The rapid development of so-called fintechs is bringing more and more financial sector service providers under the supervision of the Financial Supervisory Commission. Immanently connected with conducting business in the regulated market is the authority of the supervisory authority to control the compliance of activities with the applicable regulations. Learn about your rights and responsibilities as a controlled entity in the financial sector to prepare your organization for a possible audit.
ACT WITHIN THE LIMITS OF THE LAW
The guiding principle of the supervisory authority is to take only such actions as it has been authorized to do by law. Documents or information collected in violation of the law will not be allowed to constitute evidence in inspection proceedings. The detailed scope and manner of conducting an inspection may vary depending on the type of financial services provided. This is due to a number of legal acts that regulate this market. The general provisions set forth in the Law “Entrepreneurs’ Law” will also apply to the control of activities, although only in part. However, it is possible to distinguish certain basic obligations – and correlated rights – of the controlled entity, which will be common to all financial sector entities.
SUBJECT MATTER SCOPE OF CONTROL
The basis for the initiation and conduct of inspection proceedings is a named authorization containing the legal basis for conducting the inspection and, most importantly, defining its subject matter scope. When the scope of control activities goes beyond the scope of control indicated in the authorization – the controlled person has the right to file an objection. The objection must be filed within a specified period, in writing, with the Financial Supervision Commission and the inspectors must be informed. The filing of the objection will result in the suspension of inspection activities until the completion of the proceedings triggered by the filing of the objection. It is worth remembering at the same time that, as a consequence, the controller has the right to secure evidence for the time of considering the objection. As a result of the lodged objection, the Financial Supervision Commission issues a decision to either abandon the inspection activities or to continue them. The controlled party will have the right to file a complaint against the decision to continue the activities.
PARTICIPATION IN CONTROL ACTIVITIES
Prior to the start of the inspection, each inspector is obliged to provide his official ID card and inform the entrepreneur of his rights and obligations. The absolute right of the inspected person is the right to participate directly in all inspection activities. To this end, the entrepreneur may also authorize a specific person to participate in the inspection activities. In practice, it is advisable to authorize more than one person, which greatly facilitates the coordination of the inspection on the part of the entrepreneur and allows for substitutability during the inspection, which can last up to several months. This helps not only to pass the inspection smoothly, but also to maintain the continuity of the company’s ongoing operations. The inspection itself is conducted at the place where the business is carried out and during the hours of its actual performance. An additional option is the possibility of conducting the inspection remotely, i.e. using means of remote communication. This option is possible only with the entrepreneur’s consent and is worth taking advantage of. This often makes it easier to efficiently complete the required documents and information, especially in the case of more organizationally complex entities, and can reduce the possible stress of employees associated with participation in control activities. At the same time, the inspection activities themselves should be conducted in an efficient manner and as undisturbed as possible in the operation of the business.
The above examples are not exhaustive, of course, but it is worth bearing in mind that inspection proceedings are not only obligations, but also certain rights.
Therefore, it is worth knowing them, and in case of doubt, consult a professional who has experience in advising companies at all stages of the control proceedings.
If you are interested in more detailed information with regard to the scope indicated above, please feel free to contact us directly.
Aleksandra Billewicz, Lawyer, Tel. +48 606 711 669 , e-mail: aleksandra.billewicz@rsplegal.pl
