4.2 Mandatperiode

De kompetente myndigheder bør sikre, at deres medarbejdere og medlemmerne af deres ledelsesorgan hverken handler med eller anbefaler eller tilskynder andre til at handle eller undlade at handle med de finansielle instrumenter, der er omhandlet i artikel 4a, stk. 3, litra a), i direktiv 2013/36/EU.

Scope of financial instruments covered

cooling-off periods

Notification procedures

45. Where competent authorities are responsible for determining the appropriate length of the cooling-off period applicable to a staff member or to a member of their governance body, competent authorities should establish a transparent process or collective body to assess the cooling-off period that should be applied to the member concerned pursuant to Article 4a(4) and (5) of Directive 2013/36/EU, taking into account the criteria set out in paragraph 46, and the measures to avoid conflicts of interest.

46. While a notification is being assessed, competent authorities should remove or limit the individual’s access to confidential or sensitive information and participation in relevant decision-making activity, together with the reallocation of conflicting tasks.

47. Where competent authorities are responsible for determining the appropriate length of the cooling-off period applicable to a staff member or to a member of their governance body and subject to any limits set out in national law, they should take into account the following criteria in relation to the individual concerned to assess whether the cooling-off period should be extended to a period longer than the minimum periods set out in Article 4a(4) and (5) of Directive 2013/36/EU:

• a) the seniority of the staff member;
• b) the decision-making functions performed;
• c) the nature of the work performed, including tasks performed for another organisation, e.g. another member of the European System of Financial Supervision or the Basel Committee, the level of involvement in the prudential supervision or decision-making directly applicable to the institution or entity concerned, the extent of access to confidential or sensitive information and the types of institutions or entities that the staff member may have contacted with;
• d) involvement in any policy activities which could potentially be applicable to any institution or entity, including the institution or entity concerned;
• e) the expected level of seniority or decision-making activities in the institution or entity concerned;
• f) whether the potential position is with a private sector organisation that has significant scale of influence on financial sector practices and policy making.
• g) the job description of the potential position;
• h) previous professional contact with the institution or entity concerned;
• i) the recruitment process used by the hiring organisation, in particular whether the potential position was subject to open and competitive recruitment;
• j) other measures taken to address the conflict of interest;

48. In Member States where cooling-off periods must be established at the point of employment, where competent authorities are responsible for setting these terms (in conjunction with, where applicable, any relevant national bodies), they should determine the appropriate cooling-off period to be applied to certain job functions. Competent authorities should notify prospective employees of these periods in advance.

49. Consideration should be given to whether the cooling-off period should:

• a) b e served in employment in the competent authority, provided that the member’s access to confidential or sensitive information is terminated and that any duties relating to the supervisory function or decision-making in relation thereto, and policy development which relates to the scope of competence of the competent authority are ceased;
• b) include a secondment to another public sector entity;
• c) be fully or partly served after the cessation of employment of the concerned member at the competent authority.