December 28, 2023
Comission of General Contractual Clauses
Decree-Law no. 123/2023 of 26 December was published, by which it is established the General Contractual Clauses Commission, an independent administrative body, of an advisory nature, which works with the members of the government responsible for the areas of justice and consumer protection.
The Decree-Law no. 123/2023 also defines the control and prevention means in relation to unfair terms, including in particular the creation of a General Contractual Clauses Portal that will aggregate recommendations and opinions issued on abusive general contractual clauses and/or anonymized final and unappealable decisions that prohibit the use or recommendation of general contractual clauses or declare the nullity of clauses inserted in singular contracts.
This Decree-Law entered into force on 27 December and the General Contractual Clauses Commission shall be operational 90 days after the entry into force of Decree-Law no. 123/2023.
December 27, 2023
Advertising of Financial Instruments and Investment Services
CMVM has published Circular 017/2023, of 19 December, with the aim of reinforcing the need to comply with the current regulatory framework on the disclosure of advertising for financial instruments and investment services.
In alignment with ESMA Guidelines 34-45-1272, this Circular sets forth several recommendations, among which:
- The recommendation that the compliance function and/or the management body of financial intermediaries and/or securities’ issuers to always be involved in the advertising approval process, even when these do not depend on pre-approval by the CMVM;
- The information contained in the advertising media gives a correct and clear indication of the relevant risks when referring to potential benefits of an investment service or a financial instrument;
- Advertising media must be unequivocally identified as such, namely, with regard to financial instruments or investment services, prominently contain the mention “advertisement” or “advertising” (or “PUB”, in the case of small-scale advertising dimension); and/or
- The abstention of using certain expressions that may suggest high returns (such as “attractive income potential”), without any clear explanation that such returns may not be obtained and that there is a risk of losing all or part of the investment.
The Circular no. 017/2023 is available here.
Registration and Communication of Subcontracting Agreements
Following a public consultation, Banco de Portugal published Notice BdP 8/2023, which regulates the duties to register and notify the Bank of Portugal of functions outsourced by credit institutions, payment institutions and electronic money institutions. In addition to harmonising the already existing rulings currently in effect, Notice BdP 8/2023 materialises the guidelines issued by the European Banking Authority in February 2019 (EBA/GL/2019/02), which established a set of requirements for managing the risks associated with subcontracting, particularly as regards to essential or important functions.
It should be noted that the rulings concerning the registration of subcontracting agreements are retroactive to the previous 12 months. Therefore, institutions must include in their register all agreements that were in force during those 12 months, including those that have since ceased. In addition, communications regarding the outsourcing of essential or important functions apply to all agreements that enter into force or take effect at least 30 days after the entry into force of this Notice.
The Notice BdP 8/2023 came into force on 19 December 2023 and is available here.
December 26, 2023
Annual Contribution – Resolution and Deposit Guarantee Funds
The Bank of Portugal, has issued:
- Instruction 27/2023, which sets the basic contribution rate for the Deposit Guarantee Fund for 2024 at 0.0009%, with the minimum contribution by institutions participating in the Fund being €600.00. This Instruction is available here and comes into force on 1 January 2024; and
- Instruction 28/2023, that sets the base rate for the additional periodic contribution to the Resolution Fund for 2024 at 0.032%. This Instruction is available here and comes into force on 1 January 2024.
December 15, 2023
CFT Reporting Model - Bank of Portugal Public Consultation
The Bank of Portugal ("BdP") has initiated a public consultation a draft Instruction, a draft Notice and an respective explanatory note regarding the approval of a new Reporting Model on the Prevention of Money Laundering and Terrorist Financing (RPB).
The draft Instruction defines the new RPB model aiming to simplify its content and revoking Instruction BdP I5/2019 and Instruction BdP I 6/2020..
Furthermore, with the entrance into force of this new Instruction, the deadline for submission of the 2023 RPB shall be postponed to 30 June 2024.
Contributions on the draft regulations must be sent until 23 January 2024.
