I previously touched upon the climate and sustainable finance element of the AMF’s newly published action and supervisory priorities for 2023, though other key areas of focus include promoting finance that meets the new expectations of investors and developing the regulatory framework. These priorities reflect the growth of EU-level supervisory work.
This renewed position reflects the direction the AMF has been moving towards, as we saw in December 2022 the AMF warned the public against certain platforms proposing investments in real estate as "royalties", highlighting the risks that retail investors may be exposed to when investing in real estate platforms. The AMF notes that some platforms do not comply with the regulations in force, which aim to protect investors through the quality of the information provided, the handling of complaints, or access to the AMF Ombudsman.
Similarly, the AMF strengthens its policy on digital asset service providers (DASPs) in relation to good repute and skills and promotional communications, having made a number of changes to its policy recently. In particular, the AMF:
- Clarifies the possibility for a financial investment adviser to provide an advisory service to subscribers of digital assets (service 5°c listed in Article L. 54-10-2 of the French Monetary and Financial Code).
- Presents the analysis grid used to verify the good repute and skills of the senior managers and holders of the control of the DASPs.
- Explains its chosen approach when analysing the suitability and integrity of the senior managers and holders of the control of the DASPs.
- Specifies the conduct to be adopted by DASPs in the event of a change in situation and clarifies the cases in which these changes must be reported to the AMF and those in which a new registration file must be submitted to the AMF to provide new services.
- Provides further information concerning promotional communications and relations with clients of digital asset services. In addition, it issues recommendations to encourage DASPs to include warnings for clients or potential clients as well as to communicate specific information on risks, adapted to the nature and complexity of the digital assets and services in question.
- Reminds that the licensed DASP must establish, implement and maintain a complaints management policy and that Instruction AMF DOC-2012-07 "Complaints handling" applies to licensed DASPs. The AMF recommends that registered DASPs set up such a complaints handling system.
The French regulatory framework on DASPs is twofold: DASPs must be registered with the AMF and can optionally be licensed as well. The strengthening of these policies clarifies the AMF’s expectations regarding DASPs’ governance and conduct of business. It will also enable service providers to get up to speed before the entry into force of the Markets in Crypto-Assets Regulation (MiCA) – expected to be adopted this year – as the gap between the French registration requirements and the upcoming MiCA licensing requirements is significant, especially in terms of IT systems resilience, internal control and handling complaints policies requirements. The regulators’ goal when implementing stronger requirements for DASPs is to better protect consumers against the risk associated with digital assets investment.
In keeping with the theme of transparency and open communication, in December the AMF presented proposals for opening up financial data on investors. In the position paper Open finance: what framework for European investors?, the AMF sets out the points it believes are crucial to ensuring that financial data is opened up in a secure framework that upholds the fundamental principles and rights of data protection laid down by law.
Key points in the position paper include:
- Investor data should be opened up only if a financial service is being provided. Players whose corporate purpose is not related to the provision of financial services, such as social media platforms or other marketplaces, should not be able to access European investors' data to market services unrelated to their financial needs.
- Consumers should have given their explicit consent, for a clearly identified provider and service, prior to any data sharing. This consent should be withdrawable at any time, or explicitly renewed if the consumer wishes to continue to benefit from the services offered by the provider.
- Consumers should be informed of the location of their data before it is shared. Any changes to this information should be updated during the course of the relationship.
- The AMF proposes a reflection on the creation of a regulatory status for "providers of ancillary services" based on open data, subject to registration in the European Union. This status would make it possible to regulate and control the provision of such services, including by new entrants or players based outside the European Union.
The proposed regime would improve the balance between investors and financial service providers as it would be structured around protecting the investors’ best interests while enabling new and innovative services to emerge. For instance, such data could be used to gather a consolidated view of the investor’s financial savings accounts in order to better determine the investor’s risk profile and therefore expand his or her opportunities for investment and optimise the management of his or her financial savings. In this case, both the financial institution and the investor’s best interests are met, as the use the available data allows the former to offer the latter improved and tailored services.