Response to consultation on Guidelines on product oversight and governance arrangements for retail banking products
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Regarding the product approval already some Member States have recommendable procedures in place which could complement the Guidelines. There is for instance the assessment of product approval which is based on a catalogue of minimum requirements (German Banking Supervision). Accordingly, the scope of the process, including any test runs, depends on the type of product and on any existing and proven knowledge regarding the product’s handling. So is for example a prod-uct approval process not required, if all organizational units involved in the respective work pro-cesses assume that the institution can handle all activities relating to the new product or market.
Also, new product launches in retail banking principally result from perceived changes in consumer needs. Hence, if new retail banking products are launched, both the target group and the interests of the respective consumers are already known from the beginning and the product is tailor-made to suit them. Thus, in such cases a separate target group analysis or product tests as stated in the Guidelines are unnecessary.
ESBG agrees that it is important for the consumer to receive clear and comprehensive information regarding products which enable him/her to take informed decisions. But, ESBG also urges EBA to ensure that the consumer is not deprived of his/her freedom of choice to buy a certain product by a too compulsory and inflexible definition of the target market (as the regulations of the Guidelines contain in their current version). For instance, it cannot be legitimate for a creditor to exclude a solvent customer from a credit just because he/she is not part of the target group. Therefore, ESBG asks EBA to clearly reflect in the Guidelines that the consumer can at the end freely decide upon which product he/she wants to buy, for his/her individual reasons.
Regarding Guideline 3.4 ESBG would like EBA to acknowledge that it is the creditors who decide upon the width and depth of their products features. For instance, international manufactures need to consider regional differences and therefore naturally need to offer a wider range of product varieties.
Furthermore, ESBG likes to draw EBAs attention to the fact that consumers can best be served by creditors if their individual needs are assessed and taken into account before a product is suggested. A requirement as under Guideline 3.5 can easily be contrary to the best interest of a customer. The Guideline does not yet reflect that at the end a customer’s individual needs should be decisive for the proposition of products and not the affiliation to a certain target market that might not even include the best suitable products.
Guideline 3. 6 mentions the assessment of the ‘financial capability of the target market’. ESBG as-sumes that this requires creditors to estimate the financial capability of each of the identified consumer groups. ESBG would like EBA to reconsider this point: Could a possible result of such an assessment be that a target market fails to fulfil the criterion of ‘financial capability’? And, if such a failure is generally possible, what would the consequences be? Having said this, ESBG suggest EBA to remove the requirement to assess financial capability from the Guidelines.
In the event that the above suggestion is not accepted it should be defined, at least, how the esti-mation of the capability of each of the identified consumer groups should be done.
‘A product shall be considered as a new product, when the creditor does not already have sufficient knowledge and experience to appropriately handle the product launch and all related processes.’
This definition better takes into account the differences of products which are (re-) launched in the retail area (regarding the differences see above under Question 4).
Also, ESBG would like EBA to confirm that ‘product testing’ refers to computerized simulations and not tests with natural persons.
Question 2: Do you agree with the delineation of the two sets of requirements for manufacturers and distributors?
ESBG considers Guidelines for both - manufactures and distributors - as essential to create a level playing field. It is important that the Guidelines also aim at covering structures that are not yet subject to today’s banking supervision. Also, (partly) exemptions for those credit institutions that are already supervised should be considered.Question 3: Are there any additional requirements that you would suggest adding to either of the two sets of requirements? If so, why?
No.Question 4: Do you agree with Guideline 1 on establishment, proportionality, review and documentation?
To begin with, the Guidelines do not refer to the very low level of complexity of retail banking products. The Guidelines themselves state under 1.5 that ‘product oversight and governance arrangement should be proportionate to the level of complexity of the products’. However, the Guidelines do not distinguish between more or less complex products and/or only slightly modified products and/or products which are merely a combination of existing products and/or just re-launched products. Thus, the Guidelines do not yet reflect the fundamental principle of proportionality which applies to EU legislation.Regarding the product approval already some Member States have recommendable procedures in place which could complement the Guidelines. There is for instance the assessment of product approval which is based on a catalogue of minimum requirements (German Banking Supervision). Accordingly, the scope of the process, including any test runs, depends on the type of product and on any existing and proven knowledge regarding the product’s handling. So is for example a prod-uct approval process not required, if all organizational units involved in the respective work pro-cesses assume that the institution can handle all activities relating to the new product or market.
Also, new product launches in retail banking principally result from perceived changes in consumer needs. Hence, if new retail banking products are launched, both the target group and the interests of the respective consumers are already known from the beginning and the product is tailor-made to suit them. Thus, in such cases a separate target group analysis or product tests as stated in the Guidelines are unnecessary.
Question 5: Do you agree with Guideline 2 on manufacturers’ internal control functions?
ESBG has some doubts regarding the additional value of making product oversight and governance arrangements integral parts of the governance, risk management and internal control frame-work. Creditors’ compliance departments already identify and resolve potential conflicts of interest at an early stage, including those that may arise in the manufacturing process of new products. Also national and European supervisory authorities as well as consumer protection organizations ensure a certain level of control. Furthermore, arbitration offices/ombudsman programmes at Eu-ropean level protect the interest of consumers. And, of course, consumers can raise a claim at the competent civil courts.Question 6: Do you agree with Guideline 3 on the target market?
Guidelines 3.1 and 3.2 so far do not take into account that retail banking products are generally designed in a way that almost all consumers are potential end-users. Consequently, in view of the contradicting requirement to define a target market we see only two practicable solutions: Firstly, the Guidelines could state that a definition of a target market is superfluous in cases where it would virtually comprise all consumers in the retail market. Or, secondly, the Guidelines could clarify that a defined target market for some retail products can also comprise all consumers. Any other compulsory definition of a target market would not be beneficial for the consumer but rather lead to greater complexity in the field of product selection.ESBG agrees that it is important for the consumer to receive clear and comprehensive information regarding products which enable him/her to take informed decisions. But, ESBG also urges EBA to ensure that the consumer is not deprived of his/her freedom of choice to buy a certain product by a too compulsory and inflexible definition of the target market (as the regulations of the Guidelines contain in their current version). For instance, it cannot be legitimate for a creditor to exclude a solvent customer from a credit just because he/she is not part of the target group. Therefore, ESBG asks EBA to clearly reflect in the Guidelines that the consumer can at the end freely decide upon which product he/she wants to buy, for his/her individual reasons.
Regarding Guideline 3.4 ESBG would like EBA to acknowledge that it is the creditors who decide upon the width and depth of their products features. For instance, international manufactures need to consider regional differences and therefore naturally need to offer a wider range of product varieties.
Furthermore, ESBG likes to draw EBAs attention to the fact that consumers can best be served by creditors if their individual needs are assessed and taken into account before a product is suggested. A requirement as under Guideline 3.5 can easily be contrary to the best interest of a customer. The Guideline does not yet reflect that at the end a customer’s individual needs should be decisive for the proposition of products and not the affiliation to a certain target market that might not even include the best suitable products.
Guideline 3. 6 mentions the assessment of the ‘financial capability of the target market’. ESBG as-sumes that this requires creditors to estimate the financial capability of each of the identified consumer groups. ESBG would like EBA to reconsider this point: Could a possible result of such an assessment be that a target market fails to fulfil the criterion of ‘financial capability’? And, if such a failure is generally possible, what would the consequences be? Having said this, ESBG suggest EBA to remove the requirement to assess financial capability from the Guidelines.
In the event that the above suggestion is not accepted it should be defined, at least, how the esti-mation of the capability of each of the identified consumer groups should be done.
Question 7:Do you agree with Guideline 4 on product testing?
Due to the comparatively low complexity of products in the retail area ESBG considers an obliga-tory product testing without exceptions for any ‘new product’ as not being proportional. This is espe-cially true as the meaning of the wording ‘new product’ has not been defined in the Guidelines yet. Regarding the definition of ‘new product’ the following should be taken into account: ESBG thinks that product testing is undoubtedly required for new trading transactions. For retail products, how-ever, the situation is different. Product (re-) launches in retail banking principally result from per-ceived changes in customer needs. Thus, the target group and the customers’ interests are in most cases already well known. Against this background ESBG suggest the following definition of new product:‘A product shall be considered as a new product, when the creditor does not already have sufficient knowledge and experience to appropriately handle the product launch and all related processes.’
This definition better takes into account the differences of products which are (re-) launched in the retail area (regarding the differences see above under Question 4).
Also, ESBG would like EBA to confirm that ‘product testing’ refers to computerized simulations and not tests with natural persons.