CySEC has issued on 21st of January 2021 Circular C424 concerning the public statement of the Spanish Securities and Exchange Commission (the “CNMV”), regarding certain bad practices in cross-border marketing of investment services by Investment Firms that are located in other EU Countries (the “IFs”).

The Circular makes reference to the below bad practices, as mentioned within the CNMV’s public statement: 

  1. Aggressive marketing;
  2. Marketing activities and/or client acquisition carried out by unauthorised third parties (e.g. affiliates, call centres, etc.) on behalf of the IFs, and
  3. Promotion of CFDs and high-risk product transactions related to group entities of the IFs located in third countries, which are not authorised to operate in the EU, through IFs websites in Spanish.

Important points for consideration related to CNMV’s public statement:

  1. Marketing of investment services and client acquisition activities through non-authorised third parties:
    • The marketing of investment services and client acquisition may only be carried out professionally by IFs or through tied agents.
    • If above services are not carried on by authorised IFs and tied agents, the use of affiliate programmes for client acquisition in Spain is unacceptable.

     

  2. Promotion of CFD transactions via group entities located in third countries, which are not authorised to operate in the EU:
    • Inclusion of references to third-country firms, for example, an EU IF’s website, which sometimes includes information highlighting greater leverage opportunities allowed by non-EU legislation to transact with these high-risk products, constitutes a not allowed marketing activity of services offered by firms not authorised to operate in Spain
    • the marketing of services and client acquisition in Spain should be carried out solely by IFs or through registered agents. In particular, effecting payments to unauthorised firms for marketing and client acquisitions in Spain is not admissible.
    • When offering affiliate or associate programmes, there is need to expressly warn, through statements clearly identified on Ifs or registered agents websites, that in Spain such programmes are only applicable to firms authorised to provide investment services or their agents.
    • In the event of any activity aimed at addressing retail clients residing in Spain to non-EU countries firms, this is considered to be an infringement of local regulations.

     

CySEC expects all CIFs that provide investment services in Spain, to consider the CNMV’s public statement, its content and guidelines included therein, and to take by way of urgency necessary actions and measures for due compliance with requirements of the public statement.

CySEC also highlighted that the content of the CNMV’s public statement will form part of the CySEC’s supervisory assessments.

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