Just before the end of this year, the final versions of the Amendment Act financial markets 2013 (Wijzigingswet financiële markten 2013, the "Amendment Act") and the Amendment Decree financial markets 2013 (Wijzigingsbesluit financiële markten 2013, the "Amendment Decree") are published. The Amendment Act was published in the Bulletin of Acts and Decrees (Staatsblad) on 13 December 2012. The Amendment Decree was published today.
The Amendment Act and the Amendment Decree introduce new or additional rules regarding the following topics:
- The mandatory product approval process;
- The oath / solemn affirmation for the financial sector (or what is often referred to as the "banker's oath");
- The ban on commission payments;
- The provision of services document (dienstverleningsdocument);
- The scope of the knowledge and experience test in respect of execution-only services;
- Obligations for offerors of mortgage loans;
- Requirements with respect to professional competences of advisors with client contact;
- Dispute resolution (including the internal complaints procedure);
- The prohibition on direct or indirect investments in cluster munitions;
- The content of the integrity test.
Draft versions of the Amendment Act and Amendment Decree were already published earlier this year, in which all of the above topics were included.
Especially the draft version of the Amendment Decree that was published in May received a large number of responses from various market parties. In addition, concerns have been expressed regarding the fact that the final text of the Amendment Decree was not forthcoming. Since the publication of the draft version of the Amendment Decree in May this year, the Dutch Ministry of Finance published two letters in which the most important changes to the Amendment Decree were announced, namely the following letters:
- the letter of the Ministry of Finance dated 13 September 2012 regarding several of the topics referred to above (we also refer to our newsletter dated 18 September 2012);
- the letter of the Dutch Ministry of Finance dated 27 November 2012 regarding the amended introduction of the oath / solemn affirmation for the financial sector. In this letter, the Ministry already announced that as of 1 January 2013, the oath / solemn affirmation will only apply to persons that are subject to suitability testing (geschiktheidstoetsing) by the Dutch Financial Markets Authority (Autoriteit Financiële Markten) and the Dutch Central Bank (De Nederlandsche Bank), such as policymakers and members of the supervisory board. The Ministry will undertake additional research before it will introduce the oath / solemn affirmation for other employees of financial institutions. The final Amendment Decree does indeed not contain the oath/solemn affirmation for other employees of financial institutions (in contrast with the draft Amendment Decree).
Most of the rules referred to above will enter into force as of 1 January 2013. However, the following rules will enter into force on a later date:
- Cluster munitions - 1 April 2013: The sanction of an administrative penalty for breach of the prohibition on (supporting) investments in cluster munitions may only be imposed by the regulator as of this date. However, the prohibition itself will enter into force on 1 January 2013.
- Provision of services document - 1 July 2013: The obligation to have a provision of services document in a standard format will apply as of 1 July 2013. However, the general additional transparency requirements will already apply as of 1 January 2013.
- Professional competences - 1 January 2014: The new requirements with respect to professional competences of advisors with client contact will enter into force as of 1 January 2014. However, a transitional regime applies to advisors which operate on the basis of the appropriate license on 31 December 2013 and which on that date meet with the professional competences requirements. Those advisors must meet the new professional competences requirements as of 1 July 2015.