Exhibit 2 to Assessment of Basel Core Principle 1. The Danish Financial Supervisory Authority and management of tasks
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1 Exhibit 2 to Assessment of Basel Core Principle October 2005 /MST The Danish Financial Supervisory Authority and management of tasks This memorandum describes the overall tasks of the Danish Financial Supervisory Authority (Danish FSA), how management of them is organised, as well as the ultimate authorities for the Danish FSA. 1. The Danish FSA and its tasks supervisory and regulatory activities The Danish FSA was established in its current form in 1988 as a so-called integrated supervisor. The Danish FSA is responsible for supervision of the entire financial sector, including banks, mortgage-credit institutions, life-assurance companies and pension funds, non-life insurance companies, investment companies, investment associations, investment management companies, insurance brokers, financial holding companies as well as the securities area. The Danish FSA is an agency under the Ministry of Economic and Business Affairs, but it is under the jurisdiction of independent councils for many of its activities, see section 2 below. The Danish FSA budget is determined by the Folketing (the Danish Parliament) in the Finance Act. However, the costs of the Danish FSA are not paid by the state, but by the undertakings under supervision. The tasks of the Danish FSA can be divided into two categories; supervisory activities and regulatory activities. The most important activity area for the Danish FSA is the supervisory area through regular supervision of financial undertakings and the securities market. This supervision is based on issuing authorisations and licenses etc., reviewing regular reports, and on-site inspections. Interpreting legislation is also part of the supervisory activities. Regulatory activities are broadly legislative work, as well as services arising from being an agency under the Ministry of Economic and Business Affairs required by the minister and the Minister's Department.
2 2/5 Regulatory activities are divided into regulation policy regarding changes in the framework for financial legislation eg. bills or proposals for EU directives - and in technical regulation comprising issuing more detailed technical regulations in, for example, executive orders. 2. The ultimate authorities for the Danish FSA The areas of responsibility of the Danish FSA come under the auspices of three ultimate authorities; two councils for supervisory activities, and the Minister for Economic and Business Affairs for regulatory activities. The two councils are the Danish Securities Council (established in 1995) and the Financial Business Council (established in 2001). The Financial Business Council has 8 members 3 representing the financial sector, and 4 independent members, including the Chairman. The Danish Securities Council has 14 members 7 representing the financial sector and 7 independent members including the Chairman. In case of ties the Chairmen's vote are pivotal. The main task of the Danish Securities Council is to safeguard market interests. In accordance with the Securities Trading Act, the Danish Securities Council must be instrumental in promoting a smooth Danish securities market which is so efficient, transparent and competitive that it is attractive to issuers, investors and securities dealers and which complies with international standards. Furthermore, the Danish Securities Council is responsible for inspecting financial statements from listed undertakings. This work also involves input from the Danish FSA secretariat together with the Commerce and Companies Agency, another agency under the Ministry of Economic and Business Affairs. The main task of the Financial Business Council is to manage those of the Danish FSA s supervisory activities which do not belong under the Danish Securities Council, ie. supervisory matters of principle as well as supervisory matters with significant consequences for financial undertakings and financial holding companies. In summary, the division of responsibilities between the individual councils and the Danish FSA means that the Danish FSA is to present the relevant council with all supervisory matters of principle and of farreaching significance. In addition, the councils provide a certain amount of consultancy for the Danish FSA. The tasks of the councils are clearly described in section 83 of the Securities Trading, etc. Act and section 345 of the Financial Business Act, respectively. As stated, the two councils are the ultimate authorities for the Danish FSA. This means that, within the areas of authority for the councils, the Danish FSA refers to the councils, and not to the Minister. For the authority of the Minister on supervisory matters, see section 3 below.
3 3/5 3. Organisation of the supervisory activities of the Danish FSA As stated above, the Ministry of Economic and Business Affairs is not the ultimate authority for this part of the Authority s activities. Therefore, for supervisory tasks, the Minister for Economic and Business Affairs has no authority to issue instructions to the Danish FSA, except that the Minister may instruct the Danish FSA to examine specific matters or undertakings in the financial sector. Furthermore, the Ministry must be informed about any matters of great political or social importance, after the relevant decision has been taken. If the Danish FSA is to take part in activities falling outside the framework of supervisory legislation, for example by assisting in reconstructions of ailing financial undertakings or taking part in merger discussions etc., the Danish FSA must also have guidelines in advance from the Ministry of Economic and Business Affairs. The Danish FSA is party to an annual performance contract with the Ministry of Economic and Business Affairs. Amongst other things, this performance contract lays down the goals for supervisory activities in the following year, including investigation work. The contract states, that the Danish FSA acts independently within the limits of the contract and legislation. In all specific supervisory cases i.e. regarding non-compliance - Finanstilsynet refers to either the Financial Business Council or to the Danish Securities Council. With regard to interpretation of legislation, as a general rule this work is also part of the Danish FSA s supervisory activities. Interpretation of legislation is therefore exclusively within the Danish FSA, with the Danish Securities Council and the Financial Business Council, respectively, as the ultimate authorities. Appeals regarding decisions on interpreting legislation are addressed to the Company Appeals Board and not to the Ministry. With regard to interpretation of the few provisions in legislation vesting authority directly in the Minister for Economic and Business Affairs, the procedure is that the Danish FSA presents a proposal to be determined by the Ministry, which then submits the matter for approval by the Minister. An example of this type of matter is the possibility for employees of the Danish FSA to take part in other business activities. In addition to this, because of the Ministry s supervisory obligations, it is the responsibility of the Ministry to decide matters regarding interpretation of issues within the Act on Public Access to Documents in
4 4/5 Administrative Files and the Public Administration Act, such as cases involving legal capacity, employment and financial conditions, or cases where the Danish FSA has refused to process a case with the Ministry as ultimate authority. Therefore, only a small part of the Danish FSA s interpretation work involves the Ministry of Economic and Business Affairs, and if the matter relates to interpretation within core areas of the Authority s activities, specific decisions in the form of recommendations, orders, bans etc., the Ministry has no authority, either as a managing authority or as an appeals body. 4. Organisation of the regulatory activities of the Danish FSA The regulatory activities of the Danish FSA primarily include legislative work (preparation and implementation), servicing the minister, as well as international work. a. Legislative work There is a four-year legislative programme for the financial area. The legislative programme is updated regularly to account for political and sector requirements, international obligations, including implementation of EU-directives. The legislative programme is partly a sort of memory aid, and partly a catalogue of ideas, and practical updating takes place at the Danish FSA. The legislative programme is regularly discussed with the three largest sector organisations and with Danmarks Nationalbank (the central bank of Denmark). In principle, all the parties involved can submit ideas for items for the four-year legislative programme. In connection with preparation of the government legislative programme, and preparation of bills, the Ministry assesses whether the items in the four-year legislative programme are to be forwarded to the Minister with a positive recommendation. The practical preparation of legislation is carried out by the Danish FSA, which keeps the Ministry up to date about developments. The work involved in preparing a bill and processing it through reading by the government and the Folketing is organised in accordance with the Ministry s procedures. The Danish FSA prepares the draft bill and other material to be used when the bill is read by the Folketing. All this material is sent to the Ministry for approval and further processing.
5 5/5 b. Servicing the minister Matters characterised as direct services for the Minister (letters from the public, questions from the Folketing outside legislative work etc.), are carried out entirely by the Danish FSA and forwarded in the first instance directly to the Minister. Indirect services for the Minister include all other matters, and for these services, material to determine the matter is drafted by the Danish FSA. After this, the Ministry makes a legal and political assessment of the draft. c. International work EU matters and other international work regarding financial undertakings under supervision is part of the regulatory activities. Regulation of financial undertakings by the EU takes place at ECOFIN meetings of ministers. Amongst other things, this means that the Minister for Finance takes part in negotiations within the EU as well as meetings with the European Committee of the Folketing (Folketingets Europaudvalg). Work with EU matters and other international work regarding financial undertakings under supervision can basically be divided into the following two categories: - Technical changes, supervisory cooperation and other international work regarding financial undertakings under supervision. - New regulation or technical changes of great political significance or interest for society. The majority of matters belong to the category: "Technical changes, supervisory cooperation and other international work regarding financial undertakings under supervision. Work on these matters is carried out by the Danish FSA unless otherwise agreed. In matters relating to New regulation or technical changes of great political significance or interest for society, specific agreements are made between the Danish FSA and the Ministry on how the Minister Department wishes to monitor the matters.
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