Uniform letter to payment institutions, registered payment institutions, e-money institutions and limited e-money institutions

NATIONAL BANK OF BELGIUM BELGIAN CENTRAL BANK Eurosystem THE GOVERNOR Public Brussels, 8 February 2022

Uniform letter to all payment institutions1, registered payment institutions2, e-money institutions3 and limited e-money institutions4.

Dear Madam, Dear Sir,

The Law of 11 March 2018 concerning the status and supervision of payment institutions and e-money institutions, access to the business of payment service providers and to the activity of issuing e-money, and access to payment systems provides in its Article 21, § 1 in conjunction with Article 176, § 1 with the requirement respectively for every payment institution and e-money institution to possess a solid and appropriate arrangement for business organisation, including supervisory measures to guarantee effective and prudent management of the institution.

Article 21 of the Law of 11 March 2018 details further in its § 1, points 1° to 9° what is to be understood hereunder for payment institutions. Article 176, § 1 of the Law of 11 March 2018 declares a number of these points applicable mutatis mutandis to e-money institutions.5

1 As intended in Article 2, 8° of the Law of 11 March 2018 concerning the status and supervision of payment institutions and e-money institutions, access to the business of payment service providers and to the activity of issuing e-money, and access to payment systems (hereinafter: 'the Law of 11 March 2018').

2 As intended in Article 2, 9° of the Law of 11 March 2018.

3 As intended in Article 2, 75° of the Law of 11 March 2018.

4 As intended in Article 2, 74° of the Law of 11 March 2018.

5 More specifically points 1°, 2°, 4°, 5° to 9° as well as, where appropriate, appropriate control and security measures in the field of information technology.

our reference TP/2022/041 N your correspondence Reinout Temmerman tel./gsm: + 32 2 221 32 09 Reinout.temmerman@nbb.be Supervision of financial market infrastructures, payment services and cyber risks National Bank of Belgium NV de Berlaimontlaan 14 1000 Brussels BELGIUM enterprise number: 0203.201.340 RPR Brussels www.nbb.be

THE GOVERNOR Biz. 2/3 - 2022-02-08 Public Following findings made by the Bank in the context of the prudential supervision it exercises on payment institutions and e-money institutions, the Bank deems it useful to draw the institutions' attention to certain governance rules resulting from the aforementioned provisions of the Law of 11 March 2018 as well as from its consolidation with the provisions of the Code of Companies and Associations6. This concerns three specific clarifications:

1. it follows from the reading of Article 21, § 1, 1° of the Law of 11 March 20187 in conjunction with Article 176, § 1 of the Law of 11 March 20188 that, since the mission of the Board of Directors of an institution is to exercise effective control over those entrusted with effective management/effective leadership of the institution, the Board of Directors of the institution must consist of a majority of non-executive directors. Indeed, if the Board of Directors consisted of a majority of executives, it would be impossible to see how it could exercise objective control over those same executives;

2. it follows from the good governance principle included in Article 21, § 1, 1° of the Law of 11 March 20189 in conjunction with Article 176, § 1 of the Law of 11 March 201810 that a member of a statutory body of the institution, namely the Board of Directors or the Executive Committee or the Management Board of the institution, may not exercise another function as an employee in the same institution. It should also be stated that, based on company law, the exercise of a mandate as a director or member of the Executive Committee or Management Board of an institution is only possible on the basis of a status as an independent and under no condition as an employee of the institution.11 The Bank points out that where the effective leadership of an institution does not reside in the Executive Committee or Management Board (or where the statutes of the institution do not provide for an Executive Committee/Management Board), the effective leadership may be employees of the relevant institution;

3. it follows from Article 21, § 1, 1° of the Law of 11 March 201812 in conjunction with Article 176, § 1 of the Law of 11 March 201813 that, to the extent that the mission of the Board of Directors of an institution is to assess the proper functioning of the independent control functions, there is in principle an inherent incompatibility between the function of member of the Board of Directors and the exercise of an independent control function. This incompatibility also exists between a function as effective leader of the institution and the exercise of an independent control function. In this context, the Bank wishes to point out some additional clarifications:

• it is possible for an effective leader of an institution to exercise an independent control function (for example Compliance and, if necessary, Risk) if this person also does not exercise commercial or operational functions in the same institution; • it is, in special cases, possible to combine the function of Internal Audit (3rd line of control) with that of Compliance or Risk (2nd line of control);

6 Code of Companies and Associations (hereinafter: 'CCA').

7 Article 21, § 1 of the Law of 11 March 2018: "Every payment institution has a solid and appropriate arrangement for business organisation, including supervisory measures, to guarantee effective and prudent management of the institution, which is based in particular on: 1° an appropriate policy structure based at the highest level on a clear distinction between, on the one hand, the effective management of the institution and, on the other hand, the supervision of that management, and which provides within the institution for appropriate separation of functions and a clearly defined, transparent and coherent arrangement for the allocation of responsibilities".

8 Cf. the reference in Article 176, § 1 of the Law of 11 March 2018 to the corresponding application for e-money institutions of the provisions under Article 21, § 1, 1° of the Law of 11 March 2018.

9 Cf. the provisions under footnote 7 supra.

10 Cf. the provisions under footnote 8 supra.

11 Cf. Articles 5:70/6:58/7:85/7:105 of the CCA regarding members of an Executive Committee and Article 7/107 regarding directors (members of the Board of Directors) of an institution.

12 Cf. the provisions under footnote 7 supra.

13 Cf. the provisions under footnote 8 supra.

THE GOVERNOR Biz. 3/3 - 2022-02-08 Public

• non-executive directors may take on an independent control function, provided that the exercise of the tasks entailed by this latter function is assigned to (i) an employee of the institution or (ii) outsourced to a third party; • executive members of the Board of Directors of an institution and effective leaders of an institution who have commercial and/or operational responsibilities may not take on an independent control function, nor exercise its tasks.

The Bank emphasizes the importance for institutions to comply with these good governance rules and encourages institutions to analyze their governance in light of these clarifications and, if necessary, make adjustments to their governance structure to be compliant with the Law of 11 March 2018.

The Bank is aware that any adjustments by institutions may require a certain amount of time to implement. Therefore, the Bank believes that any non-compliance of institutions with these clarifications should be remedied by 31 December 2022.

Yours faithfully,

Pierre Wunsch