RegAlertGuidance · AMF
DOC-2018-03 Non-guaranteed placement, investment advice, and advice to companies on capital structure, industrial strategy, mergers and acquisitions
The AMF and ACPR jointly issued DOC-2018-03 to clarify the regulatory boundaries between unregulated 'top-of-balance-sheet' advice and regulated investment services such as non-guaranteed placement and investment advice. The document establishes specific criteria, including the nature of client needs analysis, the determination of financial terms, and the role of personal relationship, to distinguish between free practice and activities requiring professional authorization. Professionals are mandated to conduct a rigorous analysis of their services to ensure they hold the appropriate regulatory approval or professional status before providing such advice.
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IV - Commercialization - Customer Relationship
IV. 1 - General Provisions
Doctrine
Investment Services
Non-guaranteed placement, investment advice, and advice to companies on capital structure, industrial strategy, mergers and acquisitions
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Applicable as of February 13, 2024
Position DOC-2018-03
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Summary
The AMF clarifies to what extent and under what conditions activities designated under the generic term "top-of-balance-sheet advice" fall under the ancillary service no. 3 of Article L. 321-2 of the Monetary and Financial Code and can be exercised without authorization or specific professional status. Position DOC-2018-03, established jointly with the ACPR, clarifies the boundaries between top-of-balance-sheet advice, which is freely exercisable, and investment services of non-guaranteed placement and investment advice, which can only be provided by regulated professionals. The distinguishing criteria set forth relate, in particular, to the nature of the due diligence carried out to understand the client's needs, those carried out to address them, to whether or not the financial terms of the envisaged transaction are determined, or even to the intuitu personae attached to the operation. It is up to the professional to conduct an analysis exercise to determine whether the proposed service falls under one or the other service and to ensure that they have, if necessary, the appropriate authorization or professional status to provide it.
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Reference texts
Article L.321-1 of the Monetary and Financial Code
Article L.321-2 of the Monetary and Financial Code
Article D.321-1 of the Monetary and Financial Code
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The AMF clarifies to what extent and under what conditions activities designated under the generic term "top-of-balance-sheet advice" fall under the ancillary service no. 3 of Article L. 321-2 of the Monetary and Financial Code and can be exercised without authorization or specific professional status. Position DOC-2018-03, established jointly with the ACPR, clarifies the boundaries between top-of-balance-sheet advice, which is freely exercisable, and investment services of non-guaranteed placement and investment advice, which can only be provided by regulated professionals. The distinguishing criteria set forth relate, in particular, to the nature of the due diligence carried out to understand the client's needs, those carried out to address them, to whether or not the financial terms of the envisaged transaction are determined, or even to the intuitu personae attached to the operation. It is up to the professional to conduct an analysis exercise to determine whether the proposed service falls under one or the other service and to ensure that they have, if necessary, the appropriate authorization or professional status to provide it.
Download the doctrine
Reference texts
Article L.321-1 of the Monetary and Financial Code
Article L.321-2 of the Monetary and Financial Code
Article D.321-1 of the Monetary and Financial Code
Legal notices:
Publisher: The Director of the AMF Communication Department. Contact: Communication Department, Autorité des marchés financiers - 17, place de la Bourse - 75082 Paris Cedex 02
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