On 22 September 2021, the Central Bank published a notice of intention to amend the Pre-Approval Controlled Functions (PCF) list by bringing managers of branches Irish regulated financial services providers (RFSPs) in non-EEA countries into scope, creating a stand-alone PCF for independent non-executive directors, introducing a PCF for a dedicated Head of Anti-Money Laundering and Counter-Terrorist Financing role, and removing the Head of Investment PCF.
The Central Bank's proposals will:
- Expand PCF-16 (Branch Manager of branches in other EEA countries) to include branch managers in non-EEA countries;
- Introduce stand-alone PCFs in respect of:
- Independent Non-Executive Directors ("INEDs") (which will now be a separate PCF to the general Non-Executive Director PCF);
- The Head of Anti-Money Laundering and Counter-Terrorist Financing ("AML/CFT") (where that function isn't being performed as part of the broader Head of Compliance role); and
- Remove PCF-31 (Head of Investment) (on the basis that it is already covered by PCF-30 (Chief Investment Officer)).
The changes will be introduced by way of amendment to the Central Bank Reform Act 2010 (Sections 20 and 22) Regulations 2011, which designate PCFs (and controlled functions). The Central Bank considers the amendments to be warranted based on its supervisory experience and in view of the changing structure of, and landscape surrounding, the Irish financial services industry.
With the exception of the removal of PCF-31 (which is only relevant to investment firms), the proposed amendments to the PCF list will apply to all Irish RFSPs other than credit unions.
The Central Bank has advised that the PCFs in situ on the date that the amended regulations come into effect will not need to seek the approval of the Central Bank to continue to perform the amended PCF roles. However, boards of RFSPs will be required to review the fitness and probity assessments conducted under Section 21 of the Central Bank Reform Act 2010 in respect of those in situ PCFs and submit confirmation of those assessments to the Central Bank. Those assessments and confirmations must take place within six weeks of the amended regulations taking effect. The full PCF application process will apply to any new appointment to the expanded or new PCFs after the amended regulations come into effect.
Below are further details of the proposed changes to the PCFs.
Non-EEA branches of RFSPs
(Expansion of PCF-16)
The Central Bank has noted that given the number and size of branches of Irish RFSPs outside of the EEA, particularly post-Brexit, it considers an amendment to PCF-16 to be necessary to bring managers of branches of Irish RFSPs in non-EEA countries into scope.
The intended amendment would extend the pre-approval requirement to all branch managers of RFSPs outside Ireland, not just those in EEA countries.
The Central Bank has noted that these individuals are also currently subject to the fit and proper requirements of the host regulator responsible for the supervision of the relevant branches. However, it did not comment on how the home state and host state regimes will work in practice or if a double approval may be required for such persons. Further clarification may be required on this point.
(Segregation of PCF-2)
The Central Bank regards INEDs, in particular, as an integral component of the board of an RFSP and a fundamental safeguard within an RFSP's governance framework.
On this basis, and in the interest of greater clarity, the Central Bank intends to split PCF-2 (Non-executive director) to reflect the distinction between non-executive directors and INEDs, as follows:
- PCF-2A (Non-Executive Director)
- PCF-2B (Independent Non-Executive Director)
All existing PCF-2's will be re-designated as PCF-2A. RFSPs will then be required to notify the Central Bank which individuals are INEDs and should be designated as PCF-2B, and to confirm that they have undertaken the relevant due diligence to assess independence.
(Replacement of PCF-15)
Noting the increasing importance of the role of individuals with responsibility for AML/CFT, and the number of appointments of individuals to carry out this role in its own right (as opposed to within the remit of the role of Head of Compliance), it is the Central Bank's view that it is necessary to replace PCF-15 (Head of Compliance with responsibility for Anti Money Laundering and Counter Terrorist Financing Legislation) with a dedicated role for AML/CFT as follows:
- PCF-12 (Head of Compliance)
- PCF-52 (Head of Anti-Money Laundering and Counter Terrorist Financing)
Where an RFSP determines that it is appropriate for a PCF-15 individual to be re-designated as PCF-52 (or to be designated as both PCF-12 and PCF-52), the RFSP will be required to notify the Central Bank.
In all other cases, an RFSP should review its functions and determine whether any would meet the PCF-52 role. Where it is determined by the RFSP that this role does exist, the RFSP will be required to review its fitness and probity assessment in respect of individuals in situ and submit confirmation of such assessments to the Central Bank.
Head of investment
(Removal of PCF-31)
The Central Bank noted an element of duplication between PCF-30 (Chief Investment Officer) and PCF-31 (Head of Investment) and accordingly intends to remove PCF-31.
RFSPs will not be required to take any action to effect this change and all individuals who are PCF-31 will automatically be re-designated as PCF-30.
The Central Bank has invited comments from stakeholders on its proposals, which should be submitted by email to email@example.com no later than 20 October 2021.
Once the amended regulations take effect, the fitness and probity assessment conducted by the RFSP board prior to the appointment of an in situ in-scope PCF will have to be reviewed and a confirmation provided to the Central Bank that the assessment has been carried out within the six-week timeframe.
The exact specifics of the confirmation remain unclear. However, it is likely that a refresh of the fitness and probity assessments for the relevant PCFs will need to be done (notwithstanding any annual PCF confirmations due to be filed). The full PCF application process will apply to any new PCF appointments after the amending regulations come into effect.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.