GEN 5.5 GEN 5.5 Mandatory appointments
GEN 5.5.1 GEN 5.5.1(1) An Authorised Person must, subject to (2), make the following appointments and ensure that they are held by one or more Approved Persons or Recognised Persons at all times:(a) Senior Executive Officer;(b) Finance Officer;(c) Compliance Officer; and(d) Money Laundering Reporting Officer.(2) An Authorised Person which is a Credit Rating Agency:(a) need not make the appointments referred to in (1)(b) and (d); and(b) must ensure that the appointments referred to in (1)(a) and (c) are held by separate persons at all times.
Guidance1. This Guidance addresses a range of circumstances:a. one individual performing more than one function in a single Authorised Person, as contemplated in Rule 5.5.1;b. more than one individual performing one function in a single Authorised Person, not addressed by that Rule; andc. one individual performing a single function in more than one Authorised Person, also not addressed by that Rule.2. The Regulator or relevant Authorised Person, as applicable, will only authorise an individual to perform more than one Controlled Function or Recognised Function or combine Controlled Functions with other functions (including Recognised Functions) where it is satisfied that the individual is fit and proper to perform each Controlled Function, Recognised Function or combination of Controlled Functions and Recognised Functions.3. In the above situation the Regulator or relevant Authorised Person, as applicable, will need to be satisfied that the individual will be able to carry out his role effectively, is fit and proper to do so, and that there are no conflicts of interest or that any actual or potential conflicts of interest are appropriately managed.4. Notwithstanding this Rule, an Authorised Person would generally be expected to separate the roles of Compliance Officer and Senior Executive Officer. In addition, the roles of Compliance Officer, Finance Officer and Money Laundering Reporting Officer would not be expected to be combined with any other Controlled Functions or Recognised functions unless appropriate monitoring and control arrangements independent of the individual concerned will be implemented by the Authorised Person. This may be possible in the case of a Branch, where monitoring and controlling of the individual (carrying out more than one role in the Branch) is conducted from the Authorised Person's home state by an appropriate individual for each of the relevant Controlled Functions or Recognised Functions, as applicable. However, it is recognised that, on a case by case basis, there may be exceptional circumstances in which this may not always be practical or possible.5. In what it considers to be exceptional circumstances, the relevant Authorised Person may register more than one individual to perform the Controlled Function of Compliance Officer in respect of different internal business divisions within that Authorised Person, particularly where it is large in size. In this regard the relevant Authorised Person may consider, amongst other things, the nature, scale and complexity of its activities, the clarity of demarcation between areas of responsibility, the potential for gaps in responsibility, and processes of communication with the Regulator.6. More than one Authorised Person may also register the same individual as its Compliance Officer. This will only be performed where the Authorised Persons concerned are satisfied that the individual is able to carry out his functions effectively in each Authorised Person taking into consideration factors such as the amount and nature of business conducted by the Authorised Persons. Each Authorised Person has a duty under Rules 3.3.7 to 3.3.12 to monitor its compliance arrangements to ensure, as far as reasonably practicable, that it complies with all Regulations and Rules.
GEN 5.5.2 GEN 5.5.2
The Approved Persons or Recognised Persons referred to in Rule 5.5.1(1)(a), (c) and (d) must be resident in the U.A.E.
Guidance1. In appropriate circumstances, the Regulator may waive the requirement for a Compliance Officer or Money Laundering Reporting Officer to be resident in the U.A.E. In determining whether to grant a waiver, the Regulator will consider a range of factors on a case by case basis focused on whether the Authorised Person can demonstrate that it has appropriate compliance arrangements (see Rules 3.3.7 to 3.3.12). These factors may include, but are not limited to: the nature, scale and complexity of the activities of the Authorised Person; the ability of a remote officer to carry out his functions in differing time zones and a differing working week; the size, resourcing and capabilities of a remote compliance function; the ability of a remote officer to liaise and communicate readily with the Regulator; and the competency and capability of a remote officer and whether the remote officer is able effectively to undertake or supervise regular compliance monitoring and keep up to date with applicable Rules.2. The Regulator will also take into account factors such as the relevant regulatory experience of the proposed Approved Person or Recognised Person, as applicable, and whether the applicant Authorised Person has previously been subject to financial services regulation.
In the case of a Trust Service Provider, the Recognised Persons referred to in Rule 5.5.1(1)(c) and (d) must not act also as trustees on behalf of the Trust Service Provider.
An Authorised Person which is a Body Corporate whose head office and registered office are located in the ADGM, must register with the Regulator all of its Directors as Licensed Directors.
GEN 5.5.5 GEN 5.5.5(1) In the case of an Authorised Person which is a Partnership established under either the Limited Liability Partnership Regulations 2015 or the Partnership Act 1890, the Licensed Partner function must be carried out by:(a) each individual Partner who must be registered as a Licensed Partner; and(b) in the case of a Partner which is a Body Corporate, by an individual nominated by that Body Corporate and registered as a Licensed Partner to act on its behalf.