Banking Regulation 2021

Last Updated December 10, 2020

Benin

Law and Practice

Author



DHP Avocats is a law firm founded in Benin by Hélène Paty Kounake, attorney at law and compliance officer. The team is composed of attorneys at law, fellow attorneys and partners, with a compliance and financial specialist, Gail Gibson CFP (RSA). The firm is active in regulatory, compliance, risk consulting and legal due diligence. The firm's practice covers banking, corporate finance, public finance and taxation. The firm assists clients in identifying and complying with the laws and regulations of Benin, WAMU/WAEMU and OHADA applicable to their activities and investments.

Benin Banking System

Benin is a member of the West African Monetary Union (WAMU), the West African Economic and Monetary Union (WAEMU) and the Organization for the Harmonization of African Business Law (OHADA). The country has a banking system that includes:

  • a National Agency of the Central Bank of West African States (BCEAO);
  • a National Credit Council;
  • banks,
  • financial institutions; and
  • a Professional Association of Banks and Financial Institutions (APBEF).

Institutional Framework

At the international level, two institutions are responsible for regulating the bank's activities and operations. These are the Bank for International Settlements (BIS) and the Basel Committee (Basel I, II, III).

At the regional and national level, the Benin banking system is under the authority of the following community and national bodies:

  • the Conference of Heads of State of the Union which defines the strategic orientations of the Union's institutions;
  • the Council of Ministers of the West African Economic and Monetary Union which sets the legal and regulatory framework applicable to credit activity. It is currently chaired by the Minister of Economy and Finance of Benin;
  • the Central Bank of West African States (BCEAO), the issuing institute common to the eight countries Member of the West African Monetary Union (WAMU) in charge of centralising the Union's foreign exchange reserves, managing the monetary policy of the Member of the Union, keeping the accounts of the Treasuries of the countries of the Union, and defining the banking law applicable to banks and financial institutions;
  • the WAMU Banking Commission, a body responsible of banks and financial institutions control;
  • the Personal Data Protection Authority (APDP); and
  • the Court for the Repression of Economic Offences and Terrorism in the Republic of Benin (CRIET).

The Banking Commission has power over:

  • licensing and withdrawal of licences of credit institutions (banks);
  • supervision;
  • administrative measures and disciplinary sanctions against the institutions subject to its jurisdiction or the managers responsible; and
  • the appointment of provisional administrators or liquidators.

Regulatory Framework

The operation of banks is governed by the following basic texts:

  • WAMU and WAEMU treaties and the statutes of BCEAO;
  • OHADA's uniform acts;
  • the framework law on banking regulation internalised by Law No 2012-24 of 24 July 2012 on banking regulation in the Republic of Benin which determines the legal framework for the licensing, management and control of banks;
  • the WAMU Uniform AML/CFT Law internalised by Law No 2018-17 of 25 July 2018 on the fight against money laundering and terrorist financing in the Republic of Benin;
  • decisions of the WAEMU Council of Ministers and BCEAO instructions to banks and financial institutions;
  • the convention governing the WAMU banking commission, which establishes the main regulator of banks in the Union;
  • prudential regulations resulting from the recommendations of the Basel II and III Committees, in particular Decision No 013-24-06 CM UMOA relating to the prudential framework applicable to credit institutions;
  • the classification agreement mechanism; and
  • Law No 2017-20 relating to the digital code in the Republic of Benin.

These laws and regulations ensure the solvency and liquidity of banks, the protection of depositors and the security of the banking system as a whole.

Type of Licences and Statutory Procedures

In Benin, as in other WAMU member countries, no one may carry out a banking activity, claim the status of bank, banker or financial institution of a banking nature, nor create the appearance of such status without having been previously licensed and registered on the list of banks or on the list of financial institutions of a banking nature.

In order to promote financial integration within the West African Monetary Union (WAMU), the WAMU Council of Ministers instituted in 1998 the single licence for banks and financial institutions. This licence allows the bank to operate not only in the country where it was been obtained, but also in other countries of the Union (without applying for a new licence) after the formalities provided for by Community legislation to open branches have been completed.

Banks are constituted in the form of Joint Stock Company (Société Anonyme) with fixed capital having their registered office in Benin or other country member of WAMU; or by special authorisation of the Minister in charge of Finance given after approval of the Banking Commission, in the form of co-operative or mutual companies with variable capital. They may not take the form of a sole proprietorship and must have their registered office in the territory of one of the Member States of WAMU.

Conditions and Procedures for Obtaining Licences

To obtain their licence (agrément bancaire), the company must be incorporated and the capital paid up to a certain level before sending an application for approval to the Minister of the Economy and Finance.

Requests for approval addressed to the Minister of Economy and Finance are filed with the Central Bank, which examines them. The Central Bank verifies whether the legal entities applying for authorisation meet the conditions and obligations provided for in Articles 25, 26, 29, 34 and 36 of the Banking Law in force. It also ensures that the legal form of the firm is appropriate for the activity of a bank or a financial institution of a banking nature.

In particular, the Central Bank shall examine the programme of activities , the technical and financial means that it plans to implement, as well as its plan for the development of the network of branches, agencies or counters, on a national and community scale. It also assesses the applicant company's ability to achieve its development objectives, under conditions compatible with the proper functioning of the banking system and sufficient protection of customers. The Central Bank obtains all information on the quality of the persons having ensured the capital contribution and, where appropriate, on that of their guarantors, as well as on the good repute and the experience of persons called upon to direct, administer or manage the bank and its agencies. In the course of this assessment, observations may be made to the promoters.

After examination of the file, the approval is pronounced by Order of the Minister of Economy and Finance, after approval by the Banking Commission of WAMU and the company is registered on the list of Banks or Financial Institutions of banking nature. These lists are drawn up, updated and published in the Official Gazette of Benin by the Banking Commission which assigns a registration number to each bank or financial institution of a banking nature.

Bank licence may be limited to the exercise of certain operations defined by the corporate purpose of the applicant.

Furthermore, the licence is deemed to have been refused if it is not pronounced within six months from the receipt of the application by the Central Bank, unless otherwise notified to the applicant.

Other Conditions for Authorisation

The establishment of a bank or a duly authorised financial institution in a WAMU Member State other than Benin may be done under the legal status that the requesting bank or financial institution deems appropriate (branch, agency or subsidiary), subject to compliance with the legislation of the host country.

To carry out its activities under the single licence, any bank or financial institution shall submit to the competent authorities, in support of a declaration of intent, a technical file presenting in particular the financial aspects and the business plan of the new establishment. The declaration of intent and the establishment file are filed with BCEAO National Agency. The file is examined by the General Secretariat of the Banking Commission. The decision to set up a new structure within the framework of the single licence is taken by the Chairman of the Banking Commission, after consultation with the Minister in charge of Finance of the State where the requesting institution is duly approved in the Union (location of the head office) and that of the State of the new establishment.

The authorisation or refusal to set up is notified within a maximum period of three months from the date of receipt of the complete file.

Activities and Services Covered, and Restrictions on the Activities of Licensed Banks

In accordance with the Banking Law, the receipt of funds from the public, credit operations, as well as the provision of customer services and the management of means of payment constitute banking operations. Banks are also involved in asset and magnetic card management activities and investment services.

Commercial, industrial, agricultural or service activities are prohibited to banks, unless they are necessary or incidental to the exercise of their banking activity or the collection of their debts.

Requirements Governing Change in Control

Regulators attach crucial importance to the ownership of banks and financial institutions. This is why any transaction having a significant impact on the shareholder structure must be carried out in accordance with the principles laid down in banking law. First of all, it should be recalled that during the licensing process, the Central Bank obtains all information on the quality of the persons who have provided the capital and, where applicable, on the quality of their guarantors.

Then, the authorisation of the Minister of Economy and Finance is also required for:

  • the modification of the legal form, name or business name of the bank;
  • the transfer of the registered office abroad;
  • the merger by absorption or creation of a new company, or scission;
  • early dissolution;
  • the sale of more than 20% of the assets of the establishment corresponding to its operations in the country of establishment;
  • the appointment of a management company;
  • the cessation of all activities; and
  • any acquisition or transfer of shareholding which would have the effect of increasing the shareholding of the same person, directly or through an intermediary, or of the same group of persons acting in concert, first beyond the blocking minority, then beyond the majority of voting rights in the credit institution, or to lower this shareholding below these thresholds — the blocking minority is defined as the number of votes that may prevent an amendment to the articles of association of the bank.

The application for prior authorisation, which is processed as for approval, is sent to the Minister of Finance and filed with the BCEAO National Agency. This authorisation is given after the Banking Commission has given its assent. However, the opening, closure, transformation, transfer, assignment or management of branches or agencies of credit institutions are simply subject to notification to the Minister of Finance and the Central Bank.

The Nature of the Regulatory Filings and Related Obligations

As banks are incorporated as Joint Stock Companies (Sociétés Anonymes), they are also governed by the OHADA Uniform Act relating to Commercial Companies and Economic Interest Groups. With regard to change of control, OHADA law lays down the general principle of the free transferability of shares.

Notwithstanding this principle of free transferability set out in Article 764 of this Uniform Act, the bank statutes may stipulate certain limitations on the transfer of shares. Indeed, the articles may provide that the transfer of shares to a third party outside the company, either free of charge or for consideration, shall be subject to the approval of the board of directors or the ordinary general meeting of shareholders.

Apart from the provisions of OHADA law, the bank or financial institution of a banking nature must comply with BCEAO Instruction No 19-12-2011 establishing the list of documents and information constituting the prior authorisation file for the modification of the capital structure of the shareholders of credit institutions.

Relevant Statutory and Regulatory Requirements

In accordance with Circulars No 01-02-03-04-052017/CB/C relating to the governance of credit institutions and financial companies in WAMU, each bank must put in place a governance system in accordance with sound practices and adapted to its size, structure, the nature and complexity of its activities as well as its risk profile and, where applicable, that of the group to which it belongs.

A systemically important regional or national banking institution should have a governance framework appropriate to its size and to the consequences of its possible failure on the stability of the WAMU financial system or the country in which it is located.

In particular, the governance framework must:

  • take into account the security of information systems, the coverage of all risks incurred by the institution and possible conflicts of interest;
  • define the roles and obligations of stakeholders;
  • meet the needs of the institution as a whole and of each of its organisational and operational units;
  • incorporate mechanisms to maintain and/or restore its operations in the event of discontinuity; and
  • reflect, over time, the changes resulting from the characteristics of the institution and its external environment.

Control System

In accordance with Circular No 03-2017/CB/C relating to the internal control of credit institutions and financial companies in WAMU, the internal control system must include the interdependent components that are the control environment; risk assessment; control activities; information and communication; monitoring of control activities and correction of internal control deficiencies.

For the proper functioning of the control system, three levels of control are set up: permanent control, compliance and risk control and external auditors' control (statutory auditor, banking commission).

In this process, the main players in the bank have responsibilities.

The decision-making body

The decision-making body must oversee:

  • the establishment and proper functioning of the internal control system in its design, implementation and steering phases;
  • approve the organisational structure and ensure that the executive body monitors the effectiveness of the internal control system;
  • ensure that the internal audit function has the appropriate means to carry out its tasks independently;
  • review, at least once a year, the effectiveness of the internal control system, based in part on the information provided by the internal audit function, the statutory auditors and the Banking Commission; and
  • commission, at least every five years, an external quality assurance review of the internal audit function.

The executive body

The executive body should develop appropriate internal control policies and procedures and monitor the adequacy and effectiveness of the internal control system; clearly define and maintain the structures, reporting lines, authorities and responsibilities for achieving the internal control objectives; and inform the internal audit function in a timely manner of all new developments, initiatives, projects, products and operational changes and related risks; ensure that appropriate measures are taken within the set deadlines to implement all corrective actions arising from the recommendations of internal audit, the statutory auditors or the Banking Commission; promote the independence of the internal audit function and provide it with the resources necessary to carry out its missions; report regularly to the legislative body on the effectiveness of the internal control system.

The internal audit function

The internal audit function is responsible for providing the governance bodies with reasonable assurance as to the quality and effectiveness of the internal control system, governance, risk management and compliance risk management systems in order to facilitate their control of the bank's activities and the risks incurred. It also makes proposals to the said bodies to enhance the effectiveness of these systems and mechanisms.

Accountability rules

Banks must communicate to the Central Bank and the Commission

Banking, their annual accounts. These accounts must be certified regularly and truthfully by one or more auditors chosen from the list of auditors approved by the Court of Appeal or any other authorised body acting in its stead. The choice of the Statutory Auditor is subject to the approval of the Banking Commission.

Voluntary Codes and Industry Initiatives

Depending on the size, number of employees, geographical location and activities, good practices in the organisation of services within the bank are based on three elements:

  • a clear organisational chart;
  • an efficient information system; and
  • an appropriate accounting system.

There are also the internal regulations which define the modalities of organisation and functioning of the bank's organs; the code of ethics and deontology and the compliance charter which sets out the bank's Compliance Policy, defines the scope of action as well as the mission and general principles of organisation of the Compliance entity.

At industry level, the collective agreement applicable to banks and financial institutions in the Republic of Benin set some rules applicable to bank actors in particular to bank employees.

Directors' or Senior Managers' Designation

Any director, officer or manager of a bank or of one of its branches must be a Beninese national or that of a WAMU Member State, unless he enjoys, by virtue of an establishment agreement, an assimilation to Beninese nationals.

The Minister of Economy and Finance may grant, upon the approval of the Banking Commission, individual exemptions. They must not have been convicted of forgery or use of forged public documents, forgery or use of forged private, commercial or banking documents, theft, fraud or offences punishable by the penalties for fraud, breach of trust, bankruptcy or a ban on the practice of banking.

Credit institutions must:

  • deposit the complete updated list of their directors and officers with the registrar in charge of the keeping of the trade and personal property credit register; and
  • communicate, at the beginning of each semester, to the Banking Commission and the National Agency of BCEAO, the above-mentioned list, accompanied by the deposit receipt issued by the registrar in charge of the keeping of the trade and personal property credit register.

In the event that a director or executive ceases their activities before the end of the term, the credit institution must communicate the precise reasons to the Banking Commission and the National Agency of the BCEAO without delay.

Restrictions

The direct or indirect granting of credit to persons involved in the management, administration, control or operation of banks is limited to a percentage of their effective equity capital as determined by the Central Bank. The same limitation applies to credits granted to private companies in which the above-mentioned persons exercise management, administration or management functions, or hold more than a quarter of the capital.

In addition, any loan or guarantee granted by a bank to its managers, its main shareholders or partners or to private companies in which these persons exercise management, administrative or management functions or hold more than a quarter of the share capital must be unanimously approved by the members of the Board of Directors and be mentioned in the auditor's annual report.

However, individual and temporary derogations may be granted by the Minister of Economy and Finance, after obtaining the approval of the Banking Commission.

Under equal conditions of work, professional qualification and performance, the conventional wage is equal for all workers regardless of their origin, age, sex and status. Workers are paid according to classification, based on coefficients.

These coefficients are expressed in points. The value of the point is set by a joint committee of representatives of the employers who are members of the Professional Association of Banks and Financial Institutions (APBEF-BENIN) and the representatives of the employees' unions who are signatories to this agreement.

The collective agreement also provides for the payment of seniority bonuses, housing bonuses, cashier's bonuses (especially for cashiers) and diploma bonuses.

In addition, each employer has the option, depending on its financial possibilities, to pay an additional bonus of up to half a month or more of gross pay in December of the year in question.

Article 11 of Law No 2018-17 of 25 July 2018 relating to the fight against money laundering and terrorist financing mentions that banks must defined a compliance policy and drawn up a compliance charter validated by the board of directors. This charter available for all staff, indicates the role of each person in the bank in managing compliance risks in accordance with the recommendations of WAMU/WAEMU, the FATF and GIABA (The Intergovernmental Action Group against Money Laundering in West Africa).

KYC Principles

Banks have duty of vigilance in their business relations, customer operations, in order to avoid financial crime risks. To this end, the compliance function should ensure the implementation of the risk-based approach recommended by the FATF to ensure that the bank operations abide with KYC and CDD principles especially the correct identification of the customer through:

  • their identity document and their domicile or registered office;
  • their registration number in the trade register if it is a company; and
  • using siron software to determine the level of risk associated with each transaction.

For example, the detection of persons under international sanctions on the OFAC, USA, EU, etc, lists or prohibition of transactions to countries under embargo, identification of politically or financially exposed persons. The sanction screening software guarantees compliance with national and international sanctions and embargoes. The compliance function reviews high-risk files or clients and seeks the validation of the senior management to reject them.

In fact, the bank should not enter into commercial relations with persons, companies on blacklists, nor does it authorise transactions in their name or to their benefit. These prevention measure contribute to avoid or mitigate the risks of ALM and CTF.

Control, Monitoring and Reporting of Suspicions

To check and detect money laundering (placement, layering, integration), report is sent to the National Financial Information Processing Unit (CENTIF) on all transactions cash transaction of an amount equal or superior to CFA15 million. To this end, client must justify the origin or destination of the funds.

In a similar way, to facilitate the detection of unlawful transactions, compliance is required to keep recording on clients, conserve documents and send them at the request of legal authorities such as court for the repression of economic offenses and terrorism (CRIET).

Concerning the current operations or credit accounts monitoring, any suspicious or unusual transaction must be the communicated to the compliance function which is the interlocutor of the regulators. Then, Suspicious or unjustified transactions are delayed, suspended or blocked, and reported to CENTIF. This is the case, for example, for a transfer of funds involving explosives.

Furthermore, the "regulatory watch" section of the compliance function analyses and interprets news for example, when a client of the bank is involved in a financial scandal and it is necessary to block access to his account and retain the data to be transmitted to the national police, interpol or courts.

Finally, each transfer of funds is subject to a compliance check with regard to the originator, the beneficiary and the correspondent bank. IT teams help the bank to detect through software alerts, fraudulent transactions via internet banking and ensures that the institution's platform is not used as a relay for cybercrime activities.

In order to ensure the protection of deposits of financial institutions, the WAMU Council of Ministers authorised BCEAO by Decision No CM/UMOA/017/09/2012, dated 28 September 2012 to create the WAMU Deposit Guarantee Fund (FGD-UMOA). Under the terms of BCEAO Decision No 088-03-2014, the mission of the fund is to ensure the guarantee of deposits of clients of Credit Institutions and Decentralized Financial Systems (SFD), approved in WAMU.

As such, it is notably responsible for:

  • compensating depositors in case of unavailability of their assets, within the limit of a ceiling defined by the WAMU Council of Ministers;
  • collecting subscriptions from members and mobilising all other resources necessary for the execution of its missions;
  • managing the resources collected; and
  • requesting reports from members.

Decision No 009 OF 30/06/2017/CM/UMOA fixed the contribution rates of members to the Deposit Guarantee Fund in the West African Monetary Union and the compensation ceilings for eligible deposit holders.

The statutes of the FGD-UMOA provides that deposits denominated in CFA francs and held by natural persons or legal entities, namely sight or time deposits; passbook and savings plan accounts; credit balance of current accounts or ordinary accounts; guarantee deposits when they become due; any other sum due to customers in respect of banking operations in progress on the day the accounts are closed, are guaranteed within the limit of the ceiling set by the Council of Ministers.

The annual contribution rate for WAMF-UMOA members is set at 0.06% of eligible deposits for banks. The compensation ceiling for holders of eligible deposits is CFA1.4 million per holder for all deposits held in the books of a bank.

The Scope of the Requirements

In Beninese banking practice, respect for professional secrecy is provided for by the provisions of the Criminal Code, the Banking Act, the OHADA Uniform Act on General Commercial Law and the Convention establishing the Banking Commission.

Generally, all persons who, by state or by profession or by temporary or permanent functions, are custodians of secrets entrusted to them and who, except in the case where the law obliges or authorises them to act as whistle-blowers, have revealed such secrets, shall be punished.

Specifically, the Banking Law stipulates that persons involved in the direction, administration, management, control or operation of credit institutions are bound by professional secrecy. The same persons are prohibited from using confidential information of which they become aware in the course of their activity, to carry out transactions directly or indirectly on their own account or to pass on such information to other persons.

Furthermore, OHADA Law provides that the auditor and their staff are bound by professional secrecy with regard to facts, acts and information of which they may have become aware in the course of their work.

Which Information is Caught?

Banks and financial institutions are obliged to maintain secrecy with regard to all facts which fall within the scope of banking activity and of which they have become aware in the course of the exercise of their profession. This concerns confidential information. It is thus forbidden for a banker to reveal to a third party the amount of an account balance or the amount of a credit granted to a client. Similarly, discounting operations for the provision of services the results of inspections and periodic controls carried out by the central bank are covered by banking secrecy.

Main Exceptions Permitting Disclosure

Banking secrecy is not opposable to the BCEAO and the Banking Commission within the framework of the accomplishment of their missions. It is nevertheless useful to underline that the members of these institutions are also bound by professional secrecy.

Secrecy is also not opposable to the judicial authority acting within the framework of criminal proceedings, to the Tax Administration when it sends Third Party Holders Notices (Avis à Tiers Détenteur, or ATD) to banks. In Beninese practice, banks also receive requisitions from the Economic and Financial Brigade (BEF) and requests for information from CENTIF which they are obliged to respond to.

The statutory auditor (Commissaires au Compte) shall report, at the next general meeting, any irregularities and inaccuracies noted during the performance of their mission.

In addition, they shall disclose to the Public Prosecutor's Office any criminal acts of which they have become aware in the performance of their mission, without their liability being engaged by such disclosure.

The Consequences of Breach

Breach of professional secrecy may result in two types of sanctions:

  • a disciplinary sanction: dismissal for loss of confidence; or
  • a penal sanction: the sanction provided for in the Beninese penal code is imprisonment from one month to six months and a fine from CFA100,000 to CFA500,000.

Adherence to Basel II and III Standards

After the banking crisis in WAMU in the 1980s to 1995 and the subprime crisis of 2007/2008, the regulatory environment for banks has evolved towards the efficient standards of banking supervision set by the Basel Committee. After adhering to the Basel, I standards, the monetary authorities reviewed and adapted the prudential framework that was in force to the new Basel II and III rules. The new rules came into force on 1 January 2018 in Benin and all WAMU member countries with transitional provisions up to 2022 previously but extended to 2023 due to COVID-19. The three pillars of Basel II and III are the minimum capital requirements, the principles of prudential supervision and the principles governing financial market discipline and transparency.

Capital Requirements

To guarantee the financing capacity of banks and their solvency The Council of Ministers of the Union decided, in its ordinary session of 17 September 2007, to raise the minimum share capital applicable to banks of the West African Monetary Union (WAMU) to CFA10 billion.

The new prudential framework obliges banks to set aside sufficient capital to cover unexpected losses and remain solvent in the event of a crisis. The basic principle is that the amount of capital required depends on the risk associated with each bank's assets.

The regulatory capital requirements consist of:

  • minimum capital requirements;
  • the conservation buffer;
  • the countercyclical buffer; and
  • the systemic buffer.

It should be noted that, in accordance with the transitional provisions mentioned in Title X of the current prudential framework, the application of the regulatory thresholds will be phased in over several years to allow banks to adopt a gradual approach to absorb the new minimum capital requirements, incorporating the conservation buffer and leverage ratio. These transitional measures were extended to 2022 for the minimum capital and the maximum large exposures concentration ratio and 2027 for core and supplementary capital.

Due to the COVID-19 pandemic, the Council of Ministers of the European Union by decision dated 26 June 2020, published by BCEAO notice No 010-08-2020 of 10 August 2020 has extended by one year the timetable for the implementation of the transitional provisions of the prudential framework. Thus, the provisions planned for 2019 are maintained for 2020. The dates of entry into force of the requirements set for the following years, starting in 2020, are shifted by one year.

This measure of regulatory relaxation is part of the continued actions taken by the EU authorities to support economies in the face of the COVID-19 pandemic.

Liquidity Requirements

Financial institutions must hold sufficient liquid assets to cover net cash outflows over a period of 30 days in a crisis situation.

The institution must meet the requirements of both liquidity standards:

  • the Short-Term Liquidity Ratio (RLCT); and
  • the Structural Long-Term Liquidity Ratio (RLLT).

Risk Control

Credit institutions

This reform requires credit institutions to strengthen their governance, internal control and risk management. It should also reduce the asymmetry of information through transparency and financial communication, which require institutions to make information available to the public, in particular on compliance with capital requirements, risk management and governance arrangements. The new prudential framework should contribute to strengthening user confidence in the WAMU banking sector.

In accordance with Circular No 04-2017/cb/c on risk management in WAMU credit institutions and finance companies, each bank is required to have a risk management system adapted to its size, structure, the nature and complexity of its activities and its risk profile and, where appropriate, that of the group to which it belongs. The risk management system must be based on well-documented strategies, policies and procedures that make it possible to identify, measure, evaluate, monitor, report and control or mitigate all of the institution's significant risks.

Strategies, policies and procedures should be dynamic, reflecting changes in the institution's risk appetite, risk profile, market conditions and the macroeconomic environment.

Banks

The bank must ensure that strategies, policies and procedures are in place to provide an enterprise-wide view of its exposures to each type of risk, resulting in risk mapping and a comprehensive review at least once a year.

Banks are also required to set overall limits and operational limits at the level of the various entities in a consistent manner, in accordance with the institution's risk appetite, risk profile and capital base, and to set up an information system that provides capabilities for aggregating risk data and ensuring the timely transmission to the governing bodies of all relevant and useful information for their decision-making.

In addition to these standards, internal control standards must be rigorous, reporting to the governing body (at least once every six months) and reporting to the Banking Commission by sending an annual report on its overall risk management system by 30 April at the latest. This report, drawn up by the head of the risk management function, must be validated by the executive board.

In the context of the COVID-19 pandemic, the central bank has developed a support system for companies in difficulty by extending the due dates on their loans for a period of three months, renewable once, without interest charges, fees or late payment penalties. To this end, and to enable banks to continue financing savings, the prudential and accounting framework in force has been made more flexible and the BCEAO has authorised banks to classify their healthy loans that have been deferred due to the consequences of the health crisis in a specific account within the category of healthy loans, and not in the category of overdue loans.

From an accounting standpoint, these receivables will not, at reporting time, constitute a waiver of principal or interest and will not be subject to a discount or recognition as a loss. From a prudential point of view, these loans will benefit from the same weightings applicable to sound loans when calculating the capital requirements for credit risk.

In accordance with notice No 011-10-2020 of 14 October 2020 relating to the extension of the deferral period for the debts of credit institutions affected by the COVID-19 pandemic, these measures are valid until 31 December 2020.

Scope of Bank Resolution

In accordance with the Annex to the convention governing the WAMU Banking Commission as amended by Decision No 010 of 29/09/2017/CM/UMOA and the statutes of the WAMU Deposit and Resolution Guarantee Fund, the resolution designates the set of rules governing arrangements for the prevention and management of banking crises. Systemically important banks in WAMU are subject to the resolution regime. A resolution plan drawn up by the Resolution board sets out the measures that the latter is likely to take to deal with the failure of the bank concerned, on the basis of the information provided by the latter.

Under a resolution procedure, the Resolution Board is exempt from the requirement to obtain the authorisation or approval of any public authority necessary for the proposed transaction.

Principal Means of Resolving a Failing Bank

Preventive recovery plan

Banks subject to the resolution regime must draw up their preventive recovery plans and have them validated by the Resolution Board.

Conditions for entry into resolution and resolution measures

At the request of the Supervisory Board, the Resolution Board may decide to dissolve any subject bank deemed to be unviable and with no prospect of a return to viability. The Resolution Board may take all measures necessary for the accomplishment of its mission, in particular:

  • require any reporting institution, its managers, corporate officers, statutory auditors or employees to provide all information necessary for the implementation of the resolution procedure;
  • appointing a special director responsible for implementing the resolution measures and executing the decisions of the Resolution Authority; any stipulation providing, within the framework of the contractual relations of the institution, that this appointment is considered as an event of default is deemed to be unwritten;
  • remove or replace any manager whose responsibility for the situation of the institution is established;
  • to decide on the automatic transfer of all or part of one or more branches of activity of the establishment;
  • to decide on the use of an intermediary institution charged with receiving, on a provisional basis, all or part of the assets, rights and obligations of the institution in resolution, with a view to a transfer under the conditions laid down by the Banking Commission;
  • to transfer to an intermediary institution or any other structure, the shares or corporate units issued by the institution;
  • involve the Deposit Guarantee and Resolution Fund, in accordance with the provisions in force;
  • impose a reduction in capital, the cancellation of equity securities or liabilities or the conversion of liabilities;
  • require the institution to issue new shares or corporate units or other equity instruments, including preference shares and conditional convertible securities;
  • impose, notwithstanding any provision or stipulation to the contrary, a temporary ban on the payment of all or part of the debts arising prior to the date of entry into the resolution;
  • limit or temporarily prohibit the exercise of certain transactions by the institution;
  • limit or prohibit the distribution of dividends to shareholders or remuneration of shares to members of the institution;
  • decide on the termination of agreements involving financial obligations for the institution or the offsetting of debts and claims relating to such agreements; and
  • suspend the exercise of the right to invoke the forfeiture of the term as well as the rights of termination and set-off, provided for in bullet point 13 above, of all or part of a contract concluded with the institution.

The Chairman of the Banking Commission shall inform the Minister of the Economy and Finance of the implementation of the termination measures.

The contradictory procedure may be conducted, as a regularisation, when the said measures are lifted, revised or confirmed.

Recapitalisation

The banking law in force in Benin provides that the Chairman of the Banking Commission may, if necessary, invite the shareholders, associates or members of the bank in difficulty to assist in its recovery. This could lead to recapitalisation.

He may also invite all members of the Professional Association of Banks and Financial Institutions to examine the conditions under which they could help the bank to recover.

Putting the bank under provisional administration

When the management of the bank jeopardises, the funds received on deposit or renders the Central Bank's claims non-liquid, the Banking Commission may decide to place the bank under provisional administration. It shall notify its decision to the Minister of Economy and Finance who shall appoint a provisional administrator to whom it shall confer the necessary powers for the direction, administration or management of the institution concerned.

The provisional administrator shall be appointed, within a maximum period of seven calendar days from the date of receipt by the Minister in charge of Finance of the said decision, from a list drawn up for this purpose by the Banking Commission. The appointment decision shall set the conditions of remuneration of the provisional administrator. The extension of the provisional administrator's term of office and the lifting of the provisional administration shall be pronounced by the Minister of Finance, in the same way.

The provisional administrator appointed to a credit institution, instead of its registered office, shall organise the provisional administration of branches established in other WAMU Member countries and which have benefited from the approval of the said institution. The provisional administrator appointed to a credit institution, instead of its head office, shall co-ordinate the provisional administration of branches established in other WAMU Member States and which have benefited from the authorisation of the said institution. They may be appointed, in the same manner, by the Minister in charge of Finance, a secondary provisional administrator for subsidiaries established on the territory of other WAMU Member States.

The provisional administrator must submit to the Banking Commission and the Central Bank, at least once every three months, a report on the operations they have accomplished as well as on the evolution of the financial situation of the credit institution. They must, in addition, submit to the Banking Commission and the Central Bank, during a period not exceeding one year from the date of his appointment, a report specifying the nature, origin and extent of the difficulties of the credit institution as well as the measures likely to ensure its recovery or, failing this, to establish the cessation of payments. The provisional administrator must complete his mission within the time limit set, in accordance with the terms of reference of his appointment.

Merger with another bank

An example of this in Benin is the merger of BIBE and BAIC.

Interventions of the Deposit Guarantee and Resolution Fund

The Deposit Guarantee and Resolution Fund intervenes at the request of the Resolution Board to finance resolution actions.

The Fund of Guarantee of Deposits and Resolution can only be called upon once all private financing solutions have been exhausted.

Indemnification of creditors

When the resolution procedure results in the liquidation of the bank, the Resolution board may decide to grant compensation to creditors, when the latter do not receive, as a minimum, what they would have received if the bank had been liquidated according to the liquidation procedure in force.

Determining the Regulatory Framework for Financial Inclusion

The banking environment will be impacted by the implementation of the regional financial inclusion strategy with the development of mobile banking, the overall objective of which is to ensure, within five years (starting in 2018), the access and use of a diversified range of adapted and affordable financial products and services to 75% of the adult population of the WAEMU.

DHP Avocats

Lot 472 SEDAMI- Porte 2177
10 BP 521 Cotonou
Republic of Benin

+229 95 62 78 33

Hpaty@dhpavocats.com www.dhpavocats.com
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Law and Practice

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DHP Avocats is a law firm founded in Benin by Hélène Paty Kounake, attorney at law and compliance officer. The team is composed of attorneys at law, fellow attorneys and partners, with a compliance and financial specialist, Gail Gibson CFP (RSA). The firm is active in regulatory, compliance, risk consulting and legal due diligence. The firm's practice covers banking, corporate finance, public finance and taxation. The firm assists clients in identifying and complying with the laws and regulations of Benin, WAMU/WAEMU and OHADA applicable to their activities and investments.

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