18 September 2018

Evaluation of Remuneration Policy Act for financial enterprises (Wbfo)

On 30 August 2018, the Ministry of Finance published its evaluation of the Remuneration Policy (Financial Enterprises) Act (Wbfo, Wet beloningsbeleid financiële ondernemingen), three years after its entry into force. De Brauw was a contributing party to this evaluation, along with the AFM, DNB, and several financial organisations. One of the focus points of the report is the effectivity of the bonus cap of 20%, which is a lot stricter than the bonus cap of 100% which is applicable in the rest of Europe. There is however no indication that the Wbfo has a negative effect on international labour mobility or on the Dutch business climate for international financial organisations. The overall conclusion is that the Wbfo has limited impact on the culture change within financial organisations.

Effectivity of 20% bonus cap

The report suggests that the bonus cap of 20% helps contain the incentive to take prudential risks more than the European bonus cap of 100%. However, there is no proof that the Dutch bonus cap of 20% better protects the customer’s interests. There is also no indication that employees’ fixed remuneration now fully compensates the possible loss of variable remuneration. It does appear that the possibility to deviate from the bonus cap for personnel falling outside the scope of a collective bargaining agreement is used more widely than was intended, although there is no indication of abuse.

 

Rules for fixed remuneration

As well as the evaluation of the bonus regulation, the Dutch Minister for Finance has proposed three additional rules for fixed remuneration. The first is a clawback provision applicable to part of the fixed remuneration of managing directors, in case a bank or insurance company receives state aid. The second is the possibility to retain the fixed remuneration that relates to the market value of the organisation, such as shares, for a number of years. Finally, a legal obligation will be introduced to account for the relationship between the organisation’s social function and its remuneration policy. The internet consultation procedure regarding these three proposed measures closed on 31 August 2018, to be followed by a round table meeting with stakeholders. Depending on the outcome, the advice of the Council of State (Raad van State) will be requested on the exact legal design of these additional remuneration measures.