The NSSMC clarifies. How and for what purpose is the monitoring of compliance of persons to the positions held in trade unions

At the end of last year, the NSSMC introduced monitoring of the compliance of persons to the positions held by professional participants during the war. This procedure replaced approval, and before that the well-known cumbersome certification system. The main goal was to remove the regulatory and bureaucratic burden and introduce more liberal approaches. Therefore, the regulator retained the possibility to monitor the expediency of appointments only to the highest positions, and in relation to the rest, placed the responsibility on the trade union members themselves.

A new approach: the essence

The procedure for monitoring the compliance of persons to the positions held by the NSSMC was approved on November 11, 2022 by NSSMC`s Resolution No. 1339, which was subsequently amended.

It established that during the period of martial law and 90 days after its end, the NSSMC monitors the compliance of persons to the position held in the professional participant only according to a limited list, which includes:

• Chairman, member of the supervisory board or other body responsible for supervision;
• The head of the collegial executive body/a person exercising the powers of a one-man executive body;
• Member of the collegial executive body.

It is important that the Procedure also applies to persons who perform the duties of a manager or are appointed to temporarily perform the duties of a manager under certain requirements established by the Procedure.

It should be noted that the Procedure establishes the possibility for a professional participant to submit documents to the NSSMC without re-approval in accordance with paragraph 9 of Section I of the Procedure regarding any employee of such a professional participant who may be appointed acting manager, including temporarily. Such a person must have an impeccable business reputation and not have citizenship (citizenship) of a state that carries out armed aggression against Ukraine, must meet the requirements for professional suitability and business reputation established by the Standards for the manager.

The NSSMC makes a Resolution on the suitability or non-compliance of such a person for the position of manager in such a professional participant in accordance with this Procedure.

How is the verification of a person’s suitability for the position carried out

The NSSMC evaluates the suitability of a person for the position he holds based on the analysis of information received from a professional participant in accordance with this Procedure, received during the implementation of state regulation and supervision, information from open sources by conducting an assessment of his business reputation, education, skills and experience for compliance with the requirements established by law , absence of conflict of interest. In addition, the person must have an impeccable business reputation and not have the citizenship of the state carrying out armed aggression (the russian federation, the Republic of Belarus).

A period of 30 days is set aside for the consideration of information. The NSSMC may request and receive additional information necessary to make a reasoned decision. At the same time, the period stops from the moment of sending such a request and resumes from the moment of receiving the information.

Based on the results of the review, the NSSMC makes a Resolution on whether or not the person is suitable for the position. The professional participant is notified of the Resolution made within 3 days.

The grounds for recognizing a person as unfit for the position are:

• provision of inaccurate information;
• non-compliance of the person with the requirements of the law;
• annulment of the certificate for the right to perform actions related to the direct conduct of professional activity.

If a person is found to be ineligible, that person should be dismissed/re-elected. Re-submission of documents for assessment of such a person is possible no earlier than a year later.

No later than 5 days from the moment of receiving the NSSMC`s Resolution on the suitability of the person for the position held, the professional participant is obliged to submit to the NSSMC in accordance with the licensing requirements: a certificate about the management officials, specialists of the licensee and its separate division; a certificate on the personal composition of the supervisory board; a certificate on the personnel of the internal audit service.

Assessment of a person’s business reputation

An important component of the procedure for assessing the suitability of a person is the assessment of his business reputation. Based on the results of the inspection, the NSSMC provides a conclusion on compliance or non-compliance of the business reputation with the requirements established by law.

In case of inconsistency, a corresponding conclusion is initiated for consideration by the specialized committee of the NSSMC with the aim of its approval. Within 5 working days after the approval, the NSSMC sends this conclusion to the professional participant.

A person with respect to whom there are signs of inconsistency in the business reputation has the right to submit a reasoned request within 5 working days for non-application of the identified signs of inconsistency.

When conformity assessment is used: cases and terms

In case of termination of the employment relationship with the manager, the authorized body is obliged to appoint/elect a new manager or an acting manager no later than 3 working days.
In case of temporary absence of the manager, the person who temporarily fulfills his duties must start performing the duties of the manager from the first day of his absence, and in case of temporary absence for more than 3 months in a row, the professional participant must submit to the NSSMC information about the person who temporarily performs his duties no later than 92 days of the temporary absence of the manager.

In case of election/appointment of a person to a position, appointment as an acting manager, a professional participant within 10 working days submits information about such a person and a document on whether or not he/she has a criminal record to the NSSMC. At the same time, if there is NSSMC`s Resolution of the russian federation on the suitability of such a person for the position held by this professional participant, there is no need to submit documents again.

A professional participant may submit documents to the NSSMC regarding any employee of such a participant who may be appointed acting manager in the future, including temporarily.

If, during the period of consideration of the information provided by the NSSMC, the professional participant has changes in any of the information specified in it, the professional participant is obliged to notify about this within two days, and within 10 working days to provide updated information in the form of an appendix to these Procedures . At the same time, from the moment of notification of changes, the term of consideration of documents is stopped, and from the moment of submission of updated information, it is resumed.

Since the entry into force of the new order, the NSSMC has reviewed more than 40 packages of documents from trade union members regarding the suitability of their leaders for the positions they hold, and positive Resolutions have been made on most of them. The regulator expects that the simplified approach will demonstrate convenience for companies and efficiency for the future of the markets.