Response to consultation on Regulatory Technical Standards to specify the minimum content of the suitability questionnaire, curriculum vitae and internal suitability assessment
Question 1: Are the draft RTS appropriate and sufficiently clear?
Introductory remarks
We support the objective of enhancing supervisory convergence through the harmonisation of the minimum content of information to be submitted for suitability assessments under Article 91(10) of Directive 2013/36/EU as long as a consistent framework contributes to the competence of the members of the management body and KFH, legal certainty and facilitates a coherent supervisory approach across the Union, in the spirit of proportionality and simplification as stated in particular by the European Commission in its Simpler is better Communication dated 28 April 2026 (https://ec.europa.eu/commission/presscorner/detail/en/qanda_26_902) and by the EBA in its report on the efficiency of the regulatory and supervisory framework (https://lnkd.in/dGgZrgdW) and competitiveness.
However, while Article 91(10) mandates the specification of the “minimum content” of the suitability documentation, several provisions of the Draft RTS appear to go beyond this mandate and risk indirectly redefining the substantive standard of suitability itself. In this regard, it is important to take into consideration that the RTS being a draft EU Regulation, will be binding and directly applicable in all Member States without the need for transposition.
Moreover, it is necessary to specify that the assessment of the suitability requirements is conducted primarily by the financial institutions, as stated in CRD, on the basis of the information made available by the individual concerned and, in any case, in accordance with the national provisions implementing the CRD. Therefore, members of the management body and heads of key corporate functions must provide all information necessary to enable the competent body of the entity to perform the required evaluations and assessments, submitting such information at the time of appointment and whenever subsequent events arise that may affect their suitability.
The cumulative effect of the proposed requirements transforms what is intended to be a prudential assessment into a highly granular and formalised documentation exercise. The RTS, as Level 2 act, should remain strictly confined to defining the information necessary to perform the assessment, without introducing additional substantive expectations not expressly grounded in Level 1 legislation (cf. Less is more report r: https://lnkd.in/eHkSrQKX).
These rules risk undermining the competitiveness of French regulated institutions by limiting their ability to recruit the diverse and skilled profiles essential for their future.
More specifically, the following amendments are suggested
- Article 1:
Article 1(b) defines the suitability questionnaire by referring to Article 91(1e)(a) of Directive 2013/36/EU. This reference is problematic at two distinct levels.
First, Article 91(1e)(a) concerns the documentation to be submitted to the competent authority in the context of an ex-ante suitability application. As clarified in recital 49 of Directive (EU) 2024/1619 (CRD VI), this procedural framework is only relevant in Member States where the suitability assessment by the competent authority is carried out after the member of the management body has taken up the position. Consequently, referring to Article 91(1e)(a) is not appropriate for Member States where competent authorities assess suitability before the member takes up the position (as the ex‑ante suitability application does not apply in such Member States.)
Second, the reference to Article 91(1e)(a) is also inappropriate in terms of personal scope. Under CRD VI, the obligation to submit an ex‑ante suitability application to the competent authority applies only to the appointment of members of the management body in its management function and to the chair of the management body in its supervisory function. By referring to Article 91(1e)(a), Article 1(b) of the draft RTS risks extending these procedural obligations to all members of the management body and to key function holders (the latter being, under CRD VI, subject only to an ex post suitability assessment and only in large entities), thereby going beyond the scope and mandate conferred on the EBA under Article 91(10) CRD VI.
- Article 1(b) should therefore be aligned with the Level 1 framework and reflect the limited procedural and personal scope of Article 91(1e)(a), to ensure legal certainty and compliance with the mandate set out in CRD VI.
- Article 2:
It should be made clear that the provisions of the RTS apply in accordance with the overarching derogations set out in Article 91(13) and (14) of the CRD, without prejudice to the provisions of the Member States on the representation of employees in the management body, on the appointment of members of the management body in its supervisory function by regional or local elected bodies and on appointments where the management body does not have any competence in the process of selecting and appointing its members.
- Article 4:
(1) The wording of Article 4(1) places a strong emphasis on “appropriate experience” as the central element of the suitability assessment, with knowledge and skills largely assessed through this prism. This focus may unintentionally favour candidates with extensive practical or operational experience and disadvantage younger individuals or recently qualified candidates with shorter professional trajectories. As a result, profiles based on strong academic backgrounds, theoretical knowledge or formal qualifications may be undervalued, despite their potential relevance for the position. Such an approach could indirectly limit age diversity within the composition of management bodies. Furthermore, Article 4(1) does not provide any reference points or criteria for determining when knowledge, skills and experience should be considered “relevant and sufficient.” This lack of guidance may lead to inconsistent interpretations across institutions and competent authorities, potentially undermining supervisory convergence.
(2) The requirement that non-material weaknesses must be remedied within a maximum period of six months introduces a rigid timeframe not foreseen in CRD VI. Suitability under Article 91 is framed as an ongoing and principle-based obligation. While remedial measures are appropriate where weaknesses are identified, the imposition of a fixed maximum period may not be suitable in all circumstances, particularly in complex institutions or in cases involving specialised knowledge. We would therefore suggest replacing the six-month maximum with a requirement that remedial measures be implemented within a reasonable and proportionate timeframe up to one year, as indicated in the Draft ESMA and EBA Guidelines on the assessment of the suitability of members of the management body and key function holders (paragraph 108).
Article 4. (3) (a) This seems to refer to the individual statement provided for in the Guidelines on Internal Governance, which should normally concern only members of the management body in its management function and the KFH. This article should be more precise.
- Article 5:
Concerning the assessment of reputation, honesty and integrity, the article raises significant concerns. As a preliminary remark, the use of the expression “at least” when referring to the information to be collected should be reconsidered. In this context, the deletion of the wording “at least” would be appropriate, as it would avoid establishing an exhaustive or cumulative documentation expectation that may not be feasible in practice and would better reflect the principle-based nature of the suitability assessment.
In addition, several of the documents and pieces of information envisaged under Article 5 may not always be realistically obtainable by the individual, particularly in cross-border situations or where national authorities do not issue the specific certificates contemplated. In such cases, it should be expressly clarified that duly signed declarations by the candidate, made in good faith and to the best of their knowledge, may suffice, subject to subsequent verification where necessary. A rigid documentary requirement may otherwise create disproportionate barriers and legal uncertainty, particularly as it would de facto require individuals to evidence the absence of adverse elements relating to good repute, honesty and integrity.
The inclusion in the assessment of investigations, enforcement proceedings or sanctions in which the individual has been "indirectly involved" is unclear, unnecessary and against the presumption of innocence. This language should be deleted.
Furthermore, the provision referring to “any other reliable internal or external resources available to the entity” remains excessively open-ended and may generate inconsistent interpretation and over-collection of personal data. The RTS should clarify that only information that is objectively relevant, proportionate and directly related to the suitability assessment under Articles 91 and 91a CRD may be considered, in line with the principles of necessity and data minimisation and in full compliance with fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union, in particular Article 7 concerning the respect for private and family life. Finally, although the presumption of innocence is referenced, the overall structure of the provision risks creating indirect adverse consequences for individuals based solely on the existence of ongoing investigations or unresolved allegations. It should therefore be explicitly clarified that the mere existence of investigations or proceedings does not, in itself, give rise to a presumption of unsuitability, unless there are objective and substantiated grounds directly attributable to the individual concerned.
Moreover, it is important - both in the Regulation and in the Guidelines - not to assign relevance to administrative proceedings, given, on the one hand, the embryonic stage of such proceedings and, on the other, their limited significance; a similar argument applies to potential civil judgments, which do not appear to affect reputation requirements but would instead excessively broaden the range of relevant cases.
- Article 5.3.h:
We have strong concerns regarding Article 5(3)(h), which introduces the consideration of an individual’s past performance as part of the assessment of reputation, honesty and integrity. In our view, this provision should be deleted.
Assessing past performance is conceptually and legally distinct from assessing reputation, honesty and integrity as performance relates to professional effectiveness and outcomes, which are already appropriately addressed under the assessment of knowledge, skills and experience.
Moreover, the draft RTS does not explain how performance outcomes could objectively evidence deficiencies in honesty or integrity.
- Article 6:
The additional requirement concerning the obligation to provide evidence of independence of mind is particularly problematic (Article 6(1)(a)). We do not see what evidence, other than a self-declaration, we could provide.
Furthermore, Article 6(1)(a)(i) provides that, in order to have independence of mind, a person must in particular be able to independently assess and challenge the decisions proposed by the other members of the management body.
However, independence of mind cannot be defined by formal independence.
Formal independence is not requested by CRD, notably as it is not necessary for independence of mind.
As already mentioned by institutions, formal independence does not provide any guarantee of effective independence of mind. In the context of banking groups, for subsidiaries that are fully owned or majority-owned, governance structures are already designed to ensure consistency, efficiency, and competitiveness under a coherent Group strategy. This does not prevent sound and prudent management, nor does it undermine the protection of clients and stakeholders’ interests.
On the contrary, board members who are familiar with the Group’s organisation, risk framework, and operational practices are often better positioned to meaningfully assess, question, and challenge strategic and operational decisions. Their in-depth knowledge allows for more relevant and effective contributions compared to external individuals who, despite being formally independent, may lack sufficient understanding of the Group’s specificities, leading to less informed oversight.
Effective independence of mind is primarily ensured through a combination of factors that go beyond formal status, including: the diversity of experience and expertise within the management body, the robustness of internal governance processes, the existence of a strong risk and compliance culture, fit and proper assessments focusing on integrity, professional competence, and behavioral qualities, and the ability of the chair and the board collectively to foster open and constructive debate.
Requiring evidence of independence of mind through formalised or documentary means may create legal uncertainty and lead to a disproportionate administrative burden, without necessarily improving governance outcomes in practice. Such requirements may also encourage a "box-ticking" approach, focusing on formal compliance rather than the substance of effective challenge and sound decision-making.
To conclude, independence of mind should not be defined as acting independently, as this could lead to confusion between independence of mind and formal independence, whereas paragraphs 89 and 90 of the Fit and proper Guidelines distinguish between these two concepts. The terms “independently” should therefore be removed.
- Article 7:
Relating to time commitment, this article requires detailed annual estimates of time devoted to mandates, number of meetings and time allocation per activity. While sufficient time commitment is clearly required under Article 91 CRD, the level of predictive quantification required by the RTS is inherently speculative and may expose both institutions and candidates to supervisory scrutiny based on ex post deviations from ex ante estimates. The RTS should clarify that time commitment assessments may be based on reasonable and good faith estimates, without requiring precise quantitative forecasting that cannot realistically be guaranteed.
- Article 8:
The identification of gaps in collective suitability and detailed remedial planning, may also benefit from a clearer articulation of proportionality. While collective competence is a central element of the suitability framework, the RTS risk imposing a uniform and formalised assessment structure irrespective of institutional size, complexity or governance model including situations where the management body (in its management function) is not organised as a collegiate body. A clarification that the depth and format of the collective assessment must be proportionate to the nature, scale and complexity of the entity would ensure alignment with the proportionality principle embedded in CRD VI.
Finally, the reference to individual statements of responsibilities in Article 8(2) is problematic, as it may be interpreted as extending the scope of persons subject to such documentation beyond what is required by CRD VI (i.e. management body in its management function, senior management and key function holders). In addition, this reference risks altering the nature and purpose of individual statements as set out in CRD VI. As clarified in recital 54 CRD VI, these statements are intended as supervisory tools available to competent authorities for the purpose of assessing institutions governance arrangements, and not as documents to be systematically produced by institutions as part of their internal individual or collective suitability assessment processes.
- Article 9:
The confirmation of suitability required under Article 9 may, where applicable, not be provided for employee representatives in the management body or for members of the management body in its supervisory function over whose selection and appointment the institution has no influence. These specific legal circumstances in Member States have been taken into account by Article 91(13) and (14) of the CRD. The overarching exemptions in Article 91(13) and (14) of the CRD should be explicitly incorporated into the text of the draft RTS for the sake of clarity (see also our further comments on Article 2).
- Article 10:
It establishes joint responsibility of the candidate and the entity for the completeness and accuracy of the information provided. While transparency is essential, the current drafting may create disproportionate personal exposure and disincentivise qualified independent candidates from accepting board positions, particularly in significant institutions subject to heightened scrutiny. It would therefore be appropriate to clarify that such joint responsibility relates to the provision of information in good faith and to the best of the knowledge of the signatories at the time of submission and does not create strict liability for omissions that were not reasonably knowable.
Moreover, it is important to distinguish the respective responsibilities of the individual and of the institution in providing the information required by the authority, bearing in mind that the institution may be responsible for aspects concerning the assessment conducted at both individual and collective level, but not for information pertaining specifically to the individual.
In addition, certain related requirements within the RTS appear excessively broad. The reference to information covering a period of ten years may in many cases be disproportionate to the objective pursued, particularly where the relevance of older information is limited or remote. A shorter, risk-based timeframe would better reflect the principle of proportionality embedded in CRD VI.
Likewise, the requirement to disclose relationships with “suppliers or competitors” is formulated in overly expansive terms and may capture a wide range of ordinary professional or commercial interactions that are not materially relevant to the suitability assessment. Greater precision is needed to ensure that only relationships of a material nature, capable of giving rise to genuine conflicts of interest, are required to be disclosed.
With regard to the detailed information listed in paragraph 2, we consider necessary to:
• letter g): replace the maximum period of 6 months to 12 months from the position is effectively taken up
• letters i) and j):
1) remove the obligation to provide information on any commercial/professional relationships maintained by the individual, their close family members, or companies in which the individual holds or has held a corporate office, with suppliers and competitors of the bank, considering the significant number of parties involved and the limited added value such information provides in terms of managing conflicts of interest. Alternatively, such mapping should be strictly limited to relationships maintained solely by the individual with the bank’s main suppliers and competitors, meaning, for example, the top 5 or top 10;
2) limit the set of personal, business and professional relationships with members of the management body or key function holders - especially those of other Group companies - and with qualifying shareholders to those that are significant.
• letter k): remove the obligation to provide information on any financial relationships with the bank and the group maintained by companies in which the individual previously held a corporate office, as these relationships are irrelevant for managing conflicts of interest, given that the individual no longer has any interest in the company concerned. Alternatively, a time limit should be introduced to define the period within which such mapping should be carried out.
- Art. 11
Regarding the organisations for which the individual has worked in, we believe that
instead of "all organisations", only "relevant experience" should be required.
The requirement that every professional experience has to be disclosed is excessive and neither reasonable nor justified.
We propose to delete the wording “at least”. The proposed information is sufficient for the suitability assessment. There should not be any national gold-plating.
Finally, it is important to remark that the RTS require the collection and submission of highly sensitive personal data, including criminal records across jurisdictions, financial obligations and information relating to family relationships. In light of applicable regulations, it would be appropriate to include an explicit clarification that the collection and processing of such data must comply with the principles of necessity and proportionality and be limited to what is strictly required for the suitability assessment.
In conclusion, while we support the harmonisation objective underlying Article 91(10) CRD VI, we respectfully submit that the draft RTS would benefit from recalibration to ensure that they remain within the scope of defining minimum content, preserve proportionality and legal certainty, all cooperative models and national specificities, fully respect the presumption of innocence and fundamental rights, and avoid transforming the suitability framework into an excessively rigid and formalistic compliance regime.
An excess of regulation as in these draft risks undermining the competitiveness of regulated institutions by limiting their ability to recruit the diverse and skilled profiles essential for their future and too much unnecessary red tape.
Below are the proposed reformulations of the draft Regulatory Technical Standards
Article 2: please add the following final sentence: The overarching exemptions set out in Article 91(13) and (14) of the CRD remain unaffected by the provisions of the RTS.The assessment of the suitability requirements is carried out on the basis of information provided by the member of the management body concerned and, in any case, in accordance with national regulations implementing Directive 2013/36.
Article 4 (1): please change as follows: The assessment of the individual’s knowledge, skills and experience shall ascertain whether the individual has the appropriate knowledge, skills and experience for the position sought, including whether the individual’s education and professional experience are relevant and sufficient in light of the role, responsibilities and duties of the position.
Article 5, paragraph 2, please change as follows: When considering any relevant criminal records or proceedings or administrative sanctions, the individual assessment shall take into account […].
Article 5, paragraph 3: The assessment shall be based at least on the following information: […] (b) relevant civil, administrative and disciplinary decisions, including bankruptcy, insolvency and similar procedures […]
Article 6, (1) The assessment of the individual member’s independence of mind shall cover, at least, information on the following:
(a) any evidence, that can be a self-declaration, that suggesting that the individual has the necessary behavioural skills, including:
1. the ability to present their views, discuss strategies and business objectives to effectively, critically and independently assess and challenge the proposed decisions of other members of the management body; and […]
Article 10 please change as follows:
Paragraph 1:
The individual and the entity shall be jointly responsible - each one for the information within their own remit - for providing the competent authority with complete and accurate information regarding the proposed appointment. In this regard, the individual and the entity have the responsibility to disclose to the competent authority all matters that may be relevant to the assessment.
Paragraph 2:
(i) any of the individual’s personal, business or professional relations with: i. other members of the management body and/or key function holders of the institution, the parent undertaking or their subsidiaries; ii. qualifying shareholders of the entity, the parent undertaking or their subsidiaries; iii. suppliers or competitors of the entity, the parent undertaking or the entity’s subsidiaries.
(k) any financial obligations towards the entity, the parent undertaking or their subsidiaries the individual or his close relatives or any legal person in which the individual is or was a member of the management body, or a qualifying shareholder, at the relevant time, have, including any loans of any value that are not negotiated under market's conditions or are non-performing.