!css
Experten-Bewertungen

Main market initiatives

Main market initiatives - General Overview

PROJECT

ORIGIN

SCOPE

APPLICATION DATE

PDF DOWNLOAD

AIFM

EU Fund Management 22 July 2013 Download 

UCITS I-IV

EU Fund Management UCITS IV - 1 July 2011 Download 

UCITS V

EU Fund Management 18 march 2016 Download 

MIF I

EU Fund Management 2007 Download 
MIF II EU Sales, Negotiation, Fund and management 3 January 2018 Download 

Short Selling Regulation

EU

Negotiation and Clearing

1 November 2012

Download 

EuVCA-EuSEF

EU Fund Management 22 july 2013
Download 

PRIIPS

EU Sales 31 december 2016
Download 

SOLVENCY II

EU

Insurance

1 January 2016

Download 

EMIR

EU Clearing 16 August 2012 Download 

T2S

EU

Settlement

Begin in 4 waves
(June 2015 to February 2017)

Download 

T+2

UE Settlement 1 january 2015 Download 

CSD
Regulation

EU Settlement 17 september 2014 Download 

Legal Entity Identification (LEI)

USA & EU Codification ? Download 

FTT

FR Taxation 1 August 2012 Download 
FATCA USA Taxation

1 July 2014 (WHT US Income)
15 March 2015 (first reports)
1 January 2017 (WHT other US flows)

Download 

DODD FRANK ACT Title VII

USA Clearing 21 July 2010 Download 

Shadow Banking

USA & UE Fund Management Not yet set Download 

Money market funds

UE Fund Management Not yet set Download 

Europ.Long-Term Invest.Funds (ELTIFs)

UE Fund Management  9 december 2015 Download 
Collateral directive

UE Clearing / Settlement 27 june 02 Download 
Finality directive

UE Clearing / Settlement 11 june 98 Download 
Recovery and Resolution

UE Market safety 2015? Download 
Securities Financing Transactions UE Market transparency Not yet set Download 

AIFM Directive

Reference Text

European Directive 2011/61/EU on alternative investment fund managers 

Presentation

The AIFM (Alternative Investment Fund Manager) Directive has the objective of regulating the alternative investment fund managers that manage and/or market these funds and not the funds themselves, considering the extreme heterogeneity of this type of fund. In fact all funds not subject to the UCITS Directive and managed within the EU, irrespective of their country of domiciliation, are considered alternative investment funds by the AIFM Directive, along with all alternative investment funds domiciled and managed outside of the EU and sold on EU territory. In particular, hedge funds, investment capital funds and real estate funds, with or without leverage, closed or open, fall within the scope of the AIFM. It should be noted that the passport granted by the Directive only allows marketing within the EU for investors that are at least professionals (in reference to the terminology of the MiFID) and therefore not for the broad population of individual investors targeted by the marketing of UCITS funds.

With an objective of harmonisation, the Directive lists the various conditions for approval in terms of minimum level of equity, competence and good character of the directors, management of conflicts of interest, organisation of controls, delegation of duties to third parties, use of leverage funds, etc.

The Directive creates a passport for European fund managers will be effective as of the application date in 2013 and extended to non EU fund managers in 2015.

Furthermore, for each fund managed by a fund manager, this fund manager, like with UCITS funds, must mandate a depositary who must be subject to a supervisory authority. For the first time at European level, however, the Directive clearly establishes the principle of liability of the depositary with regard to the fund managed in the event of loss of the assets under management, thus obliging the custodian to return identical assets or the cash value of these assets to the fund managed, with the exception of an external event beyond reasonable control; the conditions for exoneration will be specified in the level 2 measures: in the current proposal, the European Commission would tend towards stronger responsibility of the depositary in the event of loss of assets due to fraud/bankruptcy of a sub-custodian unless local insolvency law does not recognize the effects of the segregation of assets.

At the same time, based on the current proposal, due diligence at the sub-custodian level will be reinforced specifically requiring the depositary to inform the fund manager of any risks which might impact assets held abroad. In addition, if, for reasons of the applicable law, including the law relating to property or insolvency, the segregation of the assets cannot be achieved, the depositary should  take additional measures to minimise the risk of loss and maintain an adequate level of protection of the assets held by the sub-custodian.

Current Situation

  • 19/12/2012: Publication of the Level 2 measures
  • 1st Quarter 2013: Adoption of the Level 2 measures
  • February 2013: Publication of ESMA guidelines on remuneration
  • 2 April 2013: Publication of ESMA technical standards and guidelines on types of AIFM and.AIF definition
  • 16.05.2013: Implementing regulation (opt-in procedure) + Implementing regulation (definition of the Member State of reference)
  • 24.05.2013: Publication of ESMA guidelines on AIFMD key concepts (AIF definition)
  • 22.07/2013: Entry into application (deadline for transposition)
  • 01.10.2013: Publication of ESMA guidelines on reporting obligations

Next Step

  • July 2014: deadline for (existing) AIFM to be compliant with AIFMD
  • 2015: Management and marketing Passport (subject to adoption by the Commission) for non-EU AIFM and/or marketing of non EU-AIF
  • 2018: End of private placement regime (subject to adoption by the Commission)

SGSS/DIR/SMI Contact

Virginie Amoyel-Arpino

UCITS I-IV Directive

Reference document

Directive 2009/65/EC of 13 July 2009 (UCITS IV Directive).

UCITS IV implementation date (transposition by Member States: 1 July 2011)

Introduction

The UCITS (Undertakings for Collective Investments in Transferable Securities) Directive, of which the first version – UCITS I – dates back to 1985, generally aims to increase the efficiency of the single market by facilitating the free movement of UCITS within the EU, provided they conform with a set of common coordination rules concerning aspects such as investor access, eligible financial instruments and risk spreading. The UCITS which comply with the rules of this Directive are said to be coordinated and may market their units in any EU Member State, simply by notifying the particular state, without the need to request a new authorisation in each country where the funds are marketed. The latest published version of this Directive is the UCITS IV Directive which officially came into effect on 01/07/2011. The main measures enforced by the UCITS IV Directive aimed to:

  • improve or correct existing UCITS III measures: such is the case for the simplification of the cross-border notification procedure, the replacement of the non EU-standardised simplified prospectus by a standardised document (the Key Investor Information Document – KIID), and the set-up of a real passport for asset management companies,
  • increase the competitiveness of European asset management by striving to increase the average size of funds in order to promote economies of scale: this concerns cross-boarder master-feeder structures and the measures allowing the cross-boarder merger of funds.

It is also to be noted that UCITS IV calls for much stronger coordination and communication between the Member States' supervisory authorities. This coordination has been facilitated by the creation of a new European supervisory body – ESMA – at the beginning of 2011. The cross-border notification period applicable to coordinated UCITS has thus been reduced from a maximum of 2 months under UCITS III to 10 business day under UCITS IV.

Current situation

The UCITS IV Directive came into effect on 1st July 2011 in the Member States but in many cases its transposition was slightly offset (only 5 countries managed to meet the transposition deadline).

Upcoming stages

The European Commission  is set to adopt a proposal for a UCITS V Directive aimed at reviewing specific aspects of Directive 2009/65/EC (UCITS IV) by introducing harmonised provisions on the functions of depositaries (planned alignment with the AIFM Directive except concerning the possible contractual transfer of the depositary's responsibility to a sub-custodian, which is not provided for in the future UCITS V text), the manager compensation policies and the penalties applicable to managers (see UCITS V project brief)

SGSS/SMI contact

Virginie Amoyel-Arpino
Alain Rocher

UCITS V Directive

Reference document

Directive 2014/91/EU of 23 July 2014 amending Directive 2009/65/EC on the coordination of laws, regulations and administrative provisions relating to undertakings investment in transferable securities (UCITS) as regards depositary functions, remuneration policies and sanctions.

Introduction

On 3 July 2012, the European Commission published a legislative package aimed at improving consumer protection in financial services. This package consists of three legislative proposals: a proposal for a key information regulation concerning packaged retail investment products (PRIPs), a revision of the Insurance Mediation Directive (IMD) and a proposal for a Directive revising the UCITS IV Directive by integrating provisions on depositaries, manager remuneration and sanctions (UCITS V)

Concerning the provisions relating to depositaries in UCITS V, the following is to be noted: except for a few divergences (listed below), this proposal is a word-for -word copy of level 1 of the AIFM Directive. This practically identical reproduction of the alternative funds Directive confirms the European Commission's wish to harmonize, in a broad and precise way, the functions of depositaries in Europe.

Alignment with the AIFM Directive

  • Appointment of the depositary
  • Depositary’s duties functions: cash monitoring, custody/Recordkeeping, oversight duties
  • Delegation rules (see divergences below)
  • Liability regime (see divergences below)


Divergence with the AIFM Directive

  • Liability of the depository for improper performance of its oversight duties in case of loss (or loss of value) if for example the depositary fails to act on investments that are not compliant with fund rules
  • Delegation of custody to entities acting as CSDs
  • Reuse: Ban of reuse of assets held in custody by the depository or by any third party to whom custody has been delegated for their own account
  • European harmonization of insolvency law effects on assets held in custody: each Member State must ensure that its insolvency law protects assets under custody in the event of bankruptcy of the depositary by whom the assets are in custody or its sub-custodian located in  the EU
  • Delegation conditions (to be clarified in Level 2): the depositary has to ensure that its sub-custodian has taken all necessary steps to ensure that in the event of insolvency of the third party, assets of a UCITS held by the third party in custody are unavailable for distribution among or realisation for the benefit of creditors of the third party
  • Liability regime: no contractual transfer of liability to a sub-custodian
  • Eligible entities to act as depositary + addition 24 month-period granted to existing managers to appoint a depositary complying with the eligibility’s criteria
  • Conditions for fulfilling the independence requirement (to be defined in Level 2)
  • Publication in the prospectus of the list of our sub-custodians and their delegates

Past steps

  • 13/11/2012: Publication of Sven Giegold draft report
  • 17/12/2012: Deadline to table amendments
  • 21/3/2013: ECON vote
  • 3/7/2013: Plenary vote (without adoption of a legislative resolution)
  • 8/11/2013 and 27/11/2013: 1st and 2nd draft compromise of the Lithuanian Presidency
  • 4/12/2013: Council General Approach
  • 15/1/2014: 1st Trilogue (compromise text proposed) 5/2/2014: 2nd and last Trilogue
  • 25/2/2014: Political Agreement reached
  • 19/3/2014: Adoption by the COREPER
  • 15/04/2014: Adoption by the EP
  • 23/7/2014: EU Council adoption
  • 28/08/2014: Publication in the OJ of the EU
  • 26/09/2014: ESMA consultation on Level 2 measures (response sent on 24.10.2014)
  • 28/11/2014: Publication of ESMA technical advice
  • 18/12/2016: Publication by the EC of the project of Delegated Regulation
  • 18/03/2016: transposition and implementation of Level 1 (18 months after the date of entry into application, ie 20 days after the publication in the OJ of the EU). Amongst the countries that have transposed the directive, there is Italy, France, Germany and Ireland. In Luxembourg and UK, the transposition process is on going.
  • 24/03/2016: Publication of the Delegated Regulation 2016/438 supplementing directive 2009/65/EC. This regulation shall enter into force on the twentieth day following that of its publication in the OJ of the EU.
  • 31/03/2016: ESMA publishes UCITS remuneration guidelines

Next steps

  • 13/10/2016 : The Delegated Regulation shall apply from 13/10/2016

Contact list EU Commission / EU Parliament

EC : Tilman Lueder (Markt G4 Asset Management)

EP : Sven Giegold (DE, Greens) – Rapporteur
Thomas Mann (DE, EPP) – Shadow
Jensen (DK, ALDE) – Shadow
Kamall (UK, ECR) – Shadow

SGSS/DIR/SMI contact: Marie-Claire de Saint-Exupéry

MiFID 1

Reference document

Directive 2004/39/EC (MiFID)

Applicability date

1 November 2007

Introduction

The "Markets in Financial Instruments Directive" (MiFID) 2004/39/EC was adopted on 21 April 2004 and came into force on 1 November 2007.

  • It creates a single European financial services market enabling financial investment services providers (ISPs) approved by the Member States to operate across the EU (under a European passport);
  • It repeals the rule of order centralisation on regulated markets, by ending the monopoly of Incumbent Exchanges with the arrival of  Multilateral Trading Facilities (MTFs) and allowing the internalisation of orders on the intermediary's own account;
  • It lays down organisational requirements and rules of conduct to prevent conflicts of interest and improve investor protection through measures such as the obligation to execute the orders under the most favourable conditions for the client (best execution) and pre- and post-trade transparency rules (however, the pre-trade transparency rules only apply to shares admitted to trading on a regulated market).

Moreover, MiFID reinforced the investment services providers' classification and client information obligations, considering that the clients with the least experience require the highest protection level. Three classes of clients have been defined: eligible counterparties (banks and financial institutions), professionals (companies) and non-professionals (private individuals).

Concerning the transparency obligation, it should be noted that the MiFID implementing regulation defined four types of derogations:

  • in the event of execution based on a price borrowed from other platforms (imported price);
  • in the event of large orders;
  • in the event of negotiated transactions;
  • when the orders are placed in an order management system before their transmission to the market

These derogations have given rise to crossing networks and other dark pools which have led market authorities to propose a review of MiFID.

Current situation

This Directive will be replaced with MiFID 2 (see corresponding factsheet)

SGSS/SMI contact

Alain Rocher

MIFID II /MIFIR

Reference documents:

Entry into force: 2/07/2014 (level 1) – 3/01/2018 (level 2)

Presentation

The proposed texts are a revision of the Markets in Financial Instruments Directive (MiFID), which came into force in November 2007. After 3 and a half years of implementation, this update had been expected, especially since the current MiFID had given rise to various interpretations in its transposition into national laws, resulting in over-regulation in certain Member States.

Moreover, the Commission wanted to adapt the Directive to the changes having taken place in the financial markets over recent years: new trading venues, new products, innovations stemming from technological developments such as high-frequency trading.

It also wanted to draw the lessons from the 2008 financial crisis and integrate the recommendations made by the G20 in Pittsburg in September 2009 concerning the need to improve the transparency and surveillance of certain markets, which were less regulated at the time, such as OTC derivatives markets.

As a reminder, the initial version of MiFID laid down a regulatory framework for the provision of investment services to investors (such as brokerage, consulting, trading, portfolio management, underwriting, etc.) by banks and investment companies (investment service providers), but also for the operation of regulated markets, in particular equity markets, by market operators. It also aimed to promote and control the provision of cross-border investment services via the granting of a European passport to investment companies, enabling them to provide their services across the EU either through the free provision of services or through the set-up of a branch. Another significant provision – the rule concerning the concentration of orders on a particular regulated market – authorises investment companies to choose their preferred trading venue(s), in particular the one enabling them to offer their clients the best execution guarantee.

The proposed revision consists of a Regulation (MiFIR) which will be applicable directly and "as is" in the Member States, and a Directive (MiFID II) which will require transposition in the Member States.

The 2 texts (the Directive and the Regulation) must be read jointly as they jointly form the legal framework governing the requirements applicable to Investment Companies (ICs), Regulated Markets (RMs) and providers of data reporting services.

The proposed changes are numerous and significant. The main provisions contained in the 2 texts are the following:

MiFID II

With the new Regulation MIFIR,  MIFID 2 aims to overcome problems that emerged during the implementation of MiFID which, since 2007, has prevented Member States from requiring that negotiations take place on some exchanges.

The Directive strengthens the framework for the regulation of markets in financial instruments, including where trading in such markets takes place over-the-counter (OTC), in order to increase transparency, better protect investors, reinforce confidence, address unregulated areas, and ensure that supervisors are granted adequate powers to fulfil their tasks. It contains the provisions governing the authorisation of the business, the acquisition of qualifying holding, the exercise of the freedom of establishment and of the freedom to provide services, the operating conditions for investment firms to ensure investor protection, the powers of supervisory authorities of home and host Member States and the regime for imposing sanctions.

The main elements of the new Directive are the following:

Enhancing the regulatory framework: the Directive aims to move the negotiation organised financial instruments towards multilateral and well-regulated trading platforms. Strict transparency rules prohibit anonymous trading of shares and other equity instruments, which is an obstacle to a fair and efficient price formation. As a result, all trading platforms, that is, regulated markets, the systems of multilateral trading (multilateral trading facilities - MTF) as well as the new systems of organised trading facility (OTF) should apply transparent and non-discriminatory access rules.

Corporate governance: the Directive provides that Member States shall ensure that the management body of an investment firm defines, oversees and is accountable for the implementation of the governance arrangements that ensure effective and prudent management of the investment firm including the segregation of duties in the investment firm and the prevention of conflicts of interest, and in a manner that promotes the integrity of the market and the interest of clients.

Protection of investors: taking account of the increasing complexity of services and instruments, the Directive introduced a certain degree of harmonisation to offer investors a high level of protection across the Union. It also requires that investment firms should act in accordance with the best interests of their clients. Investment firms should accordingly understand the features of the financial instruments offered or recommended.

The investment firms which manufacture financial instruments should ensure that those products are manufactured to meet the needs of an identified target market of end clients within the relevant category of clients (retail customers, professionals and counterparties).

These companies are also required to inform customers about the fact that the advice is offered on an independent basis and the risls associated with the recommended products and investment strategies. When advice is provided on an independent basis a sufficient range of different product providers’ products should be assessed prior to making a personal recommendation.

To further protect consumers, it is also appropriate to ensure that investment firms do not remunerate or assess the performance of their own staff in a way that conflicts with the firm’s duty to act in the best interests of their clients, for example through remuneration, sales targets or otherwise which provide an incentive for recommending or selling a particular financial instrument.

Staff who advise on or sell investment products to retail clients possess an appropriate level of knowledge and competence in relation to the products offered. In addition, all information, including marketing communications, addressed by the investment firm to clients or potential clients should be fair, clear and not misleading.

Adaptation of the legislation to technological developments: the Directive regulates the risks arising from high frequency algorithmic trading where a trading system analyses data or signals from the market at high speed and then sends or updates large numbers of orders within a very short time period in response to that analysis.

Both investment firms and trading venues should ensure robust measures are in place to ensure that algorithmic trading or high-frequency algorithmic trading techniques do not create a disorderly market and cannot be used for abusive purposes. Trading venues should also ensure their trading systems are resilient and properly tested to deal with increased order flows or market stresses and that controls are in place, such as ‘circuit breakers’, to temporarily halt trading or constrain it if there are sudden unexpected price movements.

Commodity derivatives: in order to prevent market abuses, the competent authorities, in line with the methodology for calculation determined by ESMA, establish and apply position limits on the size of a net position which a person can hold at all times in commodity derivatives traded on trading venues and economically equivalent OTC contracts.

With regard to the energy derivative contracts (petrol, charbon), a transition period is provided up to July 2020 for the application of the clearing obligation and the margining requirements established in the Regulation (EU) No 648/2012. The Commission should, by 1 January 2018, prepare a report assessing the potential impact on energy prices and the functioning of the energy market of the expiry of the transitional period.

Cooperation: the Directive reinforces the measures concerning the exchange of information between national competent authorities as well as  the reciprocal obligations of authorities for assistance and cooperation.

The competent authorities should provide each other with the relevant information for the exercise of their functions in order to detect and to prevent offences under the Directive.

Third country firms: the Directive creates a harmonised legal framework regulating the access of third country firms to the EU market. It provides that a Member State may require that a third-country firm intending to provide investment services or perform investment activities with or without any ancillary services to retail clients or to professional clients in its territory establish a branch in that Member State.

The branch shall acquire a prior authorisation by the competent authorities of that Member State in accordance with certain conditions. The requesting firm should be, among other, properly authorised, and paying due regard to any FATF recommendations in the context of anti-money laundering and countering the financing of terrorism

MiFIR

With the directive MIFID II, Regulation MiFIR aims to set up a new framework establishing uniform requirements relating to financial instruments in relation to: i) disclosure of trade data, ii) reporting of transactions to the competent authorities, iii) trading of derivatives and shares on organised venues, iv) non-discriminatory access to CCPs, to trading venues and benchmarks, v) product intervention powers and powers on position management and position limits, vi) provision of investment services or activities by third-country firms.

The main elements of the new Regulation are the following:

Market structure and transparency: the new rules are intended to ensure that trading in financial instruments is carried out, as far as possible, on organised and appropriately regulated venues, in a totally transparent manner, both before and after the negotiation.

The Regulation introduced a new trading venue category of organised trading facility (OTForganised trading facility) for bonds, structured finance products, emissions allowances and derivatives. This new category should be appropriately regulated and complement the existing types of trading venues.

All trading platforms, that is, regulated markets, the systems of multilateral trading (multilateral trading facilities - MTF) as well as the new systems of organised trading facility (OTF) should apply transparent and non-discriminatory access rules.

Appropriately calibrated transparency requirements therefore need to apply to all types of trading venues, and to all financial instruments traded thereon.

Access to central counterparties (CCPs): rules for accessing CCPs under transparent and non-discriminatory conditions are also introduced. CCPs should accept to clear transactions executed in different trading venues, to the extent that those venues comply with the operational and technical requirements established by the CCP, including the risk management requirements.

Waivers and Volume Cap Mechanism: the competent authorities may, in certain cases, be able to waive the obligation for market operators and investment firms operating a trading venue to make public the pre-transparency requirements. In order to ensure that the use of the waivers provided for does not unduly harm price formation, trading under those waivers is restricted as follows:

-       the percentage of trading in a financial instrument carried out on a trading venue under those waivers should be limited to 4% of the total volume of trading in that financial instrument on all trading venues across the Union over the previous 12 months;

-       overall Union trading in a financial instrument carried out under those waivers shall be limited to 8% of the total volume of trading in that financial instrument on all trading venues across the Union over the previous 12 months.

Trading obligation: to ensure more trading takes place on regulated trading venues and systematic internalisers, the Regulation introduces, so far as investment companies are concerned, a trading obligation for shares admitted to trading on a regulated market or traded on a trading venue.

Statement on  transactions in financial instruments: these transactions should be reported to competent authorities to enable them to detect and investigate potential cases of market abuse, to monitor the fair and orderly functioning of markets, as well as the activities of investment firms.

Investment firms shall keep at the disposal of the competent authority, for five years, the relevant data relating to all orders and all transactions in financial instruments which they have carried out, whether on own account or on behalf of a client.

Investor protection and integrity of financial markets: the new regime introduces an explicit mechanism for prohibiting or restricting the marketing, distribution and sale of any financial instrument or structured deposit giving rise to serious concerns regarding investor protection, orderly functioning and integrity of financial markets, or commodities markets, or the stability of the whole or part of the financial system.

So as to limit speculation on commodity derivatives, the Regulation provides that measures to be taken to counteract possible negative externalities on commodities markets from activities on financial markets. This is true, in particular, for agricultural commodity markets the purpose of which is to ensure a secure supply of food for the population. In those cases, the measures should be coordinated with the authorities competent for the commodity markets concerned.

The European Securities and Markets Authority (ESMA) should be able to request information from any person regarding their position in relation to a derivative contract, to request that position to be reduced, as well as to limit the ability of persons to undertake individual transactions in relation to commodity derivatives.

Provision of services by third-country firms: in harmonising the current rules, the new regime guarantees certainty and uniform treatment of third-country firms accessing the Union. It ensures that an assessment of effective equivalence has been carried out by the Commission in relation to the prudential and business conduct framework of third countries and should provide for a comparable level of protection to clients in the Union receiving services by third-country firms.

The Commission should ensure that the application of third-country requirements i) does not prevent Union investors and issuers from investing in or obtaining funding from third countries, or ii) prevent third-country investors and issuers from investing, raising capital or obtaining other financial services in Union markets unless that is necessary for objective and evidence-based prudential reasons.

Current Situation:

  • Entry into application of level 2

The entry into force of level 2 has been postponed. The new date is the 3rd of January 2018 (one year delay).

However, on the10th of February the European Commission has proposed a one year extension to the entry into application of MIFID2 (the new date is the 3rd of January 2018) and therefore has published two drafts of texts aiming at modifying all the dates standing in the text and related to the former timeline.

Man should also note that this postponement concerns the whole package – the Commission has concluded that a partial postponement may have undesirable effects – will have an impact on two other regulations (MAR and CSDR) since they both make reference to the “3rd January 2017”.

On the 18th of May 2016 the European Parliament and the council have approved the delay. The official agreement will be done on the 7th of June 2016.

  • ESMA’s Technical Advices

ESMA has issued its Technical Advices in December 2014. The European Commission should write and adopt the level 2 texts based on those advices. There should be one delegated directive and two delegated regulations. The delegated directive will focus on parts of articles 16, 24 & 25 (investor protection) of the directive level1. The new texts will then have to go to the European Parliament and to the Council for a non objection period.

he European Commission has published:

  • The two delegated acts – a directive (on the 7th of April 2016) and a regulation (on the 25th of April 2016) both related to the level 1 directive (MIFID2).
  • On the 16th of May a regulation in relation to the level 1 regulation (MIFIR)

Now the level 2, coming from the ESMA’s technical advices, has been achieved.

  • ESMA’s draft RTS/ITS (the RTS are more in relation with the investor protection)

ESMA has transmitted to the European Commission

  • 6 draft RTS/ITS upon third country firms on the 29 of June 2015
  • 27 RTS and 1 ITS on the 28th of September 2015, mainly on market infrastructures and transparency
  • 8 ITS on the 11 of December 2015 upon several topics (cooperation between competent authorities, suspension / removal of financial instrument from trading, sanctions, APA-CTP-ARM, …)

The European Commission has published on its website a list of those Technical Standards indicating their status as well as the deadline for adoption / non objection (see paragraph “links” in this document). For most of them the non objection period is over now so that they should be published in the coming days in the EU JO. The EC has also adopted end of July 2016 the RTS 22 which covers the regulatory reporting requirements..

  • Transposition of the level 1

Member States have now until the 3rd July 2018 to transpose the level 1 and level 2 Directives (due to the one year delay). French regulators decided to maintain the momentum. The level 1 has been transposed (publication in the French JO on the 23rd of June). However, the MIFID2/MIFIR requirements assets managers (when managing also UCITS or AIF) will have to comply with are not clearly defined.

  • Future level 3

ESMA is working on business cases regarding the regulatory reporting. The consultation period on these cases is now close. AFTI and AMAFI have made a jointly answer to the Consultation Paper.

ESMA is also currently working on a future Q&A.

It seems that ESMA foresees guidelines rather than a Q&A for the product governance part. This means there will be a new Consultation Paper before.

Main steps

  • Level 1

- Publication of both EP reports (from Markus Ferber) on 16 March 2012 (MIFID II) and 27 March 2012 (MIFIR)

- Vote in ECON on 26 September 2012

- Vote in plenary on 26 October 2012 (no legislative resolution has been voter in order to let some latitude to the negotiations with the Council and the Commission (Trilog)

- June.2013: Council General approach (COREPER) - on the 17 - agreed by the ECOFIN on the 21st

- September 2013 : Trilog on investor protection, commodities, scope of exemption (4th), on  trading requirements, centralised clearing, pre- and  post-trade, reporting (11th), on sanctions, third countries regime (25th)

- 1/10/2013: Commission non paper on investor protection: inducement, safekeeping, product intervention

- October 2013: Trilog on investor protection (9th), on sponsored access, HFT, centralized trading obligations (derivatives), pre and post transparency / reporting, third country regime (21st)

- November 2013: Trilog on access, sanctions, redress, commodities, investor protection (possible) (6th), on market structure, ESMA powers, scope, exemptions (7th), on market structure, transparency, trading and clearing obligation and access (21st)

- December 2013: Trilog on market structure, transparency, investor protection, third country regime, sanctions, access (4th), last Trilog meeting of the year on commodities, third country regime, and market access (18th)

- Collapse of Trilog / No agreement reached under Lithuanian Presidency.

- 14.01.2014: Political agreement (last Trilog)

- 19/2/2014: Approval by the COREPER of the compromise agreement with EP

- 15/4/2014: Adoption by the EP

- 14/5/2014: Council formal approval

- 12/6/2014: Publication in the Official Journal of the European Union

- Entry into force: 20 days after OJEU publication, ie. 2 July 2014

  • Level 2

- 23/4/2014: EC Mandate to ESMA

- 22/5/2014: ESMA Consultations (deadline: 1er august 2014) 

- July 2014: 2 ESMA Open hearing

- 19/12/2014: Publication of the ESMA technical advice

- 19/12/2014: publication of a Consultation paper (following the discussion paper of last summer) for the drafting of RTS/ITS. Deadline for responses: 2 march 2015.

  • Level 3

- 23/12/2015: Consultation Paper on the future guidelines (essentially on the regulatory reporting) 

Next steps:

Foreseen

Adoption by the EP and the Council of the level 2 texts

Publication of the RTS/ITS previously adopted by the EC

Publication of the ESMA’s guidelines related to the regulatory reporting

Contact list : EU Commission / EU Parliament

EC : Maria Teresa Fabregas Fernandez (Markt G3 Securities Markets)

EP : Markus Ferber (DE, PPE) – Rapporteur

  • Goebbels (LU, S&D) – Shadow
  • Schmidt (SE, ALDE) – Shadow
  • Giegold – Canfin (DE-FR, Greens) – Shadow
  • Swinburne (UK, ECR) – Shadow 

Contact SGSS/SMI : Marie-Claire de Saint-Exupéry et Sylvie Bonduelle (marie-claire.de-saint-exupery@sgss.socgen.comsylvie.bonduelle@sgss.socgen.com )

Short Selling And Certain Aspects Of Credit Default Swaps

Reference text: European regulation 2010/0251 (COD)

Link:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:086:0001:01:EN:HTML

Date of application:

1st November 2012

Presentation:

This regulation stems from two events that marked the financial world: the financial crisis in 2008, followed by the strong movements on sovereign debts. The financial crisis which followed the collapse of Lehman Brothers obliged regulators, more or less everywhere in the world, to take measures aiming to restrict short selling. These initial measures were taken as a matter of urgency without any real global coordination or coherence.

The objective of this regulation is to construct a preventative framework (comprising permanent measures, alongside temporary measures that can be activated by the competent authorities in exceptional situations), that is reasoned (the project does not undermine the benefits that short selling can entail under normal market conditions and exempts certain activities) and harmonised, aiming to govern short selling of shares and sovereign debts and the use of CDSs on sovereign debts. Such a framework is only fully effective of course if it is accompanied by a reinforcement of the powers granted to the local competent authorities and the ESMA, and an increase in the transparency necessary to exercise their function. The text thus specifies the role of the various competent authorities and stresses the need for cooperation among them.

Mainly targeted at investors (corporate entities and private individuals), the text covers short selling according to two themes:

  • an obligation for declaration to the authorities (possibly accompanied by a public version),
  • the obligation to have taken all necessary measures to enable settlement of the sale on the intended date. Concerning CDSs, it prohibits them from negotiating “naked”, i.e. without having a long position to hedge over the debt itself.

It should be noted that the text also imposes on Clearing Houses the establishment of penalties for late settlement and a harmonised buy-in procedure (activated 4 trading days after the intended settlement date) in line with what seems set out in the proposed regulation on central securities depositories. It is furthermore not the only case of connection between the proposed texts of the EC: the marking of short selling orders, once envisaged in this regulation, has been finally abandoned to the benefit of marking of transactions through the Transaction Reporting as set out in the future MiFIR. However as the Transaction Reporting is to be done by the entity executing the order, it is no more than a marking of orders since the seller will have to flag the order when sending it for execution. The only difference is that only executed orders will be declared.

The main points of the Regulation:

Scope: in order to provide for a preventive regulatory framework to be used in exceptional circumstances, the Regulation covers all types of financial instruments but provides for a response proportionate to the potential risks posed by the short selling of different instruments. It is only in the case of exceptional circumstances that competent authorities and ESMA are entitled to take measures concerning all types of financial instruments, going beyond the permanent measures that only apply to particular types of instruments where there are clearly identified risks that need to be addressed.

 

Transparency of significant net short positions: for shares admitted to trading on a trading venue in the Union, a two-tier model is introduced, that provides for greater transparency of significant net short positions in shares at the appropriate level: (i) at the lower threshold, notification of a position should be made privately to the regulators concerned; (ii) at the higher threshold, positions should be publicly disclosed to the market. A relevant publication threshold is a percentage that equals 0.5 % of the issued share capital of the company concerned and each 0.1 % above that.

A requirement to notify regulators of significant net short positions relating to sovereign debt in the Union should be introduced as such notification would provide important information to assist regulators in monitoring whether such positions are in fact creating systemic risks or being used for abusive purposes. Such a requirement should only include private disclosure to regulators as publication of information to the market for such instruments could have a detrimental effect on sovereign debt markets where liquidity is already impaired.

 

For sovereign debt, on the other hand, significant net short positions relating to issuers in the EU will always require private disclosure to regulators. The proposed regime also provides for notification of significant positions in credit default swaps that relate to EU sovereign debt issuers.

Natural and legal persons that hold significant net short positions shall keep, for a period of 5 years, records of the gross positions which make a significant net short position.

The text states that the relevant time for calculation of a net short position shall be at midnight at the end of the trading day on which the natural or legal person holds the relevant position.

The notification of information to a relevant competent authority shall ensure the confidentiality of the information and incorporate mechanisms for authenticating the source of the notification.

 

Restrictions on uncovered short selling in shares: to reduce the risks of uncovered short selling of shares, the Regulation provides that a natural or legal person may enter into a short sale of a share admitted to trading on a trading venue only where that person has: (i) borrowed the share or has made alternative provisions resulting in a similar legal effect; or (ii) entered into an agreement to borrow the share or has another absolutely enforceable claim under contract or property law to be transferred ownership of a corresponding number of securities of the same class so that settlement can be effected when it is due or (iii) an arrangement with a third party under which that third party has confirmed that the share has been located and has taken measures vis-à-vis third parties necessary for the natural or legal person to have a reasonable expectation that settlement can be effected when it is due.

However, these restrictions don't apply to the short selling of sovereign debt if the transaction serves to hedge a long position in debt instruments of an issuer. Moreover, if the liquidity of sovereign debt falls below a specified threshold, the restrictions on uncovered short selling may be temporarily suspended by the competent authority.

 

Exceptional situations: in exceptional situations that threaten financial stability or market confidence in a Member State or the EU, the Regulation provides that competent authorities should have temporary powers to require greater transparency or to impose restrictions on short selling and credit default swap transactions or to limit individuals from entering into derivative transactions.

In such a situation, the European Securities Market Authority (ESMA) is given a key coordination role, to ensure consistency between competent authorities and to guarantee that such measures are only taken where they are necessary and proportionate. ESMA is also given the power to take measures where the situation has cross-border implications.

 

ESMA inquiries: ESMA may, on the request of one or more competent authorities, the European Parliament, the Council or the Commission or on its own initiative conduct an inquiry into a particular issue or practice relating to short selling or relating to the use of credit default swaps to assess whether that issue or practice poses any potential threat to financial stability or market confidence in the Union.

 

Cooperation with third countries: the competent authorities of Member States shall wherever possible conclude cooperation arrangements with competent authorities of third countries concerning the exchange of information with competent authorities in third countries, the enforcement of obligations arising under the Regulation in third countries and the taking of similar measures in third countries by their competent authorities.

 

Penalties: the measures, sanctions and penalties provided for shall be effective, proportionate and dissuasive. In accordance with Regulation (EU) No 1095/2010, ESMA may adopt guidelines to ensure a consistent approach is taken concerning the measures, sanctions and penalties to be established by Members States. ESMA shall publish on its website and update regularly a list of existing administrative measures, sanctions and penalties per Member State.

Current situation:

Entered into force

Main steps:

The text was adopted by European Parliament on 14 March 2012 and published in the JO on 24 March 2012.

The ESMA published its proposal concerning technical standards (28 March 2012) and its opinion on level 2 measures (19 April 2012).

On 5 July 2012, the European Commission adopted delegated acts and technical standards proposed by the ESMA. Technical standards have been published on the EU JO on the 18 September.

On 17 September ESMA issued a consultation regarding exemptions linked the market making activity. Answers were expected for the 5 October at the latest.

In the meantime, buy-in procedures have been modified by CCPs in order to comply with this new regulation, going beyond the initial scope of the Regulation (shares and sovereign debts).

On 10 October: first update of the ESMA’s Q&A (first version dated 13th of September).

On 22 October: publication of the list of “Links to national websites for the purpose of the notification of net short positions”

1 November 2012: Implementation

9th of November: publication of the list of exempted shares (those whom principal trading venue is located in a third country)

Publication of the table of the net short notification thresholds for sovereign issuers

10th of December: mandate given to ESMA for technical advice on the evaluation of this regulation (deadline 31st of May 2013)

January 2013: second update of the ESMA’s Q&A (previous one dated 10th of October)

1st February: publication of ESMA’s guidelines on market making and primary market exemptions

12th February: ESMA published a “call for evidence” in order to prepare its technical advice on the evaluation of the regulation; answers expected for the 15th of March.

3rd of June 2013 ESMA published its technical advice on the evaluation of the regulation (expected on the 31st of May); ESMA has found that it has had some positive impacts and has suggested some improvements such as on the method to calculate the net positions or on the threshold used for the notification, on the exemption regarding market making activity …

12th of June: ESMA published the Guidelines compliance table regarding exemption for market making activities and primary market operations (to be noted: the AMF answered that it intends to comply only when the guidelines will be fully applied throughout the EU).

12th of September: in the case “UK against Council and Parliament” in the Court of Justice of the EU, advocate general found that article 28 of the SSR should be annulled. Article 28 gives ESMA certain powers to “intervene, by way of legally binding acts, in the financial markets of EU Member States in the event of a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the EU”. The advocate general’s opinion is not binding on the Court of Justice. Deliberations should now begin.

23rd of September: ESMA to find its short-selling ban has not disrupted the market, as participants had warned it would.

13th of December 2013: the European Commission issued its conclusions based on the ESMA study. The Commission is on the opinion that no change should be made (even those proposed by ESMA) at this stage since (as admitted also by ESMA) it is a too short time period since the launch of the regulation to make any evaluation on its impacts. The Commission suggested such an exercise to be made in 2016.

The main caution point is on the settlement disciplines and particularly on the buy-in process as required for CCPs. Both ESMA’s and the Commission’s thoughts are to include such requirements in a more horizontal text as for example the future CSDR.

 

Next Step:

2016: for an evaluation of the regulation

The SSR will be amended by the future CSDR where article 15 on the buy-in requirement will be removed. This requirement will be done through the CSDR.

Find out more: Commission delegated regulation Projects and the Commission Report

http://ec.europa.eu/internal_market/securities/docs/short_selling/20120705-regulation_en.pdf

http://ec.europa.eu/internal_market/securities/docs/short_selling/131213_report_en.pdf

Contact SGSS/SMI : Sylvie Bonduelle  (sylvie.bonduelle@sgss.socgen.com)

Venture capital funds and social entrepreneurship funds

Reference documents

Regulation 345/2013 on European Venture Capital Funds and Regulation 346/2013 on European Social Entrepreneurship Funds.

Date of entry into application

22 July 2013

Introduction

On 7 December 2011, the European Commission (EC) published two proposals for regulations, aimed at establishing a common framework for European venture capital funds and European social entrepreneurship funds in order to help SMEs obtain financing via such funds.

Common rules applicable to venture capital funds and social entrepreneurship funds:

  • Creation of a European label for European venture capital funds and European social entrepreneurship funds with 3 essential definition criteria: (1) the fund must invest at least 70% of the capital contributed by its clients in SMEs; (2) it must provide funding to these SMEs in the form of equity or quasi-equity; and (3) it must not use leverage for the fund (i.e. the capital it invests must not exceed the capital committed by investors). The two documents only apply to managers of collective investment undertakings other than UCITS in accordance with Directive 2009/65/EC (UCITS IV) established and registered in the European Union.
  • Threshold for assets under management: the document only applies to fund managers whose assets under management do not exceed €500 million.
  • Eligible investors: professional investors within the meaning of MiFID and certain other traditional venture capital investors (such as high net worth individuals or business angels) if they undertake to invest at least 100,000 Euros in the fund, and if the fund managers comply with certain procedures giving them reasonable assurance that these investors are capable of making their own investment decisions and understanding the risks involved.
  • European Passport: making it possible to market such funds with eligible investors throughout the EU.
  • No obligation to use a depositary: the initiative makes no mention of a depositary, which seems to be a regression on the current French model and on the AIFM Directive concerning investor protection.
  • No organisational rules, risk management rules or precise valuation rules. Only five major principles have been laid down for fund managers:  (1) they must be competent and diligent in their activities, (2) implement policies and procedures to avoid bad practices, (3) act in the interest of the fund and clients while respecting market integrity, (4), exercise due diligence in the selection of companies and their management within the portfolio, (5) have an appropriate level of knowledge.

Current situation

  • 31/05/2012: Vote by ECON Committee
  • 12/09/2012: Partial vote in plenary without legislative resolution (after successfully concluding the trilogues, the Council has reneged in its agreement in order to prevent the EU Parliament fighting too effectively against tax havens)
  • 15/03/2013 : Formal Approval by EU Council
  • 25/04/2013: Publication in Official Journal of the EU (L 115/1 and L 115/18)

SGSS/DIR/SMI contact

Virginie Amoyel-Arpino

PRIIPs Regulation

Reference Text

Proposal for a regulation on key information documents for Packaged Retail and Insurance-based Investment Products

Presentation

On 3 July 2012 the Commission adopted a proposal for a regulation for a new Key Information Document (KID) to be produced by investment product manufacturers and provided to retail customers when they are considering buying investment products. It aims to enable retail investors to understand and compare the key features and risks of the PRIIPs.

The PRIIPs Regulation applies to the manufacturers and persons advising on or selling.

Targeted products and exemptions

  • Packaged retail investment product means an investment, including instruments issued by SPVs, where, regardless of the legal form of the investment, the amount repayable to the investor is subject to fluctuations because of exposure to reference values or to the performance of one or more assets which are not directly purchased by the investor.
  • Insurance-based investment product means an insurance product which offers a maturity or surrender value and where that maturity or surrender value is wholly or partially exposed, directly or indirectly, to market fluctuations.
  • Exemptions: non-life insurance products, life insurance contracts where the benefits provided by the contract are payable only in the event of death or disability due to an accident, illness or disability, deposits other than structured deposits and securities, officially recognised pension schemes, retirement products recognised by national law as having the primary objective of providing the investor with income in retirement, individual retirement products for which an employer’s financial contribution is required.

Drawing up the KID: before placing a retail investment product on the market, the investment product manufacturer shall draw up a KID and publish the KID on its website. Member States may require the initiator to notify the document in advance to the competent national authority.

Form and content of the KID: before a binding agreement is made, the retail investor shall receive a KID of a maximum of three A4 pages allowing them to take an informed decision and to compare retail investment products as well as insurance products.

The KID shall be accurate, fair, clear and not misleading. It shall be a stand-alone document, clearly separate from marketing materials, and be compatible with any binding contractual document.

Information to be included (among other):

  • the name and address of the initiator, information relating to the relevant national authority and the date of the documents
  • a notification of specific environmental or social outcomes targeted by the investment product, as well as the way in which performance is measured
  • a description of the types of investors for whom the investment product is intended, especially in terms of risk appetite and investment horizon
  • a brief description of the risk and reward profile of the investment product, including for example, the maximum possible loss of invested capital
  • a brief description outlining, in the event of the initiator being unable to make the payments covered, whether the investment product is covered by a compensation scheme
  • the required minimum holding period and cashing in early
  • information about how and to whom a client can make a claim

Complex products: some of the investment products covered by the scope of the regulation are not simple and may be difficult for investors to understand. This is why Parliament has ensured that investors receive, when necessary, the following notice, “You are about to purchase a product that is not simple and which may be difficult to understand”.

Responsibility in the case of losses: the text foresees that if a retail investor shows that they suffered a loss through the use of the KID by investing in the retail investment product for which the KID was produced, this retail investor can seek redress from the initiator of the investment product for this loss, under the provisions of national law.

Complaints: the retail investors shall have an effective way of submitting a complaint against the initiator of an investment product based on insurance. Effective redress procedures shall also be available to retail investors in the event of cross-border disputes.

Penalties: the competent authorities designated by the Member States shall have the power to impose penalties such as the suspension or prohibition of the sale of a product, by publishing a public notice and imposing administrative fines of at least EUR 5 000 000 or at least 3% of annual turnover in the case of a moral person or a maximum amount of at least EUR 700 000 for individuals.

Application to UCITS/AIF: according to the Regulation Level 1, the funds that already produce a KIID UCITS have an exemption period until 31 December 2019 to produce the KID PRIIPS.

According to the project of Level 2 published on 7 April 2016, this transitional period does not apply for funds that have an underlying investment option of a unit-linked insurance product. Those funds need to be ready for PRIIPS from 31/12/2016.

Current situation:

  • 20/12/2012: Publication of P. Bérès draft report
  • 24/06/2013: Adoption by the Council of its general approach
  • 21/10/2013: Vote in ECON
  • 21/11/2013: Partial vote in plenary
  • 29/01/2014: 1st Trilogue - 20/3/2014: Last Trilogue
  • 15/04/2014: Adoption by the EP
  • 30/07/2014: EC Mandate sent to EIOPA for advice on possible delegated acts
  • 10/11/2014: Formal adoption by ECOFIN
  • 27/11/2014: The Joint Committee of the three European Supervisory Authorities (EBA, ESMA and EIOPA - ESAs) published a discussion Paper for the RTS under articles 8, 10 and 13 (see position Document) – Responses by 17 February 2015.
  • 9/12/2014: Publication in OJ UE - Application period: 24 months (= 31 December 2016)
  • 23/06/2015: Release of a technical discussion paper on Article 8-5 (risks, performance and costs) on some RTS such as calculation method of risk indicator and costs borne by the investors.
  • 29/01/2016 : Answer to the consultation published on 11 November 2015: Joint Consultation Paper draft on RTS:
  • 07/04/2016 : the ESA have published the level 2 measures dated 31 March 2016 : “Final draft regulatory technical standards with regard to presentation, content, review and provision of the key information document, including the methodologies underpinning the risk, reward and costs information. » proposals in Relation to the presentation and content of the KID (risk indicators, costs), revision of the KID, timing of publication of the KID.
  • 30/06/2016: The European Commission has adopted the RTS. The press release giving the information that the European Commission has adopted those RTS, said that the European Parliament and the Council have a two-month scrutiny period, which they can extend for a further month.
  • 01/09/2016: The European Parliament’s economic and monetary affairs committee, known as ECON, voted in favor of rejecting the PRIIPs RTS.
  • 14/09/2016: The European Parliament voted in favor of rejecting the PRIIPs RTS.

Next steps

  • The Parliament asks the Commission to propose new RTS for implementing the PRIIPs legislation.
  • 31/12/2016: Entry into application of PRIIPS Regulation. At this stage, the rejection by the Parliament does not delay the implementation deadline. For this to happen, the Commission will have to issue a “quick-fix” (similar to MIFID II/MIFIR) that would make change to level 1 and postpone the coming-into-force.

Contact list in the EU Commission / EU Parliament

COM(2012) 352 final

EC: Jean-Yves Muylle , MARKT H3 Retail Financial Services

EP: Pervenche Berès (FR, S&D) - Rapporteur
Pietikäinen (FI, EPP) - Shadow
Bowles (UK, ALDE) - Shadow
Canfin (FR, Greens) - Shadow
Kamall (UK, ECR) - Shadow

SGSS/DIR/SMI contact

Marie-Claire de Saint-Exupéry

SOLVENCY Directive

Reference Text

European Directive 2009/138/EC

Date of Application

1st  January 2016

Presentation

The SOLVENCY II Directive has the aim of modernising and harmonising the solvency rules applicable to insurance companies in order to reinforce the protection of policyholders, encourage companies to improve their risk management and ensure harmonised application of legislation in the European Union. After SOLVENCY I, which stipulated a solvency margin determined only according to percentages on premiums and/or claims, insurance legislation moved to more sophisticated rules integrating the different types of risk (market risk, credit risk, life and non-life subscription risk, operational risk) and now draws on valuations of assets and liabilities at market values (i.e. the “fair value” as defined in the IFRS). The former solvency margin is now replaced with 2 new concepts: the MCR (Minimum Capital Requirement), minimum amount of equity below which the insurer loses its approval, and the SCR (Solvency Capital Requirement), target equity amount which is calculated either from the standard model proposed by the regulator, or from a model developed internally but validated by the regulator, on the understanding that it will of course be possible to mix standard model and internal model according to the peculiarities of the company.

Like its “Basel II” banking counterpart, Solvency II is based around three pillars:
Pillar I determines quantitative requirements to be respected, particularly in harmonising the calculation of technical provisions and the MCR and SCR.
Pillar II requires the establishment of risk governance systems (processes, responsibilities, production and monitoring of indicators, etc.)
Pillar III fixes market discipline to increase transparency of the information sent to policyholders and to the regulatory authorities.

Current Situation

Final adoption on March 11, 2014 of the Directive Omnibus II, officialising the date of January 1, 2016 for the implementation of SOLVENCY II and giving widened powers to the EIOPA to specify the implementation framework, particularly regarding guidelines and “Implementing Technical Standards" (ITS).

Application since January 1, 2014 and through January 1, 2016 of the preparatory measures published on September 27, 2013 by the EIOPA, the European insurance regulator. These transitional measures focus on pillars II (governance) and III (reporting).

On 10 October 2014 the Commission adopted a Delegated Act containing implementing rules for Solvency II ( but waiting agreement from European Parliament and Commission under 6 months)

Next Steps

  • January 1, 2016: Application of SOLVENCY II.

Find out more

SGSS Contact

Laurent Plumet
Alain Rocher

EMIR Regulation

Reference Text: European regulation – 648/2012

Date of application: 16 August 2012

Presentation

This text responds to the undertakings of the G20 (2009 Pittsburgh Summit) in order, by the end of 2012, to increase the transparency of the derivatives market and reduce the current risk induced by transactions which mostly remain dealt bilaterally (pure OTC – Over The Counter). It can be likened to the American Dodd Franck Act which dedicates part of the text (chapter VII) to the regulation of these transactions.

EMIR firstly introduces the “standard contracts” concept and associates them with an obligation for clearing via a Central Counterparty (CCP) with the aim of sharply reducing counterparty risk. The text then imposes an obligation to declare all OTC operations on derivatives, whether or not they relate to standard contracts, to central databases namely “Trade Repositories”. Lastly, for transactions which are not cleared, as an exception or because they relate to non-standard contracts, the text sets out the reinforcement of the rules governing relations between parties, especially in regards to collateral exchange constraints between the parties.

The obligation made by EMIR to use a CCP reinforces the key role of these market infrastructures. It was therefore essential to ensure their solidity and guarantee their longevity. This is the purpose of the second part of the text. EMIR sets out a certain number of standards relative to their supervision, their governance and their organisation, but also to the levels of their capital corresponding to the type of risks they bear. The regulation also addresses the issue of settlement in central bank money, interoperability and access to data flows for trading platforms. Lastly, it establishes a “default waterfall” procedure relative to the ordered use of a CCP in the event of the default of one of its members and resources that are available, whether its own capital or the different types of guarantees (deposited by its members or subscribed with a specialised institution). This new procedure proves more protective for non-defaulting members.

The last part of the text is devoted to the regulation of Trade Repositories, the role of which will be to collect data on all transactions undertaken on OTC derivative products and to feed this information back to the competent authorities. It must be approved to exercise this activity, and failure to comply with the related obligations shall be sanctioned by the relevant supervisory authorities.

The desire to regulate operations now dealt with mainly Over The Counter which is at the origin of EMIR is extended in the proposed MIF regulation (MiFIR) which establishes the obligation to trade any contract deemed standard in the context of EMIR and having a sufficient level of liquidity via a trading platform (regulated market, MTF or OTF).

Role of the European Securities and Markets Authority (ESMA): this will be responsible for the surveillance of trade repositories and for granting and withdrawing their registration. It can:

  • conduct investigations and on-site inspections;
  • impose periodic penalty payments to compel trade repositories to put an end to an infringement, to supply complete and correct information required by ESMA or to submit to an investigation or an on-site inspection;
  • impose fines on trade repositories where it finds that they have committed, intentionally or negligently, an infringement of this Regulation.

The European Securities and Markets Authority (ESMA) shall establish, maintain and keep up to date a register to correctly and unequivocally identify the classes of derivatives subject to the clearing obligation. The register shall be publicly available on ESMA's website.

Third countries: the decisions determining third-country legal regimes as equivalent to the legal regime of the Union should be adopted only if the legal regime of the third country provides for an effective equivalent system for the recognition of CCPs authorised under foreign legal regimes in accordance with the general regulatory goals and standards set out by the G20 in September 2009.

Current Situation:

  • Reporting to aTrade Repository (2014)

ESMA has officially transmitted to the European Commission (13th of November 2015) a RTS and an ITS replacing former approved texts (resp.148/2013 and 1247/2012). The aim of these updated texts is to fix issues appeared since the start of the requirement as well as to incorporate information today provided through its Q&A. On the 5th of April, ESMA has transmitted to the EC a new version of the RTS 151/2013 (rules for access, aggregation and comparison of date across TR). The three amended texts that should enter into force on the same date are still in the process of adoption by the EC.

  • Risk mitigation techniques for non cleared contracts (collateral exchange)

The second ESAs’ consultation is now closed (July 2015). This new version has taken into account the changes made at the international level: BCBS/CPMI have postponed the mandatory margins exchanges (starting date the 1st of September 2016 instead of December 2015) and have adopted a phase-in also for variable margins (but not the same as for IM).

On the 28th of July 2016, the EC has sent to the ESAs an amended version of the RTS.

The ESAs have rejected some of the amendments proposed by the EC (9/09/2016).

  • Clearing obligation

 

 

 

IRS wave 1: has started on the 21st of June 2016 with a phase-in depending on the category of the counterparties: 21/12/2016 for categ 2, 21/06/2017 for categ 3 and 21/12/2018 for categ 4.

IRS wave 2: will follow the same classification of counterparties (9/02/2017 – 9/07/2017 – 9/02/2018 – 9/07/2019)

CDS: will follow the same classification of counterparties (9/02/2017 – 9/08/2017 – 9/02/2018 – 9/05/2019)

NDF FX: no mandatory clearing for the moment

The Public Register for the clearing obligation under EMIR is on the website of ESMA (see page 1)

  • CCPs agreements

No change: 16 UE CCPs and 19 from third countries among them Nasdaq OMX, KDPW_CCP, Eurex clearing AG, LCH.Clearnet SA, CC&G, LCH.Clearnet Ltd and CME Clearing Europe Ltd, LME clear, BME Clearing, CME US

  • Equivalence

On the 13th of November, the European Commission has recognised the equivalence of regulation for 5 countries (Canada, Mexico, Switzerland, South Africa and South Korea). It follows previous determinations in 2014 for Australia, Singapore, Japan and Hong Kong.

The European Commission has adopted an equivalence decision regarding US CCPs supervised by the CFTC.

A MoU has been signed between ESMA and South Korean regulators on the 22nd of March 2016.

  • FX spots/FX forwards definition

The European issue regarding some FX forwards (which are in or out of the EMIR scope depending on the local transposition of MIFID1) should be fixed thanks to the level 2 of MIFID2. It is proposed in the final draft RTS from the ESAs regarding non cleared contracts to postpone the requirement for variation margins (for FX) to the earlier of the following dates: 31st of December 2018 and the entry into force of the level 2 of MIFID2. Thus fixing the issue related to the different dates of entry into force.

  • Other

As expected, the European Commission has issued in 2015 its consultation in respect of the revision process of the regulation

  • Documentation

ESMA has issued on the 6th of June a new version of its Q&A on EMIR.

Main steps:

Following its adoption by the Council on the 4th of July 2012, the final text for EMIR was published in the Official Journal of the European Union on 27th of July 2012. Its application date will therefore apply 20 days following its publication, the 16th of August 2012.

It was nevertheless only able to be applied once the technical implementing measures have been specified (the level 2 measures) regarding the recognition procedure for CCPs, the classification of OTC derivatives, the definition of calculation rules for margin calls for the remaining OTC transactions. 

Except two of them (on third country and on margin requirements for non-centrally cleared derivatives), standards have been adopted by the Commission on the 19th of December and published in the EU JO the 23rd of February 2013 for an entry into force the 15th of March 2013. This date is the first day for some of the requirements regarding risk mitigation techniques for non cleared contracts like timely confirmation (all parties are concerned) as well as valuation (for financial counterparties and non financial ones when above the thresholds – NFC+). Non financial counterparties are also required as of the 15th of March to declare them as NFC+. This is also the start of the period for Trade Repositories and CCPs to send their application form to their authorities. Other requirements linked to the risk mitigation techniques (except those on the margins) will enter into force 6 months later, ie the 15th of September 2013.

The reporting to a Trade Repository firstly foreseen to September 2013 for IRD and CDS, then postponed to the 1st of January 2014 started finally on the 12th of February 2014 irrespective of the class of assets for both listed and OTC derivatives). Indeed, ESMA agreed the first Trade Repositories on the 28th of November 2013.

On the 18th March 2014, NASDAQ OMX was the first CCP to be agreed under EMIR; this date is important regarding the frontloading requirement. A trade on a product cleared by this CCP concluded or novated at this date or after may be subject to the clearing obligation if that one was pronounced by ESMA

Two years after their Discussion Paper, the 3 ESAs (ESMA, EIOPA et EBA) issued on the 14th of April 2014 their Consultation Paper on risk mitigation techniques for OTC derivatives contracts not cleared by a CCP.

July 2014, ESMA issued two consultation Papers on the clearing obligation; one for IRD, one for CDS.

1st of October 2014: ESMA has communicated its draft RTS on IRD to the Commission for endorsement

29 January 2015: On IRD, a second version of the draft RTS has been published by ESMA following the comments made by the Commission on the first version. A revised opinion has been issued by ESMA on the 6th of March.

2015: ESMA issued a second consultation on the mandatory clearing for other IRDs (fixed-to-float interest rate swaps denominated in CZK, DKK, HUF, NOK, SEK and PLN as well as forward rate agreements denominated in NOK, SEK and PLN).

26 November 2015: a MoU has been signed between ESMA and CFT (Hong Kong) for exchange of data held in Trade Repositories.

8th of March 2016: the ESAs have issued their final draft RTS regarding margins for uncleared contracts and submitted it to the European Commission for approval.

31st of March 2016: ESMA has fined DDRL (subsidiary of DDTC) €64,000 for negligently failing to put in place systems capable of providing regulators with direct and immediate access to derivatives trading data (between March 2014 and December 2014). ESMA has also issued a public notice detailing the negligence.

26 May 2016: the final draft RTS (including both MIFIR and EMIR) on indirect clearing arrangement has been issued. It is now in the process of adoption by the EC.

13th June 2016: the European Commission has informed the European Parliament that the adoption process for the RTS regarding margins for uncleared contracts will last more than the 3 normal months.

21 June 2016: Start of the mandatory clearing for some IRS

Next Steps:

Foreseen

Process of adoption of the ESAs’ draft RTS on non cleared contracts

Adoption by the EC of the three texts on reporting to TR

October 2016

Start date of the frontloading for categ 1 and 2 regarding the clearing of CDS

 

Contact list : EU Commission / EU Parliament

EC : DG Financial Stability, Financial Services and Capital Markets Union
Unit C2 – Financial markets infrastructure

  • Martin Merlin
  • Jennifer Robertson (deputy & acting)

EP :  

SGSS/SMI Contact: Sylvie Bonduelle (sylvie.bonduelle@sgss.socgen.com)

T2S Project

Reference Texts: Initiative 07/07/2006
Official launch of the T2S project by the ECB on 17/07/2008

Launch Date: T2S implementation plan is currently under review. Initially the following 4 waves of migration were planned:

  • Wave 1(22 June 2015): BOGS, CSD of Romania, CSD of Malta, MonteTitoli, Six Sis Ldt
  • Wave 2 (28 March 2016): NBB-SSS, Euroclear ESES, Interbolsa,
  • Wave 3 (12 September 2016) : Clearstream Banking Frankfurt, OeKB, LuxCSD, VP Securities, VPLux,
  • Wave 4 (6 February 2017) : Iberclear, CSD of Slovenia, Euroclear Fin, CSD of Estonia, CSD of Lithuania, CSD of Slovenia, Keler Hungary, BNY Mellon

BNY Mellon has confirmed it will not launch its CSD activity. Montetitoli postponed its migration to 2015, August the 31st and Euroclear has indicated its uncapacity to migrate on September 2016. 3 options have been further analysed to redefine a new planning during a dedicated T2S CSG on 2015 December the 10th and the following scenario has been issued and been endorsed by the Council of Governor in 2016, March the 18th.:

Wave 1
22 Jun 2015 - 31 Aug 2015
Wave 2
28 Mar 2016
Wave 3
12 Sep 2016
Wave 4
6 Feb 2017
Final wave
18 Sep 2017
Bank of Greece Securities Settlement System (BOGS) Interbolsa (Portugal) Euroclear Belgium Centrálny depozitár cenných papierov SR (CDCP) (Slovakia) Baltic CSDs (Estonia, Latvia, Lithuania)
Depozitarul Central (Romania) National Bank of Belgium Securities Settlement Systems (NBB-SSS) Euroclear France Clearstream Banking (Germany) Euroclear Finland
Malta Stock Exchange   Euroclear Nederland KDD - Centralna klirinško depotna družba (Slovenia) Iberclear (Spain)
Monte Titoli (Italy)   VP Lux (Luxembourg) KELER (Hungary)  
SIX SIS (Switzerland)   VP Securities (Denmark) LuxCSD (Luxembourg)  
      Oesterreichische Kontrollbank (Austria)  

Presentation:

T2S or TARGET 2 - Securities is a European initiative proposed by the European Central Bank (ECB) on 7 July 2006. The project was officially launched on 17 July 2008 and entrusted to 4 European central banks (France, Germany, Italy and Spain). This initiative stemmed from the willingness of the European authorities to encourage the consolidation of European post-market infrastructures, specifically Central Securities Depositaries (CSDs), in order to promote better market integration and facilitate cross-border investments with reduced costs and processing delays in a secure environment.

Profiting from the successful rollout of the Target 2 platform, which deals with payments in euros between European national central banks, the ECB wanted to provide European CSDs with one single platform for processing the settlement of securities in European central bank money. Initially only the Euro zone was targeted, but the ECB quickly realised that extending the scope to other European countries would be beneficial. To this end, the T2S platform, which uses the same technical architecture as T2, centralises securities accounts of the Central Securities Depositories (CSDs) connected to T2S with their cash accounts opened with the central banks. The consolidation of the accounting environments for platform participants enables automatic settlement between CSDs, as well as simultaneous securities delivery and cash settlement.

T2S is only a technical platform and not a new CSD for Europe. As the Eurosystem only acts as a platform operator, participating CSDs and national banks remain responsible for their accounts and for supervising the processing cycle. Moreover, only settlement is concerned, all other services relating to the financial instruments, such as issuer services or corporate actions, will continue to be managed by the CSDs. Depending on the client profiles, CSDs will be able to offer them the opportunity either to connect directly to T2S (which is expected to be the case for pan-European players, major custodians, clearing houses and stock exchanges) or to continue to use their legacy channel for transmission of their instructions (for smaller scale players and/or with a mainly domestic business).

Current Situation:

  • Validation of the Framework Agreement by the Council of Governors (17/11/ 2011)
  • Choice of two Value Added Network (VAN) suppliers (30/11/2011). The licences have been attributed at SWIFT and SIA/COLT (23/12/2011). CoreNet has been retained by the ECB for the dedicated line option for T2S connectivity (17/11/2011): no T2s actor declares its interest to use this connectivity option, so the Dedicated link option will not be made available by the ECB.
  • The Currency Participation Agreement (the possibility for the central banks outside the euro zone to allow their local currency to participate in T2S) has been validated by the Governing Council
  • Le Currency Participation Agreement (possibilité pour les banques centrales européennes hors zone euro d'autoriser leur devise nationale à participer à T2S) a été validé par le Conseil des Gouverneurs le 23/02/2012
  • 17 CSDs of euro countries and 5 of non-euro countries signed the framework agreement (including BNY Mellon, recently agreed as a CSD)
  • 31 candidates for DCP (Direct Connected Participant) on 2013 October the 15th
  • 22 June 2015: BOGS, Romania, Malta, Six Sis Ltd migrated to T2S
  • 31 August 2015 Monte Titoli migration
  • October 2015 ESES migration postponment request from Euroclear
  • 10 December 2015 T2S CSG draft the new migration planning
  • 18 March 2016 Governor Council endorsed T2S CSG planning proposal
  • 9 September 2016 confirmation of final ESES go decision to migrate to T2S

Next Steps:

12 September 2016 wave 3
6 February 2017 wave 4
18 September 2017 final wave 

Find out more :

T2S General specifications 

URD and UDFS

Framework agreement

Currency participation agreement:

 

SGSS Contact: hugh.palmer@sgss.socgen.com, Head of T2S Program.

 

Last update :  9 September 2016

 

 

 


[1] Trans European Automated Real time Gross settlement Express Transfer

Harmonising settlement cycles at T+2

Reference documents

Article 5 of the regulation on CSDs text issued on 2014, August the 28th
http://eur-lex.europa.eu/legal-content/FR/TXT/?uri=uriserv:OJ.L_.2014.257.01.0001.01.FRA
http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:32014R0909&from=FR
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014R0909&from=FR

Specifications for the French Financial market

Article 27 of the Act of 11 October 2010 integrating article L 211-17-1 into the Monetary and Financial Code

Date(s) of effect

6 October 2014: date of the first transactions traded on a settlement basis of 2 days: for most countries in Europe.

1st January 2015: Deadline according to the CSD Draft Regulation (see corresponding sheet): saving exceptions that may push back this deadline to 1st January 2016 or within the 6 months prior to a country migrating to T2S.

Introduction

Article 5 of the European regulation on Central Security Depositaries (CSD R, see our summary sheet) imposes a harmonisation of settlement cycles within two days of the trade date, saving a bilateral agreement between both parties in the framework of transactions outside regulated markets.

In parallel, the change made to the French Monetary and Financial Code on 11 October 2010, followed this trend by imposing this reduction in the settlement cycle to two days on condition an equivalent system applied in the other European countries.

Given the uncertainties as to the adoption of the draft CSD R and the increase in the number of major market projects (Move to T2S, implementation of standards on the processing of transactions on securities in Europe, etc.) the French financial market launched an impact study in 2011 for the various players enabling an optimal date for the move to T+2 to be targeted if the January 2015 date was confirmed by the CSD Regulation.

The Paris Market thus published an initial Financial Market Specifications document in 2013 strongly recommending the date of 6 October 2014. This recommendation was shared with the members of the Euronext zone who adopted it in turn.

At the end of 2013, given how bogged down the CSD Regulation was and seeing that the French project, then that of the ESES zone, tended to spread throughout Europe, the T2S Harmonisation Steering Group set up an extended work group aimed at monitoring the move to D+2 in Europe and more particularly in the T2S zone by making some recommendations.

Current situation

  • 11 October 2010 adoption of the 2 day Settlement Cycle in France, subject to an equivalent movement in Europe,
  • 7 March 2012: draft CSD R text adopted by the Commission
  • 4 April 2012: opening of negotiations on CSD R at the Council
  • 4 February 2013: vote in ECON of the CSD R draft amended by the Parliament.
  • 20 May 2013. plenary vote on the CSD R in the Parliament.
  • 26 September 2013: agreement of the Council, opening of the trialogue procedure on the CSD R (Council, Parliament, Commission).
  • 15 November 2013: 1st meeting of the T2S Task Force on T+2
  • 28 August 2014: official publication of CSD R

Current calendar for the switchover to T+2


Next Steps

  • 6 October 2014, switch over T+2
  • 1 January 2015: Current T+2 implementation deadline saving exceptions enabling an extension of the deadline to 1 January 2016.

SGSS/SMI contact

Pierre Colladon

CSD Regulation

Reference text:

Final text dated published to the EC Journal Officiel of 2014, August the 28th.
http://eur-lex.europa.eu/legal-content/FR/TXT/?uri=uriserv:OJ.L_.2014.257.01.0001.01.FRA
http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:32014R0909&from=FR
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014R0909&from=FR

Date(s) of effect:

Officially published on 2014, August the 28th, this regulation enters into force on 2014 September the 17th with few exceptions, some parts being immediately effective and some others needing ESMA and EBA standards.

  • “T+2” (settlement cycle within the 2 days after the trading date) is mainly in place (deadline on January 2015, the 1st or six months before any outsourcing of a Securities Settlement Engine-SSE),
  • Securities dematerialization or immobilization (before 2023 for new issuance, and 2025 for all)
  • CSD has 6 months delays after ESMA or EBA standards enforcement currently supposed this deadline is supposed to be between end of 2016 and 2017 first quarter.
  • Following measures are already effective:
    • General framework (scope, concepts)
    • Book entry principle for dematerialized tradable securities
    • Account segregation possibilities for client of CSD participant at CSD level
    • Definition of Settlement Finality 1 by each CSD
    • Outsourcing possibilities for core CSD function (SSE in view of T2S).
  • Following measures imply publication of technical advice or technical standards by ESMA or EBA and their enforcement are currently forecasted to be between end of 2016 and 1st semester 2017 :
    • Settlement discipline regime including information and confirmation of trade execution as quick as possible, obligation to report “internal settlement” to authorities, penalties and “buy in” procedures. ESMA mentions a 24 months period of implementation (“phasing”) leading to effective implementation during summer 2018.
    • Business framework for CSD activities (designation of competent authorities, CSD licensing, passport of CSDs, third countries CSDs, organizational and transparency rules and CSD governance, risk mitigation, integrity of issuance, free choice of a CSD for an issuer...
    • Segregation between CSD business and banking activities including derogatory regime
      Interoperable links between CSDs before September 2019 (technical standards to be produced by end of summer 2016).

Following its Discussion Paper of March 2014 (deadline for answers on 2014 May the 22nd) ESMA leaded a public consultation in December 2014 the 18th on draft technical standards and a technical advice to the Commission on delegated acts concerning penalties for settlement defaults with a deadline on 2015, February the 19th).
In the same time, EBA, in cooperation with ESMA has launched a consultation on banking service provision and credit and liquidity risks monitoring including intraday aspects on 2015, February the 27th with a deadline on 2015, April the 27th.
Following its demand for delay, ESMA has published draft technical standards on 2015, September the 28th to European Commission regarding measures related to CSDs and internal settlement report from custodian to their authorities. This has been completed by prudential measures related to banking activities complementing CSD ones.
The Authority has decided to make a new consultation during the summer 2015 regarding where execution of Buy In should be executed or operated (trading party, trading party with fall-back option, CSD participant level operating the buy-in) and ESMA published its draft technical standards and associated reports in 2016 February, the 1st.
European Commission has a 3 months review period. If accepted without change, European Parliament and Council will have a one month delay that can be repeated to endorse them. If not accepted without modification, this delay will be a 3 months period that can be also repeated.

If no adaptation period is mentioned, standards are enforced 20 days after their publication to the official gazette of European Union. An exceptional extension of 24 months of “phasing” period has been suggested by standards for settlement discipline implementation due to T2S waves.
European Authorities aim all level II text to be enforced by end of summer 2016.

Presentation

The European CSD text has the objective of defining the regulatory framework in which the function of Central Securities Depository must be exercised and of improving settlement in Europe.
This text takes the form of a regulation enabling immediate application without requiring transposition into local law.
The draft is based around 6 chapters and an annex specifying the services falling within the scope of the CSD regulation.

Title 1 describes general framework of the text (scope and concepts).It defines the Central Securities Depository as a legal entity managing a settlement/delivery system and holding either a notarial position or a central securities account management position (article 2 (1) and appendix A).

Title 2 has the purpose of improving settlement and associated discipline in Europe:
By imposing book entry principle for listed securities on regulated markets (article 3) with a deadline postponed in 2025.

  • By instituting a settlement/delivery cycle taking place a maximum of two days after trading date (T) (article 5). It targets securities not represented by certificates admitted for the operations of the central securities depository and traded on regulated market (and on the MTF and OTF trading platforms). Harmonisation on “T+2” must be effective by 1st January 2015 with specific cases of postponement to 2016 or six months before a T2S migration. Over The Counter operations are by definition excluded from the scope.
  • By describing measures for management of settlement failures (articles 6 and 7), in particular by implementing penalties and Buy In procedures. Proposals vary within a window of deadlines between 4 to 7 days after Intended Settlement Date with exception for SME growth securities (14 days). Potentially each CSD may define its own deadline in this window. The level 1 text approach is strict with a systematic (mandatory) Buy In procedure. The level 2 standards are looking into where to operate this Buy In procedure. Procedure should take in account cooperation between CCPs and CSDs.
  • By imposing to Custodians to report “internalised settlement” every 3 months, meaning settlement done in the books of a bank.

Title 3 aims to design the business framework for CSD activities. It;

  • defines the framework for issuing licences and for supervision of CSDs defined by the local market authorities reporting to the ESMA,
    • it includes supervision by National Central Bank concerned by the currency of payment
    • the licence may include investment services, provided the CSD complies with MIF
  • permits a CSD to outsource core services (art. 19) allowing T2S to be used by CSD
  • introduces the concept of passports for CSDs, (art. 23)
  • authorises third countries CSD to operate in Europe provided being respectful of the rules of hosting country and authorises European CSDs to have links with third countries CSDs.
  • Imposes rules of organisations and transparency to CSD, rules of security and integrity including to CSD participants the obligation to offer segregated accounts in the name of the clients at CSD level if requested by the investor.
  • Imposes CSD to define SF1 (moment of entry)
  • Defines rules in regards with risk mitigation (capital requirements, investments, links…)
  • authorises an issuer to freely choose its central securities depository guarantor of its issue.

Title 4 defines a clear separation between the banking institutions and the Central Securities Depository is established and conveyed by segregation between the settlement/delivery activities and their translation into cash, which is assured by the banks (central or commercial). The principle of a “limited purpose bank” is introduced to offer ancillary services to Settlement (art 54-5). However CSD may provide services listed in appendix C with a specific derogation.

The last chapters cover sanctions and fix the period for adaptation of CSDs affected by the text depending on the issuance of ESMA Standards.

Current situation:

14 March 2012: draft text adopted by the Commission

4 April 2012: starting period of Council negociation

4 February 2013 : ECON vote of the amended project (Parliament process only)..
20 May 2013 Parliament Plenary vote.

25 September 2013: Council agreement allowing trilog process (Council, Parliament, Commission).

24 February 2014 COREPER final acceptation

15 April 2014 vote by European Parliement

22 May deadline to answer to ESMA Discussion Paper

28 August 2014 : official publication at “Journal Officiel” of European Commission

17 September 2014 text enforcement provided exceptions or publication of standards if needed.

18 December 2014 ESMA consultation on technical standards and technical advice and delegated act related to penalties on settlement default.

6 October 2014 voluntary switch to T+2 of the main part of European securities industry following the French Initiative

1st January 2015 : deadline to switch to T+2 (exception of Spanish market)

19 February 2015 ESMA Consultation deadline

27 February 2015 EBA Consultation (standards on liquidity and banking aspects)

27 April 2015 end of EBA Consultation

18 June 2015 initial deadline for ESMA standards and technical advice presentation to European Commission, postponed to September 2015.

6 August 2015 End of the specific ESMA Consultation on Buy In

18 September 2015 ESMA publication of draft standards and technical advice regarding CSD regulatory framework and reporting of internal settlement by custodians.

15 December 2015 EBA publication of draft standards on prudential measures regarding banking activities dedicated to CSD

1st February 2016 publication of draft technical standards and associated reports on settlement discipline regime

Next steps:

4 October 2016, final switch to T+2 of Spain (listed securities)
October 2016, publication of final technical standards (Level II) regarding licensing of CSD and agreement procedure
End of 2016, 1st quarter 2017 final technical standards (Level II) regarding settlement discipline

  • End 2018, 1st quarter 2019 end of « phasing » period to implement settlement discipline regime

1st January 2023 any new security shall be issued in book entry
1er January 2025 all securities shall be in book entry

SGSS/SMI contact:

Pierre Colladon (pierre.colladon@sgss.socgen.com)

Sylvie Bonduelle (sylvie.bonduelle@sgss.socgen.com)

 

Find out more:

Impact study
http://ec.europa.eu/internal_market/financial-markets/docs/SWD_2012_22_en.pdf 

Last update 2016, September the 8th

Legal Entity Identifier (LEI) CFTC Interim Compliant Identifier (CICI)

Reference documents

Standard (ISO 17422)
FSB website
ROC website
FSB charter on ROC
List of "Pre-LOUs" within the framework of issuing "Pre-LEIs"
List of assigned CICIs
Pre-LEI attribution form of INSEE and consultation list of existing Pre-LEI given by INSEE

Effective date(s)

  • CICI: March 2013 for derivatives processed in the USA
  • Automn 2013 : EMIR imposed the use of LEI for some derivatives in Europe
  • LEI: 3rd quarter of 2014 obligation to use the code in financial transactions.

Introduction

Conducted by the FSB (Financial Stabilty Board), the creation of the Legal Entity Identifier (LEI) follows the difficulties encountered during the identification of the legal entities of Lehman Brothers that were involved in the financial transactions and affected by the failure of the establishment.

LEI aims to respond to the need to distinctly identify the legal entities (other than individuals) involved in financial transactions.

In this framework, a codification standard has been defined (ISO 17422). This standard makes it possible to establish codes with 20 alphanumeric characters to which additional public data (name, address, status of the identifier, etc.) and non-public data (legal form, "parent" entities, i.e. the entity that is liable in the event of failure, etc.) are attached.

The deployment of an organisation able to administratively manage the LEI is associated to this definition of the standard. This organisation came into effect in the 2nd quarter of 2013 and revolves around three bodies:

  • the ROC or Regulatory Oversight Committee, the worldwide administrative supervisory body
  • the COU or Central Operating Unit in charge of data integrity
  • the LOU or Local Operating Unit which assigns the LEIs. It is, by jurisdiction, the interface with the establishments and therefore the "regional" relay for the overall organisation.

During the current interim implementation phase of the Global Legal Entity Identifier System (GLEIS), LOUs are considered as “pre-LOUs” and they attributes interim LEIs named as “pre LEIs”. For instance, the current CICIs used for derivatives in USA are pre LEIs.

There are more or less twenty Pre LOU including :  CICI Utility (DTCC USA), INSEE (France),WMdatenservice (Germany), London Stock Exchange (UK), Takasbank (Turkey)

In France, the INSEE has been declared as "pre-LOU" on March 2013, the 18th based on the consideration that French administration will implement LEI through a correspondence between the SIREN code and the LEI with applicable fees according to the guidelines given by Ministry of Finance and Economy decree of June 2013, the 28th.

Two procedures exist for the assigning of LEIs or pre-LEIs (CICIs):

  • at the initiative of the entity concerned (Self Registration)
  • at the request of a third party (Third Party Registration). The counterparty that has an identifier assigned to it must verify the data. An LEI therefore has a status (certified or not certified).

It is to be noted that in the interim phase, to date, about 700 French establishments have been assigned a CICI as requested by a third party of which only 100 are certified.

Current situation

June 2012: During Los Cabos summit, G20 validated the Global Legal Entity Identifier System (GLEIS) in order to identify actors involved in the financial markets. This has open a Pre-LEI phase. In the USA as a consequence of the Dodd-Franck Act, several associations, financial institutions and the CFTC (US Commodity Futures Trading Commission) have entrusted DTCC and SWIFT with the assigning of unique identifiers used as an interim solution for setting up the LEI. This US pre-LEI is designated as CFTC Interim Compliant Identifier (CICI) and is already active. It has become mandatory in March 2013 for derivatives processed in the USA. Other countries put in place progressively their own organizations.

6 February 2013: A launch group for the Market organisation concerning the LEI project in France revolving around a Technical Group for the market, which supervises six workshops, one of which addresses the migration of the CICI to the LEI.

18 March 2013: INSEE declared as "pre-LOU"

March 2013: obligation to use the CICI for derivatives processed in the USA

2nd Quarter of 2013: setting up of the administrative organisation

September 2013: launch of INSEE service of on line demand in French for a LEI

December 2013: launch of french INSEE service of on line demand in English for LEI

February 2014: EMIR imposed the LEI for trading some derivatives

Next Steps

Central Operating Unit (COU) is in the process of being established
3rd Quarter of 2014: mandatory to use the LEI code on financial transactions

To find out more:
SGSS/SMI contact:
Pierre Colladon

Financial Transaction Tax

Reference texts:

http://bofip.impots.gouv.fr/bofip/7561-PGP.html?ftsq=TAT&identifiant=BOI-TCA-FIN-10-20140115

(Texts are available only in French)

Date of application:

1st August 2012

Presentation

The French Financial Transaction Tax (FTT), introduced by the 1st Amended Finance Law for 2012, published on March 15, has come into force on August 1st 2012. Administrative guidance was issued on August 2, and implementation decrees were published on August 7.

 

The FTT refers indeed to three different taxes: a tax on the acquisition of eligible French listed stocks (FTT-Stocks), a tax on high frequency trading (FTT-HFT) and a tax on “naked” CDS on EU sovereign debts (FTT-CDS).

 

The FTT-Stocks which rate was finally 0.2%, applies to acquisitions for consideration of listed shares of French companies whose market capitalization is over €1.bn on December 1st of the year before the year of taxation. Certificates representing registered shares (such as ADR, EDR) have been included in the scope of the tax through the 2nd Amended Finance Law.

The accountable party for the FTT-Stocks is the Investment Services Provider (ISP) executing the buy order. In case of several ISP, this is the one receiving directly the buy order from the buyer giving that it is agreed for the “Execution on behalf of clients”. If the buyer is itself an ISP, it is the accountable party. Finally, for acquisitions realized without the participation of any ISP, the tax is payable by the Custodian of the buyer. It is important to note that the definition of the accountable party has been notably changed a few days after the entry into force of the new tax requiring companies to review their process in order to be compliant with the new texts.

The FTT-Stocks is due irrespective of the the nationality of the ISP, those of the accountable party, the investor’s tax residency as well as the place of trading, the type of market or the place of settlement of the transaction. The tax is based on the acquisition value of the securities as expressed in the “contract”. The tax is due when the transfer of ownership is recorded. It is assessed on the daily net buying position for a same day. 9 cases of exemption are also part of the tax.

The payment of the tax jointly with the declaration file (of taxable transactions but also exempted ones) has to be done every month (excepted for the first three months) by the accountable party either directly or via a member of the CSD – most often to Euroclear France designated as the tax collector by the French Tax Authority.

The FTT-Stock is collected since the 1st of August 2012 (December 2012 for ADR transactions). Lending/borrowing transactions as well as exempted corporate actions with new issuance have to be declared (they are exempted) since the 1st of January 2013.

Amendments have been made both in June 2013 and January 2014 in order to clarify the original texts regarding the scope, the accountable party, the net position and to give some precision for UCITS.

Latest news:

A new amendment has been issued on the 1st of August 2014 in case of several ISP involved in the process. The accountable party used to be the one receiving directly the buy order from the buyer giving that it was agreed for the “Execution on behalf of clients”. Now under certain conditions the accountable party could be the ISP which actually executes the order.

 

Next steps

No real next steps (except precisions/amendments provided by the French Tax Authorities). The tax is in place and should remain until the go live of the European tax.

 

Learn more:

Many documents have been issued on this topic; the main are:

-       Euroclear France’s DSD (how to pay and declare)

-       The AFTI White Paper (more dedicated to member of EOC France)

-       An explanatory note from the AMAFI (for ISP)

SGSS/SMI contacts: Sylvie Bonduelle  (sylvie.bonduelle@sgss.socgen.com)

Date de dernière mise à jour : 01/08/2012

 

FATCA Legislation

Reference Text: US ‘Internal Revenue Code’ chapter 4 sections 1471-1474

Link: http://www.irs.gov/pub/newsroom/reg-121647-10.pdf

Date(s) of Application:

01/01/2013 to 01/07/2013: contractualisation of agreements with the IRS (for application 2014)
01/07/2014: beginning of withholding tax application on US securities revenues
01/07/2014: start of due diligence for individuals
15/03/2015: beginning of reporting to the IRS
01/01/2015: start of due diligence for entities

01/01/2017: beginning of withholding tax on other US payments (gross proceeds …)


Presentation

The American FATCA (Foreign Account Tax Compliance Act) voted on 18 March 2010 has the objective of reinforcing the fight against tax evasion of US taxpayers. It aims to require that foreign financial institutions (i.e. outside the US) report revenue paid to American taxpayers, thus enabling automated data cross-checking with the individual declarations of these taxpayers.

Participating Foreign Financial Institutions (PFFI) must therefore identify and document all accounts for clients susceptible of being US taxpayers. In the event that FFI’s governing state has concluded a cooperation agreement with the IRS, the PFFI status is acquired; if this is not the case, FFI must set up an agreement directly with the IRS.  It should be noted that management companies and UCITS are included in the scope of the financial institutions targeted by the FATCA.  Information about PFFI payments to US taxpayers must be sent on an annual basis to the Internal Revenue Service (IRS) either from their own tax authorities in the case of an inter-state partnership or directly to the IRS if such partnership does not exist. In the latter case, the IRS is asking PFFIs to deduct a punitive tax of 30% on all revenues and proceeds from assets from a US source, received directly or indirectly, intended for counterparties not having the status of PFFI and to “recalcitrant” clients, i.e. clients that may be US persons and having not offered evidence to the contrary , or having recognised their status as US person but having refused to withdraw banking secrecy.

In the event where a financial institution is not considered as a PFFI, it will itself be subject to an upstream deduction of a punitive tax of 30% on all payments from a US source (direct or indirect) that will be paid whether the final beneficiary of these revenues is itself or its clients.

Current Situation:
Update in march 2010 of internal Revenue Code” by the IRS further to the FATCA law.

Publication of several manuals during 2010-2011 and, on  8 February 2012, the regulation project which have been then amended again on 24 October 2012.

Publication on 26 July 2012 of the first Intergovernmental Agreement (IGA) model drafted by the IRS and several European states (France, Germany, the United Kingdom, Italy and Spain) explaining the partnership approach with bilateral exchange of  fiscal information.

Publication on 14 November 2012 of a second IGA model for countries that don’t require reciprocity from the IRS (only one-way communication of fiscal information to the IRS)
Publication on 17 January 2013 of the final FATCA regulation.

Publication on 12  July 2013 of the notice 2013-43 announcing a delay of six months on key timelines and specifying the practical arrangements for the FFI during the period preceding the signing of an intergovernmental agreement between their country and the U.S.
Opening on 19 August 2013 of the FATCA portal for PFFI agreements registration.
Publication on  27 June 2014 of the new IQ agreement endorsing the coordination points with FATCA.
July 1, 2014: Start date of FATCA procedures for opening new accounts and for withholding tax on U.S. source payments.
January 1, 2015: Start date of FATCA procedure for opening new accounts for entities.
March 15, 2015: beginning of the first FATCA reporting

Next Steps
01/01/2017: beginning of withholding tax on other US payments (gross proceeds …)

SGSS Contacts:

Sylvie Clerbout (Sylvie.clerbout@sgss.socgen.com)

Alain Rocher (alain.rocher@sgss.socgen.com)

Find out more

- IRS website     http://www.IRS.gov/businesses/corporations/article/0,,id=236667,00.html

DODD FRANK ACT ( Title VII)

Reference document

Dodd–Frank Wall Street Reform and Consumer Protection Act.

Applicability date

21/07/2010

Introduction

The Dodd-Frank Act approved on 21 July 2010 is a vast reform covering numerous aspects of US financial regulation. Like the recent European regulations, it targets 4 major issues (preventing systemic risk, regulating the derivatives markets, improving transparency, and increasing protection for consumers and shareholders).

The new regulations applicable to the OTC derivatives market are covered in Title VII of the Dodd-Frank Act; their oversight will mainly be handled by the two American regulators, i.e. the SEC for swaps and the CFTC for other types of derivatives. These regulations revolve around 3 main undertakings:

  • Reinforcing capital requirements and regulatory reporting for the main players on those markets, i.e. swap dealers and major swap participants.
  • The requirement to use clearing houses for certain categories of derivatives. The exact scope of the products concerned is still to be determined by the SEC and CFTC but should only include standardised OTC products, thus excluding swaps and forward foreign exchange contracts.
  • The requirement to submit reports to central Swap Data Repositories (SDR), via clearing houses for cleared products, and directly for non-cleared products. This reporting will need to be done in real time for derivatives transactions, whether cleared or not, in order to make price and volume data available to the public as soon as possible after the transactions.

The clearing and reporting requirements also apply to non-US persons involved in derivatives transactions with US persons.

Current situation

  • 28 November 2012: the CFTC published the final clearing rules
 for certain types of swaps (credit default swaps and interest rate swaps).

31 December 2012: start of registration for swap dealers and major swap participants
 start of reporting for interest rate swaps and credit swaps
  • 28 February 2013: start of reporting for derivatives relating to equities, foreign exchange and commodities
  • 11 March 2013: start of clearing requirement for swap dealers and major swap participants;
  • 4 October 2013: reporting requirement extended to all derivatives market participants


SGSS/SMI contact

Alain Rocher

Shadow Banking

Text of reference

Consultation du FSB on shadow banking from 18 November 2012

Description

The Financial Stability Board (FSB), created in April 2009 by the G8, has defined « Shadow Banking » as a system in parallel of credit intermediation, activity traditionally the preserve of banks. It involves entities and activities outside the traditional banking system.

According to the FSB, economic systems adopted by this finance in parallel allow it being governed by a different regime from traditional banking activities in particular controls or taxation. Further to the FSB Report, Shadow Banking would take mainly 2 forms which are securitization and the development of the High-yield Bond market.

But this term «Shadow Banking» covers also activities like securities lending and repos and more widely activities carried out by Money Market Funds and other investment funds (capital investment, hedge funds, etc ..)

Right or wrong politicians and regulators have considered that Shadow Banking activities had played a crucial role in the financial crisis of 2008, deriving from real economy money from traditional banking system.

The report of the FSB estimated the banking system in parallel to USD 67 000 billion allocated between USA (USD 23 000 billion), the EURO zone (USD 22 000 billion) and the UK (USD 9 000 billion). In 2011 cumulated assets of the sector would represent 111% of the aggregated GDP of G20 countries and 25% of assets of the financial sector.

USA, the euro zone and the UK hold together 81% of these non banking assets. The FSB Report unveils a strong growth of some Shadow Banking activities in emerging countries: China, ’Indonesia and Russia.

Past Events

  • 2010 – The Financial Stability Board (FSB), mandated by G20 to issue recommendations to strengthen oversight and regulation of the Shadow Banking.
  • 19 March 2012 - Green Paper of the European Commission on Shadow Banking.
  • 18 November 2012 - The FSB published a series of recommendations to strengthen oversight and regulation of the Shadow Banking. Comments were expected for 14 January 2013.
  • 20 November 2012 - The European Parliament voted a resolution aimed at improving the shadow banking regulation.
  • 28 January 2013 – FSB was set up as an association under Swiss Law.
  • 29 January 2013 - The FSB published replies received to the 4 reports published on 18th November 2012. These answers will contribute to finalize recommendations of the FSB by September 2013.
  • June 2013 – The SEC published its consultation (700 pages)on Money Market Funds (3 months) http://www.sec.gov/rules/proposed/2013/33-9408.pdf
  • 29 August 2013 – The FSB publishes 3 new reports including recommendations to address Shadow Banking risks in the securities lending & repo activities
  • 4 September 2013 – The European Commission (EC) publishes a draft regulation for money market funds out of the scope of the UCITS 4 Directive
  • 29 January 2014 – The EC adopted a proposal for a regulation to stop the biggest banks, TBTF (*) from engaging in proprietary trading and to give supervisors the power to require those banks to separate other risky trading activities from their deposit-taking business.
  • This proposal provides a set of measures aiming to enhance regulators’ and investors’ understanding of securities financing transactions (STFs). These transactions have been a source of contagion, leverage and procyclicality during the financial crisis and they have been identified in the Commission’s Communication on Shadow Banking as needing better monitoring
  • In parallel of this reform, the EC imposes the transparency of some transactions in the shadow banking sector (And in particular operations of securities/lending activities because they enter the scope of  SHADOW BANKING).  If this  reform is adopted, it would impose to UCITS and AIF a reporting of financing operations on securities.

Situation as of today

The EC received lots of comments on the draft regulation as of 4th September 2013. More than 800 amendments have been made to the Bill. But no approval has been reached within ECON and project has not been submitted to the European Parliament in April 2014. We need to wait until September to see how this project will be reactivated by the new Rapporteur within ECON Commission.

In March 2014, the European Commissioner Michel Barnier indicated that securitization could be re-visited, in particular for pushing the growth in Europe, if it is well designed with a regulatory framework

At international level after G20 summit of St Petersburg in September 2013, the FSB will render an account to the G20 in November 2014 on progress made regarding different actions planned within its recommendations/publications.

Regarding the draft banking reform published on 29 January 2014, possible impacts on our business remain to be identified, even if it is still difficult at this stage, in the absence of a vision clear and precise.

Finally the SEC has published its new rules on Money Funds on 23rd July 2014. These rules might influence new discussion on MMF European regulation draft.

To know more

Contact SGSS/SMI

Jean-Pierre Gomez

(*) TBTF: Too big to fail

Money market funds

Text of reference: Draft proposal of the European Commission - 4 September 2013

Link:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013PC0615&from=FR

Description

The Financial Stability Board (FSB), created in April 2009 by the G8, has defined SHADOW BANKING as a system in parallel of credit intermediation, activity traditionally the preserve of banks. It involves entities and activities outside the traditional banking system. For further details on SHADOW BANKING please refer to Fact sheet on SHADOW BANKING.

Among activities linked to the banking system in parallel so-called Shadow Banking are included Money Market Funds.

Key dates

  • 2009 – The Financial Stability Board (FSB), mandated by G20 to issue recommendations to strengthen oversight and regulation of the Shadow Banking.
  • 29 August 2013 – The FSB publishes 3 new reports including recommendations to address Shadow Banking risks in securities lending & repo activities.
  • 4 September 2013 – The European Commission (EC) publishes a draft regulation for money market funds out of the scope of the UCITS 4 Directive.

This regulation aims at imposing stricter diversification rules and the obligation to put in place a buffer for Money Market Funds with constant NAV (C-NAV) (*). It forces a buffer of 3% for money market funds with CNAV, despite facing opposition from the industry.

The last version of the regulation includes diversification rules more stringent (max 15%/30% in assets with daily/weekly maturity  and max 5% in assets issued by a same entity)

Ireland and Luxembourg have C-NAV (*) Money Market Funds whereas France has V-NAV (*) for Money Market Funds.

Money Market figures

  • European money market funds (MMF) have assets around EUR 1 trillion (€ 1000 billion)
  • France, Ireland and Luxembourg hold, all 3, 85% of assets of European MMF
  • 50% of MMF have C-NAV
  • MMF represent 15% of investment fund assets in Europe

Points under discussion

These new investment and diversification rules seem particularly stringent to implement and control for the fund managers and the banks, such as maximum 10% of assets with a maximum maturity of one day or additional 20% whose maximum maturity is one week.

The BUFFER would cost € 18 billion to fund managers who should immobilize a cash reserve. For these managers, if the BUFFER is maintained as such, this would be the death of the C-NAV MMF. These managers located in anglo-saxons countries would leave Europe because in the interest of their clients, they would not convert their C-NAV MMF into V-NAV MMF.

The last compromise of the Italian Presidency of the European Council does not make any reference to the Capital Buffer so criticized. It would be replaced by liquidity fees and redemption gates, largely inspired from the American regulation of Money Funds, published by the SEC on 23 July 2014. For further information please refer to the summary sheet of the American regulation.

Under this last and new version of the MMF draft regulation, C-NAV MMF would be allowed to retail investors and to certain categories of investors like pension funds. And valuation rules would remain unchanged.

Past events  for adopting regulation of money market funds

  • 4 November 2013 – First exchange of views in ECON
  • 2 December 2013 – Presentation of the draft report of Saïd El Khadraoui (S&D, Belgium)
  • 10 December 2013 –  Deadline for sending amendments
  • 20/21 January 2014 – Assessment of amendments
  • 10 March 2014 – ECON Vote postponed after EP elections
  • September 2014 – Start of new discussion under the initiative of the European Council
  • 12 Nov2014 – Draft report of the Rapporteur Neena Gill
  • 12, 17 and 27 Nov 2014 – 3 compromises of the Italian Presidency of the European Council
  • 1 or 2 Dec 2014 – assessment of the draft report to the European Parliament
  • 11 Dec 2014 - Deadline for sending amendments

Next steps

  • 22 Jan 2015: Assessment of amendements
  • 23 Feb 2015: Vote in ECON Commission
  • 25 March 2015: Vote in plenary session at the European Parliament

To know more: www.financialstabilityboard.org

Contact list in the EU Commission / EU Parliament

  • Rapporteur Neena Gill (S&D, UK),
  • Shadow Brian Hayes (EPP, IE),
  • Shadow Syed Kamall (ECR, UK),
  • Shadow Philippe Lamberts (Greens, BE)
  • Shadow Petr Jezek (ALDE, CZ)

Contact SGSS/SMI: Jean-Pierre Gomez (Jean-Pierre.Gomez@sgss.socgen.com)

Virginie Amoyel (virginie.amoyel@socgen.com)


(*) A MMF with CNAV is a fund using amortized cost method for  asset valuation contrary to MMF with VNAV using mark-to-market method for asset valuation

European Long-Term Investment Funds (ELTIFs)

Reference documents:

Proposal for a regulation on European Long-Term Investment Funds of 26 June 2013

Links:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0462:FIN:EN:PDF

Introduction

On 26 June 2013 the European Commission adopted a proposal for a full harmonisation regulation that would create a new financing vehicle, the ELTIF, for professional/institutional investors (insurance companies, pension funds etc.) that wish to place their capital in long-term infrastructure companies and projects in exchange for regular returns and for retail investors wishing to save for their retirement.

 

Context

The measure was initially discussed by the various stakeholders during the UCITS VI consultation launched by the Commission on 26 July 2012. It was also announced by the Commission in its Green Paper on the Long-Term Financing Of The European Economy, open for consultation until 25 June. While the proposal targets investment funds and the Green Paper is wider in scope, it is surprising, despite the discussions undertaken during the UCITS VI consultation, that the Commission did not wait for an analysis of the results of the Green Paper consultation before publishing this proposal.

 

Content

- Link with the AIFMD (like the EuVECA and EuSEF regulations): an ELTIF fund is an AIF domiciled in the EU and managed by an authorised manager in the terms of the AIFM Directive. Unlike this Directive, the ELTIF regulation sets product rules applicable to AIFs that correspond to the characteristics of ELTIFs.

→ All the rules of the AIFM Directive apply to ELTIF managers, including the need to appoint a depositary

- European passport for management and products (in the terms of the AIFM Directive) /No system for marketing in other countries (unlike the AIFMD)

- Eligible assets: at least 70% of the capital (aggregate capital contributions and uncalled committed capital) of the ELTIF must consist of:

  • equity or quasi-equity instruments issued by a qualifying portfolio undertaking, debt instruments issued by qualifying portfolio undertaking and/or loans granted to a qualifying portfolio undertaking by the ELTIF
  • shares or units in EuVECAs or in EuSEFs or in other ELTIF, provided that those funds have not themselves invested more than 10% of their capital in ELTIFs
  • Direct holdings of individual real assets requiring up-front capital expenditure of at least 10M EUR at the time of the expenditure / acquisition (e.g. infrastructure, property, ships, aircraft, rolling stock etc.)

→ UCITS-eligible assets under the terms of UCITS IV (money market instruments, transferable securities admitted for trading on a regulated market or MTF, sovereign securities), which must not represent more than 30% of the ELTIF's capital

→ ELTIFs are prohibited from short selling of assets, exposure to commodities, securities lending/borrowing agreements, repurchase agreement and using financial derivative instruments (except to hedge the duration and exchange risks)

- A qualifying portfolio undertaking:

  • Is not a collective investment undertaking
  • Is not admitted to trading on a regulated market, MTF or OTF
  • Has its head office in the EU or  in a third country that is not on the FATF blacklist
  • Is not a financial undertaking, except a company dedicated to financing infrastructure projects or acquiring/developing/building real assets

- Ratios for the composition of an ELTIF portfolio (diversification ratios):

  • Investing at least 70% of the capital committed in eligible assets. Period of 5 years from authorisation for compliance with the 70% ratio.
  • Investing no more than 10% in assets issued by any single qualifying portfolio undertaking (a)
  • Investing no more than 10% in an individual real asset (b)
  • Investing no more than 10% in units or shares of any single ELTIF, EuVECA or EuSEF
  • Investing no more than 5% in UCITS-eligible assets where those assets have been issued by any single body
  • The aggregate value of units or shares of ELTIFs, EuVECAs and EuSEFs in an ELTIF portfolio shall not exceed 20% of the value of its capital
  • The aggregate risk exposure to a counterparty of the ELTIF stemming from over the counter (OTC) derivative transaction or a reverse repurchase agreement shall not exceed 5% of its capital
  • As an exception, an ELTIF may raise the 10% limit in (a) and (b) above to 20% if the cumulative value of the assets  held by the ELTIF in qualifying portfolio undertakings and in individual real assets exceeding the 10% ratio does not exceed 40% of the capital committed (value of its capital)

- Limits on concentration: for the ELTIFs, EuVECAs and EuSEFs in which an ELTIF invests, an ELTIF may not hold (acquire) more than 25% of the capital of a single ELTIF, EuVECA or EuSEF. No limit on concentration for other eligible assets.

- Leverage (borrowing of cash): an ELTIF may borrow  cash up to 30% of its capital as long as this borrowing serves to finance the acquisition of a participation in eligible assets, is contracted in the same currency as the assets to be acquired and it does not hinder the realisation of any assets held in the portfolio of the ELTIF or does not encumber the assets held in the portfolio of the ELTIF.

- Marketing to retail investors (additional requirements): the fund rules must contain a principle of equal treatment for all investors, the ELTIF may not be structured as a partnership and retail investors may during the subscription period and at least two weeks after the subscription, cancel their subscription and have the money returned without penalty.

- ELTIF = Fund closed to repurchases: redemption, trading and issuance of ELTIF shares or units and distribution of income

  • Investors must not have a right of redemption before the end of the fund's life. The life of the ELTIF must be specified in its rules or instruments of incorporation and must cover to the life-cycle of each of its individual assets and its long-term investment objectives; redemption shall always be possible in cash. Redemptions in kind subject to conditions
  • Subscription (issuance of new shares or units) is possible during the fund's life cycle, but no subscriptions below the net asset value can be accepted without a prior offering at that price to existing investors (preference right)
  • ELTIF shares or units may be admitted to trading on regulated markets and transferred freely to third parties
  • Rules on the distribution of income generated by the ELTIF's assets, obliging the fund to indicate its distribution policy in its rules

- Transparency obligations (in accordance with the Prospectus Directive and the PRIPS KID): prior publication of a key information document and a prospectus.

 

Previous steps:

- 13/11/2013: EP draft report

- 20/11/2013: deadline to table EP amendments

- 10/03/2014: ECON vote

- 20/03/2014 and 24/4/2014: 1st and 2nd compromise from Greek Presidency

- 17/04/2014: partial vote in plenary

- 23/05/2014 : 3rd compromise

- 4/6/2014 : 4th compromis

- 20/6/2014 : Council General Approach adopter by COREPER

- 12/10/2014 and 5/11/2014 : Trilogues

- 26/11/2014 : Agreement in  Trilogue.

- 5/12/2014: Approval of the final text sent to the COREPER

- 10/12/2014: formal approval by COREPER

- 15/12/2014: Presentation of the final text by A. Lamassoure to ECON in Strasbourg

- 10/03/2015: Final adoption by the EP in plenary

- 20/4/2015: Formal adoption by Council

Next step:

- Awaiting publication in the OJEU

- Level 2 measures in the form of regulatory technical standards still need to be adopted by ESMA in 2015.

- Deadline for application: 6 months after entry into force

Contact list in the EU Commission / EU Parliament

COM (2013) 462

EC: Tillman Lueder / Tim Shakesby (Markt G4)

Rapporteur : Alain Lamassoure (FR, PPE)  - Assistant : Paul de Marnix

Shadows :

Jeppe KFOD (S&D)

Syed KAMALL (ECR)

Philippe DE BACKER (ALDE)

Teresa RODRIGUEZ-RUBIO (NGL)

Philippe LAMBERTS (Green)

SGSS/DIR/SMI contact: Virginie Amoyel (virginie.amoyel@socgen.com) /08/2012

COLLATERAL Directive

Reference text

Directive 2002/47/EC on collateral agreements

Date of effect

27/06/2002 (date publication of publication in OJ)

Presentation

The objective of the “Collateral” Directive is to institute a minimum community legal framework aiming to limit the credit risk in financial transactions through constituting collateral with either constitution of surety or transfer of property, and relating to cash, financial instruments and, since 6 May 2009, private claims.  The personal scope of the “Collateral Directive” is limited however to collateral agreements entered into between a collateral creator and a collateral taker which both belong to one of the following categories: public authorities; public sector organisations; central bank; or financial institution subject to prudential surveillance (including coordinated UCITS).  The Collateral Directive aims to ensure the effectiveness of collateral agreements by requiring Member States to recognise the effectiveness of this collateral both by limiting the formal requirements that can be provided by the national laws as conditions of validity or enforceability of collateral agreements and by providing swift and informal execution procedures.

The directive also stipulates that certain provisions on insolvency are not applicable.  A collateral agreement cannot be declared null and void or be cancelled solely due to the fact that it has been entered into or the assets have been constituted as collateral:
- on the day of winding-up proceedings are instigated or streamlining measures are taken, but before delivery of an order or judgment to this end;
- during a period determined before instigation of winding-up proceedings,
The text also provides the law applicable in the event of conflict of laws.  The law applicable to the collateral agreement, and notably the rules of enforceability on third parties, is determined by that of the place of location of the account in which the securities given as collateral are registered

The “Collateral” Directive was modified by Directive 2009/44/EC to integrate private claims as collateral for cross-border transactions as since 1 January 2007 the Central European Bank has recognised private claims of professionals as collateral admissible for credit operations of the Eurosystem.

Current situation

  • 27 June 2002: publication of Directive 2002/47/EC known as the Collateral Directive
  • 6 May 2009: publication of Directive 2009/44/EC modifying Directive 2002/47/EC

Next steps

  • Not applicable

SGSS/SMI Contact

Alain Rocher
Sylvie Bonduelle

FINALITY Directive

Reference text

Directive 98/26/EC on settlement finality in payment and securities settlement systems.

Date of effect

11/06/1998 (date of publication in OJ)

Presentation

The Directive on settlement finality adopted in May 1998 applies to payment and securities settlement systems and to any participant in this system.  This regulation mainly strives to eliminate the legal factor of the “systemic risk” inherent to these systems, i.e. the risk that the failure of one counterparty does not entail the failure of other participants, or even the system itself: to this end, it enables the continuation of execution of payments initiated before an insolvency and prevents retroactive cancellation of payments.  It also applies to collateral constituted within the framework of the participation in a system, and to operations of the central banks of the Member States in their capacity of central banks.

The Finality Directive defines the payment system as a formal agreement, entered into between at least three participants (mainly credit institutions) to which may be added a settlement organisation (for final accounting of the said settlements), a central counterparty or a clearing house, comprising common rules and standardised procedures for the execution of settlement/delivery instructions between participants.

The “Finality” Directive was modified on 6 May 2009 by Directive 2009/44/EC in order to extend its scope and improve protection in a context of development of links between payment and settlement/delivery systems.  Initially, the systemic risk was considered only to be able to result from banks executing payments directly in the system.  The financial crisis demonstrated that other entities participating indirectly in systems could also create a systemic risk (investment firms, central counterparties).  The protection of operations in the event of insolvency is also henceforth extended to cover not only payment orders made between the participants in a system, but also payment orders made from system to system.  The protection of transfers between systems was in fact not sufficient since the times of transition from one system to another and the times of irrevocability of transfer orders in each of the systems were not themselves coordinated.

Current situation

  • 19 May 1998: adoption of Directive 98/26/EC known as the Finality Directive
  • 6 May 2009: adoption of Directive 2009/44/EC modifying Directive 98/26/EC


Next steps

  • Not applicable

SGSS/SMI Contact

Alain Rocher
Pierre Colladon

RECOVERY & RESOLUTION (FOR NON BANKS)

Reference Text

FSB, CPSS-IOSCO consultations, future European legislation
http://www.financialstabilityboard.org/publications/r_111104cc.pdf
http://www.financialstabilityboard.org/publications/r_130812a.htm
http://www.bis.org/publ/cpss101a.pdf
http://www.bis.org/publ/cpss103.pdf
http://www.bis.org/publ/cpss109.pdf
http://ec.europa.eu/internal_market/consultations/2012/nonbanks/consultation-document_en.pdf
http://www.bis.org/cpmi/publ/d121.pdf
http://www.financialstabilityboard.org/wp-content/uploads/r_141015.pdf

Dates of application: depending on the body

Presentation

Last financial crisis have shown that the default of a participant if only it is a big player may lead to severe systemic disruptions. During the G20 (2011 Cannes), the Financial Stability Board (FSB) has been asked to work on measures that could be undertaken to handle the resolution process of a financial institution. In November 2011, the G20 endorsed the « Key Attributes of Effective Resolution Regimes for Financial Institutions » issued by the FSB.

Some of these entities considered as systemic like Financial Market Infrastructures (Central Counterparties – CCP-, Central Depositaries – CSD-, Settlement Systems – SSS, Payment Systems or Trade Repositories) play an essential role in the global economy so that their default could not end up just trough a bankruptcy/insolvency process since those regimes do not have the preservation of financial stability as an objective but are rather focused on the creditors.

For such entities, man need to have in place a legislation which allows them to maintain their critical services despite everything; this is the purpose of these Recovery & Resolution plans. This is will be more significantly needed with the entry into force of the first clearing obligations coming from legislation on OTC derivatives, another commitment of the G20. EMIR (the European regulation on OTC derivatives) foresees indeed that a clearing obligation of a specific product may be decided as of there exists at least one CCP agreed under EMIR and ready to clear the product.

If the recovery phase consists for the entity to take measures through the use of dedicated tools, when the entity is under a resolution process (the step further) it has been taken over by the resolution authority (including national competent authorities). Such an authority may be allowed to use extraordinary measures (even outside the common law).

Recovery and of course Resolution are linked to period in the life of an entity where it can not anymore face consequences of major difficulties even through a Business Continuity Plan. At this stage most of the time financial losses are involved that must be covered to let the entity maintain its services. The aim of most of the recovery/resolution tools is to allocate those losses either to participants or to shareholders rather than exposing taxpayers to loss. For example, in the case  of a FMI, the allocation would depend on the origin of the difficulty ; should it be due to the default of a member then tools will concern others members ; if not losses will have to be covered by the FMI itself and its shareholders.

It has to be noted that the European Union has already worked on this topic of Recovery and Resolution where entities are banks considered as systemic ones.

Latest News

FSB (on the resolution of FMIs) and CPMI/IOSCO (on recovery of FMIs) have both published their recommendations on the 15th of October.

Main passed steps

In June 2012, CPSS and IOSCO published a first consultation on the « Recovery and Resolution of Financial Market Infrastructures », and in August 2013 an added document detailing recovery tools than could be used by a FMI. These two consultations are in line with the Key Attributes du FSB as well as with the « Principles for Financial Market Infrastructures » issued in April 2012 by CPSS IOSCO.

Again in August 2013 (same day) the FSB issue its own consultation aiming at reinforcing/completing its Key Attributes for FMIs or Assurance companies and also in the prism of the client assets protection, the « Application of the Key Attributes of Effective Resolution Regimes to Non-Bank Financial Institutions » which despite its name concerns also credit institutions.

At the European level, work started since 2010 and, after having worked on Recovery and Resolution plans for credit institutions and investment firms, the Commission has in November 2012 published a « Consultation on a possible recovery and resolution framework for financial institutions other than banks », and in October 2013, a « Discussion Paper on CCP recovery and resolution » (which is a not a public consultation); the same type of paper is foreseen for CSDs.

To be noted: until now the European approach was to make a distinction between banks and non banks what posed a dilemma for CCPs that as LCH.Clearnet SA or Eurex have a bank status and would have been submitted to the bank regime rather than the FMI’s one. Last document shows that such approach is evolving.

At the end of 2013, it was not less than half a dozen of consultations that have been issued between 2012 and 2013 without at the moment given rise to any final text.

Next steps

Q1 2015 = European proposal likely to be issued

SGSS/SMI contact

Sylvie Bonduelle

Securities Financing Transactions (SFT)

Reference text: Proposed regulation of the European Parliament and the Council on the reporting and transparency of securities financing transactions

Presentation

The 2008 global financial crisis revealed significant holes in the regulation of the financial system. It also highlighted the need to improve transparency and monitoring not only in the traditional banking sector, but also in the sectors where non-banking credit activities take place, which is known as the “parallel banking system” and named SHADOW BANKING. For further information please refer to Shadow Banking fact sheet.

In order to closely follow the market trends concerning entities whose activities can be considered as pertaining to the parallel banking system, in particular in the area of securities financing transactions, the Commission feels it is necessary to implement transparency obligations.

The proposed regulation concerning the structural reforms of the banking sector of the EU which accompanies this proposal is the last piece of the new regulatory framework, which guarantees that even the biggest banks within the EU will become less complex and able to be the subject of an effective resolution with minimal consequences for taxpayers.

According to the EC, an obligation for reporting via trade repositories could remedy the problems found.

The securities financing transactions in the parallel banking system would thus be subject to appropriate surveillance and regulation.  Their use would not be prohibited or limited by specific restrictions as such, but would benefit from increased transparency.

The securities financing transactions targeted by this regulation are transactions of the parallel banking sector which principally comprise:

  • The repurchase agreement or repo;
  • Securities lending;
  • The buy-sell back and sell-buy back transactions;
  • And the margin lending transactions.

For UCIs: The periodic reports that the undertakings for collective investment in transferable securities (UCITS) management companies or UCITS investment companies and alternative investment fund managers must currently produce (beyond the AIFM and UCITS V directives) would thus be completed by this additional information on the use of securities financing transactions and other equivalent financing structures.

The major key point of this proposed regulation concerns the introduction of governance of rehypothecation by fixing minimum conditions to be respected during transactions by the parties concerned, such as the existence of a prior written agreement signed by the counterparties, total respect for the conditions of this agreement, full information on the potential risks in the event of default of a counterparty, and the prior transfer of the collateral to the account of the counterparty.

In the last version of the draft Regulation, the Italian Presidency of the EU had decided to replace RE-HYPOTHECATION by RE-USE. But the definition of re-use and SFT, which go beyond securities lending operations and/or repos, remains vague and unclear. Moreover the collateral term is not defined in the relevant regulation.

Past events

  • 29 January 2014: The European Commission published its banking reform aiming to impose new rules to prevent the biggest and most complex banks, TBTF (*) from practising trading on their own account, a risky market activity implying a structural reform of the European banking sector and measures aiming to increase transparency of certain transactions in the parallel banking sector.
    Alongside this reform, the European Commission imposes the transparency of certain transactions in the parallel banking sector (and notably securities lending/borrowing transactions because they pertain to SHADOW BANKING).
  • 23 March 2015: Vote in ECON Commission.
  • 27 April 2015: Vote in plenary session at the European Parliament.
  • 28 April 2015: Start of trilogue discussion under Latvian Presidency.
  • 17 June 2015: Political agreement on the final compromise during trilogue as of 17 June 2015.
  • 26 June 2015: UE Council publishes the entire final compromise.
  • Sep-Oct 2015: Technical works follow-up.
  • 29 October 2015: The European Parliament adopts the European Commission.
  • 16 November 2015: Council vote.
  • 23 December 2015: Publication in the EU Official Journal.
  • 12 January 2016: Entry into force of the regulation even if most of provisions will be applicable after a certain period.
  • 11 March 2016: ESMA published a consultation paper (187 pages) on the SFT regulation.
    Answers were expected for 22 April 2016. It concerns exclusively data regarding reporting.
    There is nothing with regard to art. 15 (Reuse of collateral)

The three main measures of this Regulation

  • Obligations regarding re-use of assets have been less stringent and will depend on the outcome of the working group dedicated to re-use and leaded by the FSB. Collateral and master agreement will have to be amended in order to reflect new provisions contained in the regulation (client agreement requested for transferring or not entitlement). Provisions of art.15 will come into force on 13 July 2016.
  • Information to investors (art.14): Current UCIs have 18 months (13 July 2017) to update pre-contractual documents like the prospectus. However for art.13 (annual & half-yearly financial reports) it is 13 January 2017.
  • Compulsory notification of SFT (art.4) will come into force between 12 and 21 months after publication of ESMA technical measures.

Contact liste at the European Commission /Parliament

Rapporteur: Renato SORU (IT, S&D)

Shadows:

Danuta Maria HÜBNER (PPE)
Kay SWINBURNE (ECR)
Philippe DE BACKER (ALDE)
Rina Ronia KARIA (NGL)
Eva JOLY (Green)

SGSS/SMI Contact:  Jean-Pierre Gomez (Jean-Pierre.Gomez@sgss.socgen.com)

(*) TBTF: Too big to fail