1 First question: a common system

The first research question is relevant because the outsourcing rules in the Financial Supervision Act and the Pensions Act are inconsistent. In the first chapter I described them as a “hotchpotch”. The outsourcing rules vary from one financial sector to another, but they also show similarities. If there is a common underlying system, then the outsourcing rules for “other” financial sectors would be relevant to one’s “own” financial sector.

This study shows that the various sectoral outsourcing rules do indeed share a common underlying system. The basic principle of the system is that the outsourcing company remains fully responsible to its regulator and to its clients or beneficiaries for the acts or omissions of its service provider as if it were its own acts or omissions. In order to live up to its responsibility, it must remain in control of the outsourced activities as if they were its own activities.

As a result of the outsourcing, activities “leave” the organisation. In terms of the outsourcing regulations, however, they remain part of its own operations. The outsourcing rules can be understood as an interpretation or extension of the requirement that a pension fund or financial institution has a controlled and incorruptible operations management. In essence, therefore, it is a standard of due care. The outsourcer must assess which risks are connected to its outsourcing of activities and then take appropriate action. Measures are adequate when they are proportionate to the risks they address.

For various financial sectors, this standard of due care has partly been worked out in more or less specific rules. These rules vary from one financial sector to another, but they are always an elaboration of the same underlying common system. Therefore, I advocate a cross-sectoral analogous application of the outsourcing rules.