GEN 7.5 GEN 7.5 Mandatory appointments
GEN 7.5.1 GEN 7.5.1(1) An
Authorised Firmmust, subject to (2) and (3), make the following appointments and ensure that they are held by one or more Authorised Individualsat all times:(a) Senior Executive Officer;(b) Finance Officer;(c) Compliance Officer; and(d) Money Laundering Reporting Officer.(2) An Authorised Firmwhich is a Credit Rating Agency:(a) need not make the appointment 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 Authorised Individualsat all times.(3) An Authorised Firm need not make the appointment referred to in (1)(b) if the only Financial Service it carries on is Managing a Venture Capital Fund.
GEN 7.5.1 Guidance1. This
Guidanceaddresses a range of circumstances:a. one individual performing more than one function in a single firm, as contemplated in Rule 7.5.1;b. more than one individual performing one function in a single firm, not addressed by that Rule;c. one individual performing a single function in more than one firm, also not addressed by that Rule.2. The DFSAwill only authorise an individual to perform more than one Licensed Functionor combine Licensed Functionswith other functions where it is satisfied that the individual is fit and proper to perform each Licensed Functionor combination of Licensed Functions.3. In the above situation the DFSAwill 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 Firmwould generally be expected to separate the roles of Compliance Officerand Senior Executive Officer. In addition, the roles of Compliance Officer, Finance Officerand Money Laundering Reporting Officerwould not be expected to be combined with any other functions unless appropriate monitoring and control arrangements independent of the individual concerned will be implemented by the Authorised Firm. 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 firm's home state by an appropriate individual for each of the relevant Licenced Functions. 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 DFSAmay register more than one individual to perform the Licensed Functionof Compliance Officerin respect of different internal business divisions within a large Authorised Firm. In this regard the DFSAmay consider, amongst other things, the nature, scale and complexity of the activities of the firm, the clarity of demarcation between areas of responsibility, the potential for gaps in responsibility, and processes of communication with the DFSA.6. The DFSAmay also register an individual as the Compliance Officerfor more than one Authorised Firm. The DFSAwill only do this where it is satisfied that the individual is able to carry out his functions effectively in each firm taking into consideration factors such as the amount and nature of business conducted by the firms. Each Authorised Firmhas a duty under GEN 5 to monitor its compliance arrangements to ensure, as far as reasonably practicable, that it complies with all legislation applicable in the DIFC.
GEN 7.5.2 GEN 7.5.2
Authorised Individualsreferred to in Rule 7.5.1(1)(a), (c) and (d) must be resident in the U.A.E.
GEN 7.5.2 Guidance1. In appropriate circumstances, the
DFSAmay waive the requirement for a Compliance Officeror MLROto be resident in the UAE. In determining whether to grant a waiver, the DFSAwill consider a range of factors on a case by case basis focused on whether the firm can demonstrate that it has appropriate compliance arrangements (see GEN section 5.3). These factors may include, but are not limited to: the nature, scale and complexity of the activities of the firm; 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 DFSA; 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 DFSAwill also take into account factors such as the relevant regulatory experience of the proposed Authorised Individualand whether the applicant firm has previously been subject to financial services regulation.
In the case of a
Trust Service Provider, the Authorised Individualsreferred to in Rule 7.5.1 (c) and (d) must not act also as trustees on behalf of the Trust Service Provider.
Authorised Firmwhich is a Body Corporate(other than a Limited Liability Partnership) whose head office and registered office are located in the DIFC, must register with the DFSAall of its Directorsas Licensed Directors.
GEN 7.5.5 GEN 7.5.5(1) In the case of an
Authorised Firmwhich is a partnership established under either the DIFC General Partnership Law or Limited Liability Partnership Law, the Licensed Partnerfunction must be carried out by:(a) each individual Partner who must be registered as a Licensed Partner; and(b) in the case of a Partnerwhich is a Body Corporate, by an individual nominated by that Body Corporateand registered as a Licensed Partnerto act on its behalf.(2) In the case of an Authorised Firmwhich is a partnership established under the DIFC Limited Partnership Law, the Licensed Partnerfunction must be carried out by:(a) each individual General Partner who must be registered as a Licensed Partner; and(b) in the case of a General Partner which is a Body Corporate, by an individual nominated by that Body Corporateand registered as a Licensed Partnerto act on its behalf.