With effect from 1 January 2011, a number of statutes, decrees, and supervisory rules were amended.
In addition to pension funds and insurance companies, a new type of pension administrator has been introduced into Dutch law: the premium pension institution (premiepensioeninstelling, “PPI”). Although it is a pension vehicle that may be active on the Dutch pension market, the PPI has been introduced mainly with a view to activities in other EU member states. A feature of the PPI is that it may not insure risks or give guarantees with respect to return on investment. This makes PPIs suitable for Defined Contribution schemes, in which the premium contribution is fixed, but the amount of the ultimate pension is not. The new PPI regulations have been incorporated into the Financial Markets Supervision Act (FMSA).
Some significant amendments to the Securities Giro Transfer Act took effect on 1 January 2011, aimed at further protecting clients of intermediaries and achieving greater dematerialisation of securities. De Brauw has issued a legal alert on the amendments. If you have not been sent a copy and would like to receive one, please get in touch with your regular contact at De Brauw. The legal alert can also be downloaded from www.debrauw.com.
Three decrees entered into effect on 1 January 2011:
- Financial Markets Amendment Decree 2011
- Controlled Remuneration Policy Decree
- Decree Introducing Premium Pension Institutions
The Financial Markets Amendment Decree 2011 contains several amendments to existing regulations. It adjusts a number of decrees to the EU Regulation on rating agencies, and it introduces provisions in anticipation of the implementation of the Solvency II Directive.
The Controlled Remuneration Policy Decree gives The Netherlands Authority for the Financial Markets (AFM) and the Dutch Central Bank (DNB) powers to introduce rules on, among other things, the way in which remuneration policy in financial institutions is to be drawn up, adopted, and implemented.
The AFM ensures that remuneration policy provides no incentive for dealing with customers without due care. In the first half of 2011, it will look at the risk analysis to be carried out by institutions. This should give an insight into the elements of the remuneration policy that could lead to treatment of customers without due care. In the second half of 2011, the AFM will monitor more closely that the remuneration policy is implemented. A Q & A section (in Dutch) in respect of risk analysis can be found on the AFM website.
DNB will focus on risks of the remuneration policy that may have a detrimental effect on the solidity of the financial institution.
In the 2011 Policy Guidelines concerning Expertise, the AFM and DNB clarify the expertise requirements for policy makers and the aspects they take into consideration when carrying out their assessment. The guidelines concern policy makers of all undertakings that fall under the FMSA, the Pensions Act, the Compulsory Occupational Pension Schemes Act, and the Trust Offices Supervision Act.
DNB has published two regulations implementing the amendments to the Capital Requirements Directive (CRD III):
- 2011 Regulation on Controlled Remuneration Policy
- the first tranche of amending rules in implementation of CRD III, which amends the 2010 Regulation on solvency requirements, credit risks and large positions.
The other changes arising from CRD III will be incorporated into supervisory regulations per 31 December 2011.