Article 60, § 3, paragraph 3 and Article 155, § 1, paragraph 4 of the Law of 3 August 2012 on undertakings for collective investment meeting the conditions of Directive 2009/65/EC and undertakings for investment in receivables, Article 225, § 2, paragraph 3 and Article 267, first paragraph, of the Law of 19 April 2014 on alternative investment funds and their managers provide that the FSMA can determine the modalities and procedures by which announcements, advertisements and other documents relating to a public offer of units of an open-ended undertaking for collective investment or an alternative investment fund (as the case may be) which announce or recommend such an offer may be approved. In this regard, the FSMA takes into account the nature and the content of these documents, using criteria such as the standardized and recurrent character of the documents, the medium used and the investment policy of the undertaking for collective investment.
Article 60, § 1, paragraph 2 of the Law of 16 June 2016 on public offers of investment instruments and admissions of investment instruments to trading on regulated markets provides, moreover, that the FSMA can determine the modalities and procedures by which advertisements and other documents and announcements relating to a public offer or an admission to trading as referred to in Title VI of this Law, disseminated at the initiative of the issuer, the offeror, the person applying for admission to trading or intermediaries designated by any of the latter may be approved. The FSMA will take account, for the purpose, of the nature and contents of the said documents, using as its criteria the standardized and recurring nature of the documents and the media used.
Lastly, Article 26, § 2, of the Royal Decree of 25 April 2014 imposing certain information obligations when distributing financial products to retail clients provides that the FSMA can determine the approval procedure as well as the contents of the dossier to be submitted with the application for approval, and that the FSMA will take account, for the purpose, of the nature and content of the advertisement, using as its criteria the standardized and recurring nature of the means of dissemination used and the characteristics of the financial product.
Based on the legal provisions cited above, point 3.8.1 of Circular FSMA_2015_16 of 27/10/2015 (French or Dutch) on the rules governing advertising when distributing financial products to retail clients specifies that the FSMA may agree to approve a template for certain advertising materials that are updated and disseminated at regular intervals. In that case, the advertising materials will only have to be submitted to the FSMA once for approval. If changes are made subsequently to the documents, they can be disseminated anew without having to be resubmitted to the FSMA, on condition that the changes merely than update the figures or other information that does not contain any evaluative element. In all other cases, any change made to an advertisement that was previously approved by the FSMA requires a new approval.
It might therefore be advantageous to have a template approved, for example, for product sheets, product web pages, product lists, etc., that are updated regularly (daily, monthly, quarterly, whenever a new product is launched as regards product lists, etc.).
In the case of a website that presents a list of financial products for which the advertisements/advertising materials other documents and announcements must first be approved by the FSMA, the latter allows that such a list be submitted to it only once for approval1. When the list is approved for the first time, the FSMA will check that other than the name of the product, the list does not contain more than a few items of information that enable retail clients to make an initial selection from among the products offered (and not to take an investment or savings decision). Insofar as any subsequent changes made to the list involve only additions or deletions of products on the list, the modified list may be disseminated without requiring a new approval by the FSMA2, unless the changes made to the range of products are such as to enable a retail client to take an investment or savings decision without consulting the totality of the information required by the said Royal Decree of 25 April 2014 (for example because the range of financial products offered is very limited). If, on the other hand, the changes envisaged concern the layout (structure, page design, etc.) of the list or the addition or deletion of other information or selection criteria, the list will have to be submitted again to the FSMA for approval.
Likewise, if an advertisement, announcement or other document contains only numerical data and/or information without any evaluative element (such as the tax regime in force, the composition of the portfolio of a UCI3 at a specific date, returns, the investment objective that is set out in full in the KIID4, etc.), that document will first have to receive the prior approval of the FSMA, but it can be changed subsequently and disseminated without having to be resubmitted for prior approval by the FSMA. During that initial approval, the FSMA will check whether the material in question does in fact contain only numerical data or information without any evaluative element. It goes without saying, however, that if certain types of data are added or deleted, or if the layout is changed, the document in question will have to be resubmitted to the FSMA in full for approval.
In the event that the document concerned contains not only numerical data and/or information without any evaluative element, but also information comprising an evaluative element (such as a market analysis, a commentary by the manager, a summary of the investment objective set out in the KIID or the prospectus, a summary of the description of risks as found in the KIID or the prospectus, a list of definitions of technical terms, etc.), the document will have initially to be approved in full by the FSMA. The numerical data and information without any evaluative element may subsequently be changed without requiring fresh approval by the FSMA. By contrast, subsequent changes to the data comprising an evaluative element will need systematically to be submitted for fresh approval by the FSMA, although not every document will necessarily have to be resubmitted for prior approval by the FSMA (partial template). At the time of the first approval, the FSMA will determine which data contain an evaluative element and will inform the person who has applied for approval. It goes without saying that if certain types of data are added or deleted, or if the layout is changed, the document in question will have to be resubmitted to the FSMA in full for approval.
Use of a template for submitting advertising materials for several UCIs of the same type to the FSMA for approval
As regards advertising materials (product web pages, product fact sheets that are regularly updated as needed, etc.) for several UCIs of the same type, the FSMA may also agree to approve a template per UCI type as long as the advertising materials in question include only numerical data and/or other information that does not comprise any evaluative element, and provided the choice of different types of UCI can be justified in terms of a sufficient number of shared criteria so that the sample in question may be considered representative. In that case, it is enough to have the advertising materials for each type of UCI (sample) approved the first time. During that initial approval, the FSMA will check whether the advertising materials in question do in fact contain only numerical data or information without any evaluative element.
The following conditions will also have to be met:
- proof will have to be provided to the FSMA that the elements contained in all the advertising materials in question for UCIs of the same type (sample) are identical to the ones contained in the KIID or the prospectus, where the latter documents also mention the same elements;
- the layout of all the advertising materials for UCIs of a single type must be identical.
Advertising materials for UCIs of which the investment policy includes specificities (specific structures, foreign UCIs with capital guarantee an/or protection, foreign UCIs with a fixed return and/or fixed volatility, etc.) may nevertheless not fall within one of those predefined types of UCI and will have to be approved individually (outside the sample) by the FSMA.
Any subsequent changes to the advertising materials for UCIs of the same type approved as a template do not have to be submitted to the FSMA, provided the changes made concern only the updating of figures or other information that does not comprise any evaluative element. It goes without saying, however, that if certain types of data are added or deleted, or if the layout is changed, the advertising materials approved as a template will have to be resubmitted to the FSMA in full.
Approval of a partial template per type of UCI is also possible when advertising materials relating to several UCIs of the same type are submitted to the FSMA for approval. The use of such a partial template means that, in addition to fulfilling the conditions set out above for the use of a template (full) where advertising materials relating to several UCIs of the same type are submitted to the FSMA for approval, the data comprising an evaluative element must be submitted for an initial approval by the FSMA for all the UCIs and/or UCI sub-funds belonging to the category in question (no approval per category is possible for these type of data). At the time of that first approval, the FSMA will determine which data contain an evaluative element and will inform the person who has applied for approval. Later changes made to the aforementioned data must systematically be resubmitted to the FSMA for approval; this applies to all UCIs and/or UCI sub-funds belonging to the category in question, without the document itself having to be (re)approved in its entirety. It goes without saying that if certain types of data are added to or deleted from the document in question, or if the layout is changed, the document will have to be resubmitted to the FSMA in full for approval.
Responsibility
It should be remembered as well that the person behind the publication of an advertisement remains responsible for compliance with the legislation in force. Hence if the FSMA identifies problems in advertising materials that have already been approved in full or in part in the form of a template (including in advertising materials relating to UCIs of the same type as one that was approved in full or in part as a template), it may decide no longer to accept this practice for the UCIs concerned.