The Financial Supervision Act (FSA) provides that all confidential data and information that the AFM receives through the exercise of its supervision must be kept secret. The FSA stipulates that, in any case, competitively sensitive information and information that constitutes a disproportionate intrusion on one’s privacy is confidential information. Information that is already public under no circumstances constitutes confidential information subject to the AFM’s duty of confidentiality.
Although the AFM considers transparency with regard to its supervision to be of great importance, we are cautious in providing information concerning for instance investigations to be carried out. This is because the AFM must be careful in its communication and must therefore always consider the interests of all parties involved.
It may for instance be relevant to assess whether the interests of the AFM’s or the Public Prosecution Service’s investigation run counter to external communication surrounding ongoing investigations. The privacy interests of persons and businesses under investigation naturally weigh heavily, but are not always decisive. Social unrest or a high degree of speculation surrounding particular AFM investigations, for instance, may lead the AFM to communicate information.
Information published by the company involved itself may also be significant. Incorrect information regarding the AFM’s activities may lead the AFM to publish the correct facts. This includes the intentional and public contradiction of ongoing AFM investigations, despite specific questions from the press regarding the matter. When communicating about ongoing investigations, the AFM only indicates in a neutral manner that the investigation concerned is still at a stage where the results are not yet known.
Upon completion of an investigation, the FSA provides that the AFM must in certain cases actively communicate about infringements identified and the resulting supervisory measures to be taken with respect to financial institutions or persons.
This concerns the following situations:
- Imposition of an administrative fine or an order for incremental penalty payments for infringements of the laws and regulations under the supervision of the AFM. The AFM must publicise such sanctions, unless publication would or could conflict with the goals of the AFM’s conduct supervision. This is not commonly the case. Publication takes the form of a brief text describing the imposition of the fine or order for incremental penalty payments and the ruling that led to the imposition of said fine or order. This ruling - with all confidential information removed - is published on the AFM website.
- A public warning. If the AFM suspects illegal practices (offering or providing financial services without an AFM licence when this is required) that compromise consumer protection, the AFM may issue a public warning. The list of enterprises for which the AFM has issued warnings can be viewed on the AFM’s consumer website. Enterprises for which foreign supervisors have issued warnings can also be found here.