The banking sector in France is characterised by its highly integrated nature – the six leading French banking groups in terms of net banking income for 2017 were BNP Paribas, BPCE, Groupe Crédit Agricole, Société Générale, La Banque Postale and Groupe Crédit Mutuel.
Pursuant to Regulation 1024/2013, 12 French banking groups are significant, representing 33 per cent of the total banking assets held by significant credit institutions supervised by the European Central Bank (ECB).
Another key feature of the French banking sector is the presence of cooperative and mutual benefit banking groups. Three of the five largest banking groups in France are mutual benefit banking groups. The main characteristic of these groups is their inverted pyramid structure. The groups are held by cooperative banks, which are in turn owned by their cooperative member-shareholders. The banking industry is one of the main private employers in France (employing more than 366,200 people in 2017).
Since 2014, the most significant event with respect to the French banking system has been the implementation of a harmonised European regulatory framework. This includes:
- a Single Supervisory Mechanism (SSM);
- a Single Resolution Mechanism (SRM);
- the Bank Recovery and Resolution Directive (Directive 2014/59/EU) (BRRD); and
- the adaptation of the national regulation framework thereto.
ii THE REGULATORY REGIME APPLICABLE TO BANKS
Five significant steps towards European harmonisation have been taken since 2011:
- on 1 January 2011, the European Banking Authority (EBA) was created;
- on 26 June 2013, the EU adopted a legislative package to implement the Basel III Accords into the EU prudential framework, and to strengthen the regulation and supervision of the banking sector in Europe by introducing harmonised rules (the CRD IV Package);
- on 29 October 2013, the EU adopted the creation of the SSM to confer specific supervision tasks on the ECB;
- on 30 July 2014, the EU enacted the creation of a bank SRM, elements of which entered into force on 19 August 2014; and
- on 15 May 2014, the European Union enacted the BRRD, which was amended as regards the ranking of unsecured debt instruments in an insolvency hierarchy by a directive dated 12 December 2017.
Other than EU regulations of direct application, the statutory framework applicable to the regulation of banking activities is provided by the French Monetary and Financial Code, and by specific decrees and orders. The power to regulate the banking and financial sector is now shared between European legislature and the French Minister of Economy and Finance, assisted by a consultative authority, the Advisory Committee on Financial Legislation and Regulation.
In addition, the EBA issues regulatory guidelines and recommendations. In principle, the French Prudential Control and Resolution Authority (ACPR) must inform the EBA within two months whether it complies or intends to comply with those guidelines and recommendations.
In accordance with Regulation (EU) No. 1024/2013,2 since 4 November 2014, the authority to supervise and control banks is shared between the ACPR and the ECB. The ECB supervises all credit institutions with respect to certain domains, such as granting or withdrawing banking licences, or assessing acquisitions of qualifying holdings in such institutions. In addition, the ECB is the sole competent prudential regulator for credit institutions that are categorised as significant entities, as recently reaffirmed by the European Court of Justice.3 The ECB has also issued a letter stating that it is directly competent to exercise, in certain situations, supervisory powers granted under national law.4
The ACPR remains directly in charge, subject to the oversight of the ECB, of credit institutions that are classified as less significant. These authorities cooperate, and the terms of such cooperation are defined, inter alia, in Regulation (EU) No. 468/2014 of 16 April 2014.
The ACPR is a public authority without legal personality. The French Central Bank (Central Bank) plays a key role in the functioning of the ACPR. It is chaired by the governor of the Central Bank, and the administrative staff are seconded from the Central Bank.
In accordance with EU Regulation No. 806/2014,5 since 1 January 2016, the authority to implement a bank resolution in France is shared between the national resolution authority, which is the resolution college within the ACPR, and the Single Resolution Board.
Banks and investment service providers also fall within the remit of the French Market Authority (AMF), which supervises compliance with professional rules relating to the provision of investment services and asset management activities.
The provision of banking services in France requires a licence that is, since 4 November 2014, granted by the ECB, while the provision of investment services requires a licence obtained from the ACPR. Portfolio management companies (i.e., investment companies providing portfolio management services on behalf of third parties or collective portfolio management as their main activities) must be authorised by the AMF.
Banks and investment firms licensed in a Member State of the European Economic Area (EEA) benefit from a mutual recognition procedure, and are authorised to provide banking or investment services in France through a branch or by virtue of the free provision of services subject to the procedures required in their home state and to the competent authority being informed of the provision of those services. A non-EEA bank may either apply for a licence or establish a representative office in France, but only to provide information, liaison or representation services to French customers (i.e., such an office is not permitted to carry out any banking operations in France). The competent authority must be notified of the opening of a representative office.
Under French law, only authorised credit institutions or financing companies may, on a regular basis, enter into credit transactions and only credit institutions may, on a regular basis, receive repayable funds from the public. These restrictions are commonly referred to as the French banking monopoly. Rules applicable to finance companies were outlined in a decree published on 13 November 2014. New exceptions from the banking monopoly have been included:
- by Ordinance No. 2014-559, dated 30 May 2014, to allow crowdfunding companies to carry out their business in France;
- by Law No. 2015-990, published on 6 August 2015 (known as the Macron Law), allowing certain companies to grant credit for a maximum term of two years to small and medium-sized businesses with whom they maintain a business relationship;
- by Law No. 2015-992, published on 17 August 2015, allowing third-party financing companies to grant credit to builder–owners in the field of energy-efficient construction;
- by Law No. 2016-1691, published on 9 December 2016, regarding transparency, anticorruption and economic modernisation, certain funds are entitled to carry out credit transactions; and
- by Ordinance No. 2017-1432, published on 4 October 2017, on the modernisation of the legal framework of asset management and debt financing.
For banks authorised to carry out investment services, it should be noted that at the beginning of January 2019, the European Commission published a draft delegated regulation on how investment firms should take into account the environmental, social and governance preferences of clients.
iii PRUDENTIAL REGULATION
i Relationship with the prudential regulator
Since 4 November 2014, the prudential supervision of a credit institution is handled by the ECB or the ACPR, depending on whether the institution is qualified as a significant entity or a less significant entity. In addition, the AMF has investigative and jurisdictional powers with regard to financial activities.
Supervision by the ACPR
The ACPR carries out supervision of banks mainly in two ways: off-site monitoring and on-site inspections.
Off-site monitoring is based on an in-depth examination by the ACPR of accounting and prudential filings, which are usually submitted quarterly, along with internal audit reports filed once a year, and on regular contact with the senior managers of credit institutions. The ACPR adopts a different approach when dealing with large credit institution groups, based on a structured programme of enhanced supervision meetings, in addition to dealing with specific issues, overseeing the implementation of recommendations made following on-site inspections and periodic meetings with financial departments and the departments in charge of measuring and monitoring risks, particularly when quarterly earnings figures are published. Moreover, the ACPR may request at any time that a credit institution provide it with any supplemental information. Banks are also required by law to advise the ACPR promptly of any fact or decision that may constitute a breach of existing regulations, and which is likely to have a significant effect on the financial situation, profits or assets of the bank.
ACPR on-site inspections are designed to ensure that the information disclosed by banks accurately reflects their situation. The ACPR usually carries out a general inspection every one or two years. In addition to these routine inspections, if deemed necessary on the basis of a review, the ACPR also carries out more specific inspections on targeted risks or business segments. For more transparency, the ACPR has compiled in a charter rules governing the inspection process and the rights and obligations of the persons checked as well as of the controllers.
Following its off-site monitoring and on-site inspections, the ACPR sends a follow-up letter to the relevant institution. If the ACPR finds that the credit institution's liquidity or solvency is at risk or that the interests of clients are threatened, it may:
- send a cautionary notice to the management of the credit institution concerned, allowing it to provide the ACPR with explanations;
- issue a recommendation to the credit institution describing the measures designed to improve the credit institution's financial condition or management methods;
- issue an injunction to the credit institution requiring it to take certain specific measures within a set period; or
- order the following interim protective measures in the most serious cases:
- special surveillance;
- appointment of one or more ACPR officers;
- suspension, temporary restriction or prohibition of the free disposal of all or part of the assets of the credit institution;
- cessation of the credit institution's activities;
- limitation on the number of branches or agencies of the credit institution;
- the transfer of some or all of the credit institution's credit or deposit portfolios;
- limitation of or prohibition on the distribution of dividends;
- cessation of interest distribution for certain holders of additional Tier 1 funds;
- suspension of one or more senior managers of the credit institution;
- appointment of a temporary director;
- transfer of one or several activities;
- transfer of all or part of the credit institution's assets, rights and obligations to a bridge credit institution with a view to continuing or selling its business;
- implementation of bail-out measures (including capital reductions, cancellation of shares or liabilities);
- issuance of new equity instruments; or
- a prohibition on paying prior debts.
Since 20 February 2014, the ACPR may also require credit institutions to submit a recovery programme.
Through its enforcement powers, the ACPR may impose a wide range of sanctions, either in respect of a breach of regulations or for failure to comply with obligations resulting from a cautionary notice, a recommendation or an injunction issued by the ACPR. These sanctions include (in ascending order of severity):
- a warning;
- a reprimand;
- a prohibition on engaging in certain operations or limits on the conduct of certain credit institution activities;
- a temporary suspension of one or more senior managers of the credit institution (with or without the appointment of a provisional administrator);
- requiring the resignation of one or more managers or directors, or both (with or without the appointment of a provisional administrator);
- a partial withdrawal of the credit institution's licence (with respect to specific banking activities); and
- striking the bank off the list of credit institutions authorised to conduct banking activities in France (with or without the appointment of a liquidator).
In addition to these measures, the ACPR may also:
- impose a fine of up to €100 million or 10 per cent of the annual turnover;
- prohibit or limit the payment of dividends to shareholders;
- order any of the above-mentioned sanctions to be made public at the expense of the bank; or
- order a penalty payment to compel execution of its sanctions.
Supervision by the AMF
Banks authorised to offer investment services are also supervised by the AMF, to the extent that they provide those services.
The AMF may impose a warning, reprimand, or temporary or permanent ban on providing some or all of the investment services provided by an authorised bank. In lieu of, or in addition to, these sanctions, the AMF may impose fines of up to €100 million or 10 times any profit earned in violation of applicable rules. For certain offences, the sanction may amount to 15 per cent of the annual turnover.
Individuals acting under the authority of or on behalf of credit institutions may be liable to receive a warning, reprimand, a temporary suspension or withdrawal of their professional licence, and a temporary or permanent ban on conducting some or all business activities. In lieu of, or in addition to, these sanctions, the AMF may impose a fine of up to €15 million or 10 times any profit earned, or €300,000 or five times any profit earned, for violations of the applicable rules, depending on the seriousness of the violation.
ii Management of banks
For significant credit institutions under the supervision of the ECB, the French regulations referred to below are to be read in conjunction with the governance requirements set out in EU Regulation No. 1024/2013.
On 26 September 2017, the EBA and the European Securities and Markets Authority (ESMA) published joint guidelines on the assessment of the suitability of members of management bodies and key function holders, which entered into force on 30 June 2018; on the same day, the EBA published revised Guidelines on Internal Governance. The ACPR published on 5 June 2018 a notice declaring its compliance with the second guidelines and its partial compliance with the first guidelines. As regards the guidelines on the assessment of the suitability of members of the management body and key function holders, the ACPR declared its intention to comply with the document with the exception of those paragraphs relating to the supervisory authority's assessment of the suitability of key functions holders, and in relation to the paragraphs relating to the presence and the definition of independent members, subject to two reserves of interpretation.
French banks are managed by at least two senior managers. In practice, before the implementation of the CRD IV Package, banks usually took the form of a public limited company with a board of directors, an executive chair and a deputy chief executive officer (CEO). However, since the implementation of the CRD IV Package by way of a 20 February 2014 ordinance, and guidance dated 29 January 2014 from the ACPR, the latter expressly requires the separation of the functions of the chair and the CEO, which has led to a reorganisation of the management of major banks in France. That requirement has recently been confirmed by the General Court, which has declared, regarding regional branches of a major French mutual banking group, that the same person may not occupy at the same time the post of chair of the board of directors and that of the effective director of a credit institution subject to prudential supervision.
Senior managers are appointed by the board of directors, subject to the approval of the ACPR, which ensures that they are fit and proper. Managers are collectively responsible for the effective implementation and the general direction of the bank's business, internal control, accounting and financial information, and capital requirements.
The 20 February 2014 ordinance also modified the rules on the number of corporate offices held by senior managers of a credit institution, which is now restricted to no more than one executive mandate and two non-executive mandates for the same person at the same time; and no more than four mandates as a member of the board of directors, supervisory board or any other body performing equivalent functions at the same time.
The ACPR also pays particular attention to the availability of managers, and makes sure in particular that, notwithstanding the aforementioned restriction, managers of a credit institution devote sufficient time to fulfilling their duties.
Banks are usually incorporated as public limited companies in which the decision-making body is the board of directors. Managers report to the board of directors, which must comprise at least three members. Banks and investment companies are required, as with respect to the senior managers, to notify the ACPR of the appointment or renewal of their directors. The ACPR is entitled, based on similar criteria as those applicable to senior managers, to oppose any appointment or renewal. Similarly, the ACPR may demand the resignation of a director as a sanction for breach of an applicable regulation or failure to comply with any of the ACPR's recommendations or injunctions.
The board is in particular responsible for supervising the management and the global situation of the bank as well as the implementation of its strategy. At least once a year, the board must review the activities and results of the internal control.
An audit committee is required to assist the board of directors in the exercise of its functions.
Banks must appoint two control officers who are responsible for ensuring permanent and periodic control respectively, and who report to the managers and, as the case may be, the board of directors or the audit committee.
Banks are also required to appoint a compliance officer to ensure compliance with all relevant applicable rules. Depending on the bank's size, the functions of the compliance officer may be exercised by the permanent officer.
It is also compulsory to appoint a risk management officer, who is responsible for a bank's risk analysis and risk measurement systems. The risk manager does not have any operational role unless he or she is a senior manager.
Smaller banks may elect to entrust these functions to a manager, who is usually a member of the board.
Risk, nomination and compensation committees
Banks are required to create a separate risk committee to supervise the implementation of risk management procedures and policies (except for non-significant banks, which may merge their risk committee with their audit committee). This committee acts under the exclusive and collective liability of the members of the board of directors or supervisory board, as the case may be.
The CRD IV Package provides for the creation of a risk committee within a bank's board of directors or supervisory board, as the case may be, composed exclusively of members not exercising any management powers, and a risk division in each bank. These rules have been transposed into French law.
Following the transposition of the CRD IV Package into the Monetary and Financial Code, institutions with a balance sheet exceeding €5 billion must now create a nomination committee and a compensation committee.
In the case of credit institution groups that are subject to supervision on a consolidated basis, these specific committees may, in principle, be implemented at the level of parent companies of the consolidated group only.
Rules governing compensation are contained in Article L511-71 et seq. of the Monetary and Financial Code. In particular, these rules provide that:
- the board of directors, or supervisory board, adopts and regularly reviews the compensation policy with the support and advice of the compensation committee;
- the compensation policy must be adequate for the economic strategy, aims, values and long-term interests of the bank; must incorporate measures that aim to avoid conflicts of interest; and must not encourage risk taking above the threshold fixed by the bank;
- the shareholders must be consulted every year about the global amount of remuneration given to directors and employees exercising activities that have a significant influence on the bank or group's risk profile (i.e., a say-on-pay procedure for risk takers);
- at least once a year, implementation of the compensation policy must be subject to an internal and independent evaluation to ensure its compliance with the compensation policy and the process governing compensation adopted by the board of directors or supervisory board of the bank. The compensation committee must assess the compensation policy and the remuneration granted to the bank's directors every year;
- the variable remuneration of employees exercising control functions must not be based on the controlled activities;
- the compensation policy must clearly distinguish between fixed remuneration (experience-based) and variable remuneration (performance-based);
- the variable remuneration must take into account the overall performance of the employee and of its unit, must be based on long-term objectives and cannot be guaranteed; and
- credit institutions must ensure that the variable remuneration of senior employees, management or risk takers cannot exceed their fixed remuneration, except if otherwise decided by the shareholders by a two-thirds majority.
In addition, the EBA published on 21 December 2015 guidelines on sound remuneration policies, and the ACPR declared it would require compliance with the major part of these guidelines.
The ACPR can impose a revision of a bank's compensation policy if it considers that such a policy is not compatible with sound risk management and the long-term objective of growth. Institutions must also be able to justify the amount and terms of payment of variable remuneration.
In addition, the ECB supervises the remuneration of the management bodies of significant entities, and at the start of 2019 published recommendations for a dividend policy.
iii Regulatory capital and liquidity
The current French requirements regarding capital and prudential ratios are those resulting from the implementation of the CRD IV Package.
If a French credit institution is categorised as a significant entity, compliance with the prudential requirements described below is supervised by the ECB.
Minimum capital requirements
Banks with headquarters in France are required to have a minimum share capital of €5 million.
The ACPR carries out a periodic assessment of banks' compliance with the capital adequacy guidelines, and may adopt a variety of measures to ensure that a shortfall in capitalisation is remedied: it may order a bank to increase its share capital; it may appoint a provisional administrator vested with the full powers of administration, management and representation of the credit institution; or, when appropriate, the governor of the Central Bank is entitled to invite (not require) the shareholders of the bank to provide the necessary support.
Prudential ratio requirements and composition of regulatory capital
The Capital Requirements Regulation imposes harmonised rules relating to prudential ratio requirements in the EU, which are directly applicable to French banking institutions, whereas the CRD provides for additional requirements that have not yet been fully implemented in France (i.e., additional own funds buffers).
The solvency ratio, according to the CRD IV Package, now includes the following categories: Common Equity Tier 1 (CET1), Tier 1 and Tier 2. Tier 3, provided for under CRD III, was abolished by the CRD IV Package.
In addition to the 8 per cent ratio, the CRD IV Package introduces three additional capital buffers (a capital conservation buffer equal to 2.5 per cent of CET1, a countercyclical capital buffer, currently equal to zero per cent (being increased to 0.25 per cent as of 1 July 2019), and the systemic buffer). These have been applied since 1 January 2016. In addition, local banking regulators can apply an additional buffer for other systemically important institutions, as well as institutions important to the EU.
Finally, each Member State may introduce a systemic risk buffer for the financial sector. Since 2015, this buffer has been capped at 5 per cent, but in France it is currently at zero per cent due to the lack of a decision by the French stability board (HCSF).
The CRD IV Package introduced two mandatory liquidity ratios: the liquidity coverage ratio (LCR) and the net stable funding ratio. Until a mandatory level is required for this second ratio, banks with headquarters in France will be required to comply only with the LCR, which since 2018 has required them to maintain, at all times, an LCR of at least 100 per cent.
Banks with headquarters in France are required to maintain their overall exposure resulting from operations per beneficiary below the higher of €150 million or 25 per cent of their own funds.6
Supervision of banking groups
French banking groups that do not fall within the scope of the general EU-wide ECB supervision are subject to supervision on a consolidated and individual basis. All institutions that belong to a French banking group are subject to an assessment, the scope of which depends on their position within their group.
For the parent institution, the evaluation process is primarily implemented on a consolidated basis.
For an institution that is a parent of a sub-consolidation, the ACPR primarily conducts its evaluation on a sub-consolidated basis, based on a scope of application similar to that for group parents. The position of the sub-consolidation parent institution within its group, and the influence of its shareholding, is also taken into account.
For a bank that belongs to a group but that does not have any subsidiaries that are supervised by the ACPR, the supervision is conducted on a stand-alone basis, while taking into account the influence of the group to which it belongs and the businesses and risks of any non-banking subsidiaries. Financial holding companies and mixed financial holding companies are also subject to consolidated supervision.
In parallel with this consolidated basis approach, a stand-alone analysis is also conducted whenever the assessment of the specific risk profile and the risk assessment and management systems are of particular interest.
iv Recovery and resolution
As a general principle, banks are subject to the same insolvency procedures that are applicable to all companies in financial difficulties in France, with certain specificities (Article L613-24 et seq. of the Monetary and Financial Code).
The ACPR plays a central role both before and after a crisis. As soon as the information available indicates that the financial balance of a credit institution is at risk or that its management methods are not satisfactory, the ACPR may require the credit institution to comply with higher capital requirements or require the adoption of specific methods of booking of provisions for certain assets. The ACPR may also employ administrative measures when certain practices of a given credit institution may harm its clients' interests: it may issue a warning against those practices or require that the bank concerned submit a recovery plan or upgrade its management methods. When the ACPR deems that the solvency or liquidity of a credit institution or the interests of its clients are at risk, it may take certain measures (see above).
When necessary, the governor of the Central Bank may invite the bank's shareholders to provide financial support. There is, however, no obligation on the part of the shareholders to accept such an invitation.
When a credit institution is in a crisis situation, the ACPR may nominate a temporary administrator, who will have all the powers to manage and represent the bank, or a liquidator, in particular in the event that the entity's banking licence is withdrawn (Article L613-24). In both cases, the ACPR may petition the local court for the forced sale of the shares owned by the management (Article L613-25). Moreover, the ACPR may request the involvement of the Deposit Guarantee Fund, for instance when a credit institution is unable to repay deposits received from the public.
This recovery and resolution framework changed in 2015 through the passing of EU Regulation No. 806/2014, dated 30 July 2014, which implemented an SRM, and the transposition by an ordinance dated 20 August 2015 of EU Directive No. 2014/59/EU, dated 15 May 2014, on bank recovery and resolution (BRRD). The recovery and resolution framework was amended in August 2015, January 2016 and December 2017. These amendments introduced in particular the requirements relating to total loss-absorbing capacity (TLAC), which relate to global systemically important banks. Further, in 2017, in accordance with Article 45 of the BRRD, the Single Resolution Board (SRB) introduced binding requirements and started to address both the quantity and quality of the minimum requirement for own funds and eligible liabilities (MREL). The law on banking resolutions is now lex specialis to general insolvency procedures to prevent systemic effects on the banking sector.
For significant banks and other cross-border groups within the Banking Union, the resolution authority is the SRB, and national resolution authorities are responsible for all other banks, except when resolution requires the use of the Single Resolution Fund or if the SRB decides to exercise directly all its powers.
Preventive recovery plans
The following entities are obliged to draw up preventive recovery plans:
- significant credit institutions that fall under the sole supervision of the ECB;
- credit institutions within a group that are not supervised on a consolidated basis;
- the parent company of credit institutions within a group that are supervised on a consolidated basis within the EU; and
- credit institutions where required by virtue of a decision of the resolution college (Article L613-35 et seq. of the Monetary and Financial Code).
The plans have to be adjusted regularly, and are subsequently examined by the supervisory college within the ACPR (Article L613-36 of the Monetary and Financial Code). Preventive group recovery plans are communicated to other authorities, in addition to the resolution college (Article L613-37 et seq. of the Monetary and Financial Code). Significant banks' recovery plans are reviewed by the ECB.
Preventive resolution plans
For entities that are obliged to produce recovery plans, the resolution college has the competence to also establish preventive resolution plans on an individual or consolidated basis (Article L613-38 et seq. of the Monetary and Financial Code). The resolution college designs potential resolution measures and cooperates with other authorities, particularly the respective supervisory authorities. At the initial elaboration of each plan, and at the point of any subsequent revision, the resolution college evaluates whether and to what extent an entity is resolvable without putting at risk its critical functions or the financial system as a whole (Article L613-41 et seq. of the Monetary and Financial Code). To guarantee the resolvability of an entity, the resolution college can take certain preventive measures (Article L.613-42 of the Monetary and Financial Code).
The resolution college also ensures that credit institutions and investment firms fulfil the minimal capital requirements determined by the law or by the residual discretion of the resolution college (Article L613-44 et seq. of the Monetary and Financial Code).
Intragroup guarantees, by which one group entity guarantees the obligations of another group entity to a third party, can be granted to stabilise the financial situation of the whole group. Such a contract is only effective when approved in advance by the resolution college and the supervisory college, as well as any other concerned supervisory institution within the ACPR (Article L613-46 et seq. of the Monetary and Financial Code).
Note that, as the competent resolution authority for significant banks and cross-border groups within the Banking Union, the SRB is responsible for drawing up the resolution plans and adopting all decisions relating to banking resolution in relation to these entities.
Minimum requirement for own funds and eligible liabilities
The MREL corresponds to the minimum amount of loss-absorbing capacity that is also covered by the international standard TLAC developed by the Financial Stability Board. The SRB is committed to implementing and enforcing the applicable legal framework, including by setting MREL targets for the banking groups under its remit. For other entities, the national resolution authorities (in France, the ACPR) are responsible for setting MREL targets. Since 2017, several banking groups have been notified about their MREL level, and have started to issue eligible debts (such as non-preferred senior debt) to reach these targets.
Before taking concrete resolution measures in respect of a bank, including the write-down and conversion of capital instruments, an entity's value must be estimated by an independent expert (Article L613-47 of the Monetary and Financial Code). The resolution college can only write down and convert capital instruments if the entity's insolvency is otherwise unavoidable (Article L613-48 et seq. of the Monetary and Financial Code). The resolution procedure is initiated by the Governor of the French Central Bank, the Head of the French Treasury or the ECB (Article L613-49 of the Monetary and Financial Code).
The resolution college has the power to assume the effective management of an entity, designate a special administrator and replace members of the board (Article L.613-51 et seq. of the Monetary and Financial Code). All or part of a bank's activities can be transferred to a voluntary purchaser (Article L.613-52 et seq. of the Monetary and Financial Code). The bank's assets can also be transferred to a bridge bank (Article L.613-53 et seq. of the Monetary and Financial Code) or to an asset manager (Article L613-54 et seq. of the Monetary and Financial Code) with a view to a subsequent sale. A bail-in of eligible liabilities may be implemented in accordance with Article 27 of Regulation No.806/2014 (Article L613-55 et seq. of the Monetary and Financial Code). Additionally, the resolution authority is allowed to order the issue of new shares or Tier 1 capital instruments (Article L613-56 et seq. of the Monetary and Financial Code).
For entities subject to the direct supervision of the ECB, it determines, after consulting the SRB, whether a bank is failing or likely to fail. If so, the SRB places the bank under resolution and adopts a resolution scheme determining which resolution measures will be applied.
iv CONDUCT OF BUSINESS
i Rules governing the business conduct of banks
The primary laws and regulations governing the business conduct of banks are:
- the Monetary and Financial Code (in particular Article L533-1 et seq.);
- the French Civil Code (general contractual rules and rules relating to loans) and the French Commercial Code (rules relating to commercial paper);
- regulations issued by regulatory authorities, such as orders of the Minister of Economy and by the AMF and, in particular, the rules of good conduct set out in Articles 314-1 to 314-105 of the General Rules of the AMF;
- European banking and market abuse rules, in particular the Market Abuse Directive7 and the Market Abuse Regulation;8
- regulatory guidelines and recommendations issued by the EBA, in particular the guideline on internal governance under Directive 2013/36/EU; and
- all international banking rules, such as those issued by the Office of Foreign Assets Control or resulting from the Financial Action Task Force (anti-money laundering) and the Basel Committee on Banking Supervision.
ii Potential sources of civil, criminal and regulatory liability
Banks have many potential sources of civil, criminal and regulatory liability.
The main sources of civil and regulatory liability include non-compliance with one or several of the following obligations:
- obligations relating to investment services:
- the general principle of good conduct (honesty, loyalty, professionalism and compliance with the principle of prioritising clients' interests and the integrity of the market);
- obligation to classify clients as professional clients, eligible counterparties and retail clients;
- obligation relating to the provision of information (accurate, clear and sufficient information must be provided to clients);
- obligation to evaluate clients (evaluation of clients and potential clients to determine the services and financial instruments best suited to their needs);
- obligation of best execution (in the execution of orders, reasonable measures to be taken to provide the client with the best possible result);
- obligation to call margins for orders with deferred settlement;
- written and up-to-date policies for preventing and managing potential conflicts of interest; and
- internal compliance obligations (internal administrative procedures, compliance rules, efficient techniques to evaluate risks and the back-up of electronic data);
- obligations and liabilities relating to credit services:
- obligation to inform and advise clients and potential clients in connection with all services provided;
- obligation to confirm in advance that a loan is adapted to the financial resources of the client (liability resulting from excessive, inappropriate or abusive loans);
- no liability resulting from unreasonable financial support except in the case of fraud, clear interference with the debtor's management or if the guarantees taken in consideration of the credit granted are disproportionate to the latter;9
- liability for claims of insufficient assets (liability for mismanagement if there is an insolvency proceeding brought with respect to a company, the assets are insufficient to cover the company's liabilities, the bank can be considered as a de facto or de lego manager of the company, and the bank has mismanaged the insolvent company.10 Banks are very rarely considered liable as de facto managers);
- liability resulting from abusive termination of credit, in the event that reasonable notice has not been provided when terminating credit facilities (unless there is a stated maturity);
- liability for non-compliance with the rules relating to the structure of and access to the banking profession (violations of the rules governing the approval of credit institutions); and
- liability for mismanagement of portfolios (banks may be held liable if they do not comply with the limits of the mandate given by their clients); and
- main sources of criminal and regulatory liability:
- money laundering:11 punishable by a maximum of five years’ imprisonment, a fine of €375,000 for individuals or €1.875 million for legal entities such as banks; these fines may be raised to half the value of the property or funds in respect of which the laundering operations were carried out. The ACPR may also impose important sanctions on banks for failing to comply with their anti-money laundering and counter-terrorist financing obligations (a credit institution was recently subject to a €50 million fine on that basis);
- market abuse: regulatory and criminal liability for insider trading, disclosing false and misleading information and share price manipulation. Criminal offences are punishable by a maximum of five years’ imprisonment, and a fine of €100 million for individuals or €500 million for legal entities such as banks, or 10 times the amount of the profits gained or losses avoided, or 15 per cent of the total annual turnover. Regulatory violations are punishable by a fine of a maximum of €100 million, or 10 times the profit made through insider trading. Note that the French Constitutional Council ruled on 18 March 2015 that no one can be prosecuted twice for a market abuse (once before a criminal court and once before the regulator);
- usurious loans: punishable by a maximum of two years’ imprisonment, a fine of €45,000 for individuals or €225,000 for legal entities such as banks;
- illicit solicitation: banks that do not have a European passport, or that have not been authorised by the ACPR to conduct business in France, may be held criminally liable for any unsolicited contact made with an individual or legal entity to obtain an agreement for a banking, investment or financial transaction or service;12 and
- complicity in tax fraud: punishable by seven years’ imprisonment, a fine of €20,000 for individuals or up to €10 million for legal entities such as banks.
iii Banking confidentiality
All managers, officers and employees of banks are bound by the principle of banking confidentiality.13 Any person who does not comply with this obligation can face tortious or criminal liability.14 The disclosure of information subject to banking confidentiality is punishable by up to one year's imprisonment, a fine of €15,000 for an individual or €55,000 for a bank.
Banking confidentiality protects the interests of the client, and can only be waived by the client.
There are several exceptions to this prohibition relating to information provided in connection with disclosure obligations made to, or investigations conducted by, the following authorities:
- tax and customs authorities;
- the French Central Bank;
- the AMF and the ACPR; and
- reports of suspected money laundering or terrorism activity made to the French anti-money laundering authority (TRACFIN).
Moreover, several banks may benefit from shared banking confidentiality for the implementation of specific transactions, such as syndicated loans, banking pools or hedging transactions.
Recent case law also suggests that banks are not bound by banking confidentiality with respect to guarantors.
French banks fund their activities from a capital base comprising equity and deeply subordinated debt, accounted for as equity, subordinated debt, medium and long-term senior debt, customer deposits and shorter-term debt. This section focuses on the non-equity sources of financing available to French banks to fund their activities.
The following table shows the principal non-equity funding sources of some of the largest banking groups in France as indicated in their latest available reports:
|Bank||Amount due to credit institutions (€ billion)||Customer deposits (€ billion)||Debt securities (€ billion)||Subordinated debt (€ billion)|
|La Banque Postale||15.2||186.7||12.5||3.9|
i Amounts due to credit institutions
Interbank debt will usually comprise unsecured loans, short-term deposits and repurchase agreements.
Repurchase agreements, known as pensions, are governed by Article L211-27 et seq. of the Monetary and Financial Code and are defined as transactions pursuant to which an entity transfers the ownership of financial instruments to another entity, in consideration for an agreed price, and under which the transferee agrees to transfer the ownership of the financial instruments (which the transferor must accept) back to the transferor, for a price and on a date agreed by the parties. The financial instruments subject to the repurchase agreement remain at all times on the balance sheet of the transferor despite the initial transfer of ownership.
ii Customer deposits
As illustrated by the table above, customer deposits generally represent the largest source of funding for the main French banks, as has been the case for the past few years. According to the Central Bank (which is responsible for compiling regional statistics on the bank deposits of the non-financial sector), between 31 October 2017 and 30 November 2018, customer deposits increased from €1.914 trillion to €2.035 trillion.
In addition, in its report on the performance of French banking groups in 2017, dated May 2018, the ACPR stressed that 'the French banks' average loan-to-deposit ratio increased slightly by 1.1 pt' between the end of 2016 and the end of 2017, 'consistent with the median of European banks'. This consistency can also be acknowledged by the supervisory statistics for Q3 2018 published by the ECB on 25 January 2019, according to which the loan-to-deposit ratio at the European level increased from 117.58 per cent at Q3 2017 to 118.42 per cent at Q3 2018.
iii Debt securities
Debt securities issued by banks (other than subordinated debt) include short to medium-term instruments issued in the money markets and longer-term securities issued in the capital markets.
Short to medium-term instruments issued in the money market
The French money market is divided into three components: the interbank market, the interest rate swap market and the market in negotiable debt securities (TNs).
The TN market is the component of the money market open to all participants (financial and non-financial, resident and non-resident, subject to certain conditions), in which the TN category of instruments governed by Articles L213-1 to 213-4-1 and D213-1 et seq. of the Monetary and Financial Code (as well as treasury bonds) are traded. The minimum value of a TN is €150,000.
The rules governing the TN market in France were reformed in 2016 through Decree 2016-707 of 30 May 2016 and the Ministerial Order of 30 May 2016 (TN Reform), which entered into effect on 1 June 2016 with a view to opening the market to foreign investors by, in particular, simplifying the applicable rules and existing TN categories.
Since the TN Reform, the main features of TNs are as follows:
- no requirement to provide a summary of the financial documentation in French when the documentation is drafted in a customarily accepted language in the financial sphere, subject to the obligation to include in the financial documentation a warning in French inviting investors to use a French translation of the documentation;
- the minimum value of a new TN is increased to €200,000 (or the equivalent amount in another currency) when the financial documentation is drafted in a customarily accepted language in the financial sphere; and
- extension of the list of rating agencies allowed to rate the issuer to any rating agency registered with the ESMA (to the extent that the rating agency has the technical capacity to proceed with the rating of the instrument).15
As at the end of December 2018, the outstanding amount of negotiable European commercial paper was €267.2 billion and the outstanding amount of medium-term notes was €56.5 billion.
The advantage of these instruments is the flexibility offered with respect to their maturity, allowing the issuer to adjust the instrument's characteristics to meet its specific funding needs.
Longer-term debt securities issued on the capital markets
French banks issue a variety of bond instruments, including covered bonds.
As in other European countries, covered bonds issued in France are dual-recourse bonds, with a claim against the issuer and a priority claim on a pool of collateral (referred to as the cover assets). These are issued in most instances pursuant to a specific legal framework. As such, covered bonds constitute one of the safest instruments available, and have proven relatively more resilient than other funding instruments in the face of recent financial turmoil. French covered bonds are issued pursuant to four different legal regimes, which are described below.
Bonds issued by the Caisse de Refinancement de l'Habitat
The Caisse de Refinancement de L'Habitat (CRH) is a credit institution owned by French banks, created by the government in 1985 to fund or refinance residential home loans granted by certain French banks. The CRH issues bonds and lends the bond proceeds to the borrowing banks, which then issue promissory notes (of a nominal value equal to or higher than €100,000) in favour of the CRH evidencing the loan from the CRH. The CRH's operations are governed by a specific legal regime set out in Article 13 of Law 85-695 of 11 July 1985, and Articles L313-42 to L313-49-1 and R313-20 to R313-25-1 of the Monetary and Financial Code. Since 4 November 2014, the CRH has operated under the supervision of the ECB owing to the size of its balance sheet.
As at 30 June 2018, CRH shareholders' equity is exclusively constituted of Core Equity Tier 1 (CET1) in a total amount of €556.5 billion, and is allocated as follows:16
- Crédit Mutuel: 35.4 per cent;
- Crédit Agricole SA – Crédit Lyonnais: 33.6 per cent;
- Société Générale: 17.9 per cent;
- BNPP: 7.6 per cent; and
- BPCE: 5.5 per cent.
The refinanced loans remain on the borrowing banks' balance sheet, but are pledged as collateral in guarantee of the banks' obligations under the promissory notes. In turn, the bondholders have a legal privilege over the promissory notes in guarantee of the CRH's obligations under the bonds, so that the allocation of amounts generated by the promissory notes are given priority over the payment of interest and principal on the CRH bonds.
The only eligible loans (i.e., the cover assets) are residential loans with a first-ranking mortgage, or a guarantee issued by a credit institution or an insurance company (such guaranteed loans not exceeding 35 per cent of the cover assets).
Real estate bonds
Real estate bonds may only be issued by special-purpose mortgage credit companies (SCFs), which are usually set up by a credit institution and governed by a stringent legal framework set out in Article L513-2 et seq. and Article R513-1 et seq. of the Monetary and Financial Code. SCFs are supervised by the ACPR.
The cover assets are narrowly defined by law, and include loans secured by a first-ranking mortgage, and loans granted to finance real estate and guaranteed by a credit institution or an insurance company (guaranteed loans of this type shall not exceed 35 per cent of the assets of the SCF).
As an exception to the general rules of French bankruptcy law, holders of real estate bonds and other privileged debts benefit from a legal privilege allowing them to be paid prior to all other creditors.
Structured covered bonds
In view of the restrictions imposed by the existing legal framework with respect to the collateral that can be used as cover assets for covered bonds, and in particular the 35 per cent cap on guaranteed housing loans with respect to the real estate bonds described above, certain banks have structured instruments as covered bonds outside of a specific legal regime. These structures rely on Article L211-36 et seq. of the Monetary and Financial Code, which implements the Collateral Directive17 (as amended by Directive 2009/44/EC) and allow the enforcement of collateral with respect to certain financial obligations even when the collateral provider is the subject of an insolvency proceeding.
To remedy the disadvantages inherent in real estate bonds, in particular the 35 per cent cap on guaranteed housing loans and the uncertainty as to the structure of the structured covered bonds, the government created a new category of covered bonds called residential bonds.
Residential bonds may only be issued by special-purpose housing finance companies (SFHs), which are usually set up by a credit institution and governed by a stringent legal framework set out in Article L513-28 et seq. and Article R513-19 et seq. of the Monetary and Financial Code. SFHs are supervised by the ACPR.
The major difference between the two legal frameworks is that, in the SFH framework, no cap has been set with regard to guaranteed loans, which is clearly an advantage given that more than 75 per cent of real estate loans are guaranteed loans.
iv Subordinated debt
The subordinated debt issued by banks usually takes the form of subordinated redeemable bonds, perpetual subordinated bonds or deeply subordinated bonds.
The subordinated nature of these instruments is based on Article L228-97 of the Commercial Code, which provides that debt securities may be structured so as to be subordinated to all other indebtedness of the issuer or to all other indebtedness other than participating loans (which is another category of subordinated debt provided by law).
vi CONTROL OF BANKS AND TRANSFERS OF BANKING BUSINESS
i Control regime
Ownership restrictions and control
Since 4 November 2014, the ECB is in charge of the control of banking licence approvals and acquisitions of qualified holdings in credit institutions. To support applicants and all entities involved in the process of authorisation, the EBC published on 9 January 2019 a non-binding consolidated guide to assessments of licence applications, which applies to all licence applications to become a credit institution (including applications for credit institutions, fintech companies and qualifying holding approvals).
Requests for a banking licence are filed at the ACPR, which first assesses whether all conditions for the granting of a banking licence are fulfilled, then submits a proposed decision to the ECB.
The conditions for granting a banking licence under French law include a review of the credit institution's shareholders.
A shareholder may be invited by the ACPR to provide support to a bank. In practice, however, a shareholder is invited to do so only when it owns at least 10 per cent and less than 50 per cent of the voting rights of the bank. The ACPR would normally consider that majority shareholders or shareholders exercising an effective control over a bank should provide all or substantially all of the necessary financial support.
In practice, the ACPR regularly rules in accordance with the following principles:
- one or several shareholders may only own a controlling interest in a bank if they have sufficient financial means and prior experience in the activities to be authorised. Otherwise, the ACPR would require an EU-authorised bank (usually with a blocking minority vote) to act as sponsor;
- if the effective control of a bank will not be held by a single shareholder, the ACPR would seek to ensure that the allocation of the share capital is sufficiently stable, and that certain undertakings from the main shareholders are provided, and would usually recommend entering into a shareholders' agreement;
- the ACPR would not grant its authorisation to banks that are owned by a single individual; and
- the ACPR would prefer interests to be held directly in the bank rather than through holding companies.
With regard to point (a), above, the ACPR would generally consider that when a controlling ownership is owned by entities that are not subject to the supervision of banking authorities, the authorisation should be granted (and maintained) only if the entities' investment in the bank is reasonable, given their assets and available capital. In addition, the non-banking activities of these entities must generate annual financial results sufficient to satisfy any future requirement to reinforce the capital of the bank. The ACPR would require non-banking controlling shareholders to be sponsored by an EU-authorised bank. It is likely that a comfort letter from the entities would also be required (providing for long-term ownership of the bank, permanent supervision of the bank's business and a commitment to provide financial support to the bank if necessary).
If the majority shareholders of a bank are foreign banks that do not belong to the EEA and are small or average-sized participants in the world banking market, it is likely that an EU-authorised bank should act as a sponsor for the foreign shareholders. This sponsor is usually required to own a blocking minority vote and to be represented on the bank's board of directors.
Although in theory there is no obligation for a shareholder to provide additional capital to the bank in the event that it becomes undercapitalised, it appears that shareholders of a bank may be required to give support to a bank at the ACPR's request, in particular given the fact that committing such support was often considered by the regulatory authority to be an underlying condition for the granting of the authorisation for the operation of banking activities in the first place.
In the context of an acquisition of control, regulators also need to evaluate the impact of a proposed transaction on the prudential ratios of the acquiring entity, the target and the combined group. Similarly, the ability to implement risk-monitoring systems (i.e., both permanent and periodic controls) is a key factor for securing ECB non-opposition. The ACPR also considers the proposed post-transaction management team to be a critical element. In addition, the ACPR will ensure that a change of control does not adversely affect the funding of the bank, the risks incurred by the bank, the internal control procedures or the IT infrastructure.
In practice, when projects for establishment in France are submitted by banks with confirmed international experience and a first-rate financial situation, and a country of incorporation that guarantees French credit institutions sufficiently free access to its market, the French authorities will generally allow the applicants considerable latitude with regard to their form of establishment: they may choose to either open a branch or create a subsidiary.
In contrast, when foreign banks from countries that are not members of the EEA or the G10 wish to open an establishment for the first time, the French regulator is likely to impose a requirement that they create subsidiaries to involve, as a shareholder, a local partner bank that could facilitate their initial contact with French customers and act as their sponsor.
Changes in the qualifying holding
Since 4 November 2014, assessing changes in the qualifying holding of any European credit institution falls within the scope of the ECB's competence. Such changes are, however, first examined by the competent national authorities.
A qualifying holding is defined as 'a direct or indirect holding in an undertaking which represents 10 per cent or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of that undertaking'.
Changes in the qualifying holding are filed at the ACPR, which first assesses whether the filing is compliant with the French provisions transposing the CRD IV Package. The rules governing changes in the qualifying holding of credit institutions are laid down in a ministerial order dated 4 December 2017. The ACPR then submits a proposed decision to the ECB, which renders a final decision following its assessment.
ii Transfers of banking business
French law does not provide for any specific regime allowing banks to transfer all or part of their business to another entity without requiring the relevant third-party consents, including the customers' consent with respect to loans and deposits (with the exception of the above-mentioned power of the ACPR to permit a transfer).
If a transaction is structured as a sale of a going concern, then relevant third-party consent would need to be obtained. However, in practice, approval is generally sought only for material contracts. For contracts that are not considered material, the bank will usually simply notify their transfer to the counterparty.
Third-party consent should, however, not be required if the sale of a business is structured as a sale of the shares of the entity that is party to the deposit and loan agreements, or as the contribution of an autonomous business activity to another entity in exchange for shares in such an entity (since deposit and loan agreements would not typically contain change of control provisions).
vii THE YEAR IN REVIEW
A legal framework has been set for blockchain under Ordinance No. 2016-520 of 28 April 2016. According to this text, blockchain technology is defined as a 'shared electronic recording system allowing for authentication'.
Moreover, the issuance of mini-bonds can now be recorded on a blockchain. In this case, the bonds can be sold under appropriate modalities: the recording of the sale operation in an electronic shared recording system proceeds to the transfer of the ownership title.
Pursuant to an ordinance dated 8 December 2017, the registration in a blockchain of an issuance or assignment of securities that are not admitted to the operations of a central securities depository are given the same effects as securities recorded in a securities account. A decree dated 24 December 2018 details the conditions for the application of this new registration process.
Further to the decision of the United Kingdom to leave the EU, the ACPR and the AMF are getting ready to welcome British-based institutions that wish to relocate their business to France. For existing activities that are already supervised by the competent authority in their home country, the aim is to simplify and speed up the licensing procedure. This will be done by using documents already available in English, such as forms that have been submitted to the supervisory authorities in home countries and papers concerning a branch whose business will be taken over by a subsidiary firm. An English-speaking contact point has been appointed to guide applicant firms through the procedure, starting with the pre-authorisation period, and provides all necessary information to ensure the smooth processing of applications.
In addition, as a preventive measure, by Law 2019-30 of 19 January 2019, the French Parliament has given the government the ability to take specific measures in the event that the UK and the EU fail to reach a withdrawal agreement.
iii Payment services
PSD218 entered into force on 12 January 2016, and has been applicable since 13 January 2018. In France, Ordinance No. 2017-1252, dated 9 August 2017, and several decrees and orders, have transposed PSD2, the main measures of which include the regulation and supervision of new actors in the payment services sector (payment initiation service providers and account information service providers), changes to the scope of the entities that are excluded from the Directive, reinforced consumer protection rights, rules relating to the security of payment services with a view to preventing fraud, and the extension of the scope of the rules to include non-EEA currency payments between EEA-domiciled payment service providers, as well as payment transactions where one of the payment service providers is located outside the EEA in all currencies.
iv Endorsement of the final changes to the Basel III framework
The Basel Committee on Banking Supervision announced on 7 December 2017 that the outstanding Basel III post-crisis regulatory reforms had been endorsed, including:
- a revised standardised approach for credit risk;
- revisions to the internal ratings-based approach for credit risk;
- revisions to the credit valuation adjustment framework;
- a revised standardised approach for operational risk;
- revisions to the measurement of the leverage ratio and a leverage ratio buffer for global systemically important banks; and
- an aggregate output floor.
The revised standards will take effect from 1 January 2022, and are to be phased in over five years.
v Prevention of money laundering and terrorist financing
France has just finalised the transposition of Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, adopted on 20 May 2015.
The main text adopted for this purpose is Ordinance No. 2016-1635, dated 1 December 2016, transposing the requirements set out in the Directive and specifying the scope of the changes made to the French regulatory framework, including, inter alia, reinforcement of the risk-based approach, a widening of the scope of the declaration of suspicions and enhanced measures for politically exposed persons. The Ordinance has been supplemented by Decree No. 2017-1094 on the centralised beneficial owner register, as well as by Decree No. 2018-284 of 18 April 2018 detailing the definition of beneficial owners and the provisions relating to the duties of obliged entities. The ACPR also issued specific guidelines on the identification, identity verification and knowledge of customers in December 2018.
At the European level, a new directive amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (Fifth AML Directive) was published on 30 May 2018. Member States must comply with the Directive by 10 January 2020. The Fifth AMLD Directive, inter alia, extends its scope to new technologies such as virtual currencies and electronic wallets, makes national beneficial ownership registers accessible to the general public under certain conditions and obliges Member States to create a list of offices and functions that qualify as being politically exposed.
vi Recovery and resolution
A new rank in insolvency for non-preferred senior debt that can be bailed-in in the case of resolution, ranking as senior to regulatory capital instruments but as junior to other senior liabilities, was introduced by Directive (EU) 2017/2399 of 12 December 2017 amending the BRRD as regards the ranking of unsecured debt instruments in the insolvency hierarchy.
Its aim is to provide a consistent legal framework with respect to bank creditors' hierarchy on a EU-wide basis, meeting the requirements described in the TLAC standard and the MREL.
In accordance with Article 2 of this Directive, EU Member States must bring into force the laws necessary to comply with the Directive by 29 December 2018.
France had already enacted a similar rank under Article L613-30-3 of the Monetary and Financial Code, pursuant to Law No. 2016-1691 dated 9 December 2016.
vii Data protection
Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data is due to enter into force in May 2018.
Under this Regulation, companies, including credit institutions, have to, inter alia, ensure the compliance of their processing activities and keep records of those activities, meaning that they will have to set up an ad hoc internal control and reporting procedure on these matters. Credit institutions also have to comply with several other obligations, including the appointment of an independent data protection officer, the introduction of a new standard of consent given to the processing of data, as well as data portability requirements and the right to be forgotten.
Breach of these obligations may result in fines of up to €20 million or up to 4 per cent of the annual worldwide turnover of the company concerned.
On 21 June 2018, Law No. 2018-493 on the protection of personal data was enacted to adapt the existing national law to comply with the provisions set out in the GDPR.
viii New banking package
On 4 December 2018, the European Parliament and the Council of the European Union reached a provisional political agreement on a package amending the Capital Requirements Regulation, the Capital Requirements Directive, the Bank Recovery and Resolution Directive and the SRM Regulation. The European Parliament's Plenary plans to officially adopt the agreement by a vote that should take place early in 2019. This package addresses various matters such as:
- a binding 3 per cent leverage ratio for all institutions subject to the CRD and an additional 50 per cent buffer for global systemically important institutions;
- revised net stable funding ratio and weighing risks;
- changes to the large exposure treatment;
- the reduction of capital requirements for certain loan exposures made to small and medium-sized companies;
- integration of TLAC and MREL; and
- reduced requirements for small and non-complex institutions in certain areas.
This Ministerial Order takes into account the fields of competence of the ECB since the entry into force of the SSM.
viii OUTLOOK and CONCLUSIONS
While the French banking sector had been steadily recovering from the 2008 financial crisis, the eurozone crisis, combined with the heavy exposure of French banks to such sovereign risks, has resulted in the need for French banks to continue to strive to meet the regulatory capital requirements and remain profitable.
It appears that these efforts are starting to pay off. French banks have reduced their balance sheets by selling certain non-core activities and loan portfolios, reinforced their regulatory capital and accumulated significant liquidity reserves. The French Banking Law and the new European regulatory framework did not significantly alter the French universal banking model, which has shown resilience during the crisis.
French banks are therefore looking to the future with greater confidence and optimism, and are again focusing on their growth plans. The profitability of the French banking sector is set at a good level, since return on equity of the banking sector was at 6.2 per cent in 2017, well above the eurozone average of 5.7 per cent The soundness of the French banking sector is confirmed by the weighted average CET1 solvency ratio for the banking sector, which was 14.2 per cent in 2017, in excess of minimal regulatory requirements and slightly below the EU average of 15 per cent.
Additional challenges are faced by the sector in the context of a changing regulatory environment – this involves, for the four biggest French banking groups (BNP, Société Générale, Crédit Agricole and BPCE), a focus on their upcoming compliance with the TLAC rules, and, more generally, for banking groups to work on their compliance with the upcoming MREL requirements.
1 Didier Martin and Samuel Pariente are partners and Jessica Chartier, Béna Mara and Gaël Rivière are associates at Bredin Prat.
2 EU Regulation No. 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions.
3 CJEU, ECLI:EU:T:2017:337, 16 May 2017, Landeskreditbank Baden-Württemberg v. ECB.
4 Letter from the ECB, additional clarification regarding the ECB's competence to exercise supervisory powers granted under national law, SSM/2017/0140 of 31 March 2017.
5 EU Regulation No. 806/2014 of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a single resolution mechanism and a single resolution fund.
6 CRBF Regulation No. 93-05.
7 Directive 2014/57/EU on criminal sanctions for market abuse.
8 Regulation (EU) No. 596/2014 of 16 April 2014 on market abuse.
9 Article L650-1 of the French Commercial Code.
10 Article L651-2 of the French Commercial Code.
11 Banks may be found criminally liable for facilitating, by any means, the concealment of the true origins of goods or resources of a person who commits a crime or a misdemeanour that provides that person with a direct or indirect profit. Banks may also be considered guilty of money laundering if they knowingly facilitate a transaction involving the investment, concealment or conversion of the direct or indirect product of a crime or a misdemeanour (Article 324-1 of the French Penal Code).
12 Article L341-1 et seq. of the Monetary and Financial Code.
13 Article L511-33 of the Monetary and Financial Code.
14 Article 226-16 of the French Penal Code.
15 Further details in Article 11 of Ministerial Order of 30 May 2016.
16 Total: 100 per cent.
17 Directive 2002/47/EC.
18 Directive (EU) 2015/2366 of 25 November 2015 on payment services.