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Table of Contents
Intro
I. Introduction
1. Position in Dutch law
Financial supervision law
Overlap with other fields of law
2. Origin
Reason for the supervision of financial markets
Further development
Non-investment-related supervision
Tilting from sectoral supervision to functional supervision
Further developments
3. Objectives (prudential and conduct of business supervision)
Prudential supervision
Conduct of business supervision
4. European influences
European law
Financial Services Action Plan
Lamfalussy legislative procedure
Capital Markets Union
Mutual recognition
Brexit
European financial regulators
Maximum harmonisation
5. Structure
Level of legislation
Lower regulation
Policy Rule
II. General part (Part 1)
6. Definitions
7. Financial product, financial instrument and security
Financial product
Financial instrument
Security
8. Customer, consumer and public
Client
Consumer
Public
9. Professional market party, professional investor, eligible counterparty, qualified investor and institutional investor
Professional market party
Professional investor and 'eligible counterparty'
Qualified investor
Institutional investor
10. AIF, undertaking for the collective investment in transferable securities (UCITS), investment fund, investment company and investment firm
AIF
Open-end and closed-end
Undertakings for collective investment in transferable securities (UCITS)
Investment fund or investment company
Investment firm
11. Financial firm, financial institution and financial service provider
Financial firm
Financial institution
Financial services provider
12. Key information document and key investor information document
Key information document
Key investor information.
13. Offering and 'in the course of a profession or business'
Offering
In the course of a profession or business
14. Scoping provisions
Government-related institutions
Pension funds and their asset managers
Online services
15. Affectability of legal acts
16. Supervision and enforcement
Supervisory powers
Duty to cooperate and principle of proportionality
Enforcement powers
Administrative penalty
New enforcement instruments
17. Confidentiality and publication
Confidentiality
Disclosure
18. Liability of regulators
19. Cooperation between regulators
Cooperation between the AFM and DNB
Cooperation with other supervisors/European institutions
20. Procedures
licence and DNO
Licence
Amendment and/or withdrawal
Declaration of no objection
21. Remuneration policy
20% bonus cap
Scope
Exemptions
Claw-back and adjustment of bonuses
III. Market Access Financial Firms (Part 2)
22. Introduction
Prohibition, unless
Licensed activities
Licensing authority
Single Supervisory Mechanism and ECB competence
23. Territorial scope
In the Netherlands
Services via Internet
To act as insurance intermediary for clients located outside the Netherlands
Seat in the Netherlands
24. Statutory exemptions and dispensations
Scope of application
Statutory exemptions
Exemption Regulation
Dispensations
By operation of law versus on request
Relationship to ongoing supervisory requirements
25. European passport
26. Payment service providers
Description
Statutory exemption
Exemption Regulation
27. Electronic money institutions
Description
Statutory exemption
Exemption Regulation
28. Banks
Description
Statutory exemption
29. Insurers
Description
Non-life insurers
Life insurers.
Funeral expenses and benefits in kind insurance
Reinsurers
Statutory exemptions
Exemption Regulation
Miscellaneous
30. Offering investment objects
Description
Statutory exemptions
Exemption Regulation
31. Offering credit
Description
Statutory exemptions
Exemption Regulation
32. Managing and offering of units in AIFs and UCITS
Description
Statutory exemptions
Light managers
Excluded entities
Managers from non-EU countries
Managers from a designated state
Miscellaneous
Permitted 'extra' activities
33. Advising on financial products other than financial instruments
Description
Statutory exemptions
Exemption Regulation
34. Acting as an intermediary
Description
Statutory exemption
Exemption Regulation
European passport
35. Providing investment services and performing investment activities
Description
Statutory exemptions
Exemption Regulation
Ancillary services
36. Licence requirements
Light dispensations
37. Access to foreign financial markets
notification procedure
Establishing a branch
Without a branch - cross border
IV. Prudential Supervision of Financial Firms (Part 3)
38. Introduction
Scope
International sources (Basel III and CRD IV)
39. Group finance companies
Dispensation
40. The prohibition to obtain repayable funds
Statutory exemptions
Exemption Regulation
Dispensation
41. The prohibition to use the word 'bank'
Statutory exemptions
Exemption Regulation
Dispensation
42. Suitability and trustworthiness
43. Integrity policy
Numbered accounts
44. Structuring and organisation
Four-eye principle and control structure
Organisation of business operations
General aspects
Integrity aspects
Prudential aspects
45. Minimum capital
The amounts
The composition.
46. Solvency and financial position
Regulatory capital
Deduction
Capital ratios
Risk-weighted assets/risk exposure
47. Capital buffer
48. Liquidity
49. Technical provisions
50. Qualifying holdings in and by financial firms
In a financial firm
Assessment criteria
By a financial firm (bank or insurer)
Assessment criteria
51. Measures in the event of breaches of prudential rules
52. Transfer of portfolio by insurers
Insurers seated the Netherlands
Insurers seated in another member state
Insurers seated in a non-member state
53. Recovery plan
54. Investor compensation scheme and deposit guarantee scheme
Investor compensation scheme
Deposit Guarantee Scheme
55. Investment principles and investment policies of PPIs
56. Consolidated supervision of financial firms
Different types
Regulator
Exemption
Banking groups
Elements of supervision
Insurance groups
Elements of supervision
Financial conglomerates
Elements of supervision
V. Part on Special measures and provisions concerning financial firms (Part 3A)
57. General information
Scope
Powers
58. The preparation phase
Resolutionplan
Contractual resolvability clause
MREL
59. The early intervention phase
Binding instruction
Shareholder approval
Appointment of a special administrator
Restriction of rights of counterparties during the early intervention phase
Zero-hour rule
60. The resolution phase
First: write-down or conversion of capital instruments (WDCCI)
Only then: resolution
Conditions for resolution
Resolution principles
Resolution tools
Transfer of business to a private party
Transition from an undertaking to a bridge institution
Asset separation
Bail-in
61. Special measures
Measures within the context of the corporate structure.
Restriction of rights of counterparties during the resolution phase
Zero-hour rule
Trade in financial instruments
62. Legal protection
VI. Part on Conduct of business supervision of financial firms (Part 4)
63. Introduction
Scope
Types of conduct of business rules
64. Suitability
Assessment
Oath or solemn affirmation
65. Knowledge and competence
66. Trustworthiness
Assessment
67. Integrity policy
Minimum requirements
68. Structuring and organisation
Structure of control
Organisation of business operations
General aspects
Integrity aspects
Behavioural aspects
Financial service providers
Outsourcing
Complaints handling
69. Duty of care
Information
Pre-contractual information
Advertising
risk indicator, warning text and essential information document
Ongoing information obligations
General duty of care
Standard of care
70. Client classification and know-your-customer
Client classification
Know-your-customer
71. Ban on inducements
Scope
Exemptions
Information obligation
72. Notification obligations
73. Offering investment objects
74. Granting credit
Mandatory participation in credit registration system
Pre-contractual information
Creditworthiness test
Maximum cost of credit
75. Offering units in investment funds
Requirements to the AIFM
Notification procedure and offer requirements
Depositary
Appointing a depositary
Quality and establishment requirements depositary
Liability of the depositary
Legal ownership of assets
Depositary entity
Separate depositary entity
Allowed claims
Creditor ranking
Valuation of assets
Prospectus
Provision of information - professional or retail investors
Control over undertakings
Notification obligation
Information provision.
Asset stripping.
I. Introduction
1. Position in Dutch law
Financial supervision law
Overlap with other fields of law
2. Origin
Reason for the supervision of financial markets
Further development
Non-investment-related supervision
Tilting from sectoral supervision to functional supervision
Further developments
3. Objectives (prudential and conduct of business supervision)
Prudential supervision
Conduct of business supervision
4. European influences
European law
Financial Services Action Plan
Lamfalussy legislative procedure
Capital Markets Union
Mutual recognition
Brexit
European financial regulators
Maximum harmonisation
5. Structure
Level of legislation
Lower regulation
Policy Rule
II. General part (Part 1)
6. Definitions
7. Financial product, financial instrument and security
Financial product
Financial instrument
Security
8. Customer, consumer and public
Client
Consumer
Public
9. Professional market party, professional investor, eligible counterparty, qualified investor and institutional investor
Professional market party
Professional investor and 'eligible counterparty'
Qualified investor
Institutional investor
10. AIF, undertaking for the collective investment in transferable securities (UCITS), investment fund, investment company and investment firm
AIF
Open-end and closed-end
Undertakings for collective investment in transferable securities (UCITS)
Investment fund or investment company
Investment firm
11. Financial firm, financial institution and financial service provider
Financial firm
Financial institution
Financial services provider
12. Key information document and key investor information document
Key information document
Key investor information.
13. Offering and 'in the course of a profession or business'
Offering
In the course of a profession or business
14. Scoping provisions
Government-related institutions
Pension funds and their asset managers
Online services
15. Affectability of legal acts
16. Supervision and enforcement
Supervisory powers
Duty to cooperate and principle of proportionality
Enforcement powers
Administrative penalty
New enforcement instruments
17. Confidentiality and publication
Confidentiality
Disclosure
18. Liability of regulators
19. Cooperation between regulators
Cooperation between the AFM and DNB
Cooperation with other supervisors/European institutions
20. Procedures
licence and DNO
Licence
Amendment and/or withdrawal
Declaration of no objection
21. Remuneration policy
20% bonus cap
Scope
Exemptions
Claw-back and adjustment of bonuses
III. Market Access Financial Firms (Part 2)
22. Introduction
Prohibition, unless
Licensed activities
Licensing authority
Single Supervisory Mechanism and ECB competence
23. Territorial scope
In the Netherlands
Services via Internet
To act as insurance intermediary for clients located outside the Netherlands
Seat in the Netherlands
24. Statutory exemptions and dispensations
Scope of application
Statutory exemptions
Exemption Regulation
Dispensations
By operation of law versus on request
Relationship to ongoing supervisory requirements
25. European passport
26. Payment service providers
Description
Statutory exemption
Exemption Regulation
27. Electronic money institutions
Description
Statutory exemption
Exemption Regulation
28. Banks
Description
Statutory exemption
29. Insurers
Description
Non-life insurers
Life insurers.
Funeral expenses and benefits in kind insurance
Reinsurers
Statutory exemptions
Exemption Regulation
Miscellaneous
30. Offering investment objects
Description
Statutory exemptions
Exemption Regulation
31. Offering credit
Description
Statutory exemptions
Exemption Regulation
32. Managing and offering of units in AIFs and UCITS
Description
Statutory exemptions
Light managers
Excluded entities
Managers from non-EU countries
Managers from a designated state
Miscellaneous
Permitted 'extra' activities
33. Advising on financial products other than financial instruments
Description
Statutory exemptions
Exemption Regulation
34. Acting as an intermediary
Description
Statutory exemption
Exemption Regulation
European passport
35. Providing investment services and performing investment activities
Description
Statutory exemptions
Exemption Regulation
Ancillary services
36. Licence requirements
Light dispensations
37. Access to foreign financial markets
notification procedure
Establishing a branch
Without a branch - cross border
IV. Prudential Supervision of Financial Firms (Part 3)
38. Introduction
Scope
International sources (Basel III and CRD IV)
39. Group finance companies
Dispensation
40. The prohibition to obtain repayable funds
Statutory exemptions
Exemption Regulation
Dispensation
41. The prohibition to use the word 'bank'
Statutory exemptions
Exemption Regulation
Dispensation
42. Suitability and trustworthiness
43. Integrity policy
Numbered accounts
44. Structuring and organisation
Four-eye principle and control structure
Organisation of business operations
General aspects
Integrity aspects
Prudential aspects
45. Minimum capital
The amounts
The composition.
46. Solvency and financial position
Regulatory capital
Deduction
Capital ratios
Risk-weighted assets/risk exposure
47. Capital buffer
48. Liquidity
49. Technical provisions
50. Qualifying holdings in and by financial firms
In a financial firm
Assessment criteria
By a financial firm (bank or insurer)
Assessment criteria
51. Measures in the event of breaches of prudential rules
52. Transfer of portfolio by insurers
Insurers seated the Netherlands
Insurers seated in another member state
Insurers seated in a non-member state
53. Recovery plan
54. Investor compensation scheme and deposit guarantee scheme
Investor compensation scheme
Deposit Guarantee Scheme
55. Investment principles and investment policies of PPIs
56. Consolidated supervision of financial firms
Different types
Regulator
Exemption
Banking groups
Elements of supervision
Insurance groups
Elements of supervision
Financial conglomerates
Elements of supervision
V. Part on Special measures and provisions concerning financial firms (Part 3A)
57. General information
Scope
Powers
58. The preparation phase
Resolutionplan
Contractual resolvability clause
MREL
59. The early intervention phase
Binding instruction
Shareholder approval
Appointment of a special administrator
Restriction of rights of counterparties during the early intervention phase
Zero-hour rule
60. The resolution phase
First: write-down or conversion of capital instruments (WDCCI)
Only then: resolution
Conditions for resolution
Resolution principles
Resolution tools
Transfer of business to a private party
Transition from an undertaking to a bridge institution
Asset separation
Bail-in
61. Special measures
Measures within the context of the corporate structure.
Restriction of rights of counterparties during the resolution phase
Zero-hour rule
Trade in financial instruments
62. Legal protection
VI. Part on Conduct of business supervision of financial firms (Part 4)
63. Introduction
Scope
Types of conduct of business rules
64. Suitability
Assessment
Oath or solemn affirmation
65. Knowledge and competence
66. Trustworthiness
Assessment
67. Integrity policy
Minimum requirements
68. Structuring and organisation
Structure of control
Organisation of business operations
General aspects
Integrity aspects
Behavioural aspects
Financial service providers
Outsourcing
Complaints handling
69. Duty of care
Information
Pre-contractual information
Advertising
risk indicator, warning text and essential information document
Ongoing information obligations
General duty of care
Standard of care
70. Client classification and know-your-customer
Client classification
Know-your-customer
71. Ban on inducements
Scope
Exemptions
Information obligation
72. Notification obligations
73. Offering investment objects
74. Granting credit
Mandatory participation in credit registration system
Pre-contractual information
Creditworthiness test
Maximum cost of credit
75. Offering units in investment funds
Requirements to the AIFM
Notification procedure and offer requirements
Depositary
Appointing a depositary
Quality and establishment requirements depositary
Liability of the depositary
Legal ownership of assets
Depositary entity
Separate depositary entity
Allowed claims
Creditor ranking
Valuation of assets
Prospectus
Provision of information - professional or retail investors
Control over undertakings
Notification obligation
Information provision.
Asset stripping.