• EN-5 EN-5 Adverse "fit and proper" findings

    • EN-5.1 EN-5.1 Requirements for individuals

      • EN-5.1.1

        Article 85 of the BMA Decree — Law No. 23 of 1973 ("BMA Law") provides that any Director, manager or official responsible for the direction or management of a licensee, is to be considered removed from office should he be convicted by a court for a crime affecting his honesty; is declared bankrupt by a court; or if a court rules that his legal capacity is totally or partially impaired.

      • EN-5.1.2

        The Agency's standard conditions and licensing criteria, issued pursuant to Article 59 of the BMA Law, require that management and staff of a licensee should be adequately qualified and experienced.

      • EN-5.1.3

        In addition, chapter HC-2 specifies that all persons wishing to hold or holding the position of Director, Chief Executive/General Manager or Manager in a licensee must be assessed by the Agency as "fit and proper" to hold such a position. The chapter specifies various factors that the Agency takes into account when reaching such a decision.

      • EN-5.1.4

        In interpreting the term "manager" for the purposes of Article 85 of the BMA Decree — Law No. 23 of 1973, the Agency uses the definition given in chapter HC-2. The same definition applies when the term "manager" is used in other modules, unless a different definition is explicitly provided for in the module concerned.

    • EN-5.2 EN-5.2 BMA policy

      • EN-5.2.1

        The Agency is conscious of the impact that assessing someone as not "fit and proper" may have on an individual. Such assessments are carefully reviewed in the light of all relevant facts. The criteria used in reaching a decision include the following:

        (a) the extent to which the factors set out in the BMA Law and chapter HC-2 have not been met;
        (b) the extent to which the person has deliberately or recklessly breached requirements of the BMA Law or BMA regulations;
        (c) the person's past compliance record and conduct following any such contravention;
        (d) the length of time since factors indicating a lack of fitness or propriety occurred; and
        (e) the risk the person poses to licensees and their customers.

      • EN-5.2.2

        In assessing evidence, the Agency applies a lower threshold than is applied in a criminal court of law, reflecting the administrative nature of the sanction. The Agency may also take into account the cumulative effect of factors which, when considered individually, may not in themselves be sufficient to justify an adverse "fit and proper" finding.

      • EN-5.2.3

        The Agency may also take into account the particular function being undertaken in the licensee by the individual concerned, and the size and nature of the licensee itself, particularly when assessing the suitability of a person's experience or qualifications. Thus, the fact that a person was deemed "fit and proper" for a particular position in a particular firm does not necessarily mean he would be suitable in a different position or in a different firm.

    • EN-5.3 EN-5.3 Procedure for issuing an adverse finding

      • EN-5.3.1

        All proposals for issuing an adverse "fit and proper" finding are subject to a thorough review by the Agency of all relevant facts, assessed against the criteria outlined in section EN-5.2. In some instances, it may be appropriate for the Agency to request the licensee or person concerned to provide further information, in order to help reach a decision.

      • EN-5.3.2

        All adverse findings have to be approved by an Executive Director of the Agency. A notice of intent is issued to the person concerned, and copied to the Board/senior management of the licensee as appropriate, setting out the circumstances and the basis for the Agency's proposed adverse finding. The person has 30 calendar days from the date of the notice in which to make written representations, addressed to the Executive Director concerned, failing which a final notice is issued by the Agency.

      • EN-5.3.3

        If representations are made, then the Agency has 30 days from the date of the representation in which to consider any mitigating evidence submitted and make a final determination.