- November 18, 2020
- Posted by: Blue Azurite
- Category: Securities Act
The Financial Services Commission (FSC) has issued on 2 October 2020, pursuant to its powers under Section 7(1)(a) of the Financial Services Act 2007 (FSA), its revised “Guidelines on Fitness and Propriety” (Guidelines) in line with the FSC objective to ensure the sound conduct of business in the financial services and global business sectors.
The FSC issued a “Circular Letter CL021020 – Guidelines on Fitness and Propriety” on 2 October 2020 which becomes effective as from 01 November 2020.
These revised guidelines supersede the Guide on Fitness and Propriety previously issued by the FSC on 9 June 2020. The revised guidelines can be accessed at: https://www.fscmauritius.org/media/85113/guide-to-fitness-propriety-with-pq.pdf
The aim of the Guidelines is to clarify the criteria to be taken into account by the FSC to assess the fitness and propriety of an applicant/licensee, including any person authorised, registered or approved under a relevant Act. These Guidelines are not exhaustive, and each case shall be considered on the basis of its own merits. The effective date of the Guidelines is 1 November 2020.
- Revision of policies, procedures and controls – Regulated entities are required to reflect the elements of these Guidelines in their internal policies, procedures and controls and apply them in their assessment of persons who manage, control, direct, own or perform key functions in a regulated entity.
- Scope of application – The scope of application of the guidelines have been widened and extended to additional parties:
- Any incumbent officer such as the Money Laundering Reporting Officer, the Deputy Money Laundering Reporting Officer and the Compliance Officer;
- Any representative or agents of the applicant/licensee;
- Trustees and management committees of occupational pension plans;
- External and outsourced auditors of regulated entities;
- The principal representative of a foreign financial institution that is conducting insurance business or business of a financial nature;
- An insurance agent, broker and sales representative and any such person as may be determined by the FSC.
- The Fit and Proper Test – Pursuant to the section 20 of the FSA, the FSC considers several factors to assess whether a person is fit and proper. A fit and proper test is initially carried out when an applicant submits an application for a licence or requests any other authorisation from the FSC. This test is then carried out, on an ongoing basis. It has been mentioned in the revised guidelines that a consolidated approach, rather than meeting specific tests, is used in assessing whether a person is fit & proper.
- The Purpose of Fit and Proper Test – The purpose of the fit and proper test has been extended to include: “to ensure that persons, who are not “fit and proper” to perform functions in relation to a regulated activity, are precluded from doing so, in the public interest”.
- Responsibilities of the applicant/licensee and the relevant persons subject to the fit and proper test –
It is important to note that the onus is on the applicant/licensee and each relevant person to establish that the latter is a “fit and proper” person, as different appointment(s) and designation(s) entail different responsibilities.
Furthermore, the applicant/licensee and the relevant person(s) must accordingly, complete the Fit and Proper Person Questionnaire (PQ) and must provide, depending on the nature of the license, authorisation, registration or approval sought, any information that the FSC may require to complete its assessment. Where a PQ has already been filed, the applicant shall indicate in this application that the PQ has been filed and inform the Commission of any material change. Providing false and misleading information to the FSC will lead to criminal prosecutions under the FSA as mentioned in the revised Guidelines.
- Assessing fitness and propriety – The FSC reserves its regulatory powers to gather any information from any appropriate source on the overall reputation of a person, regardless of whether such information results from the above criteria and factor in its assessment of the person’s “fitness and propriety
- Fit and Proper Person Questionnaire (PQ)
The revised PQ is more comprehensive than the previous version. The declaration part in the PQ has been further amended thereby giving FSC the authorisation to make such enquiries and seek such further information as the FSC thinks appropriate in verifying the information given in the PQ.
To also note that, any material changes affecting the completeness of the PQ will have to be notified to the FSC within a 30-day timeline.
False and misleading statements to the commission
Under the FSA, any person who, in connection with an application for a licence including a Global Business Licence, an authorisation under section 71A or any information submitted in respect of a valid licence (a) make or procure the making of a statement to the FSC which he knows or ought reasonably to know is false or misleading; (b) omit to state any matter to the FSC where he knows or ought reasonably to know that, because of the omission, he is misleading the FSC in a material respect, shall commit an offence and shall on conviction be liable to a fine not exceeding 500,000 rupees and to imprisonment for a term not exceeding 5 years.