Communication for undertakings that distribute nonmainstream financial products (such as CFD s, binary options, etc.) online

Transcription

1 Communication FSMA_2014_05 of 25/07/2014 Communication for undertakings that distribute nonmainstream financial products (such as CFD s, binary options, etc.) online Scope: This Communication is addressed to undertakings that distribute non-mainstream financial products online to retail clients in Belgium. Summary/Objectives: The distribution of non-mainstream products to retail clients has increased in recent years, notably via platforms that are accessible on line. "Non-mainstream" products refer here to derivatives, which are often unlisted (sold over the counter), generally have short maturity periods and are often very risky, but are usually presented to clients as very simple products that offer high returns quickly and easily. These products include contracts for difference (CFDs) and so-called binary options. In this Communication, the FSMA reminds undertakings that distribute these types of products in Belgium of the obligations arising from the rules with which the FSMA supervises compliance, namely: - legislation governing public offers, - the MiFID rules of conduct, - consumer protection rules, - the regulations governing the information that must be provided when distributing any type of financial products to retail clients (which will be applicable as from 12 June 2015). rue du Congrès Brussels T F /

2 2/9 _2014_05 of 25/07/2014 I. Introduction Since its creation in April 2011, the FSMA has adopted various measures intended to protect retail customers in respect of certain products that may be too risky or overly complex. Thus the moratorium on particularly complex structured products, published on 20 June 2011, is intended to limit the complexity and increase the transparency of structured products that are offered to retain clients. In June 2011, the FSMA further warned the public of the risks associated with speculative transactions on foreign currencies (FOREX products). In May 2014, the FSMA published a warning against binary options 1. Moreover, in a regulation rendered binding by royal decree, the FSMA recently prohibited the distribution of certain non-mainstream financial products to retail clients in Belgium 2. The regulation applies to three categories of products: financial products that depend on a life settlement, in other words, on traded life policy investments; products whose return depends on a virtual currency such as Bitcoin; notes and class 23 insurance contracts whose return depends on an alternative investment fund that invests in certain assets such as commodities, artworks, consumer goods such as wine or whisky, as well as class 23 insurance contracts whose return depends on an internal fund that invests in such assets. In addition to these three categories of products (banned since 1 July 2014), the distribution of other non-mainstream products has grown considerably in recent years, notably via online platforms. In this Communication, the FSMA seeks to remind undertakings that distribute these types of products to retail clients in Belgium of the obligations arising from the laws and regulations with which the FSMA is tasked with supervising compliance 3, namely: - legislation governing public offerings; - the MiFID rules of conduct; - the rules serving to protect consumers. 1 Similar initiatives were also taken at the European level. Thus, the European Securities and Markets Authority (ESMA) issued warnings on trading in foreign exchange (forex) (05/12/11), on the pitfalls of online investing (10/09/12), on contracts for difference (CFDs) (28/02/2013) and on the risks of investing in complex products (07/02/14). On 7 February, ESMA likewise reminded undertakings of the rules they must comply with when selling complex products. 2 Royal Decree of 24 April 2014 approving the Regulation of the Financial Services and Markets Authority on the ban on the distribution of certain financial products to retail clients (Belgian Official Gazette, 20 May 2014). 3 Without prejudice to the potential application of any legislation that does not fall within the FSMA's competence, such as, where applicable, the Law of 7 May 1999 on games of chance, gaming establishments and the protection of players.

3 3/9 _2014_05 of 25/07/2014 Moreover, it is important to bear in mind that a few months from now, a transversal 4 decree will enter into force regulating advertisements disseminated when distributing financial products to retail clients. II. Types of products Generally speaking, this Communication applies to all types of derivative products (the value of which depends on the value of another 'underlying' asset, such as a share, an index, a commodity, an exchange rate between two currencies, etc.) which are traded OTC (over the counter). These are contracts negotiated directly with a counterparty and not traded on a regulated market or an MTF. These products may be known by different names. They include, in particular: - CFDs (contracts for difference), whereby clients speculate in the short term on the change in price of an underlying asset (upwards or downwards) in relation to its value at the point when the contract is concluded. These are products with a leverage effect. The investment made corresponds to merely a fraction of the value of the position actually taken. The result is that the possibility for gains and losses for the investor are amplified as compared to an investment directly in the underlying asset 5. - So-called "binary" options, which are "all or nothing" contracts under which the subscriber pays a sum of money and makes a prediction as to the change over the very short term (sometimes mere seconds, or at most a few hours or days) of the price of the underlying asset. If the prediction comes true, the subscriber recovers the amount invested and receives an additional return (generally attractive in relation to the initial sum invested). However, if the prediction does not come true, the subscriber loses the entire amount of money invested. These are products with a short (or very short) maturity. They are therefore generally presented to clients as making it possible to earn money fast, as opposed to other, more traditional financial products (shares, bonds, UCI units, savings accounts, life assurance policies). These products are often presented as very simple products. Yet they are often highly risky. The risk of loss may be 100% of the initial sum invested, or even higher. Moreover, these products entail a credit risk, in other words, the risk that the counterparty - the issuer of the product - is unable to fulfil its obligations. Since the transactions take place OTC and not on a regulated market, there is no central counterparty to guarantee that each of the parties meets its obligations, and thus the investor must bear that risk alone. These products are, furthermore, considered complex ones under the MiFID rules 6. 4 This decree applies to all types of financial products. 5 A gain/loss of 5% on the underlying asset can thus give rise to a gain/loss of 20%, 100%, 500% or more for the investor, depending on the leverage effect specific to the contract in question. 6 Article 38 of Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organizational requirements and operating conditions for investment firms and the definition of terms for the purposes of that Directive.

4 4/9 _2014_05 of 25/07/2014 In Belgium, these products are not currently distributed by traditional banks (namely, banks that have an extensive network of branches) but rather by intermediaries that work almost exclusively online, and often do so from within other countries. III. Applicable legislation and regulations 1. Legislation governing public offers Pursuant to the Law of 16 June 2006 on public offers of investment instruments and admissions of investment instruments to trading on regulated markets (hereafter "the Law of 16 June 2006"), any public offer of investment instruments made on the territory of Belgium is subject to the obligation to publish a prospectus. A public offer is "a communication addressed to persons in any form and by any means whatsoever and presenting sufficient information on the conditions of an offer and on the investment instruments to be offered, in such a way as to place an investor in a position to decide to buy or subscribe to these investment instruments, and which is made by the person who is in a position either to issue or transfer the investment instruments, or is made on his/her behalf", knowing that "any person who receives remuneration or a benefit, directly or indirectly, on the occasion of the offer is presumed to be acting on behalf of the person who is in a position to issue or transfer investment instruments" 7. Communications addressed to fewer than 150 persons or those addressed solely to qualified investors do not constitute public offers 8. Where communications are distributed via a website, there is no doubt that they are addressed to more than 150 people. "Investment instruments" consist, in particular, of currency and interest rate options as well as all other options intended to acquire or dispose of investment instruments, including options settled in cash, and generally speaking all instruments that make it possible to make an investment of a financial nature, regardless of the underlying assets 9. Binary options, CFDs, etc., thus constitute investment instruments 10. As a result, undertakings that distribute binary options, CFDs, etc., that they have themselves issued, or that they have acquired from third parties with a view to offering them to their clients, are making a public offer. Whether the undertaking is Belgian or not is not relevant. The fact that the undertaking may in a given case be acting within the territory of Belgium under the freedom to provide services, holding a MiFID passport (cf. point 2 below), is likewise without any impact on determining whether something is a public offer. In order to establish if a public offer via an online platform is made in Belgium, it is necessary to determine whether or not the offer is aimed specifically at the Belgian public, for example by providing 7 Article 3 of the Law of 16 June Art. 3, 2 of the Law of 16 June Article 4 of the Law of 16 June The scope of the Belgian legislation on public offers is thus broader than that of Directive 2003/71/EC, known as the "Prospectus Directive", which refers only to transferable securities.

5 5/9 _2014_05 of 25/07/2014 specific information on the Belgian legal regime (such as the tax regime), referring users to contact persons in Belgium, the absence of a disclaimer indicating that the offer is not directed to the Belgian public, the languages used, the possibility for Belgian clients to register online, etc. The fact that an undertaking has notified its intention to provide investment services in Belgium under the regime of the freedom to provide services is also considered an indication that offers will be directed specifically to the Belgian public. An offer will likewise be considered to be made in Belgium if advertisements for the instruments in question are disseminated via media within the territory of Belgium. If a public offer is made in Belgium, the issuer or the offeror (as the case may be) must publish a prospectus. Given that CFDs, binary options, etc., are not transferable securities within the meaning of the Prospectus Directive, the prospectuses for these products are "not harmonised" and thus are not eligible for a passport that permits their use in other Member States. This also means that a prospectus for a public offer of CFDs, binary options, etc., in Belgium must always be approved by the FSMA. The prospectus must contain "all information which, according to the particular nature of the issuer and of the investment instruments offered to the public or admitted to trading, is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profit and losses, and prospects of the issuer and of any guarantor, and of the rights attaching to such investment instruments" 11. In principle, each individual public offer requires the publication of a separate prospectus. Nevertheless, for offer programmes (that is, programmes that make it possible to issue investment instruments of a similar type and/or category on a continuous or repeated basis over a set period of time), a base prospectus may be drawn up that contains all useful information about the issuer and about the investment instruments being offered to the public 12. A base prospectus for CFDs, binary options, etc., may thus cover all the products of that category coming from the same issuer, regardless of the underlying assets. For risky products, the FSMA requires that a warning be inserted on the first page of the prospectus. The document itself must also emphasize the highly risky and/or speculative nature of the products. The base prospectus must also be clear and transparent as regards the costs borne by the investor. The prospectus remains valid for 12 months after its publication 13. If the public offer continues beyond that period, a new prospectus must be published, after having been approved by the FSMA. During the offer period, any significant new factor or any material mistake or inaccuracy relating to the information included in the prospectus which is capable of affecting the assessment of the investment instruments must be mentioned in a supplement to the prospectus 14. The supplement must be approved by the FSMA. 11 Article 44 of the Law of 16 June Article 49 of the Law of 16 June Article 54 of the Law of 16 June Art. 53, 1, of the Law of 16 June 2006.

6 6/9 _2014_05 of 25/07/2014 Advertisements and other documents and notices relating to the offer of the products in question must also be submitted to the FSMA for approval before they may be disseminated 15. The information in these materials must be correct, must not be misleading, and must be in line with the contents of the prospectus. Failure to comply with the Law of 16 June 2006 is subject to criminal and administrative sanctions. Moreover, a judge will cancel the subscription for investment instruments where the subscription was made in response to a public offer without the prior publication of a prospectus approved by the FSMA, or in response to an offer for which the advertisements and other documents and notices were not submitted for the prior approval of the FSMA The MiFID conduct of business rules The MiFID rules apply in the event that investment services are provided in relation to financial instruments within the meaning of the definition provided in MiFID 17. Financial instruments are defined there as: - options, futures, swaps, forward rate agreements and any other derivative contracts that relate to transferable securities, currencies, interest rates or yields, or other derivative instruments, financial indices or financial measurements that may be settled physically or in cash; - contracts for difference (CFD). CFDs, binary options, etc., are therefore subject to the MiFID rules. Undertakings authorized to offer investment services within the territory of Belgium may provide investment services relating to binary options, CFDs, etc. in Belgium. These undertakings, whether governed by Belgian law or the law of another Member State of the European Economic Area (having notified their intention to provide investment services relating to such financial instruments in Belgium), are required to comply with the conduct of business rules laid down in MiFID. These rules are intended to protect investors, and in particular retail clients, by setting out a framework for the provision of investment services. The FSMA wishes to recall the rules of conduct that apply to the provision of investment services relating to these types of products: - Generally speaking, undertakings must act honestly, fairly, and professionally in the best interests of their clients 18. This general principle must underlie all actions taken by undertakings vis-à-vis their clients. This means that undertakings must be in a position to demonstrate that the products they distribute are in the interest of their clients. 15 Article 58 of the Law of 16 June Art. 68ter of the Law of 16 June Annex 1, Section C of Directive 2004/39/EC, known as MiFID, and Article 2, 1 of the Law of 2 August 2002 on the supervision of the financial sector and on financial services (hereafter "the Law of 2 August 2002"). 18 Art. 27, 1, of the Law of 2 August 2002.

7 7/9 _2014_05 of 25/07/ All information sent to clients, including any advertisements, must be correct and clear and must not be misleading 19. The information must be accurate and must not emphasize any potential benefits of products without also giving a fair and prominent indication of any relevant risks. The information in question must not disguise, diminish or obscure important items, statements or warnings. - Clients must receive appropriate information, in a form that is comprehensible, in particular with regard to 20 : - the undertaking and its services; - the investment instruments and strategies proposed (including warnings as to the risks inherent in the instruments - which is particularly important when it comes to products such as CFDs or binary options); - all the costs and fees borne by the client (if a part of these costs is expressed in a foreign currency, then the exchange rates and applicable fees must be indicated). - If the products are distributed within the context of a public offer, the undertakings must provide clients with the prospectus. - Given that the products in question are complex financial instruments, the undertakings must, at a minimum, verify the appropriateness of the transactions for the clients in question (appropriateness test) 21,22. Undertakings must thus obtain information from their clients regarding the latter's knowledge and experience about investing in the products in question (and their underlying assets) in order to be in a position to determine whether those products are appropriate. Where the undertakings deem, based on the information they receive from their clients, that the products are not appropriate for certain clients, they must inform the clients of this. - Where advice is provided, regulated undertakings must be able to demonstrate that these instruments meet the investment objectives of their clients and that the offer is addressed exclusively to clients who have the requisite knowledge and experience and whose financial situation permits them to carry out such transactions (taking account, for example, of the leverage effect if CFDs are concerned) and to absorb potential losses. - The risk of conflicts of interest must be managed and taken into account 23. These risks are particularly important in relation to the products envisaged here. This is because where undertakings do not cover, on the market, the positions taken by their clients, they realize a gain when their clients realize a loss, and conversely. - Only remuneration and non-monetary benefits that are designed to enhance the quality of the relevant service to the client may be received or paid by undertakings within the framework of distributing financial products, and clients must first be given clear information about this remuneration and these benefits Art. 27, 2, of the Law of 2 August Art. 27, 3, of the Law of 2 August Art. 27, 5, of the Law of 2 August Where undertakings provide portfolio management or investment advice service, they must also verify the suitability of the transaction proposed for the client in question (suitability test). 23 Article 81 of the Royal Decree of 3 June 2007 laying down detailed rules for implementing the Markets in Financial Instruments Directive (hereafter "the Royal Decree of 3 June 2007"). 24 Article 7 of the Royal Decree of 3 June 2007.

8 8/9 _2014_05 of 25/07/ Undertakings must take every reasonable measure to obtain the best possible result when executing client orders, taking into account the price, costs, speed, probability of execution and of settlement, the volume and type of the orders and any other consideration relevant to the execution of the orders. It should be noted that the FSMA is not always the authority competent to supervise compliance with these rules of conduct. Where an undertaking is active in Belgium under the freedom to provide services, it is the authority of the home Member State that is competent in this regard. However, as the rules of conduct have been harmonised by MiFID, their content is identical in all Member States. In Belgian law, failure to comply with these rules of conduct is subject to administrative sanctions. Moreover, in most cases if the client sustains a prejudice, this will be presumed to result from the failure to comply with these laws Book VI of the Economic Law Code regarding market practices and consumer protection Book VI of the Economic Law Code contains provisions aimed at protecting consumers 26 where undertakings offer them products and services, including financial products. As a consequence, undertakings that operate platforms for binary options, CFDs, etc. that are directed specifically to consumers within the territory of Belgium must comply with the provisions of the said Book VI. Thus, it should be noted in particular that: - the rules that apply to the provision of financial services at a distance must be complied with 27, - unfair terms are forbidden (with a blacklist of clauses considered unfair) 28, - unfair commercial practices, including misleading omissions and aggressive commercial practices, are forbidden 29, - combined offers of different financial products (and combined offers of a financial product with another product or service) are forbidden, with a few exceptions 30. The FSMA and the FPS Economy are both competent to supervise compliance with Book VI of the Economic Law Code in the financial sector. Non-compliance with Book VI is subject to criminal sanctions. The FSMA may also impose administrative sanctions on those who contravene Book VI. 25 Art. 30ter of the Law of 02 August Within the meaning of the Economic Law Code, consumers are natural persons acting for purposes that do not fall within the sphere of their professional activity (Article 1.1, paragraph 1, 2 of the Economic Law Code). 27 Articles VI.54 and following of the Economic Law Code. 28 Articles VI. 82 and following of the Economic Law Code. 29 Articles VI. 92 and following of the Economic Law Code. 30 Article VI. 81 of the Economic Law Code.

9 9/9 _2014_05 of 25/07/ The Royal Decree of 25 April 2014 concerning certain information obligations when distributing financial products to retail clients This Royal Decree 31, which will enter into force on 12 June 2015, regulates in particular the content of advertisements and other documents and notices disseminated when distributing 32 financial products to retail clients 33. These rules are intended in this case to supplement those contained in the Law of 16 June 2006 relating to advertisements (point 1 above). Thus a risk label should be mentioned in all advertisements for products such as CFDs, binary options, etc. 34 The technical requirements for the label are specified in a Regulation by the FSMA, approved by the Royal Decree of 25 April In this case, all derivative products, such as binary options and CFDs, belong to class 5, which corresponds to risk class E (the highest). Moreover, as provided for in the MiFID rules of conduct (cf. point 2 above), advertisements must not emphasize the potential benefits of a financial product without also giving a fair, prominent and balanced indication of the risks, limitations or conditions associated with the product. Furthermore, the Royal Decree of 25 April 2014 specifies that these risks, limitations or conditions must be mentioned in a font size that is at least identical to that used in presenting the benefits 36. In addition, if the name of the financial product does not refer to the name of the issuer or if the name stands in contradiction with the principal risks associated with the product, the additional information must be inserted, in a clearly visible manner, alongside the name in order to draw the attention of clients particularly to these items Royal Decree of 25 April 2014 concerning certain information obligations when distributing financial products to retail clients (Belgian Official Gazette, 12 June 2014) (hereafter "the Royal Decree of 25 April 2014"). 32 Distribution is defined in a broad sense as presenting a financial product, in any manner whatsoever, with a view to encouraging an existing or potential retail client to purchase, subscribe to, adhere to, accept, sign up for or open the financial product in question (Article 2, 1 of the Royal Decree of 25 April 2014). 33 These are natural persons, but may also include undertakings that are not considered professional clients (such as SMEs) (Article 2, 2 of the Royal Decree of 25 April 2014). 34 Article 12, 1, 4, c) of the Royal Decree of 25 April Belgian Official Gazette, 12 June Article 11, 2 of the Royal Decree of 25 April Article 12, 1, 1 of the Royal Decree of 25 April 2014.