Updated 07/09/2024
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Article 5 - Requirements for granting an authorisation

Article 5

Requirements for granting an authorisation

1.   Without prejudice to Article 6, Member States shall lay down the following requirements for the granting of an authorisation referred to in Article 4(1):

(a)

the applicant is a legal person as referred to in Article 54 of the Treaty on the Functioning of the European Union and its registered office or, if under its national law it has no registered office, its head office, is in the Member State in which the applicant is seeking authorisation;

(b)

the members of the applicant’s management or administrative organ are of sufficiently good repute, which is demonstrated by proving that:

(i)

they have a clean police record or other national equivalent in relation to relevant criminal offences, in particular those relating to property, financial services and activities, money laundering, usury, fraud, tax crimes, violation of professional secrecy or to physical integrity, and also in relation to any other offences under laws relating to companies, bankruptcy, insolvency or consumer protection;

(ii)

the cumulative effects of minor incidents do not impinge on their good repute;

(iii)

they have always been transparent, open and cooperative in their past business dealings with supervisory and regulatory authorities;

(iv)

they are not subject to any ongoing insolvency procedure nor have previously been declared bankrupt unless reinstated in accordance with national law;

(c)

the applicant’s management or administrative organ, as a whole, has adequate knowledge and experience to conduct the business in a competent and responsible manner;

(d)

the persons who hold qualifying holdings in the applicant within the meaning of Article 4(1), point (36), of Regulation (EU) No 575/2013 are of sufficiently good repute, which is demonstrated by fulfilling the requirements set out in points (b)(i) and (iv) of this paragraph;

(e)

the applicant has in place robust governance arrangements and adequate internal control mechanisms, including risk management and accounting procedures, which ensure respect for borrower rights and compliance with the laws governing a creditor’s rights under a credit agreement, or the credit agreement itself, and with Regulation (EU) 2016/679;

(f)

the applicant applies an appropriate policy ensuring compliance with rules for the protection, and the fair and diligent treatment, of borrowers, including by taking into account their financial situation and, where available, the need for such borrowers to be referred to debt advice or social services;

(g)

the applicant has in place adequate and specific internal procedures that ensure the recording and handling of complaints from borrowers;

(h)

the applicant has in place adequate anti-money laundering and counter terrorist financing procedures where national provisions transposing Directive (EU) 2015/849 designate credit servicers as obliged entities for the purpose of preventing and combating money laundering and terrorist financing;

(i)

the applicant is subject by virtue of applicable national law to reporting and public disclosure requirements.

2.   The EBA shall, after consulting all relevant stakeholders and reflecting all interests involved, issue guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 for the requirements set out in paragraph 1, point (c), of this Article.

3.   The competent authorities of the home Member State shall refuse an authorisation referred to in Article 4(1) where the applicant does not comply with the requirements set out in paragraph 1 of this Article and, where relevant, in Article 6(2), point (a).