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(financiële) toezichtswetgeving |
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Wednesday, 08 July 2009 20:17 |
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On 25 June 2009, the Autoriteit Financiδle Markten (Financial Markets Authority, hereinafter "AFM") published a document providing guidelines on provision of service. From 1 July 2009, advisors and intermediaries will have to present a provision of service document to their clients for complex products and mortgages. It provides the client with information on the nature and scope of the advisor/intermediary's service and the remuneration involved.
Article 4:72 paragraph 3 under a and 4:73 paragraph 3 under a of the Dutch Law on Financial Monitoring (Wet op het financieel toezicht, or Wft) in conjunction with 149b of Resolution on the Monitoring of Conduct of Financial Companies (Besluit gedragstoezicht financiële ondernemingen, hereinafter: the 'Bgfo'): "An advisor that is not also a provider or a broker will, within the framework of effecting a contract with a consumer concerning a complex product or mortgage credit, issue a service document to the consumer."
In its guidelines on the service document ('Leidraad Dienstverleningsdocument'), the Netherlands Authority for the Financial Markets (AFM) reports a number of items for consideration for the content of the service document:
(i) The service document must be issued to the customer in written format prior to the giving of advice or brokering. The AFM recommends making the document available on your website as well. Just making it available on your website is insufficient in view of Article 49 of the Bgfo. (ii) The service document need not adhere to a certain format. The compulsory information can therefore be incorporated into all existing information documents, such as (for example) a brochure. (iii) The service document must be clear and transparent to the customer. For that reason, comprehensible language is required. (iv) Be clear about the nature and scope of the services to be provided. The service document does not extend to non-complex products, but in certain cases it might be preferable, in the eyes of the customer, to include information on this anyway. (v) Be clear about charges. Charges must be reported for each type of product. The commission must be appropriate to the work being carried out (see also the guidelines on appropriate commission for financial service providers).
In the guidelines for the service document, the AFM offers suggestions for certain subjects that can be covered in the service document:The objective of the service document is to inform the customer about the work that will be carried out for him. Things that could be mentioned include whether it is a matter of advising or brokering, on what products advice will be given, and whether other types of product are suitable for the customer in question.
Furthermore, another objective of the service document is to offer the customer insight into the different ways in which an advisor/broker applies charges and into the method and time of payment. Thus this concerns possibilities like hourly rate, commission, fee, rates for services or a subscription. Types of charges need to be described and explained clearly. Charges can be specified by means of a range.
For more information, you can get in touch with:
TeekensKarstens Law Firm
Mariëlle Hartman LL M
T +31 (0)71 535 80 38
F +31 (0)71 53 80 01 E
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