Article 91a
Key function holders and suitability assessment
1.
The entities referred to in Article 91(1) shall have the primary responsibility for ensuring that key function holders are at all times of sufficiently good repute, act with honesty and integrity and possess sufficient knowledge, skills and experience necessary to perform their duties. The absence of a criminal conviction or of ongoing prosecutions for a criminal offence shall not in itself be sufficient to fulfil the requirement to be of good repute and act with honesty and integrity.
2.
The entities shall ensure that key function holders fulfil at all times the criteria and requirements set out in paragraph 1 and shall assess the suitability of key function holders before they take up their position and periodically, taking into account supervisory expectations, as laid down in applicable laws and regulations, guidelines and internal suitability policies.
3.
Where the entities conclude, based on the internal suitability assessment referred to in paragraph 2, that a person does not fulfil the criteria and requirements set out in paragraph 1, the entities shall:
(a)
not appoint that person as a key function holder, where that assessment is completed before the person takes up the position;
(b)
remove that person as a key function holder, in a timely manner; or
(c)
take the additional measures, in a timely manner, necessary to ensure that such a person is or becomes suitable for the position concerned.
The entities shall take all measures necessary to ensure the appropriate functioning of the position of a key function holder, including replacing the key function holder if that person ceases to meet the suitability criteria and requirements.
4.
The entities shall ensure that information about the suitability of the key function holders remains up-to-date. The entities shall, upon request, provide that information to the competent authority through means determined by the competent authority.
5.
Member States shall ensure that competent authorities assess that the heads of internal control functions and the chief financial officer fulfil at all times the criteria and requirements set out in paragraph 1 where those heads or the officer are appointed for roles at least in the following entities:
(a)
EU parent institutions that qualify as large institutions;
(b)
parent institutions in a Member State that qualify as large institutions; except where they are affiliated to a central body;
(c)
central bodies that qualify as large institutions or that supervise large institutions affiliated to them;
(d)
stand-alone institutions in the Union that qualify as large institutions;
(e)
large subsidiaries, as defined in Article 4(1), point (147), of Regulation (EU) No 575/2013;
(f)
parent financial holding companies in a Member State, parent mixed financial holding companies in a Member State, EU parent financial holding companies and EU parent mixed financial holding companies, having large institutions within their group, except those falling under Article 21a(4) of this Directive.
6.
Where the heads of internal control functions and the chief financial officer do not fulfil at all times the criteria and requirements set out in paragraph 1, Member States shall ensure that competent authorities have the necessary powers to:
(a)
in the case of ex ante assessment, prevent such heads or officer from taking up the position or remove them from the position;
(b)
in the case of ex post assessment, remove such heads or officer, or require the entity to remove them from the position;
(c)
require the entities concerned to take additional appropriate measures to ensure that such heads or officer are or become suitable for the position concerned.
As soon as any new facts or other circumstances that could affect the suitability of the heads of internal control functions and the chief financial officer become known, the entities referred to in paragraph 5 shall reassess the suitability of those heads and that officer, and shall inform without undue delay the competent authority thereof.
Where the competent authority becomes aware that the relevant information concerning the suitability of the heads of internal control functions and the chief financial officer has changed and such change could affect the suitability of the heads or of the officer concerned, the competent authority shall reassess their suitability.
Competent authorities shall not be required to reassess the suitability of such heads or officer when their contract is renewed or extended, unless relevant information that is known to competent authorities has changed and such change could affect the suitability of the heads or officer concerned.
At least with respect to the appointment of those heads of internal control functions and that chief financial officer for positions in the entities referred to in paragraph 5, competent authorities shall duly consider setting a maximum period for concluding the suitability assessment. That maximum period may be extended, where appropriate.
7.
Competent authorities may request the authority responsible for the supervision of anti-money laundering or counter-terrorist financing in accordance with Directive (EU) 2015/849 to consult, in the context of their verifications, and on a risk-sensitive basis, the relevant information concerning the heads of internal control functions and the chief financial officer. Competent authorities may also request access to the central AML/CFT database referred to in Regulation (EU) 2024/1620. The Authority for Anti-Money Laundering and Countering the Financing of Terrorism shall decide whether to grant such access.
8.
By 10 July 2026, EBA shall issue guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010, on the following:
(a)
the notions of good repute, honesty and integrity as referred to in paragraph 1;
(b)
the notion of sufficient knowledge, skills and experience as referred to in paragraph 1;
(c)
the criteria to determine whether there are reasonable grounds to suspect that money laundering or terrorist financing within the meaning of Article 1 of Directive (EU) 2015/849 is being or has been committed or attempted, or that there is an increased risk thereof, in connection with the entity.
For the purposes of the first subparagraph, point (c), EBA shall closely cooperate with ESMA and with the Authority for Anti-Money Laundering and Countering the Financing of Terrorism.