On 1 January 2007, the Act on Financial Supervision (AFS) entered into force in The Netherlands. This article discusses whether or not this has consequences for distance marketing of consumer financial services by financial undertakings.
In 2002 the European Union adopted a directive specifically focused on distance marketing of consumer financial services (Directive 2002/65/EC). The Financial Services Act (FSA) that came into effect on 1 January 2006 and the accompanying lower rules implemented this directive into Dutch legislation. The directive was also implemented in part by the Dutch Civil Code, the Dutch Telecommunications Act and the Dutch Personal Data Protection Act.
FSA replaced by AFS
Since 1 January of this year, the FSA has been incorporated in the AFS. The AFS replaces a total of eight existing supervision acts and therefore consolidates nearly all rules and provisions for the financial markets and their supervision in The Netherlands. The purpose of this very extensive legislative operation is mainly to render the rules for the financial markets, targeted, market-oriented and transparent. The AFS as a whole is in principle applicable to any financial undertaking. The AFS defines a financial undertaking as a management company, a collective investment scheme, an investment firm, a depositary, a clearing institution, a financial service provider, a financial institution, a credit institution or an insurer. Pension funds are not regarded as ‘financial undertakings’ within the meaning of the AFS.
The specific duties regarding the provision of information for distance marketing of consumer financial services are now set out in articles 77, 78 and 79 Decree on the Conduct and Supervision of Financial Undertakings on the basis of article 4:20 AFS. Most articles concerning subsection five of chapter 7 of the Financial Services Decree are now implemented in these articles. It seems that no material changes are intended in that respect.
Right of withdrawal of distance contracts
The articles 4:28 and 4:29 of the AFS contain mandatory law on the right of withdrawal for consumers in agreements concluded at distance. This is linked to the broad concept of financial undertakings in the AFS. In principle, any financial undertaking providing distance consumer financial services must respect the right of withdrawal. As a consequence, since the AFS entered into force the right of withdrawal regarding distance contracts is not only applicable to fund managers, clearing institutions, financial service providers, financial institutions, credit institutions and insurers but also to providers of collective investment schemes and investment firms.
Although the realisation of the AFS is considered as the largest legislative operation since the Dutch Civil Code entered into force, it does not intend to bring material changes to the obligations of financial undertakings regarding distance contracts. However, it should be noted that the right of withdrawal is now also applicable to providers of collective investment schemes and investment firms.