CL-2022-000456 - [2025] EWHC 1938 (Comm)

Fecha: 31-Jul-2025

XXXVII: Firewalls and the NCAs [312]-[313]

XXXVII: Firewalls and the NCAs [312]-[313]

312.

The NCAs also have a role in relation to firewalls. The Firewall Guidance notes that, because the process of obtaining derogations is complex, the EU Commission supports the implementation of firewalls, to enable an entity to operate, under strict conditions, unimpeded by the ownership or control of a designated person. It then sets out guidance in relation to such firewalls. Where they are implemented by an “operator” (i.e., a business concern such as EuroChem), the Guidance recommends using an auditor (as EuroChem AG did with Advolis).

313.

Ultimately, however, it remains up to the relevant NCA to recognise the firewalls, and to grant authorisation to release the frozen assets. The Firewall Guidance refers to the role of the NCA in a number of passages, in particular as follows:

(1)

On p. 5:

“If a firewall is not effectively established, the presumption is not rebutted and the NCA must not grant an authorisation to release the entity’s assets frozen. In addition, in the event of non-compliance with the firewall commitments, the entity and the relevant individuals must be held accountable according to Member State penalties applicable to infringements of the provisions of the relevant EU Regulation.”

(2)

On p. 5:

“For the sake of clarity and to avoid adverse effects, the NCA where the ‘owned or controlled’ entity is incorporated should be the one in charge of creating and/or monitoring the implementation of the firewall.”

(3)

On p. 6:

“As set out in section 2.2 (b), an operator that sets up a firewall may resort to an external third party, such as an auditor, to implement and/or certify the effectiveness of the changes to the entity’s corporate governance.
In addition, a Member State must also organise an authentication process by which it would recognise the removal of control. In this case, an NCA must carry out the necessary checks to guarantee that the letter and spirit of this guidance have been respected. The NCA should also receive assurance that the designated person is no longer involved in the entity, for example by written statements from senior management.
A Member State may condition the authentication of a firewall upon the conduct of an external audit. In this case, the NCA should have the possibility to engage directly with the auditor to carry out its authentication and access all audit and corporate documents. The NCA may amend the scope of the audit as appropriate and reserve its right to refuse recognition where the auditor was not suitable or competent to perform such a mission.
Once the compliance of the firewall is established, the NCA must issue an official written confirmation. This document can be circulated by the entity as necessary to other Member States or any relevant party.”