has the power to negotiate business with third parties;
3 can bind the upstream bank;
4 acts continuously;
- “invitation to conclude”: proposal of the bank susceptible of pure and simple acceptance as it contains all conditions of the contract, as an expression of a univocal will, which manifests a decision and not a mere availability or hope;
- “ius variandi”: right of the bank to unilaterally modify the clauses of the contract;
- “Companies Law”: Law 23 February 2006, n. 47 and subsequent modifications and integrations;
- “Currency Law”: Law 25 April 1996, n. 41 and subsequent modifications and integrations;