Administrative fine imposed on M.P.G. Berkers for de facto management of unlawful brokerage services


Update 14 October 2013: The decision of the AFM has since become final and it can no longer be submitted to the courts for review.

On 29 August 2013, the Netherlands Authority for the Financial Markets (AFM) imposed an administrative fine of €96,000 on Mr M.P.G. Berkers.

The fine was imposed because the business conducted by Mr Berkers, Marketing Services Provider Limited, provided brokerage services via various websites such as, without the required AFM licence. Mr Berkers actually had the de facto control over the commission of this infringement. This constitutes a violation of the Financial Supervision Act (Wft).

Unlawful brokerage services

Consumers who were interested in a new or different mortgage could enter various details on one of the websites of the company, such as their occupation and income, their current mortgage and the desired mortgage. Marketing Services Provider Limited sold these data to various financial service providers. These service providers then contacted the consumers. Marketing Services Provider Limited did not hold a licence, while it should have done so pursuant to Section 2:80(1) of the Wft.

Why is a licence required?

An AFM licence offers consumers additional protection. Before the AFM grants a licence, it first checks, inter alia, whether the company satisfies the requirements of reliability, expertise and integrity. Moreover, a company that holds a licence has to comply with the so-called continuous rules of conduct. These concern, inter alia, careful and proper services to consumers. The fact that the company did not have a licence means, moreover, that unfair competition exists with respect to all brokers who do hold the required licence.

De facto control

Mr Berkers was the sole director and only employee of the company. He was directly involved in the infringement. The latter is evident from the statements made by the financial service providers with whom the company did business and from the various emails these parties have provided to the AFM.

The entrepreneur was aware of the fact that an AFM licence was required for the activities. The AFM informed Mr Berkers as early as 2009 that, when obtaining consumer information that consists of more than just the name, address, place or residence and telephone number, a licence was required. Mr Berkers nevertheless failed to apply for a licence, despite the fact that he was, as sole director, the appropriate person to do so. This means, according criteria developed in case law, that he was de facto in control of the commission of the infringement.

This case is still subject to the fine scheme that applied until 01 August 2009. It contained a system of fixed fines, whereby the fine for the most serious offences amounted to 96,000. That fine was imposed in this case.

Interested parties can submit the AFM's judgment contained in the decision to the competent court for review. If you have any questions or comments, you can contact the Financial Markets Information Line on: 0800 - 5400 540.

The AFM is committed to promoting fair and transparent financial markets.

As an independent market conduct authority, we contribute to a sustainable financial system and prosperity in the Netherlands.

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