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Global Trustee and Fiduciary Services News and Views | Issue 47 | 2017 47
CRD IV bank or investment firm, the Draft
Bill includes consolidation groups of banks,
investment firms, payment institutions,
electronic money institutions, insurers,
reinsurers, life insurers and non-life insurers
and financial conglomerates.11 Consequently,
AIFMs and managers of UCITS that belong to
these types of consolidation groups will all be
caught by the bonus cap.
• Bonus cap of 100% instead of 200%
pursuant to the EBA Guidelines
Pursuant to CRD IV, in practice a bonus
cap of 100% of the fixed pay applies, which
can be increased to 200% of the fixed pay,
provided that the shareholders agree to such
an increase, in accordance with a procedure
prescribed in CRD IV. The Draft Bill adds an
additional requirement to this, which renders
the possibility of a bonus cap to 200% for
staff of the AIFM or the manager of the
UCITS, working in either the Netherlands
or other EU Member States, academic. This
is because pursuant to the Draft Bill, the
increase of the bonus cap from 100% to
200% only applies to staff of the AIFM or the
manager of the UCITS who primarily perform
their work in a non-EU Member State.
We believe that the increased scope of
the bonus cap, which goes beyond the EU
standard, is inconsistent with the principle of
harmonisation of EU directives and regulations.
The principle of harmonisation was the reason
for the Dutch finance minister not to apply
the bonus cap to AIFMs or managers of UCITS
when the ARPFE was introduced in 2015, but to
exempt AIFMs and managers of UCITS from the
bonus cap. The Draft Bill is completely adverse
to that approach of barely two years ago.
Furthermore, the Draft Bill will also upset the
level playing field. The level playing field is
already disrupted by CRD IV/the EBA Guidelines,
as a bonus cap of 100% to 200% of fixed pay is
introduced for AIFMs and managers of UCITS part
of a CRD IV consolidation group. Other AIFMs and
managers of UCITS (not part of any consolidation
group) continue to be fully exempted from the
bonus cap. The Draft Bill increases this difference
still further: the scope of application is much
greater (through an expansion to all persons
working for the AIFM or manager of the UCITS
and an increase of the relevant consolidation
groups pursuant to the Dutch Financial
Supervision Act), and the 200% bonus cap only
applies to persons working outside the EU.
Next steps
The Draft Bill was submitted for consultation by
market parties. The consultation process ended
on 8 September 2016. Given the extensive
number of comments from market parties on
the minister’s proposal to include certain AIFMs
and managers of UCITS in the bonus cap, it is
uncertain whether the Minister will include that
part of the proposed bill in an actual bill that will
be submitted to parliament. The fact that there
will be general elections in March this year,
further adds to that uncertainty.
Floris van de Bult
Partner
Marian Scheele
Senior Counsel
Robert Smits
Counsel
Clifford Chance LLP
1 Art. 94(1)(g) CRD IV.
2 Art. 1:111 — 1:129 Dutch Financial Supervision Act.
3 Alternative Investment Fund Managers.
4 Undertakings for Collective Investments in Transferable
Securities.
5 Eurogroup: an informal body that brings together ministers
from the euro area countries to discuss matters related to the
euro, but see
eurogroup/, last accessed on 10 November 2016.
6 See AIFMD, Art. 6:
EN/TXT/PDF/?uri=CELEX:32011L0061&from=EN; see UCITSD,
Art. 5:
uri=CELEX:32009L0065&from=EN. Links last accessed on 1
December 2016.
7 See ,
last accessed on 1 December 2016.
8 See
on-sound-remuneration-policies-and-its-opinion-on-the-
application-of-proportionality, last accessed on 26 October 2016.
9 EBA Guidelines, art. 68,
documents/10180/1314839/EBA-GL-2015-22+Guidelines+on+S
ound+Remuneration+Policies.pdf/1b0f3f99-f913-461a-b3e9-
fa0064b1946b, last accessed on 1 December 2016.
10 The Draft Bill refers to a consolidation group referred to in
part 3.6.2 (banks, investment firms, payment institutions and
electronic money institutions, part 3.6.3 (insurers, reinsurers,
life insurers and non-life insurers) and 3.6.4 (financial
conglomerates) of the Dutch Financial Supervision Act.
11 See footnote 10.