Recent publications on AFM Agenda, remuneration of financial enterprises, MiFID II disclosure and DORA

News Update Financial Regulatory

AFM's Market Impressions 2023 and Integration of Distance Marketing Directive into updated Consumer Rights Directive

18 December 2023

In this News Update we discuss AFM's Market impressions 2023; the integration of the Distance Marketing Directive into the updated Consumer Rights Directive; and EBA's consultation on updated Travel Rule Guidelines.

We further highlight some other financial regulatory publications issued since our last News Update. Subscribe to the News Update Financial Regulatory.

AFM's Market impressions 2023

On 21 November 2023 the Dutch Authority for the Financial Markets (AFM) published a news item and a document Market impressions 2023 to draw attention to the importance of sound and controlled business operations (beheerste en integere bedrijfsvoering) by advisors and intermediaries (in Dutch only).

In Market impressions 2023 the AFM reflects on the results of thematic research on financial service providers and considers other matters including mortgage advice and sustainability, the comparison chart, the Digital Operational and Resilience Act (DORA), person testing and Legal Entity Identifier (LEI) codes.

The AFM's thematic research into sound and controlled business operations showed that some financial service providers are failing to comply with the minimum licence requirements. In particular, continued compliance with all licence requirements during the term of the licence is challenging for part of the sector. Compliance with the basic requirements must improve, according to the AFM. In that regard, the AFM notes that more attention has to be paid to (i) competence requirements; (ii) remuneration requirements, in particular as regards freelancers and the provider's obligation to publish a summary of the remuneration policy on its website; (iii) membership of the Dutch Institute for Financial Disputes; (iv) the incident policy and incident register; and (v) proper professional liability insurance.

The AFM's points of attention for information security cover business processes and services, and in particular those that are outsourced to a large extent, such as IT operations, IT development and IT security.

DORA only applies to large insurance intermediaries, reinsurance intermediaries and ancillary insurance intermediaries which employ more than 250 persons or have an annual turnover that exceeds EUR 50 million and/or an annual balance sheet that exceeds EUR 43 million. The AFM's view is that DORA requirements could be used proportionally as a framework for the IT aspects of sound and controlled business operations.

In respect of integrity assessments the AFM noted the submission of incomplete or not truthfully completed forms for these assessments, which could affect the assessment.

Insurance intermediaries with an outgoing EU passport must have an LEI from 1 February 2024. At the date of publication only a third of these intermediaries had an LEI. An LEI can be applied for at the Chamber of Commerce (application in Dutch only).

Integration of Distance Marketing Directive into updated Consumer Rights Directive

The current Distance Marketing Directive contains various rules on the distance marketing of consumer financial services. These include pre-contractual information requirements, a right of withdrawal, and rules on unsolicited services and unsolicited communications. This Distance Marketing Directive will be repealed on 19 June 2026, whereby part of its content will be added to the Consumer Rights Directive. This revised and updated Consumer Rights Directive includes:

improved rules on the publication of information and pre-contractual information requirements such as the service provider's contact details, hidden costs, if any, or risks associated with the financial service;
a newly added chapter on financial services contracts concluded at a distance;
additional protection for the consumer, who will have the right to request human intervention when interacting through fully automated online interfaces; and an obligation to include a withdrawal function on the online interface.

The new directive was published in the Official Journal of the European Union on 28 November 2023. It will enter into force on 18 December 2023 and must be applied commencing 19 June 2026.

EBA consults on the updated Travel Rule Guidelines

On 24 November 2023 the European Banking Authority (EBA) published a consultation on updated Guidelines on preventing the abuse of funds and certain crypto-assets transfers for money laundering and terrorist financing purposes (the Travel Rule Guidelines). As a result of the Markets in Crypto-Assets Regulation (MiCA), these travel rules will also apply to crypto-asset service providers (CASPs) and Intermediary CASPs (ICASPs). The consultation is relevant for Payment Service Providers (PSPs), Intermediary PSPs (IPSPs), CASPs and ICASPs. The Consultation period ends on 26 February 2024.

EBA proposes six new guidelines:

common criteria for PSPs and CASPs on how to determine whether a card, instrument or device is used exclusively for the payment of goods or services;
common standards of information PSPs and CASPs should include when transferring crypto-assets and funds, including steps to be taken if technical limitations prevent the transmission of full information;
guidelines on the interoperability of protocols on information transfer requirements;
common standards of information to be included by PSPs and CASPs in the name, address and LEI fields for crypto and fund transfer purposes;
guidelines for CASPs on self-hosted wallets;
guidelines for direct debit providers on compliance with the requirements under the Transfer of Funds Regulation.

Other financial regulatory publications

We have highlighted a selection of other publications by legislatures and regulators for the financial markets and financial supervision since our November 2023 News Update.

AFM

The Dutch Authority for the Financial Markets (AFM) fined Finles, an investment fund, for failure to implement an adequate policy for soundness in the conduct of business operations. The decision was published on 9 November 2023 (in Dutch only);
AFM's second publication on key aspects of DORA was published on 1 December 2023 and covers the management of ICT risk for third party providers;
On 6 December 2023 the AFM called upon credit providers to pay attention to automated credit acceptance processes since these can result in overindebtedness, and to report incidents immediately (in Dutch only). An investigation on this topic was announced for 2024;
In its 7 December 2023 news item (in Dutch only) the AFM addresses the licence obligation for crowdfunding services providers pursuant to the European Crowdfunding Service Providers Regulation;
The AFM fined Rabobank for non-compliance with the requirements for the avoidance of overindebtedness in relation to mortgage loans. The decision was published on 14 December 2023 (in Dutch only).

DNB

On 7 November 2023 the Dutch Central Bank (DNB) published its consultation on Good Practices guidance on prudential reporting for investment firms and investment fund managers (in Dutch only). The consultation period ended on 13 December;
The final version of DNB's Good Practice guidance on controlling inflation risk for insurers was published on 13 November 2023 (in Dutch only).

ESAs

On 8 December 2023 the European Supervisory Authorities (ESAs) published their second set of consultation papers on DORA. This set consists of:
a Regulatory Technical Standard (RTS) and an Implementing Technical Standard on content, timelines and templates on incident reporting;
a Guideline on aggregated costs and losses from major incidents;
an RTS on subcontracting of critical or important functions;
an RTS on oversight harmonisation;
a Guideline on oversight cooperation between ESAs and competent authorities;
an RTS on threat-led penetration testing.

EBA

The European Banking Authority (EBA) launched a consultation on its draft Guidelines on complaints handling by credit servicers under the Credit Servicers Directive. The consultation period ends on 9 February 2024;
EBA published for consultation its draft Regulatory Technical Standards specifying the requirements for policies and procedures on conflicts of interest for issuers of asset-referenced tokens under Article 32(5) MiCA. The consultation period ends on 15 January 2024;
On 15 December 2023 EBA published its final report on the Guidelines on the assessment of adequate knowledge and experience of the management or administrative organ of credit servicers, as a whole, under the Non-Performing Loans Directive.

EIOPA

On 6 December 2024 the European Insurance and Occupational Pensions Authority (EIOPA) published an example of the new method to calculate the Credit Risk Adjustment;
On 15 December 2023 EIOPA launched a public consultation on its proposed methodology for setting value-for-money benchmarks for unit-linked and hybrid insurance products. The consultation period ends on 15 March 2024.

ESMA

In November 2023 ESMA announced a change in its Union Strategic Supervisory Priorities (USSPs). The new USSP will come into force in 2025 and will focus on cyber risk and digital resilience. It will replace the USSP on market data quality. ESMA's second priority remains Environmental, Social and Governance disclosures;
On 14 December 2023 ESMA published a discussion paper on investor protection topics related to digitalisation. The response period ends on 14 March 2024.

Ministry of Finance

The draft bill on further measures for the criminal prosecution of crime undermining society (Wetsvoorstel versterking strafrechtelijke aanpak ondermijnende criminaliteit) was published in November 2023 (in Dutch only). It contains a proposal for a new Article 17a in the Act on the Prevention of Money Laundering and Terrorist Financing (Wet ter voorkoming van witwassen en financieren van terrorisme) which, in short, empowers the Financial Intelligence Unit to request a bank to defer a transaction that may be related to money laundering or terrorist financing for a maximum of five working days. This period can be extended once for requests from financial intelligence units from another state;
The consultation on the amendment regulation to update the exit qualifications and test targets for professional competence for financial services exams in 2024-2025 (Wijzigingsregeling eindtermen en toetstermen Wft) (in Dutch only) was published in early December 2023. The consultation period ends on 4 January 2024.

European Commission

The European Commission consulted on four delegated acts under MiCA, concerning:

Criteria for EBA fees to be charged to issuers of significant asset-referenced tokens (ARTs) and e-money tokens (EMTs);
Criteria for classifying ARTs and EMTs as significant;
Criteria and factors relating to ESMA's and EBA's intervention powers;
Rules for EBA's imposition of fines or periodic penalty payments on issuers of significant ARTs and EMTs.

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