Regulatory Alerts2018-05-05
Added · Updated
Initial assessment – objection and appeal
De Nederlandsche Bank outlines the procedural steps for candidates and institutions facing a negative fit and proper assessment. If an institution withdraws the application, the process lapses without objection rights; if it proceeds, a provisional negative decision is issued, allowing for a statement of views. A subsequent final negative decision permits the filing of an internal objection, followed by a court appeal and a further appeal to the Trade and Industry Appeals Tribunal.
Factsheet
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Based on our assessment and the interview, we may come to the conclusion that the candidate is unfit for the position or that their propriety is not beyond doubt. If we intend to issue a negative decision, we will inform the candidate in writing of our intention to do so and contact them by telephone to explain our findings and conclusions.
Published: 05 May 2018
We always recommend that the candidate and the institution agree in advance what they plan to do should this situation arise. There are two possible scenarios.
The institution may decide to withdraw the candidate, at which time the application lapses. In that case, we do not issue the provisional decision and consequently there is no option for objection or appeal under the General Administrative Law Act (Algemene wet bestuursrecht – Awb). At the candidate’s request, we can arrange a feedback meeting at which we explain our findings and conclusions.
The institution may decide, in consultation with the candidate, to proceed with the application. We then send both the institution and the candidate a substantiated provisional negative decision, after which they may submit a statement of views.
Statement of views
A statement of views is an oral or written response to a provisional decision. Both the institution and the candidate may submit a statement of views. We consider the arguments put forward in taking our final decision. The final decision is drawn up by the staff members who also carried out the assessment. If our final decision is still negative, the institution and the candidate have the option to file an objection and subsequently lodge an appeal and a further appeal.
Objection
An objection is a confidential non-public internal procedure. The objection is handled by staff members from a different DNB division who are not involved in the decision-making process, taking the requirements of the General Administrative Law Act into account. We will then issue a new decision.
Part of the objection procedure is a hearing session. This hearing session is being chaired by an external chairperson. He or she is responsible for the course of action during this hearing session. He or she monitors the process and makes sure that all relevant facts regarding the objection are being brought to the table.
Appeal and further appeal
If the negative decision is upheld in the objection procedure, the candidate and the institution may lodge an appeal in court. Subsequently it is also possible to lodge a further appeal with the Trade and Industry Appeals Tribunal. In principle, a further appeal is a public procedure, and we recommend that candidates seek legal representation in this procedure.
Fit and proper assessments
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