News Update Financial Regulatory

The AFM's interpretation on active commission transparency set out in the Financial Markets (Amendment) Decree 2023

4 June 2024

In this News Update we discuss: the AFM's interpretation on active commission transparency set out in the Financial Markets (Amendment) Decree 2023; the latest developments concerning the EU Digital Operational Resilience Act (DORA), and; ESMA's publication of the 'Guidelines on funds' names using ESG or sustainability-related terms'.

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

The AFM's interpretation on active commission transparency set out in the Financial Markets (Amendment) Decree 2023

The Dutch Authority for the Financial Markets (AFM) recently published an interpretation (in Dutch) on the obligation of active commission transparency set out in the Financial Markets (Amendment) Decree 2023 (Wijzigingsbesluit financiële markten 2023). This Decree, which will enter into force on 1 July 2024, contains an obligation for advisers and intermediaries who conclude non-life insurance policies with consumers to actively inform these consumers about the initial commission and ongoing commission amounts (for more information, see our blog post). The AFM has now answered a variety of questions on active commission transparency that had arisen in the sector.

Form of active commission transparency

Consumers must be informed in a timely manner about the exact commission amount, meaning that this amount must be specified before the intermediary has completed their intermediary services or the adviser has given their advice. The AFM recognised that giving an exact amount can be challenging, as the information needed to calculate the exact amount is not always available. The AFM emphasised that the guiding principle is to inform the consumer on the exact amount, and only if this is not yet known, a 'fine-grained average' (fijnmazig gemiddelde) can be used. Should the fine-grained estimate, during the provision of services, significantly deviate from the commission to be paid, the intermediary or adviser must proactively inform the consumer in a timely manner.

Scope of active commission transparency

The Decree states that active commission transparency only applies to non-life insurance agreements concluded on or after 1 July 2024. This raises the question whether the obligation also applies to renewal as of 1 July 2024. The AFM argued that whether a new agreement is concluded is a question of civil law. The AFM clarified that an agreement can be considered to have been concluded after 1 July 2024 if the agreement's essential elements have been fundamentally changed. In practice, distinguishing between renewals with and renewals without fundamental changes can be difficult. Bearing in mind the purpose of active commission transparency – to encourage discussions on services provided – the AFM advised parties to act in line with the rules on active commission transparency when it is not clear whether or not the renewal involves fundamental changes.

Transparency on referral fees

The Decree provides that direct insurance providers must actively communicate with their clients about the characteristics of their services and the nature and amount of the fees they pay to third parties, excluding advisers and intermediaries, for the referral of new clients. The AFM explained that this transparency obligation applies to both the retail and the corporate markets, as well as to non-Dutch providers from other EU Member States operating in the Netherlands.

Exempted insurance intermediaries

In formal terms, exempted insurance intermediaries do not fall within the scope of the obligation of active commission transparency. Nevertheless, the AFM advised exempted insurance intermediaries: "further to the cross-selling information requirements, to also act in accordance with the principles of active commission transparency".

Finally, the AFM noted that it will continue to engage with parties in the sector to discuss the practical implications of complying with these new regulations.

Update on developments concerning the EU Digital Operational Resilience Act (DORA)

Letter from the Minister of Finance

On 10 May 2024, the Dutch Minister of Finance published answers to questions from the Parliamentary Standing Committee on Finance on various aspects of the EU Digital Operational Resilience Act (Source, reference 2023-2024, 36482-6 (in Dutch)). The Minister highlighted key aspects in his answers, including:

Overlap and alignment with existing financial supervision legislation, including the Capital Requirements Directive, Solvency II and PSD II.
DORA's scope, which covers all ICT service providers, not just those to which critical or important services have been outsourced.
The lack of European support for bringing the accounting sector within DORA's scope, as the Dutch government had wanted.
Crypto asset service providers with a MiCA licence fall within DORA's scope and must fully meet these requirements to create a level playing field with traditional financial companies.
The Dutch Central Bank (DNB) and the AFM will jointly hire 35 new employees to increase their DORA supervision capacity.

Draft implementation decree

On 21 May 2024, the Dutch Minister of Finance published the draft implementation decree on DORA on the internetconsultatie.nl website (in Dutch) for consultation. Although DORA is an EU regulation requiring no national implementation legislation to enter into force, various aspects of current national legislation, including current requirements on the operational resilience of banks, payment institutions, investment firms, UCITS and pension funds, must be aligned with DORA. In addition, national legislation is needed to assign new powers to regulatory institutions. These powers are necessary to properly equip regulators to monitor DORA compliance.

The draft decree designates the AFM and DNB as the competent supervisory authorities, each for specific categories of financial entities. In addition, the draft decree introduces the option for regulators to impose administrative penalties and levies to enforce cease and desist orders. We note that for most DORA requirements, the highest category of administrative penalties (i.e. the third category, for which a basic penalty amount of EUR 5 million applies) will apply to non-compliance.

Fintech event

During an informative session on 22 May 2024, organised by Holland Fintech, the AFM and DNB shared some insights into DORA and risk-based supervision of DORA compliance. Key takeaways were that digital operational resilience was 'basic hygiene' to a degree and should already be in place. DNB indicated that shortly after the 17 January 2025 compliance deadline, it will start asking institutions to share their ICT contract registers. This register is required under DORA's Article 28(3) and the main requirements are specified in the ESAs' Draft Implementing Technical Standards regarding this register of information. In addition, DNB indicated that it will exercise risk-based supervision of DORA compliance, meaning that institutions posing the greatest prudential risks (i.e. risks to financial stability) will be subject to the highest level of supervision.

DORA webinar on 20 June

On 20 June 2024 from 09:00 to 10:00 CET, our colleague and DORA expert Juan Vervuurt will participate in a DORA webinar (in Dutch) organised by IT consultancy firm Eraneos. Together with other DORA experts, including the head of DORA implementation at Rabobank and the DORA expert of IT supplier Schuberg Philis, Juan will discuss various aspects of DORA and answer questions from attendees. Attendance is free of charge. You can sign up for this event here.

ESMA publishes 'Guidelines on funds' names using ESG or sustainability-related terms'

The European Securities and Markets Authority (ESMA), the EU's financial markets regulator and supervisor, published a reportcontaining Guidelines on funds' names using ESG or sustainability-related terms. With these Guidelines, ESMA aims to protect investors against unsubstantiated or exaggerated sustainability claims in fund names. The Guidelines also provide asset managers with clear and measurable criteria to assess whether they can use ESG or sustainability-related terms in their funds' names.

In its report, ESMA stated that misleading sustainability disclosures could create the risk of 'greenwashing'. Greenwashing is the process of making false statements about the environmental benefits of a product (in this case, a financial product), pretending it to be more 'sustainable' than it is. According to ESMA, sustainability terminology is: "particularly powerful in fund names, as funds can attract significant interest and stand out to investors by using sustainability or ESG-related terms in their names." Investors might have the expectation that funds with such terms in their names invest in companies that aim for certain high sustainability standards.

The guidelines apply to, in short, UCITS management companies, AIFMs and competent authorities, since they apply in relation to the UCITS Directive (Directive 2009/65/EC), the AIFMD (Directive 2011/61/EU) and the Regulation on facilitating cross-border distribution of collective investment undertakings (Regulation (EU) 2019/1156). Based on the aforementioned legislation, both UCITS management companies and AIFMs have the obligation to act honestly and fairly in conducting their business and to guarantee that all information that is included in marketing communications is fair, clear and not misleading.

ESMA recommended to fund managers that where they use (i) transition-related, social-related and governance-related terms; (ii) environmental-related or impact-related terms; and (iii) sustainability-related terms (all as defined in the Guidelines), they should use at least 80% of the investments to meet environmental or social characteristics, or sustainable investment objectives.

Furthermore, the Guidelines specify that:

Where terms under (i) above are used in fund names, asset managers should exclude investments in companies referred to in the Climate Transition Benchmarks (CTB) (see Article 12(1)(a)-(c) of Commission Delegated Regulation (EU) 2020/1818), for example companies involved in activities related to controversial weapons or the cultivation and production of tobacco;
Where terms under (ii) and (iii) above are used in fund names, asset managers should exclude investments in companies referred to in the Paris-aligned Benchmarks (PAB) (see Article 12(1)(a)-(g) of Commission Delegated Regulation (EU) 2020/1818), which are for example, and in addition to the companies mentioned above, companies that derive 1% or more of their revenues from various sources, including mining or distribution of hard coal, and companies that derive 10% or more of their revenues from extraction or distribution of oil fuels.

Along with further criteria, the Guidelines also contain the responses in the consultation round of the draft Guidelines from different stakeholders. These include asset management industry associations, NGOs and consumers' representatives, and the responses from the Securities and Markets Stakeholder Group (SMSG).

Even though competent authorities should, according to ESMA, make every effort to comply with these guidelines and incorporate them into their national legal and supervisory frameworks, competent authorities can opt to not comply with the Guidelines. Competent authorities must notify ESMA within two months of the publication of the Guidelines in all EU official languages, whether they will comply with the Guidelines or not. And if competent authorities choose to comply, new funds should apply the Guidelines immediately and existing funds will have a six-month transition period after their competent authority's notice of compliance to ESMA.

Other financial regulatory publications

We have highlighted a selection of other publications by legislators and regulators for the financial markets and financial supervision since our April 2024 News Update.

AFM

On 22 May 2024, the AFM published a press release (in Dutch) reporting that the AFM had seen an increase in signs of and consumer questions about scams and fraud. This usually involves investment fraud, for example by means of fake advertisements with Dutch celebrities giving what appears to be 'investment advice', or dating app scams and fraudsters posing as AFM staff, who then defraud victims a second time.
On 27 May 2024, the AFM published a press release (in Dutch) regarding a letter sent to the House of Representatives of the Netherlands. In this letter, the AFM proposed several legislative changes, including requiring market makers to report on gross short positions and requesting clients' sustainability preferences in pension and annuity products.

DNB

On 3 May 2024, DNB published a news item reporting that the rise of BigTechs would change supervision in the financial sector.
On 8 May 2024, DNB published the results of the consultation on the Money Laundering and Terrorist Financing (Prevention) Act Q&As and Good Practices (Resultaten consultatie Q&As en Good Practices Wwft, in Dutch). DNB aims to give financial institiutions some practical guidelines to combat financial and economic crime, in view of financial institutions' role as gatekeepers.
On 16 May 2024, DNB published a perspective on sustainable investment. Mr Olaf Sleijpen (DNB director) noted, among other things, that sustainability risks also fall within DNB's supervision mandate.
On 27 May 2024, DNB published a press release(in Dutch) following an investigation into discrimination by banks. DNB had received signs that clients felt discriminated against by banks and urged banks to apply a broad definition of discrimination, improve their client communications, organise training sessions to promote equal treatment of clients and draft more targeted policies.

ESAs

On 30 April 2024, the ESAs published theirRisk Update, in which they concluded that risks remain high in the EU financial system.
On 30 May 2024, the ESAs published templates and tools for a voluntary dry run exercise on the reporting of registers of information relating to the DORA

EBA

On 2 May 2024, the EBA published a news item reporting that it would start collecting AML and CFT information through the EU database 'EuReCa' starting from May 2024.
On 7 May 2024, the EBA published a news itemon its publication of the three sets of final draft RTS and one set of final draft ITS for the Markets in Crypto-Assets Regulation (MiCAR) (Regulation (EU) 2023/1114) on (i) information for assessment of a proposed acquisition of qualifying holdings in issuers of ARTs (Asset Referenced Tokens) under MiCAR (RTS); (ii) the procedure for the approval of white papers of ARTs issued by credit institutions (ITS); and (iii) information for authorisation as issuers of ARTs under MiCAR (RTS).

EIOPA

On 30 April 2024, EIOPA published a report on the extent of digitalisation of the insurance sector. The report also highlights the 'digital readiness' of individual insurers.
On 14 May 2024, EIOPA published the May 2024 Insurance Risk Dashboard, which shows that risks in the EU's insurance market are stable and at medium levels, with vulnerabilities mostly stemming from market uncertainty and potential risks in the real estate sector.

ESMA

In its April 2024 newsletter, ESMA published an item about a report on the similarities and differences between crypto-asset trading and trading in the traditional financial markets.
On 7 May 2024, ESMA published a Call for Evidence on the review of the Undertakings for Collective Investment in Transferable Securities (UCITS) Eligible Assets Directive (EAD) (Directive 2007/16/EC). The objective of this call is to gather information from stakeholders to assess possible risks and benefits of UCITS gaining exposure to various asset classes.
On 21 May 2024, ESMA published various news updates stating that it would be consulting the public on the MiFIR and MiFID II review. This is part of a consultation period with several rounds of consultations, with the first one starting now in May 2024 and the last one due for January 2025. Consultation Package 1 contains three elements: (i) review of RTS 2 on transparency for bonds, structured finance products and emission allowances, draft RTS on reasonable commercial basis and review of RTS 23 on supply of reference data; (ii) amendments to certain technical standards for commodity derivatives; and (iii) Consolidated Tape Providers and Data Reporting Service Providers;
On 30 May 2024, ESMA published a statement providing initial guidance to firms using Artificial Intelligence technologies (AI) when they provide investment services to retail clients;
On 31 May 2024, ESMA published a press release about the Final Report for rules on conflict of interest of crypto assets providers under the MiCAR.

Council of the European Union

On 24 May 2024, the Council of the European Union (the Council) published a press release reporting that it had formally adopted the Corporate Sustainability Due Diligence Directive (CSDDD). The Council stated: "The directive adopted today introduces obligations for large companies regarding adverse impacts of their activities on human rights and environmental protection. It also lays down the liabilities linked to these obligations. The rules concern not only the companies’ operations, but also the activities of their subsidiaries, and those of their business partners along the companies’ chain of activities."
On 21 May 2024, the Council of the European Union published a press release reporting that the Council had approved a new law aiming to harmonise rules on artificial intelligence (the 'artificial intelligence act').

If you have any financial regulatory questions, please do not hesitate to contact Berry van Wijk, Juan Vervuurt, Lisanne Haarman or Gijs Hamelijnck.