Investments in atypical assets such as wine, works of art or manuscripts are attracting a growing number of savers and entrepreneurs. However, the legal framework surrounding these transactions is dense and often misunderstood. Intermediaries in general assets (IBDs), the key players in this market, are subject to strict regulations overseen by the Autorité des marchés financiers (AMF). Understanding their obligations is essential to securing investments and avoiding legal pitfalls. The complete guide to general merchandise intermediaries and their regulatory framework provides an overview, while this article details the applicable regimes and the specific obligations that arise from them.
Distinction between normal and light schemes
The 2014 Hamon Act introduced a fundamental distinction between two categories of property intermediary. This segmentation is based on the nature of the transaction offered to the investor. Depending on the commitment made by the intermediary and the characteristics of the offer, the player will be subject either to a "normal" regime, which is highly regulated, or to a so-called "lighter" regime. The purpose of this duality is to adapt the level of regulatory constraint to the level of risk perceived by the investor.
The "normal" regime: statutory constraints and tighter controls
The most restrictive regime applies to intermediaries whose activity corresponds to the historical definition of transactions in miscellaneous assets. These are proposals to subscribe to life annuities or to acquire rights in property that is not managed by the investor himself, or that is accompanied by a promise to take over or exchange it with a capital appreciation. In practical terms, if an intermediary offers to invest in a wine cellar, managing it on your behalf and reselling it in the future at a capital gain, the intermediary is covered by this scheme.
The obligations are significant and are designed to guarantee the soundness and reliability of the operator. Article L. 551-2 of the French Monetary and Financial Code requires :
- A specific corporate form: the business must be carried on by a joint stock company (SA, SAS, SCA), which excludes less structured forms such as the SARL.
- Minimum share capital: the company must have at least €37,000 in fully paid-up capital before taking any commercial steps.
- Appointment of a statutory auditor: the intermediary manager's accounts must be certified, providing an additional guarantee that the accounts are properly managed.
These structural requirements are supplemented by onerous financial transparency obligations. These players are at the heart of an ecosystem in which other regulated professionals, such as financial investment advisers, may also be involved. Understanding the role and responsibilities of financial investment advisers (FIAs) in relation to miscellaneous assets is a useful step towards understanding all the facets of these set-ups.
The "light" scheme: simplification reinforced
The law also created a second category of IBD to regulate an increasingly widespread practice. This "lighter" regime applies to anyone offering to acquire rights in one or more assets simply by promoting the possibility of a financial return. The central criterion is no longer delegated management or the promise of redemption, but the commercial argument of financial performance.
Initially, this system was very flexible and did not require prior review by the AMF. However, this approach has shown its limitations, paving the way for numerous abuses. In response, the 2016 Sapin 2 Act considerably tightened up the system. Henceforth, intermediaries covered by this lighter regime are also subject to a priori control by the AMF, particularly with regard to their marketing documentation. Although they are exempt from the statutory constraints of the normal regime (company form, minimum capital), they can no longer market their offerings without first obtaining an AMF registration number. The alignment of the two regimes has therefore become much more marked, strengthening investor protection for all investments in various goods.
Information and transparency obligations
Clear, accurate and not misleading information is the cornerstone of investor protection when it comes to miscellaneous assets. Intermediaries are required to comply with strict documentation requirements, under the watchful eye of the AMF. The aim is to enable investors to make an informed decision by fully assessing the risks associated with their investment.
The prior information document: content and procedure
Before any investment is marketed, the intermediary must draw up a detailed information document and submit it to the AMF to obtain a registration number. This is no mere formality. It must contain all the information investors need to make informed decisions. According to article 431-1 of the AMF's General Regulations, it must describe in detail :
- The nature and purpose of the proposed operation.
- The identity of the initiator of the offer and the future property manager.
- The risks inherent in the investment, in particular the risk of capital loss and lack of liquidity.
- The amount of all direct and indirect costs borne by the investor.
- Terms and conditions for the resale of acquired rights or assets.
This document is not an advertising brochure. Its tone must be neutral and factual. The AMF examines its completeness and clarity before issuing its registration number. This process, sometimes referred to as a "visa", in no way constitutes an approval of the advisability of the investment, but rather an attestation that the information provided is deemed sufficient.
Promotional communications: clarity and avoidance of deception
All advertising, whether on a website, in a brochure or via e-mail, is also subject to strict rules. Article L. 551-1 of the French Monetary and Financial Code requires promotional communications to be clearly identifiable as such. Their content must be "accurate, clear and not misleading" and they must enable investors to "understand the risks associated with the investment".
In practice, this means that promises of high returns without explicit mention of high risks are prohibited. Sales pitches must be consistent with the information contained in the prospectus registered with the AMF. Any ambiguity or presentation likely to mislead investors is a breach that may be penalised. Nor may intermediaries use the AMF's intervention as a selling point or a seal of approval.
The AMF's role in monitoring IBDs
The Autorité des marchés financiers is the main regulator of intermediaries in various goods. Its role is more than simply registering files. It exercises active supervision to protect the savings invested in these often complex and risky investments. Its powers range from examining documents to issuing warnings to the general public.
Examination of documents and registration number
As we have seen, all offers of investment in various goods must be filed with the AMF. The AMF has a period of time, generally 30 days, in which to examine the draft information document and make any comments it may have. The AMF checks that the information is complete and that the transaction offers a minimum level of guarantees before being offered to the public. Once the document has been deemed compliant, the AMF assigns it a registration number.
It is essential to understand that this number is not a licence. It merely certifies that the intermediary has complied with the legal transparency requirements. It does not guarantee the profitability of the investment or the seriousness of the operator over the long term. Similarly, if major changes are made to the offering (e.g. a change of manager), the intermediary is required to inform the AMF and investors in an updated document.
Surveillance and AMF black/white lists
To help investors find their way around, the AMF has developed very practical monitoring tools. It regularly publishes lists on its website to distinguish authorised players from potentially fraudulent offers.
- The white list lists intermediaries in various goods who have obtained a registration number for their offers. Consulting this list is an essential first step before making any investment.
- Blacklists include websites and entities offering atypical investments without being authorised to do so. These players operate illegally and present a very high risk for investors.
The AMF also issues regular warnings to alert the public to scams or aggressive marketing practices in specific sectors (diamonds, wine, cryptocurrencies, etc.). Failure to comply with these obligations exposes intermediaries to severe consequences, as detailed below the penalties incurred by intermediaries and FIAs in the event of failure to comply with their obligations.
Activity patterns of general merchandise intermediaries
For a person or company to qualify as an intermediary in various goods, it must carry out one or more specific activities defined by law. It is not enough to simply sell an item; the activity must be part of a specific intermediation framework, whether it involves making a commercial proposal, collecting funds or managing on behalf of third parties.
Proposed transactions involving miscellaneous assets
The first characteristic activity is offering, "by means of promotional communication or canvassing", to subscribe to a transaction involving various goods. This offer must be made on a regular basis, which in principle excludes an isolated and unrepeated transaction.
The notion of "promotional communication" is very broad. It includes any form of advertising (website, social networks, brochures, etc.) aimed at convincing potential customers to invest. Canvassing, on the other hand, is defined as any unsolicited contact with a view to obtaining agreement for a transaction. It is important to note that since the Hamon Act, a proposal made to a single potential customer may suffice to qualify the activity, which has considerably broadened the scope of the regulations.
Collecting funds and managing miscellaneous assets
In addition to simply making an offer, two other activities may lead to IBD status. The first is the collection of funds on behalf of customers with a view to making the investment. This covers all physical acts of collecting funds, whether the intermediary collects the funds on his own account or simply receives cheques or transfer orders on behalf of a third party. The simple transmission of a payment instrument may, in certain contexts, be considered as an act of collecting funds.
The second activity is the management of the assets acquired. This is not simply passive conservation, but active management aimed at increasing the value of the investment. The manager ensures the technical, industrial or financial operation of the assets on behalf of the investor. Think of a company that manages a fleet of containers or a portfolio of works of art, making arbitrages (purchases, resales) to generate income or capital gains. This management activity, when entrusted to a third party, is one of the historical criteria for the regulation of miscellaneous assets.
The regulation of intermediaries in general merchandise is an essential but complex protection mechanism. Navigating between the requirements of the normal regime and those of the lighter regime, while mastering the information obligations and the role of the AMF, requires precise legal expertise. To ensure the security of your intermediation activities or investments, the support of a lawyer with expertise in this area is a major asset. If you are faced with these issues, Finance and credit lawyers can help you navigate IBD regulations.
Sources
- French Monetary and Financial Code, in particular articles L. 551-1 et seq.
- General regulations of the Autorité des marchés financiers (AMF).
- Commercial Code, for provisions relating to companies and statutory auditors.
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