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Distribution of PRIIPS in Belgium - advance notification of the KID to the Belgian FSMA

As from 1 January, as a result of the EU PRIIPs Regulation1 becoming effective, financial institutions manufacturing PRIIPs must make available a Key Information Document. In Belgium, the distribution of PRIIPs is in principle subject to the advance notification of this Key Information Document to the Belgian Financial Services and Markets Authority (FSMA).

The PRIIPs Regulation grants a discretion to Member States to require the advance notification of the Key Information Document (the KID) by the PRIIP manufacturer or the person selling a PRIIP to the competent authority for PRIIPs marketed in that Member State. Belgium has decided to adopt this requirement.

In principle, the KID must be provided to the FSMA2 before the actual distribution of the PRIIP in Belgium. There are some exceptions: (i) different types of derivative instruments 3 that are admitted to trading on a regulated market or an MTF; (ii) private placements; (iii) employee offerings and (iv) public offerings of securities following the admission to trading on a regulated market or MTF of the securities. This list of exceptions may be extended. The obligation to make a KID available (and to notify this in advance to the FSMA) may also be extended to other financial products that are not covered by the PRIIPs Regulation.

Sanctions for non-­compliance

The FSMA has been provided with extensive supervisory powers to request information and documents (including from judicial authorities), to carry out on-site inspections, to make specific inquiries and to order the seizure of documents and monies, assets, rights or titles.4 It may issue public warnings, impose penalties and administrative fines and prohibit the distribution of financial products on the Belgian market.5 In addition, the FSMA may directly inform (or require the product manufacturer or distributor to inform) the retail investors of the administrative sanction or measure and the means to make complaints or lodge a claim for damages.6

Practicalities of the advance notification

In principle, the person marketing the PRIIP in Belgium must notify the KID to the FSMA. This may also be the PRIIP manufacturer. When the PRIIP distributor or manufacturer calls on another person7 for the distribution of the PRIIP in Belgium, it will remain responsible for the advance notification of the KID to the FSMA.

The KID must be notified to the FSMA before the distribution of the PRIIP in Belgium. If the marketing takes place in the context of a public offer of investment instruments within the meaning of the Prospectus Law, the KID must be notified to the FSMA at the earlier of: (i) at the latest five business days before the start of the public offer or (ii) at the moment the marketing materials are submitted to the FSMA for approval. 

Notifications must be made via the FSMA’s new electronic FinPro platform or via email to kidnotification@fsma.be. However, the FSMA asks notifiers to preferably use the FinPro application. The procedure to be followed when using the FinPro application is further clarified in an FSMA communication.8

The KID must be submitted in Dutch, French or English. In the case of a public offering where the FSMA reviews the marketing documents, the KID must be submitted in the language of the marketing documents. 

Footnotes:

1. Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (as amended).
2. The FSMA has been appointed as the competent authority for Belgium.
3. Including, without limitation, options, futures, swaps and futures.
4. Subject to judicial approval.
5. If the infringement has resulted in a profit, or if the infringement has allowed the avoidance of a loss, the maximum amount may be increased to an amount equal to two times that profit or loss. Different limits apply to individuals.
6. Article 37sexies, §4 juncto article 36, §2, 5th paragraph of the Financial Supervision Act.
7. Such as an agent acting in the name and for the account of the manufacturer/distributor or any person receiving (directly or indirectly) a consideration or advantage from the PRIIP manufacturer or distributor pursuant to the marketing of the PRIIP in Belgium.
8. Communication FSMA_2017_24 of 29 December 2017 concerning the notification of Key Information Documents for PRIIPs to the FSMA via the “FinPro” application (English version available online: https://www.fsma.be/sites/default/files/public/content/EN/Circ/fsma_2017_24_en.pdf  

 

Legal and Regulatory Risk Note
Europe