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Amendment Act Financial Markets 2014

20/11/2013

Yesterday the Amendment Act Financial Markets 2014 (Wijzigingswet financiële markten 2014, the "Amendment Act") was adopted by the First Chamber of the Dutch Parliament. The Amendment Act contains a number of substantive amendments to the Financial Supervision Act (Wet op het financieel toezicht, the "FSA") as well as technical amendments. It is expected that the Amendment Act will enter into force on 1 January 2014.

Among other changes, the Amendment Act provides for a general duty of care, financial reporting requirements, segregation of assets of investment institutions, supervision on clearing institutions, automatic sett-off of bank savings deposits and system relevant buffers. In the context of investment funds the Amendment Act includes amendments to the asset segregation rules and clarifies the private placement regime after the implementation of the AIFMD.

Asset segregation rules for investment institutions

The FSA currently provides for rules regarding the segregation of assets of investment institutions. Recourse on the assets of an investment institution without legal personality (beleggingsfonds) is only possible for claims that relate to the management and custody of the investment institution and on the participation in that investment institution. A separate legal entity that acts exclusively for that investment institution should hold the legal ownership of the assets of an investment institution without legal personality if there is an actual risk based on the investment policy that the assets of the investment institution and the own assets of the entity holding the legal ownership will be inadequate to cover the liabilities which relate to the management and custody of the investment institution and on the participation in that investment institution. Subfunds are exempted from this requirement.

The Amendment Act provides for the following amendments to the aforementioned asset segregation rules.

  • Legal ownership of the assets of an investment institution without legal personality should be held by a separate legal entity whose sole object according to its articles of association is to have the legal ownership of assets of one or more investment institutions whether or not in combination with custody or the administration of assets.
  • The rule in case of an actual risk of not being able to cover liabilities as mentioned above is being modified. The separate legal entity that holds the legal ownership of the assets of an investment institution without legal personality must be an entity whose sole object according to its articles of association is to have the legal ownership of assets exclusively for that investment institution whether or not in combination with custody or the administration of assets for that single investment institution.
  • Recourse on the assets of an investment institution is only possible for liabilities that relate to the management, custody and legal ownership of the assets of the investment institution that can be covered by the assets of the investment institution given the information provided. Under the current rules this only applies to investment institutions without legal personality. According to the Amendment Act this rule will apply to all investment institution, with and without legal personality. To avoid any lack of clarity the Amendment Act emphasizes that the assets of the investment institution are legal segregated capital.

Private Placement Regime

A non-EU manager is allowed to distribute investment institutions in the Netherlands without a licence in the event that the offer is solely addressed to qualified investors. There should be (i) an appropriate cooperation arrangement between the Dutch Authority for Financial Markets (Autoriteit Financiële Markten, “AFM”) and the supervisory authorities of the third country where the non-EU manager is established, (ii) the third country where the non-EU manager is established is not listed as a Non-Cooperative Country and Territory by FATF and (iii) the manager needs to comply with certain transparency requirements. A manager of an investment institution having its seat in Guernsey, Jersey or the US (provided that the US investment funds are under supervision of the SEC) and which is adequately supervised in this country of origin, may distribute in the Netherlands without a licence, including to non-qualified investors. The AFM introduced a notification form that must be submitted by the non-EU manager that wishes to rely on the private placement regime.

The Amendment Act includes the following amendments with respect to the private placement regime:

  • It clarifies that the private placement regime also applies to the management of Dutch investment institutions by non-EU managers.
  • A number of transparency requirements have been added that were erroneously not included in the FSA.
  • It is stipulated that EU managers may distribute participations in a non-EU investment institution to qualified investors in the Netherlands. The EU manager should hold a license in its home member state. There should be (i) an appropriate cooperation arrangement between the supervisory authorities of the member state where the manager is established and the supervisory authorities of the state where the non-EU investment institution is established, and (ii) the third country where the non-EU investment institution is established is not listed as a Non-Cooperative Country and Territory by FATF.

Authors

Picture of Reinout Slot
Reinout Slot
Partner
Amsterdam
Picture of Clair Wermers
Clair Wermers
Counsel
Amsterdam