Professionals

3. Can a document (such as an email) addressed to a retail client which contains investment advice within the meaning of Article 46, 9°, of the Law of 6 April 1995 on the legal status and supervision of investment firms be considered an advertisement/marketing communication or "other document or announcement" subject to prior approval by the FSMA?

The FSMA considers that the fact that such a document may comprise investment advice does not necessarily exclude its being qualified as an advertisement/marketing communication or 'other document or announcement' within the meaning of the relevant legislation (for example, the Law of 16 June 2006 on public offers of investment instruments and admissions of investment instruments to trading on regulated markets)1.

However, not every document containing investment advice will necessarily constitute an advertisement or a marketing communication, as the case may be, or an 'other document or announcement' within the meaning of the relevant legislation2. The FSMA considers in this regard that the notion of 'other document or announcement' is to be evaluated in light of the entire set of circumstances of the case in point and of all the criteria of which none taken in isolation appears decisive, such as: (i) the standardized nature of the document insofar as it has been drawn up with a view to being distributed to several clients, (ii) the fact that the publication of the document is not prescribed by the legislation in force and that its contents are not regulated, or (iii) the objective of the document. Since the legislation is intended to apply to documents that do not strictly meet the definition of 'advertisement' or 'marketing communication' in order precisely to prevent debates as to the nature of the objective of the document in question - this criterion implies a certain subjectivity that could be invoked with a view to avoiding supervision of certain documents - the criterion of the objective of the document could in any case not prove decisive.

The FSMA considers that an email containing investment advice that is specifically drawn up for the attention of a particular client and, as such, is individualized and personalized should not be considered an advertisement or marketing communication, as the case may be, or an 'other document or announcement' within the meaning of the applicable legislation. By contrast, the FSMA takes the view that a standard email drawn up with a view to sending it to a series of clients with the same profile may, even if it contains investment advice, constitute an advertisement or marketing communication, as the case may be, or 'other document or announcement' as defined in the applicable legislation.


1 See also CESR's Technical Advice on Possible Implementing Measures of the Directive 2004/39/EC on Markets in Financial Instruments, 1st Set of Mandates where the deadline was extended and 2nd Set of Mandates, CESR/05-290b, pp. 9-10.

2 In this regard, refer to FAQ 2, a): 'How do we determine the treatment of advertising or marketing material for a financial product distributed to retail clients?'.