Banking license
Under banking license means the official permit for operating a financial institution or a bank-like company. Who wants to carry on banking operations, required in most jurisdictions a permit from the competent authority for banking supervision. This is part of bank regulation.
Germany
General
The permission subject to the Banking Act (KWG) serves to protect the viability and integrity of the German banking and financial market and thus also its customers. This bankruptcy protection extends over the liquidity and the 2 KWG referred to in § 6 para investor protection to also include the economically vital function of lending. So Safeguards should also be taken against a shortage of credit supply and the unexpected withdrawal of credit. In addition, the authorization option has the purpose of that banking business may only be operated by companies subject to ongoing banking supervision and a member of a compensation scheme German banks. It is a so-called engagement management, so that the constitutionally protected freedom of trade and the general freedom of action are restricted, and a narrow interpretation of the statutory provisions is required.
Issue
Banking license in Germany is the colloquial term for the license to conduct banking transactions. It is banking regulations distinguish between full banking license ( commercial banking ) and a partial banking license ( securities trading bank, payment institutions, electronic money institution or other institution). The full banking license allows the execution of all banking transactions, while the extract is limited to a few or only one banking business (about guarantee transactions).
One requires permission according to § 32 paragraph 1 sentence 1 of the Banking Act, anyone who wants to conduct banking business commercially or on a scale which requires a commercially organized business domestically. According to the wording and the scheme of the legislation to operate a in § 1 para 1 sentence 2 KWG exhaustively listed banking suffice. For the commercial operation of the banking business is sufficient that it is focused on making profit and invested in some time. To operate a banking business involves more than just the closure and liquidation of the enumerated in clause 2 of the KWG - control transactions, but already the essential to conclude a contract afferent steps. The concept of operating is borrowed from the general commercial law. He covers the right commercial behavior to also include other entrepreneurially - wooing activities to ensure efficient labor inspection. Accordingly, according to the Federal Administrative Court calls the regulatory purpose of § 32 para 1 sentence 1 KWG an interpretation of the concept of operation, all captured essential steps for the preparation and realization of the concrete banking. These sets of permission subject not only at the completion of individual transactions to, but captures the entire business including the preparation of the specific contract. Thus, the rule contains a preventive prohibition with permission of title, which is already intervening in acts preparatory to banking transactions.
Failure
The authorization shall be refused in accordance with § 33 Section 1 of the Banking Act, in particular if the initial capital is not sufficiently available or are unreliable owner or managing or technically unsuitable. An authorization may not be granted generally, if the initial capital in Article 9, paragraph 1 of Directive 2006/48/EC is not less than 5 million euros on 14 June 2006. Part of professional competence, that the directors have sufficient theoretical and practical knowledge of the business concerned, as well as management experience. A professional competence for the management of an institution is to take regularly when three years' managerial activity is detected at an institution of comparable size and type of business. The reliability of an owner or senior manager shall be proved by certificate authorities to the Banking Act in accordance with § 1 paragraph 1 of the display regulation. Goal of a clearance certificate authorities is that other than criminal law decisions are in fact registered all official decisions (eg revocation of a trade regulations permit). Also in the indeterminate legal concept of personal reliability can be resorted to industrial law regulations ( § 35 Industrial Code ). It is also required that at least two individuals must act as full-time Director ( "four- eyes" principle ). Other reasons for not granting a banking license are not permitted ( § 33 paragraph 4 of the Banking Act ); BaFin, the applicant must, within six months of receipt of the (complete ) application documents notify its decision ( § 33 para 5 of the Banking Act ).
In § 35 Section 1 KWG automatic Erlöschensgründe are listed. Thereafter, the permission shall expire if not made of it within one year of issue or use, the Institute has been excluded in accordance with § 11 of the Deposit Guarantee and Investor Compensation Act of the compensation scheme. In the absence, therefore, an institute of investor protection, so automatically turns off its banking license. If the BaFin facts that would justify the refusal of permission, the permission may be revoked ( § 35 para 2 No. 3 of the Banking Act ). If you think a sustainable institution of legal provisions that permit ( § 35 para 2 No. 6 of the Banking Act) can also be canceled.
Withdrawal
If banking operations are operated without the authorization required by § 32 of the German Banking Act, may in accordance with § 37 para 1 sentence 1 alternative. 1 of the Banking Act, the Federal Financial Supervisory Authority, order the immediate cessation of the activities and the immediate settlement of these transactions to the Company and the members of its organs. The Branches of foreign banks are fabricated in § 53 paragraph 1 sentence 1 of the Banking Act as domestic institutions and subjected to according to § 53 paragraph 2 of the Banking Supervision modified. An intervention of supervision by way of prohibition is mapped according to § 37 paragraph 1 sentence 1 of the Banking Act, if the credit institution without the required permit operating the request to discontinue the business does not meet. When not allow banking transactions, § 37, Section 1 of the German Banking Act for the immediate cessation of the business before. In § 3 of the Banking Act determines which bank transactions are not permitted. If a business operation found that does not have a banking license pursuant to § 32 of the Banking Act, the Financial Services operates or performs illicit business, the BaFin is entitled to obtain immediate cessation and management of business operations. The supervisor is also entitled to appoint a suitable hub ( § 36 Section 1 of the Banking Act).
Term " bank ", " savings bank "
Leading the terms " bank ", " banker" or " savings " in the company name is generally permitted in accordance with § 39 Section 1 of the German Banking Act only banks that hold a license pursuant to § 32 KWG. This specific scheme is in trade deceptions and delusions in the context of corporate truth about the type of business ( § 18 para 2 HGB) prevent. This term protection is to protect both consumers and traders against misleading.
Austria
The banking license is called in Austria concession. Companies engaged in banking activities in accordance with § 1 para 1 BWG, (but not partnerships or sole proprietors) are performed only in the legal form of an AG, GmbH, cooperative, savings bank or SE. Director is required by § 2, item 1 BWG shall mean the natural person who is provided for by law or the Articles of Association to manage the business and to organs being representative of KI to the outside. An application for issue of the necessary license pursuant to § 5 section 1 point 1 BWG must be rejected if the applicant does not have the prescribed legal form. The managers are to the supervisory authority personally responsible ( § 39 BWG ) in collegial management, this applies all the members of the Board. The directors may be dismissed by the FMA for lack of personal reliability ( § 70 para 4 No 2 BWG).
Switzerland
The banking license is called in Switzerland banking license. The by the Swiss Financial Market Supervisory Authority ( FINMA), granted a banking license under the condition that both the licensing requirements of the Banking Act and the conditions set by the National Bank expanded disclosure requirements and minimum requirements are met continuously. The authorization must be present before registration in the commercial register (Article 3, paragraph 1) and is granted only under the Article 3 para 2 Bank Act enumerated conditions. Only the actual banking activities (asset management ) requires a license; In contrast, require payment, " commodity trading " and " Trade Finance " as non-nuclear activities do not permit. Important for the grant of a new banking license is a credible and value to the business plan and about the assurance of proper business conduct. According to Article 26 Banking Act, FINMA may restrict the business activities of a bank or close the bank.
United Kingdom
The granting of bank licenses is the responsibility of the FSA in the United Kingdom.
Luxembourg
The granting of banking licenses is anchored in Luxembourg by the Law of 5 April 1993 on the " admission to the business activities of credit institutions and the exercise of " the Banking Act.