Minister of Finance Bos has submitted the legislative bill (in Dutch) to amend the FMSA and a number of other laws to the Second Chamber of Parliament. The First Act amending the FMSA (Wijzigingswet Wft 1), which contains both substantive and technical non-substantive amendments to the FMSA, also proposes amendments to the Dutch Civil Code (Burgerlijk Wetboek), the Bankruptcy Act (Faillissementswet), the Consumer Protection (Enforcement) Act (Wet handhaving consumentenbescherming), the Audit Firms (Supervision) Act (Wet toezicht accountantsorganisaties), the Trust Offices Supervision Act (Wet toezicht trustkantoren) and the Economic Offences Act (Wet op de economische delicten).
‘Wild west sign’
An important element in the bill is the development and expansion of the mandatory exemption notice that currently exists for providers of investment objects and rights of participation in an investment institution, also called a ‘wild west sign’. In principle, providers of these products must state in advertising and information material and during the offer process that there is no supervision of the products. This obligation will also apply to some offers of securities that are exempt from the prohibition on offering securities to the public without approval of the prospectus pursuant to article 5:3 paragraph 1 FMSA. The bill also includes specific procedural rules for the exemption notice.
Voluntary supervisory regime for investment firms
The bill also introduces a voluntary supervisory regime for investment firms. If investment firms only offer their participation rights to qualified investors a licence is not required. However, some foreign institutional investors are only allowed to invest in investment firms that are under supervision. The new regime will make it possible for investment firms to be supervised voluntarily, which will make them open to these foreign institutional investors.
Finally, the bill amends the ‘major exemption’ for offerors of investments. Pursuant to the current Article 2:55 paragraph 2 of the FMSA, the AFM can provide these offerors an exemption from the obligation to be licensed and all licensing requirements. The offerors must observe the regulations of continuous supervision. The proposed amendments ensure that the major exemption extends to continuous supervision.
The proposed date of the entry into force of the bill is 1 January 2010. The Second Act amending the FMSA (Wijzigingswet Wft 2), which contains more substantive amendments, will be discussed in the Cabinet in December and is expected to enter into force on 1 January 2011.