Instruction No. 74/AMF-UMOA/2023 on Essential Functions and Professional Card Holding at the Central Depository/Settlement Bank

INSTRUCTION NO. 74 /AMF-UMOA/2023

ON ESSENTIAL FUNCTIONS AND THE HOLDING OF PROFESSIONAL CARDS WITHIN THE CENTRAL DEPOSITORY / SETTLEMENT BANK (CD/SB)

The Financial Markets Authority of the West African Monetary Union,

Having regard to the Revised Treaty of the West African Monetary Union (UMOA) of July 12, 2019, which entered into force on October 1, 2022, modifying the name of the Regional Council for Public Savings and Financial Markets (CREPMF) to the Financial Markets Authority of the UMOA (AMF-UMOA);

Having regard to the Convention of July 3, 1996 establishing the Regional Council for Public Savings and Financial Markets, particularly its Annex on the composition, organization, functioning, and powers of the Regional Council for Public Savings and Financial Markets;

Having regard to General Regulation No. 001/97 of November 28, 1997, relating to the organization, functioning, and control of the regional financial market, particularly Articles 10 and 16;

Having regard to Instruction No. 3/97 of November 29, 1997, relating to the approval of the Central Depository / Settlement Bank;

Having regard to Decision No. 004 of April 29, 2021/CM/UMOA appointing the President of the Regional Council for Public Savings and Financial Markets;

Having regard to the deliberations of the AMF-UMOA at its 98th ordinary session held on December 23, 2023, in Cotonou, Republic of Benin;

HEREBY DECIDES:

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Instruction No. 74 /2023/AMF-UMOA

TITLE 1. GENERAL PROVISIONS

Article 01 Definitions
For the purposes of this Instruction, the following terms are defined as:
a) immunities: privileges enjoyed by agents under which they cannot be brought before the courts of the Member States of the UEMOA. b) applicant: the person whose professional card application file is submitted to the AMF-UMOA. c) manager: any person having ultimate first-level control of the activities of a directorate, department, or service, hierarchically and directly attached to the General Management of the Central Structure. d) professional situation: the following administrative positions of an agent at a given time in their career: post held, secondment, availability, admission to retirement, sanction or conviction, temporary or definitive cessation of activity.

Article 02 Purpose and Scope
This Instruction defines the essential functions that must obligatorily appear in the organizational chart of the Central Depository/Settlement Bank (CD/SB) as well as the functions whose exercise requires the holding of professional cards.

TITLE 2. ESSENTIAL FUNCTIONS

Article 03 Essential functions within the CD/SB
3.1 The CD/SB must have at a minimum the following functions:

• surveillance of clearing operations;
• operations management;
• management and security of the information system;
• internal audit;
• compliance;
• risk management.
  3.2 The aforementioned essential functions are independent and incompatible with each other and with other functions. Their exercise is not subject to cumulation. The agents and managers exercising the aforementioned functions are independent. They cannot cumulate their functions with other functions.
  3.3 The managers of the functions mentioned in point 3.1 must have sufficient autonomy as well as the necessary technical and human resources to exercise their functions.
  These resources are adapted to the importance of the CD/SB's activity.

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Instruction No. 74 /2023/AMF-UMOA

Article 04 Description of functions and designation of managers of essential functions
4.1 The CD/SB must carry out a detailed description of the various functions and posts provided for in its organizational chart. This description must in particular specify the skills and qualifications required to occupy them.
4.2 Prior to the designation of the managers referred to in Article 03 above, the CD/SB ensures their honorability, their professional competence, as well as their knowledge of the current legal and regulatory framework.
4.3 The interim of functions subject to the holding of a professional card can only be ensured by a person holding a professional card and not performing incompatible tasks. This interim cannot exceed six (06) months.

Article 05 Immunities of agents
CD/SB Agents do not benefit from any immunity from jurisdiction and execution due to prosecutions or sanctions pronounced by the AMF-UMOA, in the context of their functions. The actions of agents, linked to their functions, are subject to the common law limitation periods. No agreement, no convention contrary to this article can be opposed to the AMF-UMOA.

TITLE 3. HOLDING OF PROFESSIONAL CARDS

Article 06 Persons subject to the holding of professional cards
6.1 By virtue of its prerogatives, the AMF-UMOA is solely competent to define the list of persons subject to obtaining professional cards.
6.2 The holding of professional cards issued by the AMF-UMOA is mandatory for persons working in areas requiring particular attention with regard to the requirements of the profession and corporate governance.
6.3 The functions whose exercise requires the holding of professional cards are the following:

• senior management, in particular the General Director and the Deputy General Director;
• the manager of clearing operations;
• the manager of depository operations;
• agents in contact with issuers;
• agents responsible for the management and security of the information system;
• the manager of information systems;
• the manager of Internal Audit;
• the manager of compliance;
• the manager of risk management.
  6.4 A single person cannot hold more than one professional card.

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Instruction No. 74 /2023/AMF-UMOA

Article 07 Procedures for issuing professional cards
7.1 For the purpose of issuing a professional card, the CD/SB transmits to the AMF-UMOA, within a period of one (01) month from the date of hiring or appointment of the person subject to the requirement, a file containing the following documents:

• an application for the issuance of a professional card specifying the professional situation of the applicant;
• a photocopy of the valid national identity card or passport;
• a Curriculum Vitae signed by the applicant with the mention "certified true";
• a certificate of professional aptitude issued by the General Director or the Chairman of the Board of Directors (when it concerns senior management);
• a certificate or employment reference for each post or reference cited;
• a photocopy of diplomas certified as conforming to the originals;
• a criminal record extract less than three (03) months old from the country of issue of his identity document and an extract issued by the competent authorities of the country of the seat of the Central Structure (if the country of issue is not the country of the seat);
• two recent identical identity photos.
  7.2 The applicant will provide sworn translations of the above-mentioned pieces and documents when they are drawn up in languages other than French.
  7.3 In the context of the issuance of a professional card related to a change of function or the appointment of a senior manager previously holding a professional card, the CD/SB transmits to the AMF-UMOA, within a period of fifteen (15) days, the updated Curriculum Vitae of the applicant and a certificate of professional aptitude issued by the General Director or the Chairman of the Board of Directors when it concerns a senior manager appointed by the Board of Directors.
  7.4 The AMF-UMOA may condition the issuance of a professional card to the success of a professional aptitude test by the applicant.

Article 08 Ethical rules applicable to persons subject to the holding of professional cards
8.1 Persons subject to the holding of professional cards are bound by professional secrecy under the conditions and penalties provided for by the laws and regulations in force.
8.2 These persons may not use the confidential information they hold except for the exercise of the functions they perform within or on behalf of the CD/SB.
8.3 The CD/SB establishes an internal regulations laying down the ethical rules applicable to persons placed under its responsibility and subject to the holding of professional cards.
8.4 This regulation specifies in particular the conditions under which these persons may carry out transactions on financial instruments for their own account.

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Article 09 Obligations of managers subject to the holding of professional cards
9.1 Managers subject to the holding of professional cards prepare an annual activity report on the conditions under which they have exercised their functions. This report is transmitted no later than January 15 of the following year to the Audit Committee of the CD/SB.
9.2 This report must be examined by the Board of Directors of the CD/SB before its transmission to the AMF-UMOA by the Chairman of the Board of Directors no later than March 31 of the following year.
9.3 This activity report includes:

• the description of the organization of the function;
• the inventory of tasks performed for the exercise of the mission;
• the observations that the manager has been led to formulate;
• the measures adopted following these observations.

Article 10 Duration and renewal of professional cards
10.1 In the absence of a change in professional situation, a sanction pronounced by the AMF-UMOA, or any other conviction, the professional cards issued to senior management and agents of the CD/SB have a duration fixed by the AMF-UMOA and are renewed by tacit renewal.
10.2 The AMF-UMOA may condition the renewal of a professional card to the success of a professional aptitude test by the applicant.

Article 11 Change in the situation of professional card holders
The CD/SB must inform the AMF-UMOA of any change occurring in the professional situation of a professional card holder, within a period of fifteen (15) calendar days from the date of occurrence of said change.

Article 12 Conditions for the withdrawal of professional cards
12.1 The AMF-UMOA may withdraw the professional card issued to any person subject to the requirement when it finds that their honorability is tainted or that it identifies significant shortcomings or gaps in the conduct of the missions attached to their function.
12.2 In the event of the withdrawal of the professional card of a manager subject to the requirement, the CD/SB has a period of one (01) month from the hiring or appointment of their replacement to request a professional card for the latter.

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Instruction No. 74 /2023/AMF-UMOA

TITLE 4. TRANSITIONAL AND FINAL PROVISIONS

Article 13 Sanctions for breaches
13.1 The vacancy of one of the manager posts for the functions indicated in Article 6.3 above for a period of more than six (06) months or the non-transmission within the required period under Article 7.1 of a complete file for a professional card application, for any person hired or designated for a regulated function, is subject to sanctions, in accordance with the regulatory provisions in force on the regional financial market of the UMOA.
13.2 Similarly, the failure or non-respect of the deadline for the declaration of any change occurring in the professional situation of a professional card holder is subject to sanctions.

Article 14 Transitional provisions
The CD/SB has a maximum period of two (02) years from the date of signature of this Instruction to comply with the provisions of this Instruction.

Article 15 Repeal
This Instruction repeals and replaces all previous regulatory provisions contrary to it dealing with the same subject.

Article 16 Publication and date of entry into force
This Instruction, which will be published wherever necessary, enters into force from the date of its signature.

Done at Abidjan, on DEC. 29, 2023

For the Financial Markets Authority of the UMOA The President

Badanam PATOKI