In its judgment pronounced today, the Second Senate of the Federal Constitutional Court granted several constitutional complaints directed against the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB). The Court found that the Federal Government and the German Bundestag violated the complainants’ rights under Art. 38(1) first sentence in conjunction with Art. 20(1) and (2), and Art. 79(3) of the Basic Law (Grundgesetz – GG) by failing to take steps challenging that the ECB, in its decisions on the adoption and implementation of the PSPP, neither assessed nor substantiated that the measures provided for in these decisions satisfy the principle of proportionality. In its Judgment of 11 December 2018, the Court of Justice of the European Union (CJEU) has taken a different stance in response to the request for a preliminary ruling from the Federal Constitutional Court; however, this does not merit a different conclusion in the present proceedings. The review undertaken by the CJEU with regard to whether the ECB’s decisions on the PSPP satisfy the principle of proportionality is not comprehensible; to this extent, the judgment was thus rendered ultra vires. As regards the complainants’ challenge that the PSPP effectively circumvents Art. 123 TFEU, the Federal Constitutional Court did not find a violation of the prohibition of monetary financing of Member State budgets. The decision published today does not concern any financial assistance measures taken by the European Union or the ECB in the context of the current coronavirus crisis.  Continue reading…

The Dutch Compliance Officers Association, abbreviated VCO, asked Geert Vermeulen to answer a number of questions about the COVID-19 crisis. Geert Vermeulen is a well-known Compliance Officer in the Netherlands, he also gives lectures and he teaches. Last year, he was the winner of the National Compliance Award 2019 (see photo). This prize is awarded annually with the aim of stimulating developments in the field of compliance, professionalising the compliance function and improving integrity within organisations. Geert was asked only three questions, but he answered them very thoroughly and extensively.  Continue reading…

by Muel Kaptein

Since the corona crisis, the agenda of compliance officers has changed considerably. But what will the agenda of compliance officers look like when the (semi) lockdown is phased out and organizations start working on their recovery? The recovery phase brings all kinds of new issues and work with it for the compliance function. Below I briefly describe eleven new items for the compliance agenda after the lockdown. Are there items that you think are not addressed in this list or ones that you see differently? In random order, I see the following eleven new items for the compliance agenda.
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by Lieve Lowet

This is the last part of the series of three articles about my in-depth investigation of the aforementioned measures as a result of the corona crisis. All the above actions, mentioned in the two previous articles, we although, prima facie and probably well intended, carry nevertheless a very heavy price. I will focus on the insurance sector by naming five topics.
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by Lieve Lowet

This is part two of the series of three articles about my investigation into the recent measures taken by European authorities as a result of the situation that has arisen. This article is more specifically about Solvency II. For insurers, there is no equivalent measure to Article 141 CRD. There is no such legal base in the Solvency II framework directive to ‘urge’ not to distribute. Article 71(1)(l)(i) of the Solvency II Delegated Regulation refers indirectly to the cancellation of distribution (dividends) in case of non-compliance with the SCR or where the distribution would lead to such non-compliance when legal or contractual arrangements allow for such cancellation. But it does so in the context of the classification of tier 1 basic own funds. In the past, EIOPA has referred to the cancellation or referral of dividend distribution when the validity of the business model is at risk: this was a recommendation to national supervisors e.g. after the 2016 stress test to address the vulnerability identified in the exercise. And in its recent consultation paper on the Solvency II review (EIOPA-BOS_19-465-CP-0pinion 2020), EIOPA’s draft advice links the potential by supervisors to limit or withhold dividend payments and other voluntary capital distribution to a sustainable solvency position when insurers use e.g. long-term guarantee measures. It also touches upon the prohibition of payments of dividends outside the EEA as another method of group supervision or as an alternative for the capital surcharge in case of systemic risk. Pious wishes?
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by Lieve Lowet

We live in exceptional times. Right now it is good to check whether the measures announced at high speed comply with the basic principles of correct decision-making and that they are in accordance with the applicable laws and regulations. I have made an in-depth analysis and would like to share my findings in a series of three articles. The articles will be published on three consecutive days. On 17 January 2020, in tempore non suspectu, the ECB issued a recommendation on dividend distribution policies to prepare banks for the introduction of IFRS9 and the new CRD / CRR requirements (ECB / 2020/1, OJ C30 29 January 2020). Banks, even those with “fully loaded” ratios, were recommended to distribute their net profits in dividends in a conservative manner. And then the corona crisis started to hit….
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by Massimo Balducci

Institutional responses to Covid-19 emergency raise a few questions. Investigating these questions will lead us to dig deep into the relationship between theory and institutional behavior. We will single out two institutional responses to two critical challenges: (i) time requirements of standard institutional reaction in the area of Covid-19 therapy and (ii) a multi-disciplinary approach in the response to a complex challenge. Our analysis might possibly be biased by our idea that responses in these two cases are not up to citizens’ reasonable expectations. Continue reading…

by Sandra Galletti & Dr. Steven Goldman

This article identifies some strategies and recommendations that banks can utilize to minimize the impact on bank operations of the Covid-19 pandemic. A pandemic* (1) is a very particular and very terrible type of crisis. Unlike other crises such as earthquakes or cyberattacks which impact the bank’s infrastructure, pandemics directly impact its people – employees, vendors, suppliers – who might be unable to perform their jobs. Furthermore, customers cannot do business in usual ways. Unlike other crises such as technological breakdowns or security threats to which there is a reasonable expectation of resolution within a certain time frame, a pandemic’s duration can be prolonged; its severity brutal. Continue reading…

by Muel Kaptein

In times of crisis, we have high expectations of our business leaders. We want our business leaders to take their responsibility, make decisions and resolve dilemmas. At such times, the main quality business leaders must possess is a willingness to get their hands dirty, because they will be asked to make decisions that will harm people, no matter what they decide. Experts have listed in the media many qualities business leaders should display in these times of crisis. Now more than ever, business leaders must have faith in their employees who are working from home, show empathy and be humble, focused and self-confident. Other experts tell us that business leaders should now be purpose driven, accountable and long-term oriented. It is true that all these qualities are relevant, but they would seem to suggest that being a leader in these times mainly requires one to focus on slightly different things than usual. After all, aren’t all the aforementioned qualities vital in normal times, too? If we wish to steer our business leaders in the right direction, we must do justice to the situation in which they currently find themselves, i.e. a crisis.
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by Dina-Perla Portnaar

Rewire enhances its end-to-end neobanking service for migrants with new functionalities, putting users and their daily needs at the forefront, especially in times of COVID-19. Immigrants are now offered free local transfers from and to any European country and a free virtual and physical MasterCard. Digital banking for migrants has never been so easy, transparent and accessible from any device. Rewire is now providing free local transfers to all IBAN accounts in Europe, aiming for cross-border, Pan-European financial inclusion. The service via the Rewire app is simple and just takes a few steps to complete the transfer. Also, migrants can use this service anywhere and anytime. Moreover, the transfer is credited within up to one business day. The bank account of the receiver does not have to be a Rewire account in order to get the money.  Continue reading…