Ocena kryteriów przyjętych przez Komisję Nadzoru Finansowego w Metodyce oceny odpowiedniości członków organów podmiotów nadzorowanych z 2020 roku
Assessment of the criteria adopted by the Polish Financial Supervision Authority in the Methodology for assessing the suitability of the members of the bodies of supervised entities 2020

Summary/Abstract: The methodology presented by the Polish Financial Supervision Authority for assessing the suitability of the members of the bodies of supervised entities was to present objective assessment criteria, based on the legal regulations which are followed by the Polish Financial Supervision Authority and the Office of the Polish Financial Supervision Authority. The number of criteria and their subjective, evaluative and even arbitrary and immeasurable character makes the methodology may become a fiction in practice and an instrument which is not useful for a reliable assessment of a candidate for membership in the bodies of a financial institution. There is a risk that supervisory boards or shareholders will pretend to apply the Methodology in practice and the KNF will pretend to be able to verify the candidate’s assessment in this way. The methodology does not provide clear and measurable guidelines for the candidate’s profile that would help predict whether the candidate will be accepted by the supervisor. The method- ology resembles more the criteria prepared by the so called headhunter or HR department (of highly diverse and often questionable usefulness) than the criteria for legal assessment of whether a can- didate guarantees prudent and stable management of a financial institution. In practice, supervisory boards and shareholders may lose control over the selection of optimal candidates from the owner- ship point of view to the KNF. The methodology introduces acceptance criteria based on the discretion of the supervisor and not on the discretionary nature of the candidate subject to judicial review. This violates the constitutional principle of economic freedom. Moreover, the analysis of the provisions of the Methodology leads to the conclusion that some of the criteria are in conflict with constitutional human rights and freedoms. These contradictions are not justified by the principle of proportionality. This means that the Methodology violates the principles of legalism and the rule of law.

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