Legislative proposal on further remuneration measures for financial enterprises
On 2 July 2020, Minister of Finance submitted the legislative proposal on further remuneration measures for financial enterprises (Wetsvoorstel nadere beloningsregels financiele ondernemingen, Wnbfo) to the Dutch House of Representatives (Tweede Kamer). The legislative proposal contains amendments to some rules concerning the remuneration policy of financial enterprises.
So far, remuneration legislation has focused primarily on variable remuneration. Recent proposals to increase fixed remuneration for directors of some financial enterprises have prompted the adoption of additional measures, including measures relating to fixed remuneration. An overview of the most important proposed changes is provided below:
1. A five-year retention period for shares and similar financial instruments in fixed remuneration
The legislative proposal introduces a legal obligation for directors and employees of financial enterprises to hold shares that are part of the fixed remuneration for a period of at least five years and not to sell them during such period. This also applies to similar financial instruments that are part of the fixed remuneration and whose value depends on the value of the company, such as options.
2. Accountability for remuneration policy
The legislative proposal introduces a legal obligation for financial enterprises to set out in their remuneration policy how account is taken of and for the relationship between remuneration of management board members, supervisory board members and employees of the company and the position of the financial enterprise in society, and how this relationship is determined. Such must also be described in the management report, as far as the financial enterprise is obliged under the Dutch Financial Supervision Act (Wet op het financieel toezicht) to draw up a management report.
3. Tightening of the possibility of deviating from the bonus cap
Because the evaluation of the Dutch Remuneration Policy (Financial Enterprises) Act (Wet beloningsbeleid financiële ondernemingen) revealed that the possibility to derogate from the bonus cap for personnel not subject to a collective labour agreement (non-CLA personnel) is often used for personnel for whom this deviation possibility is not intended, the legislative proposal tightens this possibility of derogation. In the legislative proposal it is explicitly stated that the use of this derogation is only possible in exceptional cases and that this is in any case not possible for persons who (i) perform internal control functions or (ii) are directly engaged in the provision of financial services to consumers. The legislative proposal also introduces an annual notification requirement for financial enterprises that use the derogation from the bonus cap. The use must be reported to the regulator.
Furthermore, the legislative proposal regulates the continuation of the existing policy with regard to proprietary traders. This means that proprietary traders will continue to be exempted from the bonus cap. This is in line with new European regulations for investment firms. Lastly, the legislative proposal contains some technical changes.
The intended date of entry into force of most of the articles of the Wnbfo is 1 July 2021. For one of the measures, entry into force is envisaged one year later (i.e. 1 July 2022). This concerns the proposed statutory obligation regarding the accountability for the remuneration policy as described above under 2. A financial enterprise must therefore have adjusted its remuneration policy in this respect before 1 July 2022 and include it in the management report for the financial year 2022 at the latest. Furthermore, a transition period of one year applies to existing employees in the case of (i) the tightening of the possibility to deviate from the bonus cap for non-CLA personnel, and (ii) the retention period for financial instruments in fixed remuneration within financial enterprises. The financial enterprise is expected to consult with individual employees (and trade unions) during that year to change contractual arrangements. With respect to shares and similar financial instruments already acquired before the end of the transitional period, a respectful effect applies. This means that new measures do not affect these financial instruments that have already been effectively transferred to existing employees before the end of the transitional period.
Maureen te PoelCounsel Attorney at law
Maureen te Poel, attorney at law, is a member of the Employment & Benefits practice group. She has over 21 years of experience as a lawyer, of which 8 years in the M&A department. The last 13 years she has been focusing on all-round employment law, with a particular focus on the employment aspects of M&A-deals and restructurings, co-determination procedures, remuneration structures and sector-specific regulations on remuneration.T: +31 20 578 54 64 E: firstname.lastname@example.org