Onder 5.11 Parket bij de Hoge Raad 7 juni 2019

“76. It is sometimes argued that the role of senior management in setting overall limits that are passed down through particular business lines, products, individual customers, etc. is so critical to the success of the business that they should be regarded as performing the key entrepreneurial risk-taking functions. However, since overall limits are changed infrequently and the impact of any changes to the overall limit is indirect (since limits do not need to be utilised and regulators generally do not view capital as being placed at risk until the enterprise is contractually committed to particular transactions) the mere setting of the overall limit of itself and with little further active involvement in the managing of risk would not generally be considered a key entrepreneurial risk-taking function. This is because where senior management activity is confined merely to setting the parameters which define the potential for the assumption of risk, there is likely to be a separate trading function which does lead to the actual assumption and subsequent management of risk. Under the authorised OECD approach economic ownership of financial assets is generally attributed in the first instance to the part of the enterprise which performs the functions relating to the creation of the asset and the assumption of the associated risk, i.e. the functions closest to the transactions that give rise to the risk. It may be necessary, depending on the facts and circumstances, to transfer ownership to the part of the enterprise which subsequently manages the risk.”

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