Essentials on Twin Peaks II
01 October 2013
The Law aims to increase the protection of consumers of financial services and products by strengthening the powers of the Belgian Financial Services and Markets Authority (the FSMA).
The Law also includes a number of measures that must contribute to a level playing field between the different rules for the protection of consumers of financial products and services. The Law has generally entered into effect, except for the extension of the conduct of business rules for financial service providers.
A number of implementing royal decrees are in preparation. A second law of 30 July 2013 also modifies the rules in relation to injunctive relief upon violation of financial regulations. In short, the package includes the following measures.
Extension of the conduct of business rules for financial service providers
From 1 January 2014, MiFID-like conduct of business rules will be extended to insurance companies and insurance intermediaries and to intermediaries in banking and investment services. Besides an extension of the entities that are subject to conduct of business rules, the conduct of business rules will also apply to financial products which include savings, insurance and investment products and to financial services related to these products. In addition to the general conduct of business rules, the specific conduct of business rules will be determined by royal decree and may take into account the particularities of the insurance sector and/or of the role of an intermediary.
The Law introduces a requirement that everyone who is in contact with clients should have the necessary product knowledge.2 This requirement does not only apply in a MiFID context, but across products, whether in relation to financial instruments, savings accounts or insurance products. The requirement also applies regardless of the status of the person that is in contact with the client (whether as agent, independent intermediary or employee of the financial service provider). Further detailed rules relating to the requirement of essential product knowledge can be introduced by royal decree.
Restrictions on marketing and labelling of products
The FSMA will now be able to ban certain forms of marketing of financial products and to impose labels to promote the transparency of certain categories of financial products or of the risks, prices, remunerations and costs related thereto.
Strengthening the powers of the FSMA
In addition to the existing supervision and investigation methods, the FSMA will have the power to use “mystery shoppers” and to access certain parts of websites that are normally only available to clients. The FSMA will also have the power to request anonymous and aggregated information from external mediation services on the nature of the most frequent complaints and the treatment thereof by these services.
The Law extends the power of the FSMA across various regulatory regimes: (i) to impose injunctions that may be sanctioned by penalties; (ii) to publish the fact that it imposes sanctions; and (iii) to impose administrative fines.
The rules on civil liability become stricter. A rebuttable presumption is introduced with respect to breaches of conduct of business rules: the investor no longer has to prove the causal link between the breach and the investment transaction. In other words, there is now a rebuttable presumption that the investor would not have made the investment, but for the breach of the conduct of business rules by the service provider. These liability rules apply very broadly and also to services provided cross-border.
In addition, in the case of the offer of investment products or certain other financial products without the required licence, or without pre-approval of the prospectus (or other required documents) the investor will be able to seek the nullity of the investment transaction. The damage caused by the transaction will be deemed to result from the breach.
Market abuse and other restrictions
As to the trading of financial instruments the powers of the FSMA to suspend the trading of financial instruments in exceptional circumstances that affect the functioning of a Belgian regulated market are extended. In addition, the FSMA will be able to restrict trades in certain financial instruments in exceptional circumstances that disrupt or risk disrupting the functioning or stability of a Belgian regulated market, of one or more financial instruments admitted to trading on this regulated market or of the issuer of these instruments. The powers are very broad and also relate to derivatives and CDS.
As to market abuse, rules with respect to market manipulation are extended to manipulation through derivatives and credit default swaps. The manipulation of indices can now also be sanctioned. Further, the legal basis for the restrictions that can be imposed with respect to short selling and the sale of credit default swaps is extended. The Law also introduces the necessary measures for the implementation of Regulation 236/2012/EU of the European Parliament and of the Council on short selling and certain aspects of credit default swaps.