Financial regulatory law update 2019

Financial Markets Amendment Act 2018

The Financial Markets Amendment Act 2018 is an umbrella act amending a number of laws, including the Financial Supervision Act (Wet op het financieel toezicht – "Wft"). The full text of the Amendment Act (in Dutch) can be found here. The key changes to the Wft are the following:

• Exchange of information: the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten – "AFM") may provide confidential information to the Netherlands Authority for Consumers and Markets (Autoriteit Consument & Markt – "ACM"). The ACM could already share information with the AFM. Now, this power is mirrored.
• Banking license: the decision period for the application of a banking licence is extended from 13 to 26 weeks. This brings the statutory decision period in line with existing practice.
• Garnishment: a ban on garnishment (derdenbeslag) is introduced for assets held by the Dutch Central Bank (De Nederlandsche Bank – "DNB"). This means that creditors cannot seize assets of financial institutions that are held by DNB.
• Professional standards: individuals giving investment advice, or providing information about financial instruments, investment services or ancillary services must have the necessary knowledge and competence. An information system of the Dutch Education Executive Agency (Dienst Uitvoering Onderwijs – "DUO") keeps track of the relevant exams taken by these individuals. These rules already existed. As of 1 January 2019, DUO can also share information with the AFM for supervision purposes.

Financial Markets Amendment Decree 2018

The Financial Markets Amendment Decree 2018 amends several underlying decrees. The full text of the Amendment Decree (in Dutch) can be found here. The key changes are the:

• clarification that providers of foreigncurrency mortgages could offer consumers two possibilities if a currency risk materialises: conversion of the agreement into a different currency or offering other measures that reduce the currency risk.
• amendment of the contributions from investment firms to the resolution fund (afwikkelingsfonds).

PSD2

Directive (EU) 2015/2366 on payment services in the internal market ("PSD2") has been implemented through an amendment of the Wft. The implementation took effect on 19 February 2019. The Implementation Act (in Dutch) can be found here.

PSD2 regulates two additional payment services: account information services and payment initiation services. PSD2 also aims to enhance customer protection, security and competition between payment service providers

PSD2 reflects significant changes to the payments market. We have highlighted some key items:

• introduction of a license requirement for (i) account information services and (ii) payment initiation services;
• introduction of the requirement to obtain a declaration of no objection for holders of an indirect or direct ‘qualifying holding’ (10% or more) in a payment institution;
• rules on access to payment systems and access to and use of payment account information;
•             payment service provider's liability for unauthorised payment transaction; and
•             a ban on surcharges for consumer debit and credit card payments.

Trust Offices Supervision Act 2018

The new Trust Offices Supervision Act 2018 (Wet toezicht trustkantoren 2018 – "Wtt 2018") has replaced the former Trust Offices Supervision Act (Wet toezicht trustkantoren) on 1 January 2019. The major changes in the Wtt 2018 relate to:

• strengthening of integrity and professionalism: trust offices must have a prescribed legal form (public limited liability company (naamloze vennootschap), private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) or an SE (Europese vennootschap)), two dayto-day policymakers and an internal compliance function. It is prohibited for trust offices to outsource their compliance function.
• improving customer due diligence and independent assessment: Trust offices are subject to both the Dutch AntiMoney Laundering and Anti-Terrorism Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme, the "Wwft") and the Wtt 2018. With respect to trust services, trust offices must follow the customer due diligence procedures of the Wtt 2018. With respect to other services, trust offices must follow the regime of the Wwft. The Wtt 2018 provides for specific obligations with respect to effort and result in light of the customer due diligence. Additionally, the Wtt 2018 introduces a reference to social decency (maatschappelijke betamelijkheid) in the definition of 'integrity risk', which makes the customer due diligence and client monitoring more challenging.
• expanding supervision and enforcement: introduction of more possibilities to revoke a trust office's license in the event it violates the law, higher fines and the possibility to prevent a person to work at an institution that is subject to the Wwft (e.g. banks, investment firms, insurance companies, payment service providers, trust offices) after a violation of the Wtt 2018.

IORP II Directive (relevant for pension funds and premium pension institutions)

Directive (EU) 2016/2341 on the activities and supervision of institutions for occupational retirement provision ("IORP II") has been further implemented in decrees. The Implementation Decree entered into force on 13 January 2019. The full text of the Implementation Decree (in Dutch) can be found here. IORP II introduces new governance and risk management requirements for institutions for occupational retirement provision ("IORPs") (pension funds and premium pension institutions). The following items are, among other things, covered in the underlying decrees:

• Adoption of strategies, processes and reporting procedures necessary to identify, measure, monitor, manage and report the risks to which IORPs and the pension schemes operated by them are or could be exposed, and their interdependencies.
• Carrying out and documenting the ownrisk assessment.
• Establishment of written policies in relation to internal audit and actuarial activities. These written policies shall be reviewed at least every three years and amended in case of significant changes.
• Organisation of key functions: risk management function, internal audit function and actuarial function. The holders of these key functions shall undertake their duties effectively in an objective, fair and independent manner.
• Application of the general principles of the remuneration policy of the IORP to parties to which services are outsourced. Exemptions apply with respect to several parties that may act as the oursourcee if they are already subject to Dutch remuneration rules (e.g. managers of investment funds, insurance companies, investment firms, banks).
• Written contract with the depositary. The contract stipulates the transmission of information necessary for the depositary to perform its duties. The depositary shall act in the interest of the scheme's members and beneficiaries. The depositary shall be liable to the IORP and the members and beneficiaries.

Other notable amendments

• To mitigate the negative effects of a hard Brexit, on 4 February, the Dutch Minister of Finance published an amendment to the existing Exemption Regulation under the Financial Supervision Act (Vrijstellingsregeling Wft). We refer to our earlier newsletter here.

• The Securitisation Regulation entered into force on 1 January 2019. The Regulation can be found here.
• The Insurers Recovery and Resolution Act (Wet herstel verzekeraars) entered into force on 1 January 2019. The Act can be found here and the Decree can be found here.