February 2014 FSMA Consults on New Rules on the Marketing of Financial Products in Belgium and on Product Bans 1 New information requirements and product ban on certain fund linked instruments being considered The Belgian Financial Services and Markets Authority (the FSMA) is organising consultations on proposals 2 for (i) a royal decree introducing information obligations in connection with the marketing of financial products to retail clients and (ii) a royal decree banning the distribution of certain financial products. The consultation period runs up to and including 17 February 2014. The broad scope of the proposed regulations may have a significant impact on financial institutions that regularly engage in transactions with Belgian retail investors. Amongst other things, product manufactures would have a heightened responsibility in relation to product disclosure in the context of the distribution of their products in Belgium through Belgian distributors. The proposals constitute a further implementation of the Twin Peaks II Law 3 which entered into force on 9 September 2013 and strengthened the supervisory powers of the FSMA, especially in the field of consumer protection. They confirm the on-going trend towards increased consumer protection in the field of financial services and products in Belgium. In the context of these consultations the FSMA has indicated that it is closely monitoring the market and that it is considering introducing other measures, in addition to the measures now proposed as part of this consultation. The Belgian proposals front a number of European initiatives such as PRIPS, and the interaction between the Belgian proposals and European texts are not entirely clear at this stage. The proposals do not consider ending the existing voluntary moratorium on the distribution of particularly complex products (a moratorium which most distributors in Belgium have signed up to) 4. Should you wish to discuss the proposals or the consultations with us, please do not hesitate to get in touch.. 1 Contributors Sylvia Kierszenbaum, Willem Van de Wiele and Benoît Van Hellemont 2 Text of the consultation is available on the website of the FSMA at http://www.fsma.be/en/doormat/consultations/cons.aspx 3 The Law of 30 July 2013 on the strengthening of the protection of consumers of financial products and services, and the powers of the Financial Services and Markets Authority (FSMA), and containing various other measures (Twin Peaks II Law) 4 The moratorium on the distribution of particularly complex structured products (http://www.fsma.be/en/supervision/fm/article/nipic/nipic_tsspersonen.aspx) www.allenovery.com 1
Contents The marketing of financial products and additional information requirements 3 Consultation on product bans 6 Key Contacts 7 www.allenovery.com 2
The marketing of financial products and additional information requirements The aim of the proposal is to improve the pre-contractual information provided in relation to financial products distributed to all retail clients, in particular by (i) imposing a requirement to make a standardised fact sheet (approved by the FSMA) available and (ii) requiring the FSMA s pre-approval of all marketing materials and imposing strict requirements regarding the content of these marketing materials. Broad scope of the additional information requirements The draft royal decree, if adopted, would regulate the marketing of all types of financial products to retail clients. (a) Retail clients: MiFID concept According to the proposal, retail clients would be defined as non-professional clients under the MiFID regulations. This definition does not only include individuals but would, for example, also capture SMEs. The concept of retail client in this context is broader than under the Belgian consumer protection laws (which in principle require an exclusive non-professional use). (b) Marketing The notion of marketing would be broadly defined so as to cover the offering, sale or placement of financial products. The marketing of financial products does not only include public offers but also private placements. (c) Financial products Financial products would be broadly defined and include savings products, investment products as well as certain insurance products. Savings products include regulated savings accounts, unregulated savings accounts and term deposit accounts (with the exception of certain payment accounts) as well as certain life insurance. Investment products include investment instruments (within the meaning of the Prospectus Law, ie a broad concept capturing all types of instruments that allow one to make a financial investment), certain life insurance contracts (eg unit-linked life insurance contracts) as well as financial products that have the characteristics of savings products as well as investment products. There would be certain exemptions for pension products. The obligation to provide retail investors with a fact sheet (a) Requirement to provide a fact sheet approved by the FSMA The draft royal decree introduces a requirement to provide retail clients, free of charge, and prior to the subscription to or purchase of a financial product, with a fact sheet (fiche d information/informatiefiche). All fact sheets would need to be approved by the FSMA before they are distributed to clients, except for insurance products whose approval would be optional (opt-in). (b) Scope of application of the requirement The requirement to provide a fact sheet would not apply to the following: investment products marketed within the framework of a public offer in anticipation of which a prospectus is published in accordance with the Prospectus Law 1 (this seems logical, www.allenovery.com 3
as in these instances, a PD compliant prospectus summary should be available); investment products marketed within the framework of a private placement within the meaning of the Prospectus Law or the Funds Law 2 ; certain investment products exempt from the prospectus requirement under existing legislation (eg shares issued by central banks, issuances by certain non-profits, certain employee participation plans); and financial instruments (x) admitted to a regulated market or MTF and (y) marketed within the framework of the investment service of receipt and transmission of orders (provided that the service provider only receives a fee related to the receipt and transmission of orders). In relation to UCITS, the requirement to provide a fact sheet would be satisfied on making the KIID available. The draft royal decree provides that when a fact sheet is not mandatory, it could still be drafted on a voluntary basis. A fact sheet that is drafted on a voluntary basis would have to comply with the requirements applying to a mandatory fact sheet. However, if it complies with the requirements applying to the mandatory fact sheet, it would not have to comply with the requirements applying to marketing materials (that are not fact sheets). (c) Content and nature of the information in the fact sheet According to the draft royal decree, the fact sheet should contain a brief, standardised and easy to understand summary of the key characteristics of the product so that potential investors are reasonably able to understand (i) the nature of the product, (ii) the risks it involves, and (iii) inasmuch as it concerns insurance products, the risks covered. The draft royal decree sets out further requirements in relation to the content and the nature of the information, which should (i) be correct, clear, not misleading and mirror the information contained in all other documents relating to the same product; (ii) be written in a non-technical language; (iii) be comprehensible for retail clients and without reference to any other document; (iv) be no longer than three A4 pages, unless it also contains performance scenarios, in which case an additional page is accepted; (v) contain a typography that contributes to its legibility; (vi) clearly state the term fiche d information/ informatiefiche; (vii) contain the contact details of the service or person to which complaints can be addressed; (viii) include the product label and (ix) specify whether or not it has been approved by the FSMA. (d) Standardised templates for certain financial products The draft royal decree contains standardised templates of fact sheets for a certain number of financial products that would be within the scope of the draft royal decree, such as (i) regulated savings accounts or deposits; (ii) certificates of deposit; (iii) term accounts; and (iv) certain life insurance products. Fact sheets for those products would need to be drafted in accordance with the relevant template. If no standardised template was available for the relevant financial product, the fact sheets would have to be prepared in accordance with the general requirements. (e) Requirement to update the fact sheets Fact sheets would have to be updated and made available to investors for as long as the relevant financial products are marketed on the Belgian territory. (f) Responsibility for drafting and updating fact sheets The draft royal decree identifies the responsible person for drafting and updating the fact sheets. In principle, any person marketing a financial product on the Belgian territory would be responsible for drafting and updating the fact sheet. Product manufacturer: if a product manufacturer requests the intervention of regulated distributors or regulated intermediaries to market its financial product on the Belgian territory, only the product www.allenovery.com 4
manufacturer would be responsible for drafting and updating the fact sheets in relation to this financial product, and not the distributors or intermediaries. Distributors: If (i) a regulated distributor (the Primary distributor) requests the intervention of one or more regulated distributors or intermediaries to market a financial product on the Belgian territory and (ii) the product manufacturer does not request the intervention of this Primary distributor to market the financial product on the Belgian territory, then (i) only the Primary distributor would be responsible for drafting and updating the fact sheet and (ii) not the regulated distributors or intermediaries whose intervention the Primary distributor has requested. The draft royal decree defines the concept requesting the intervention of : a manufacturer or distributor would be deemed to request the intervention of other persons in one of the following situations: (i) these persons are acting in their name or for their account, (ii) an agreement to market the relevant financial product in Belgium is entered into with these persons, or (iii) these persons receive directly or indirectly a fee or advantage from the manufacturer or distributer to market the product. New regulation on marketing materials for financial products Under the existing regulations, the FSMA must give its prior approval of all marketing materials in the context of a public offer or admission to trading on a regulated market of investment products (within the meaning of the Prospectus Law) and regulated savings accounts. Under the draft royal decree, the scope of this requirement would be extended to the marketing of all financial products to retail clients. Such approval would only be obtained if the marketing materials satisfy a number of general conditions such as, but not limited to, the obligation to (i) include information that is not inaccurate or misleading; (ii) not only state the advantages of the product, but also to give a clear and balanced indication of the risks, limitations and/or conditions; (iii) include important elements, declarations or warnings without minimising them, etc. Furthermore, the draft royal decree aims to introduce minimum standards in relation to the content of an advertisement, which would need to include for example, the name of the product, the law applicable to it, its maturity date, minimum subscription amount, etc. Finally, the draft royal decree contains detailed rules on the use of historical performance, awards, ratings and comparisons in advertisements. Liability in relation to fact sheets and marketing materials According to the proposals, marketing (i) without a fact sheet approved by the FSMA (where such fact sheet would be required) or (ii) using marketing materials not approved by the FSMA, would, amongst other things, lead to (i) transactions being declared void (nullité/nietigheid) and (ii) the presumption that any loss has resulted from such non-compliance. 1 The Law of 16 June 2006 on the public offer and admission to trading of investment instruments (as amended) 2 The Law of 3 August 2012 on collective investment undertakings www.allenovery.com 5
Consultation on product bans The recently enacted Twin Peaks II Law grants the FSMA the power to introduce a ban or impose limitations on the marketing of certain financial products to retail clients. The FSMA has therefore proposed to ban the distribution of certain products to these clients. The FSMA is currently consulting on this proposal, with the consultation running up to and including 17 February 2014. The proposal does not consider ending the existing voluntary moratorium on the sale of particularly complex products. Financial products banned from marketing to retail clients The FSMA proposes a ban on the distribution of the following products to non-professional clients: (a) Certain Fund-Linked Products The ban would apply to those financial products whose performance depends, directly or indirectly, on one or more participation rights in a collective investment undertaking, if this investment undertaking does not meet the requirements to be offered to the public in Belgium. The ban would apply to non-ucits compliant collective investment undertakings (for harmonised investment undertakings), or collective investment undertakings that do not comply with the relevant Belgian regulation (for non-harmonised investment undertakings). The FSMA wishes to ensure that collective undertakings that cannot be publicly offered in Belgium are not being sold indirectly or in the form of a structured product. However, it would suffice that units in the collective investment undertakings comply with the substantive conditions to be offered in Belgium. Compliance with the formal conditions, such as a registration on the list of foreign collective investment undertakings with the FSMA, would not be required. This ban would not apply to branch 23 insurance contracts (branche 23/tak 23) (unit linked insurance products) distributed in Belgium. This exception is justified by the fact that separate legislation is being prepared that will introduce similar limitations on investments in branch 23 contracts. (b) Financial products linked to Life Settlements The ban would also apply to financial products that are linked to life settlements. The FSMA considers that these products are very complex and risky by nature, given the large number of variables that contribute to setting the price for these products such as life expectancy, the currency of the underlying contracts, the amount of premiums to be paid, the solvency of insurance companies, etc. Furthermore, the FSMA considers that the international character of the risks and the parties involved increases the likelihood of fraud, which in the past has led to some retail investors in Belgium suffering actual damage. Additional restrictions being considered in relation to non-mainstream assets (collectively managed products with individualised risk) The FSMA indicates it is also considering imposing restrictions on the marketing of products where (i) an investor has an interest in certain goods that are managed by a third party and (ii) the investor has a right to the return of an individualised part of these goods (eg part of a field, a certain barrel of whisky or an individual art work). These products are not currently subject to financial supervision but can lead to significant risks for investors. The FSMA is investigating additional measures to protect investors, such as applying a prospectus requirement or requiring the intervention of licensed intermediaries in the marketing of such products. www.allenovery.com 6
Key contacts If you require advice on any of the matters raised in this document, please call the contacts listed below or your usual contact at Allen & Overy. Sylvia Kierszenbaum Partner Banking, Antwerp Tel +32 (0)3 287 74 10 sylvia.kierszenbaum@allenovery.com Willem Van de Wiele Senior Associate Banking, Antwerp Tel +32 (0)3 287 74 03 willem.vandewiele@allenovery.com www.allenovery.com 7
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