ESMA has also issued supervisory measures against the three CRAs, in the form of public notices.
Fines for Fitch UK, Fitch France and Fitch Spain
Between June 2013 and April 2018, 20% of three Fitch subsidiaries – Fitch UK, Fitch France and Fitch Spain – were indirectly owned by an individual (the Fitch Shareholder), through an entity based in France. At the same time, the Fitch Shareholder was sitting on the boards of three entities rated by these Fitch subsidiaries.
ESMA found the three Fitch CRAs to have infringed conflict of interest requirements through rating activities conducted between 2013 and 2015, with regards to rated entities where the Fitch Shareholder was a board member, and due to a lack of adequate procedures and internal controls for conflicts of interest by Fitch until early 2017. Therefore, ESMA decided to fine:
- Fitch Ratings Limited (Fitch UK) €3,195,000 for negligently committing the following infringements:
- Between 2013 and 2015, Fitch UK issued four new ratings on instruments issued by a listed entity while the Fitch Shareholder sat on the Board of this entity;
- Fitch UK failed to immediately assess the need to re-rate or withdraw ratings previously issued with regards to another entity, where the Fitch Shareholder sat on the Board of this entity; and
- Until March 2017, Fitch UK did not set, at a centralised level, adequate procedures and internal control mechanisms with respect to conflicts of interest, to be applied by the Fitch Group located in the European Union (EU).
- Fitch France S.A.S. (Fitch France) €812,500 for negligently committing the following infringement:
- Fitch France failed to disclose conflicts of interest regarding existing ratings of an entity, while the Fitch Shareholder sat on the Board of this entity.
- Fitch Ratings España S.A.U. (Fitch Spain) €1,125,000 for committing the following infringement:
- Between 2013 and 2015, Fitch Spain negligently issued eight new ratings on instruments issued by a listed entity while the Fitch Shareholder sat on the Board of this entity; and
- Fitch Spain also failed to disclose that the existing ratings of the same listed entity were potentially impacted by the board membership of the Fitch Shareholder, however, ESMA imposed no fine as this infringement was committed without negligence.
ESMA has considered measures voluntarily taken by the three Fitch subsidiaries to ensure similar infringements could not be committed in the future and applied, when applicable, both mitigating and aggravating factors provided by the CRAR, which are reflected in the amounts of the fines.
To ensure independent and good quality ratings, the CRAR requires CRAs to carefully identify and eliminate or manage and disclose conflicts of interest to avoid interference with the rating process. New provisions amending the CRAR, that entered into force on 20 June 2013, identify, as a specific situation of conflicts of interest, the case where a shareholder holding more than 10% of the capital/voting rights of the CRA simultaneously sits on the board of the rated entity.
CRAs to whom this applies are prohibited from issuing new credit ratings for such entities. In case of existing ratings i.e. issued before 20 June 2013, CRAs must immediately disclose where the rating may potentially be affected by the described circumstances. Moreover, CRAs immediately need to assess whether there are grounds for re-rating or withdrawing the existing credit rating.
In addition, the CRAR requires CRAs to establish adequate policies and procedures and the need to have in place internal control mechanisms to ensure compliance with the obligations under the Regulation.
Fitch’s right to appeal
Any of the three Fitch subsidiaries may appeal against this decision to the Board of Appeal of the European Supervisory Authorities. However, such an appeal does not have suspensive effect, although it is possible for the Board of Appeal to suspend the application of the decision in accordance with Article 60(3) ESMA Regulation.