14 September 2017

Financial Markets in brief – new regulation and other developments

There have been many developments in national and European financial markets regulation during the past two months. We provide a brief overview of these developments, which include a bill granting new powers to the Dutch financial supervisors and a regulatory amendment raising the exemption limit for public offers to EUR 5 million.

Highlighted publications

Bill on transparency in financial markets supervision

The Dutch Ministry of Finance has submitted a bill to parliament introducing new powers for the Dutch financial markets supervisor (AFM) and the Dutch Central Bank (DNB). The following measures have been proposed:

  • Supervisors will be granted more power to issue public warnings.
  • Under certain conditions, the AFM and the DNB may immediately publish a warning or a decision to an administrative sanction. Under normal circumstances, supervisors have to observe a waiting period.
  • Under certain conditions, the DNB may publish the core figures of banks.

In contrast from what was proposed during the public consultation of the draft bill, the AFM and the DNB will not be allowed to disclose the names of individual institutions when publishing investigation results.

Exemption limit for offers to the public raised to EUR 5 million

In anticipation of the new Prospectus Regulation, the Dutch Minister of Finance has raised the exemption limit for offers of securities to the public from EUR 2.5 million to EUR 5 million. Issuers using the exemption must inform the AFM and are subject to certain information requirements.

This amendment of Dutch exemption regulations pursuant to the Financial Supervision Act (Vrijstellingsregeling Wft) takes effect on 1 October 2017.

DNB launches consultation on changes to regulation on sound remuneration policies

DNB has published a consultation draft updating this regulation, known as the “Rbb”. The update is necessary given the changes introduced by the Act on Remuneration Policies for Financial Enterprises as well as the entry into effect of various European sectoral remuneration rules.

The Dutch Financial Markets Supervision Act includes rules on remuneration policies for all financial enterprises. DNB can also lay down additional remuneration rules, as it did in the current Rbb. The updated Rbb only applies to banks, investment firms and premium pension institutions. The provisions in the updated Rbb for banks and investments firms are based on the CRD IV, and the provisions for premium pension institutions are based on the IORP II Directive.

The additional remuneration rules applicable to insurers under the Solvency II Directive are included in the Solvency II Delegated Regulation, which has direct effect in the Netherlands and therefore cannot be included in the updated Rbb.                             

For certain sectors, no additional European sectoral rules exist for remuneration. In the explanatory notes to the updated Rbb, DNB says that those sectors can, but are not obliged to, use the European rules in a related sector for guidance when developing their remuneration policies in accordance with the statutory remuneration rules. For instance, insurers with a limited risk profile can use the Solvency II Delegated Regulation for guidance. DNB points out that it is not mandatory to do so.                         

Market abuse brochures

The AFM has published English translations of several brochures on inside information and market manipulation. The following brochures are now available:

AFM publishes policy on administrative fines

When the AFM establishes that a company has violated the law, it can impose a fine on the person discharging managerial responsibilities or on another individual responsible for the infringement. Until recently, the AFM based these fines on internal guidelines that were not publicly available. However, for the sake of transparency, the AFM has now decided to share these guidelines on its website.

Consultation on resolution of disputes between investors and public authorities

The European Commission has launched a consultation on the prevention of disputes between investors and public authorities within the single market. The objective of this consultation is to investigate whether EU rules could be useful in preventing and resolving disputes amicably, such as through mediation. The consultation will be open until 3 November 2017.

ESMA consultations on Prospectus Regulations

Following the publication of the Prospectus Regulation in July 2017, ESMA has published three consultation papers containing draft technical advice on:

  • format and content of the prospectus: ESMA proposes largely maintaining the existing regime, but also suggests a number of changes to reduce the burden and costs on issuers (for example, by removing the requirement for a profit forecast report conducted by auditors or independent accountants).
  • EU Growth prospectus: to ensure a proportionate regime for SMEs, ESMA has adapted individual disclosure items to issuers’ size and the complexity of their operations.
  • scrutiny and approval: ESMA proposes that standard criteria for the scrutiny of the completeness, comprehensibility and consistency of a prospectus be adopted. Beyond these standard criteria, national competent authorities will have a certain level of flexibility.

The consultations close on 28 September 2017.

New Q&As on the Market Abuse Regulation

ESMA has published an updated version of its Q&As on the MAR to include new questions on:

  • the definition of “closely associated person”
  • the definition of “person professionally arranging or executing transactions”
  • financial instruments in scope of the market soundings regime
  • insider lists and the issuer’s responsibility in case of delegation

Other publications

EC

EP

EBA

ESMA

EIOPA

ECB

Official Journal EU

MinFin

MinSZW

AFM

DNB

Other