EBA欧洲银行-CEBS-2010-117-283rd-country-equivalence-of-confidentiality-criteria29_9页_165kb

Summary of the Methodology for Assessing the Equivalence of Third Country Professional Secrecy Standards with the Capital Requirements Directive (CRD)

Core Content

This document outlines a methodology for assessing whether the professional secrecy and confidentiality standards of a third country are equivalent to those under Article 46 of the Capital Requirements Directive (CRD), which is essential for the participation of third country supervisory authorities in EEA supervisory colleges.

The methodology is developed by CEBS members, based on the work of CEIOPS, and aims to ensure consistency across the Lamfalussy committees. It includes four key principles and associated indicators to evaluate the legal framework of third countries in relation to the CRD.

Main Principles and Objectives

Principle 1 – Definition of Confidential Information

• Objective: To define confidential information in accordance with the CRD.
• Standard Required: National laws should clearly identify what constitutes confidential information, typically information received in the course of work for a competent authority, not in the public domain, and not in a form that can identify individual institutions.
• Relevant Articles: CRD Article 44(1)

Principle 2 – Existence of Professional Secrecy Obligation

• Objective: To ensure that all individuals working for or on behalf of competent authorities are subject to an ongoing professional secrecy obligation.
• Standard Required: Legal provisions must apply to all relevant persons, including auditors and experts, and the obligation must continue after employment.
• Relevant Articles: CRD Article 44(1)

Principle 3 – Use of Confidential Information

• Objective: To ensure that confidential information is only used for legitimate supervisory purposes.
• Standard Required: Information must be used for tasks such as supervisory duties, legal oversight, detection of breaches, and payment systems oversight, as defined in the CRD.
• Relevant Articles: CRD Articles 45, 47, 48, 49

Principle 4 – Restrictions on Disclosure of Confidential Information

• Objective: To establish that confidential information can only be disclosed in clearly defined circumstances.
• Standard Required: Disclosure is permitted to specific authorities or bodies, only for essential supervisory purposes, and requires express consent from the originating authority when disclosed to non-EEA bodies.
• Relevant Articles: CRD Articles 44(1), 46, 47–52

Key Indicators for Equivalence Assessment

Each principle includes specific indicators to evaluate the legal framework of the third country:

Principle 1

• Legal requirements: Clear legal definition of confidential information.
• Nature of information: Must be obtained in the course of work, not public, and not identifiable to individual institutions.

Principle 2

• Legal requirements: Existence of professional secrecy provisions in national law or other binding laws.
• Applicability – persons: Applies to all individuals working or who have worked for competent authorities and those acting on their behalf.
• Duration of obligation: Applies during and after employment.

Principle 3

• Performance of supervisory tasks: Information used for compliance, penalties, appeals, and court proceedings.
• Oversight/ legal supervision: Includes supervision of other financial institutions, involvement in liquidation, statutory audits, and deposit-guarantee schemes.
• Detection/investigation of breaches: Only for strengthening financial stability and integrity.
• Central banks and monetary authorities: For monetary policy, liquidity, and financial system safeguarding.
• Government departments: For prudential control and emergency situations.

Principle 4

• Legal requirements: Legal restrictions on disclosure of confidential information.
• Authorities or bodies to which information can be disclosed: Includes competent authorities, auditors, liquidation bodies, deposit-guarantee schemes, central banks, and payment system overseers.
• Conditions on disclosure: Disclosure must be for essential supervisory purposes and must be subject to professional secrecy conditions.
• Specific consent: Required when disclosing to non-EEA authorities, and the information can only be used for the purposes agreed.

Additional Important Information

• Breach of professional secrecy: Is unlawful and subject to penalties.
• Standard Required: National laws must include provisions for offences and penalties related to breaches, as well as enforcement mechanisms and evidence of past enforcement actions.

Annex: Template for Equivalence Assessment

The document provides a template for assessing the equivalence of a third country's professional secrecy and confidentiality provisions with the CRD. It includes sections for:

• Principle 1: Definition of confidential information
• Principle 2: Existence of professional secrecy obligation
• Principle 3: Use of confidential information
• Principle 4: Restrictions on disclosure
• Additional Information: Breach of professional secrecy and related disclosure requirements

Conclusion

The methodology ensures that third countries’ legal frameworks are evaluated against the CRD's confidentiality standards to determine their suitability for participation in EEA supervisory colleges. It emphasizes clear legal definitions, broad applicability of obligations, limited use of information, and strict disclosure controls.