BESLUIT PRUDENTIELE REGELS WFT PDF
Unofficial translation of Besluit prudentiële regels Wft dated 12 October Only the official text in Dutch language as published in the 'Staatsblad' (Dutch. application: request for registration as referred to in Article b(1) of the Decree on Prudential Rules for Financial Undertakings (Besluit prudentiële regels Wft);. Authentieke versie (PDF) Informatie over publicatie Gerelateerde documenten Het Besluit prudentiële regels Wft wordt gewijzigd als volgt: A.
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b of the Decree on the Prudential Measures Financial Supervision Act ( Besluit prudentiele regels Wft). ("Decree Prudential Measures") has implemented the. Supervision Act) Decree [Besluit marktmisbruik Wft], the Prudential Rules ( Financial Act) Decree [Besluit prudentiële regels Wft] and other decisions in the . Rules FSA (Besluit prudentiële regels Wft) and the Decree on the Supervision of Market Firms FSA (Besluit gedragstoezicht financiële ondernemingen Wft).
The Wft has been amended more than 70 times since it entered into force in A considerable number of the amendments concern the implementation of European regulation. As a result, the Wft has become voluminous and very complex. In order to make the Wft future-proof and easier to read, the Minister of Finance now has proposed the following angles of approach: Leaving the Wft as it is Making minor legal-technical amendments and improving the explanatory notes Improving the current structure of the Wft, while maintaining the cross-sectoral approach Introducing a sectoral approach, where the rules are organised by area for example, banking, insurance, securities markets Replacing the Wft with a number of separate, sectoral acts The ministry is also assessing the need for an English translation of the entire Wft, and for a guide or website which explains the applicable legislation for each sector.
The consultation runs until 1 March Implementation of remaining market abuse rules The Ministry of Finance has launched a consultation on a decree implementing the remaining provisions of the Market Abuse Regulation MAR.
As a regulation, the MAR has direct effect. Therefore, most rules — chapters 2 to 5 — will be removed from the Dutch Market Abuse Decree. In addition, the implementing decree deals with a number of implementation issues and Member State options in the MAR.
For example, under the MAR, an issuer who has delayed disclosure of information to the public must inform the competent authority immediately after the information is disclosed to the public. Issuers must also keep a record of the date and time when the inside information first existed, the time when the decision to delay was taken, who was responsible for the decision, and evidence of fulfilment of each of the conditions for delay.
The implementing decree now clarifies that this information is to be provided to the AFM only upon request. Finally, once the implementing Decree enters into force, the AFM will have the authority to impose the new maximum fines required by the MAR.
The maximum fine for serious infringements will then be EUR 5 million and, as a result, the maximum fine for repeat infringements will be EUR 10 million. When the implementing decree takes effect, the implementation of the new market abuse regime will be complete.
The consultation runs until 16 December. The proposal includes the following changes: No EU prospectus will be required for capital raisings and crowdfunding projects below EUR 1 million. Member States will also be able to set higher thresholds for their domestic markets. Insurers located outside the EEA who intend to perform activities in the Netherlands from an office outside the EEA must go through a notification procedure and meet specific requirements.
The guiding principle is the freedom of contract when it comes to insurance contracts. This section contains some mandatory provisions from which the insurer cannot deviate to the detriment of the insured and some exceptions on the general rules. In addition, no contract is allowed contrary to fundamental public policy rules. Under Dutch law, companies are permitted to indemnify directors and officers both against internal liability towards the company vrijtekening and against external liability towards third parties vrijwaring.
No specific provisions apply in Dutch legislation, although under specific conditions, the indemnity can be declared null and void. Most companies indemnify directors and officers in the articles of association or in a contract. An excess usually does not apply. When adopting the annual accounts, a general meeting usually discharges directors from their responsibilities for the preceding accounting year with validity in terms of the internal affairs of the company , which extends to activities and facts made known to the shareholders by the annual accounts.
Indemnification is deemed not to be possible in case of breach of specific conditions in the DCC relating to acts committed in a seriously negligent manner to the extent that it qualifies as intentional or deliberate. Dutch law provides for various types of mandatory insurance, of which we note only a few.
Mandatory insurances are social security, healthcare, motor vehicle third party , professional indemnity for certain professions, e. Re insurance Claims 2. The Dutch Insurance Act provides for provisions on insurance law in the DCC, many of which are semi- mandatory, aiming to give a better protection to policyholders and insureds. Generally, Dutch insureds rather than insurers may count on a fair protection of their interests by the substantive law.
A third party may bring a direct action against a liability insurer if he has suffered damages resulting from death or bodily injury thus excluding material or financial damages. This means that he is entitled to request payment directly to his account. It is a right derived from the right the insured has against an insurer.
As a consequence, the third party cannot claim when the insured has not notified the insurer of the claim or when the insurer denied coverage towards the insured. The insurer can invoke the same defences given by law and policy terms. Besides, a direct action can also be brought in case of an accident caused by a motor vehicle or in case of damages resulting from pollution caused by an oil tanker. A direct action cannot be brought against a reinsurer.
Financial Markets in brief – new regulation and other developments
This is solely a contractual matter between the reinsurer and the insurer. Only the latter can bring its contractual claim against the reinsurer.
Non-disclosure or misrepresentation by the insured may have serious consequences. These may only be invoked if the insurer notifies the insured within two months from the discovery of such non-fulfilment, pointing out the consequences. The starting point of this term might be subject to discussion.
One of the consequences might be that no or less payment will be due or that the premium increases. Termination of the insurance contract with immediate effect is only allowed if the insured acted with the intention of misleading the insurer or if the insurer would not have concluded the insurance contract if it had been aware of the true state of affairs. Discovery of the non-disclosure after the occurred loss allows the insurer to only pay in accordance with the situation that he had been aware of the true state of affairs.
If the insurer would not have concluded the insurance contract at all, had it been informed correctly, then it may fully refuse coverage. The same goes when the insured acted with the intention of misleading the insurer.
If the insurer requests a higher premium or offers a lower sum to be insured, the payment can be reduced in proportion to the higher premium or the lower sum insured. If other terms and conditions would have been stipulated or if the non-disclosure or misrepresentation would not have taken place, payment might only be due based on those terms and conditions. Payment is due in full when the non-disclosure relates to facts which have not resulted in the realisation of the relevant risk.
Compliance with Governance Codes and regulations
Under the Dutch Insurance Act included in the DCC , a prospective insured should disclose to the insurer prior to concluding the insurance policy all information he knows or ought to know and which may be material to the decision of the insurer to write the insurance and its terms. If the cover relates to interests of a known third party, the same applies to disclosure of his information. Most insurers work with a questionnaire, which limits the duty to disclose to the extent that if questions have not been answered, or not properly, or if facts other than those asked for have not been disclosed, this will not be to the detriment of the prospective insured.
An exception to this rule is made in case there was intent to mislead the insurer. A catch-all question aiming to obtain all relevant facts or circumstances in general does not resolve the lack of information. Irrespective of the duty to disclose in a precontractual stage, the insured should notify the insurer of the occurrence of an insured event as soon as he knows or ought to know.
According to article DCC, a claim for damages by the insured against a third party that caused an insurance loss to the insured automatically transfers to the insurer upon payment of the loss by the insurer.
In general, the insurer will not assume rights against the policyholder other insureds or persons in a close relationship to the insured such as an employer, a spouse or first-degree relatives.
The DCC limits subrogation in rights of recourse of the insured against a party that is liable on certain grounds of strict liability. This limitation is not applicable to subrogation based on culpable liability, such as tort. Under circumstances, contractual assignment of rights cession of the compensated third party may be preferred above subrogation in order to avoid detrimental contractual clauses such as an exoneration clause. Cession should be arranged before payment to the third party is made.
Litigation — Overview 3. Does this depend on the value of the dispute? Is there any right to a hearing before a jury? First instance cases are heard by one of the 11 district courts depending on the size and complexity of the case, the case is heard by a single judge or by a panel of three judges. Cases up to EUR 25, and cases on rent or employment contracts are generally dealt with by subdistrict courts with a single Cantonal judge.
Civil appeals before one of the five courts of appeal are heard by three judges and the Supreme Court generally sits with three or five judges.
Appeals from decisions at the first instance in district courts and subsequently Supreme Court appeal may be possible. Since , a victim may start so-called sub-proceedings against an allegedly liable party in a personal injury case in order to determine only part of the dispute e. This victim-friendly procedure is less costly and less time-consuming than a regular court procedure as a rule, the liable party bears the costs of the procedure , and is meant to simplify and accelerate the settlement of alleged loss and damage.
Additionally, the consumer may bring complaints against their insurer in insurance policy matters before the Financial Services Complaints Board KIFID , which rulings are generally binding for and followed by the parties involved. Furthermore, insurance policy disputes between insurers and disputes between insurers and large policyholders non-consumers may be solved via alternative dispute settlement procedures. A new possibility for alternative dispute resolution in civil or commercial matters with an international aspect is the launch of The Netherlands Commercial Court NCC in Parties may voluntarily choose to bring a case to the NCC on the basis of fixed fees.
First instance cases usually take about one to two years. Court of Appeal or Supreme Court cases may take an additional two or more years. Civil proceedings are to a large extent conducted in written documents. Legal proceedings are initiated either by writ of summons dagvaarding or by petition verzoekschrift.
There is no hard and clear distinction between these two types of jurisdiction, although the general distinction is that a writ of summons is used for contentious jurisdiction where the court has to resolve a dispute between parties and a petition is used for voluntary jurisdiction matters in which the court is requested to grant a provision or appropriate measure.
In first instance summons proceedings, a claimant will serve a writ of summons, after which the defendant will need to file its written statement of defence. The court may then mostly after an interim judgment order a post-defence hearing or a second written round with sequentially a statement of reply and a statement of rejoinder.
After that, a hearing with oral pleadings may be ordered before the court delivers its final judgment. A new development is that civil proceedings will be conducted digitally.
The so-called KEI-programme aims to digitalise, improve, accelerate and simplify civil procedures e. Due to implementation problems, the programme has largely been put on hold until further notice. Litigation — Procedure 4. The request for disclosure of certain documents can be made in pending proceedings against a counter party or as a separate request against another third party.
In short, article a DCCP enables a party to gain insight to documents that are not at his disposal if — among other things — the requesting party has a legitimate interest and the requested document pertains to a legal relationship to which he or his legal predecessors are party.
Besides, a judge may order a party in a pending litigation to prove statements by ordering the disclosure of certain documents or evidence. Parties may only refuse on compelling grounds. In any event, if a party does not disclose the requested evidence, the judge may draw the conclusions on the matter he deems appropriate. For information or documents available at a government body, an interested party may file a specified request for such information or documents from that government body on the basis of the Government Information Public Access Act WOB-verzoek.
Parties have a general obligation to testify and substantiate comprehensively and in accordance with the truth article 21 DCCP. Evidence can be brought forward in writing contracts, reports by party experts, etc. However, lawyers may rely on their professional legal privilege article 2 b DCCP when requested to testify. Communications between a lawyer and the client are also protected by privilege, with the exception of documents that are clearly the object of a criminal offence.
It is generally held that a party cannot be required to produce a document e. As for out-of-court settlement negotiations verbal and in writing between lawyers, the Dutch rules of conduct for lawyers also apply to lawyers; the court is not bound by these rules , which means that lawyers may face disciplinary measures if they disclose such information without consent. Private persons are privileged not to testify against certain close relatives article DCCP.
The GDPR in itself recognises that it can be necessary to exchange personal data in case of court proceedings. It is, to some extent, allowed to derogate from the principles of the GDPR in those cases.
Even transfer of personal data outside the EU is allowed to the extent the transfer is necessary for the establishment, exercise or defence of legal claims. In , the data protection authorities have issued a working document WP about pre-trial discovery for cross-border civil litigation, in which the authorities basically recognise that an EU-based company can have a legitimate interest to share personal data with third countries in case of court proceedings, to the extent this sharing is actually necessary.
However, it is important to put in place safeguards, such as anonymising the data upfront and filtering the irrelevant data upfront as well as to perform a balancing test between the interests of justice and possible sanctions in the court proceedings and the privacy interests of the data subjects. The court may order an examination of witnesses. Apart from limited exceptions, a witness is obliged to appear and in any case to testify truthfully.
During a hearing of witnesses, the judge leads and will ask the questions. At the discretion of the judge, the counsel of parties may also ask questions.
The possibility for cross-examination of witnesses is limited. The court may also appoint an independent expert if an expert opinion is required; for example, in highly technical matters. An examination of witnesses or an expert opinion may also be requested by the parties prior to proceedings or in pending proceedings.
Generally, in a formal hearing of a witness procedure as part of a pending litigation or as a separate provisional examination procedure , a witness needs to be present.
Apart from that, evidence from party witnesses may be made by personal testimony and also by writing. Is it common to have a court-appointed expert in addition or in place of party-appointed experts? Parties are allowed to introduce their own expert witness reports as part of the pleadings both for the party bearing the burden of proof and the party introducing counter evidence.
Such party opinions are generally not seen as sufficient evidence to prove certain statements if the statement is disputed by the other party. The court will then summon the expert to answer specific questions and to render a written expert opinion on which the parties may comment.
Such a court-appointed expert opinion is generally important for the outcome of parts of the case. Summary proceedings may be brought before the President of the District Court. A claim in summary proceedings must serve an urgent interest, the matter must require immediate remedy e.
Summary proceedings are, by their nature, not conclusive. However, in practice, the consequences of preliminary relief measures taken in summary proceedings can have quite a final character.
Apart from some exemptions, neither of the parties in summary proceedings have an obligation to start proceedings on the merits. Besides that, upon motion, a court may apply certain interim measures during a pending litigation on the merits article DCCP if such measure is connected to the case on the merits.
Such measure may include a request to receive advance payment or precautionary measures to secure future execution of a verdict.
Furthermore, prior to or during court proceedings, a party may request the President of the District Court leave to take conservatory measures e.The list is supposed to be periodically updated by the financial sector and the AFM. If so, what form of words is required? Furthermore, insurance policy disputes between insurers and disputes between insurers and large policyholders non-consumers may be solved via alternative dispute settlement procedures.
A Dutch court may propose mediation to the parties but a court cannot oblige parties to mediate. Lasten en bevelen dat dit besluit met de daarbij behorende nota van toelichting in het Staatsblad zal worden geplaatst. As one of the banks involved in drawing up the Dutch Banking Code, we at ABN AMRO are committed to promoting compliance with the principles that it embodies, as they will play an important part in restoring trust in the banking industry. However, an arbitration clause included in general terms and conditions is regarded to be unreasonably onerous and therefore is voidable if the agreement is concluded with a consumer which may also apply to smaller entrepreneurs.