Annexes to COM(2008)704 - Credit Rating Agencies - Main contents
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| dossier | COM(2008)704 - Credit Rating Agencies. |
|---|---|
| document | COM(2008)704  |
| date | September 16, 2009 |
INDEPENDENCE AND AVOIDANCE OF CONFLICTS OF INTEREST
Section A
Organisational requirements
1. The credit rating agency shall have an administrative or supervisory board. Its senior management shall ensure that:
| (a) | credit rating activities are independent, including from all political and economic influences or constraints; |
| (b) | conflicts of interest are properly identified, managed and disclosed; |
| (c) | the credit rating agency complies with the remaining requirements of this Regulation. |
2. A credit rating agency shall be organised in a way that ensures that its business interest does not impair the independence or accuracy of the credit rating activities.
The senior management of a credit rating agency shall be of good repute and sufficiently skilled and experienced, and shall ensure the sound and prudent management of the credit rating agency.
At least one third, but no less than two, of the members of the administrative or supervisory board of a credit rating agency shall be independent members who are not involved in credit rating activities.
The compensation of the independent members of the administrative or supervisory board shall not be linked to the business performance of the credit rating agency and shall be arranged so as to ensure the independence of their judgement. The term of office of the independent members of the administrative or supervisory board shall be for a pre-agreed fixed period not exceeding five years and shall not be renewable. The dismissal of independent members of the administrative or supervisory board shall take place only in case of misconduct or professional underperformance.
The majority of members of the administrative or supervisory board, including its independent members, shall have sufficient expertise in financial services. Provided that the credit rating agency issues credit ratings of structured finance instruments, at least one independent member and one other member of the board shall have in-depth knowledge and experience at a senior level of the markets in structured finance instruments.
In addition to the overall responsibility of the board, the independent members of the administrative or supervisory board shall have the specific task of monitoring:
| (a) | the development of the credit rating policy and of the methodologies used by the credit rating agency in its credit rating activities; |
| (b) | the effectiveness of the internal quality control system of the credit rating agency in relation to credit rating activities; |
| (c) | the effectiveness of measures and procedures instituted to ensure that any conflicts of interest are identified, eliminated or managed and disclosed; and |
| (d) | the compliance and governance processes, including the efficiency of the review function referred to in point 9 of this Section. |
Opinions of the independent members of administrative or supervisory board issued on the matters referred to in points (a) to (d) shall be presented to the board periodically and shall be made available to the competent authority on request.
3. A credit rating agency shall establish adequate policies and procedures to ensure compliance with its obligations under this Regulation.
4. A credit rating agency shall have sound administrative and accounting procedures, internal control mechanisms, effective procedures for risk assessment, and effective control and safeguard arrangements for information processing systems.
Those internal control mechanisms shall be designed to secure compliance with decisions and procedures at all levels of the credit rating agency.
A credit rating agency shall implement and maintain decision-making procedures and organisational structures which clearly and in a documented manner specify reporting lines and allocate functions and responsibilities.
5. A credit rating agency shall establish and maintain a permanent and effective compliance function department (compliance function) which operates independently. The compliance function shall monitor and report on compliance of the credit rating agency and its employees with the credit rating agency’s obligations under this Regulation. The compliance function shall:
| (a) | monitor and, on a regular basis, assess the adequacy and effectiveness of the measures and procedures put in place in accordance with point 3, and the actions taken to address any deficiencies in the credit rating agency’s compliance with its obligations; |
| (b) | advise and assist the managers, rating analysts, employees as well as any other natural person whose services are placed at the disposal or under the control of the credit rating agency or any person directly or indirectly linked to it by control who is responsible for carrying out credit rating activities, to comply with the credit rating agency’s obligations under this Regulation. |
6. In order to enable the compliance function to discharge its responsibilities properly and independently, a credit rating agency shall ensure that the following conditions are satisfied:
| (a) | the compliance function has the necessary authority, resources, expertise and access to all relevant information; |
| (b) | a compliance officer is appointed and is responsible for the compliance function and for any reporting with regard to compliance required by point 3; |
| (c) | the managers, rating analysts, employees and any other natural person whose services are placed at the disposal or under the control of the credit rating agency or any person directly or indirectly linked to it by control who is involved in the compliance function is not involved in the performance of credit rating activities they monitor; |
| (d) | the compensation of the compliance officer is not linked to the business performance of the credit rating agency and is arranged so as to ensure the independence of his or her judgement. |
The compliance officer shall ensure that any conflicts of interest relating to the persons placed at the disposal of the compliance function are properly identified and eliminated.
The compliance officer shall report regularly on the carrying out of his or her duties to senior management and the independent members of the administrative or supervisory board.
7. A credit rating agency shall establish appropriate and effective organisational and administrative arrangements to prevent, identify, eliminate or manage and disclose any conflicts of interest referred to in point 1 of Section B. It shall arrange for records to be kept of all significant threats to the independence of the credit rating activities, including those to the rules on rating analysts referred to in Section C, as well as the safeguards applied to mitigate those threats.
8. A credit rating agency shall employ appropriate systems, resources and procedures to ensure continuity and regularity in the performance of its credit rating activities.
9. A credit rating agency shall establish a review function responsible for periodically reviewing its methodologies, models and key rating assumptions, such as mathematical or correlation assumptions, and any significant changes or modifications thereto as well as the appropriateness of those methodologies, models and key rating assumptions where they are used or intended to be used for the assessment of new financial instruments.
That review function shall be independent of the business lines which are responsible for credit rating activities and report to the members of the administrative or supervisory board referred to in point 2 of this Section.
10. A credit rating agency shall monitor and evaluate the adequacy and effectiveness of its systems, internal control mechanisms and arrangements established in accordance with this Regulation and take appropriate measures to address any deficiencies.
Section B
Operational requirements
1. A credit rating agency shall identify, eliminate or manage and disclose, clearly and prominently, any actual or potential conflicts of interest that may influence the analyses and judgments of its rating analysts, employees, or any other natural person whose services are placed at the disposal or under the control of the credit rating agency and who are directly involved in the issuing of credit rating and persons approving credit ratings.
2. A credit rating agency shall disclose to the public the names of the rated entities or related third parties from which it receives more than 5 % of its annual revenue.
3. A credit rating agency shall not issue a credit rating in any of the following circumstances, or shall, in the case of an existing credit rating, immediately disclose where the credit rating is potentially affected by the following:
| (a) | the credit rating agency or persons referred to in point 1, directly or indirectly owns financial instruments of the rated entity or a related third party or has any other direct or indirect ownership interest in that entity or party, other than holdings in diversified collective investment schemes, including managed funds such as pension funds or life insurance; |
| (b) | the credit rating is issued with respect to the rated entity or a related third party directly or indirectly linked to the credit rating agency by control; |
| (c) | a person referred to in point 1 is a member of the administrative or supervisory board of the rated entity or a related third party; or |
| (d) | a rating analyst who participated in determining a credit rating, or a person who approved a credit rating, has had a relationship with the rated entity or a related third party which may cause a conflict of interests. |
A credit rating agency shall also immediately assess whether there are grounds for re-rating or withdrawing the existing credit rating.
4. A credit rating agency shall not provide consultancy or advisory services to the rated entity or a related third party regarding the corporate or legal structure, assets, liabilities or activities of that rated entity or related third party.
A credit rating agency may provide services other than issue of credit ratings (ancillary services). Ancillary services are not part of credit rating activities; they comprise market forecasts, estimates of economic trends, pricing analysis and other general data analysis as well as related distribution services.
A credit rating agency shall ensure that the provision of ancillary services does not present conflicts of interest with its credit rating activities and shall disclose in the final ratings reports any ancillary services provided for the rated entity or any related third party.
5. A credit rating agency shall ensure that rating analysts or persons who approve ratings do not make proposals or recommendations, either formally or informally, regarding the design of structured finance instruments on which the credit rating agency is expected to issue a credit rating.
6. A credit rating agency shall design its reporting and communication channels so as to ensure the independence of the persons referred to in point 1 from the other activities of the credit rating agency carried out on a commercial basis.
7. A credit rating agency shall arrange for adequate records and, where appropriate, audit trails of its credit rating activities to be kept. Those records shall include:
| (a) | for each credit rating decision, the identity of the rating analysts participating in the determination of the credit rating, the identity of the persons who have approved the credit rating, information as to whether the credit rating was solicited or unsolicited, and the date on which the credit rating action was taken; |
| (b) | the account records relating to fees received from any rated entity or related third party or any user of ratings; |
| (c) | the account records for each subscriber to the credit ratings or related services; |
| (d) | the records documenting the established procedures and methodologies used by the credit rating agency to determine credit ratings; |
| (e) | the internal records and files, including non-public information and work papers, used to form the basis of any credit rating decision taken; |
| (f) | credit analysis reports, credit assessment reports and private credit rating reports and internal records, including non-public information and work papers, used to form the basis of the opinions expressed in such reports; |
| (g) | records of the procedures and measures implemented by the credit rating agency to comply with this Regulation; and |
| (h) | copies of internal and external communications, including electronic communications, received and sent by the credit rating agency and its employees, that relate to credit rating activities. |
8. Records and audit trails referred to in point 7 shall be kept at the premises of the registered credit rating agency for at least five years and be made available upon request to the competent authorities of the Member States concerned.
Where the registration of a credit rating agency is withdrawn, the records shall be kept for an additional term of at least three years.
9. Records which set out the respective rights and obligations of the credit rating agency and the rated entity or its related third parties under an agreement to provide credit rating services shall be retained for at least the duration of the relationship with that rated entity or its related third parties.
Section C
Rules on rating analysts and other persons directly involved in credit rating activities
1. Rating analysts, employees of the credit rating agency as well as any other natural person whose services are placed at the disposal or under the control of the credit rating agency and who is directly involved in credit rating activities, and persons closely associated with them within the meaning of Article 1(2) of Directive 2004/72/EC (1), shall not buy or sell or engage in any transaction in any financial instrument issued, guaranteed, or otherwise supported by any rated entity within their area of primary analytical responsibility other than holdings in diversified collective investment schemes, including managed funds such as pension funds or life insurance.
2. No person referred to in point 1 shall participate in or otherwise influence the determination of a credit rating of any particular rated entity if that person:
| (a) | owns financial instruments of the rated entity, other than holdings in diversified collective investment schemes; |
| (b) | owns financial instruments of any entity related to a rated entity, the ownership of which may cause or may be generally perceived as causing a conflict of interest, other than holdings in diversified collective investment schemes; |
| (c) | has had a recent employment, business or other relationship with the rated entity that may cause or may be generally perceived as causing a conflict of interest. |
3. Credit rating agencies shall ensure that persons referred to in point 1:
| (a) | take all reasonable measures to protect property and records in possession of the credit rating agency from fraud, theft or misuse, taking into account the nature, scale and complexity of their business and the nature and range of their credit rating activities; |
| (b) | do not disclose any information about credit ratings or possible future credit ratings of the credit rating agency, except to the rated entity or its related third party; |
| (c) | do not share confidential information entrusted to the credit rating agency with rating analysts and employees of any person directly or indirectly linked to it by control, as well as with any other natural person whose services are placed at the disposal or under the control of any person directly or indirectly linked to it by control, and who is directly involved in the credit rating activities; and |
| (d) | do not use or share confidential information for the purpose of trading financial instruments, or for any other purpose except the conduct of the credit rating activities. |
4. Persons referred to in point 1 shall not solicit or accept money, gifts or favours from anyone with whom the credit rating agency does business.
5. If a person referred to in point 1 considers that any other such person has engaged in conduct that he or she considers to be illegal, he or she shall report such information immediately to the compliance officer without negative consequences to him or herself.
6. Where a rating analyst terminates his or her employment and joins a rated entity, which he or she has been involved in rating, or a financial firm, with which he or she has had dealings as part of his or her duties at the credit rating agency, the credit rating agency shall review the relevant work of the rating analyst over two years preceding his or her departure.
7. A person referred to in point 1 shall not take up a key management position with the rated entity or its related third party within six months of the credit rating.
8. For the purpose of Article 7(4), credit rating agencies shall ensure that:
| (a) | the lead rating analysts shall not be involved in credit rating activities related to the same rated entity or its related third parties for a period exceeding four years; |
| (b) | the rating analysts shall not be involved in credit rating activities related to the same rated entity or its related third parties for a period exceeding five years; |
| (c) | the persons approving credit ratings shall not be involved in credit rating activities related to the same rated entity or its related third parties for a period exceeding seven years. |
The persons referred to points (a), (b) and (c) of the first subparagraph shall not be involved in credit rating activities related to the rated entity or related third parties referred to in those points within two years of end of the periods set out in those points.
Section D
Rules on the presentation of credit ratings
I. General obligations
1. A credit rating agency shall ensure that any credit rating states clearly and prominently the name and job title of the lead rating analyst in a given credit rating activity and the name and position of the person primarily responsible for approving the credit rating.
2. A credit rating agency shall ensure that at least:
| (a) | all substantially material sources, including the rated entity or, where appropriate, a related third party, which were used to prepare the credit rating are indicated together with an indication as to whether the credit rating has been disclosed to that rated entity or its related third party and amended following that disclosure before being issued; |
| (b) | the principal methodology or version of methodology that was used in determining the rating is clearly indicated, with a reference to its comprehensive description; where the credit rating is based on more than one methodology, or where reference only to the principal methodology might cause investors to overlook other important aspects of the credit rating, including any significant adjustments and deviations, the credit rating agency shall explain this fact in the credit rating and indicate how the different methodologies or these other aspects are taken into account in the credit rating; |
| (c) | the meaning of each rating category, the definition of default or recovery and any appropriate risk warning, including a sensitivity analysis of the relevant key rating assumptions, such as mathematical or correlation assumptions, accompanied by worst-case scenario credit ratings as well as best-case scenario credit ratings are explained; |
| (d) | the date at which the credit rating was first released for distribution and when it was last updated is indicated clearly and prominently; and |
| (e) | information is given as to whether the credit rating concerns a newly issued financial instrument and whether the credit rating agency is rating the financial instrument for the first time. |
3. The credit rating agency shall inform the rated entity at least 12 hours before publication of the credit rating and of the principal grounds on which the rating is based in order to give the entity an opportunity to draw attention of the credit rating agency to any factual errors.
4. A credit rating agency shall state clearly and prominently when disclosing credit ratings any attributes and limitations of the credit rating. In particular, a credit rating agency shall prominently state when disclosing any credit rating whether it considers satisfactory the quality of information available on the rated entity and to what extent it has verified information provided to it by the rated entity or its related third party. If a credit rating involves a type of entity or financial instrument for which historical data is limited, the credit rating agency shall make clear, in a prominent place, such limitations of the credit rating.
In a case where the lack of reliable data or the complexity of the structure of a new type of financial instrument or the quality of information available is not satisfactory or raises serious questions as to whether a credit rating agency can provide a credible credit rating, the credit rating agency shall refrain from issuing a credit rating or withdraw an existing rating.
5. When announcing a credit rating, a credit rating agency shall explain in its press releases or reports the key elements underlying the credit rating.
Where the information laid down in points 1, 2 and 4 would be disproportionate in relation to the length of the report distributed, it shall suffice to make clear and prominent reference in the report itself to the place where such disclosures can be directly and easily accessed, including a direct web link to the disclosure on an appropriate website of the credit rating agency.
II. Additional obligations in relation to credit ratings of structured finance instruments
1. Where a credit rating agency rates a structured finance instrument, it shall provide in the credit rating all information about loss and cash-flow analysis it has performed or is relying upon and an indication of any expected change in the credit rating.
2. A credit rating agency shall state what level of assessment it has performed concerning the due diligence processes carried out at the level of underlying financial instruments or other assets of structured finance instruments. The credit rating agency shall disclose whether it has undertaken any assessment of such due diligence processes or whether it has relied on a third-party assessment, indicating how the outcome of such assessment impacts on the credit rating.
3. Where a credit rating agency issues credit ratings of structured finance instruments, it shall accompany the disclosure of methodologies, models and key rating assumptions with guidance which explains assumptions, parameters, limits and uncertainties surrounding the models and rating methodologies used in such credit ratings, including simulations of stress scenarios undertaken by the agencies when establishing the ratings. Such guidance shall be clear and easily comprehensible.
4. A credit rating agency shall disclose, on an ongoing basis, information about all structured finance products submitted to it for their initial review or for preliminary rating. Such disclosure shall be made whether or not issuers contract with the credit rating agency for a final rating.
Section E
Disclosures
I. General disclosures
A credit rating agency shall generally disclose the fact that it is registered in accordance with this Regulation and the following information:
1. any actual and potential conflicts of interest referred to in point 1 of Section B;
2. a list of its ancillary services;
3. the policy of the credit rating agency concerning the publication of credit ratings and other related communications;
4. the general nature of its compensation arrangements;
5. the methodologies, and descriptions of models and key rating assumptions such as mathematical or correlation assumptions used in its credit rating activities as well as their material changes;
6. any material modification to its systems, resources or procedures; and
7. where relevant, its code of conduct.
II. Periodic disclosures
A credit rating agency shall periodically disclose the following information:
1. every six months, data about the historical default rates of its rating categories, distinguishing between the main geographical areas of the issuers and whether the default rates of these categories have changed over time;
2. annually, the following information:
| (a) | a list of the largest 20 clients of the credit rating agency by revenue generated from them; and |
| (b) | a list of those clients of the credit rating agency whose contribution to the growth rate in the generation of revenue of the credit rating agency in the previous financial year exceeded the growth rate in the total revenues of the credit rating agency in that year by a factor of more than 1,5 times. Any such client shall be included on the list only where, in that year, it accounted for more than 0,25 % of the worldwide total revenues of the credit rating agency at global level. |
For the purposes of this point, ‘client’ means an entity, its subsidiaries, and associated entities in which the entity has holdings of more than 20 %, as well as any other entities in respect of which it has negotiated the structuring of a debt issue on behalf of a client and where a fee was paid, directly or indirectly, to the credit rating agency for the rating of that debt issue.
III. Transparency report
A credit rating agency shall make available annually the following information:
1. detailed information on legal structure and ownership of the credit rating agency, including information on holdings within the meaning of Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (2);
2. a description of the internal control mechanisms ensuring quality of its credit rating activities;
3. statistics on the allocation of its staff to new credit ratings, credit rating reviews, methodology or model appraisal and senior management;
4. a description of its record-keeping policy;
5. the outcome of the annual internal review of its independent compliance function;
6. a description of its management and rating analyst rotation policy;
7. financial information on the revenue of the credit rating agency divided into fees from credit rating and non-credit-rating activities with a comprehensive description of each; and
8. a governance statement within the meaning of Article 46a(1) of Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies (3). For the purposes of that statement, the information referred to in Article 46a(1)(d) of that Directive shall be provided by the credit rating agency irrespective of whether it is subject to Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (4).
(1) Commission Directive 2004/72/EC of 29 April 2004 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers’ transactions and the notification of suspicious transactions (OJ L 162, 30.4.2004, p. 70).
(2) OJ L 390, 31.12.2004, p. 38.
(3) OJ L 222, 14.8.1978, p. 11.
(4) OJ L 142, 30.4.2004, p. 12.
ANNEX II
INFORMATION TO BE PROVIDED IN THE APPLICATION FOR REGISTRATION
1. Full name of the credit rating agency, address of the registered office within the Community
2. Name and contact details of a contact person and of the compliance officer
3. Legal status
4. Class of credit ratings for which the credit rating agency is applying to be registered
5. Ownership structure
6. Organisational structure and corporate governance
7. Financial resources to perform credit rating activities
8. Staffing of credit rating agency and its expertise
9. Information regarding subsidiaries of credit rating agency
10. Description of the procedures and methodologies used to issue and review credit ratings
11. Policies and procedures to identify, manage and disclose any conflicts of interests
12. Information regarding rating analysts
13. Compensation and performance evaluation arrangements
14. Services other than credit rating activities, which the credit rating agency intends to provide
15. Programme of operations, including indications of where the main business activities are expected to be carried out, branches to be established, and setting out the type of business envisaged
16. Documents and detailed information related to the expected use of endorsement
17. Documents and detailed information related to the expected outsourcing arrangements including information on entities assuming outsourcing functions.