Explanatory Memorandum to COM(2009)207 - Alternative Investment Fund Managers and amending Directives 2004/39/EC and 2009/…/EC - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2009)207 - Alternative Investment Fund Managers and amending Directives 2004/39/EC and 2009/…/EC. |
|---|---|
| source | COM(2009)207  |
| date | 30-04-2009 |
The financial crisis has exposed a series of vulnerabilities in the global financial system. It has highlighted how risks crystallising in one sector can be transmitted rapidly around the financial system, with serious repercussions for all financial market participants and for the stability of the underlying markets.
The present proposal forms part of an ambitious Commission programme to extend appropriate regulation and oversight to all actors and activities that embed significant risks i. The proposed legislation will introduce harmonised requirements for entities engaged in the management and administration of alternative investment funds (AIFM). The need for closer regulatory engagement with this sector has been highlighted by the European Parliament i and by the High-Level Group on Financial Supervision chaired by Jacques de Larosière i. It is also the subject of ongoing discussion at international level, for example through the work of the G20, IOSCO and the Financial Stability Forum.
The funds in question are defined as all funds that are not regulated under the UCITS Directive i. Around €2 trillion in assets are currently managed by AIFM employing a variety of investment techniques, investing in different asset markets and catering to different investor populations. The sector includes hedge funds and private equity, as well as real estate funds, commodity funds, infrastructure funds and other types of institutional fund.
The financial crisis has underlined the extent to which AIFM are vulnerable to a wide range of risks. These risks are of direct concern to the investors in those funds, but also present a threat to creditors, trading counterparties and to the stability and integrity of European financial markets. These risks take a variety of forms:
Macro-prudential (systemic) risks Direct exposure of systemically important banks to the AIFM sector Pro-cyclical impact of herding and risk concentrations in particular market segments and deleveraging on the liquidity and stability of financial markets
Micro-prudential risks Weakness in internal risk management systems with respect to market risk, counterparty risks, funding liquidity risks and operational risks
Investor protection Inadequate investor disclosures on investment policy, risk management, internal processes Conflicts of interest and failures in fund governance, in particular with respect to remuneration, valuation and administration
Market efficiency and integrity Impact of dynamic trading and short selling techniques on market functioning Potential for market abuse in connection with certain techniques, for example short-selling
Impact on market for corporate control Lack of transparency when building stakes in listed companies (e.g. through use of stock borrowing, contracts for difference), or concerted action in activist strategies
Impact on companies controlled by AIFM Potential for misalignment of incentives in management of portfolio companies, in particular in relation to the use of debt financing Lack of transparency and public scrutiny of companies subject to buy-outs
The nature and intensity of these risks varies between business models. For example, macro-prudential risks associated with the use of leverage relate primarily to the activities of hedge funds and commodity funds; whereas risks associated with the governance of portfolio companies are most closely associated with private equity. However, other risks, such as those relating to the management of micro-prudential risks and to investor protection are common to all types of AIFM.
While AIFM were not the cause of the crisis, recent events have placed severe stress on the sector. The risks associated with their activities have manifested themselves throughout the AIFM industry over recent months and may in some cases have contributed to market turbulence. For example, hedge funds have contributed to asset price inflation and the rapid growth of structured credit markets. The abrupt unwinding of large, leveraged positions in response to tightening credit conditions and investor redemption requests has had a procyclical impact on declining markets and may have impaired market liquidity. Funds of hedge funds have faced serious liquidity problems: they could not liquidate assets quickly enough to meet investor demands to withdraw cash, leading some funds of hedge funds to suspend or otherwise limit redemptions. Commodity funds were implicated in the commodity price bubbles that developed in late 2007.
On the other hand, private equity funds, due to their investment strategies and a different use of leverage than hedge funds, did not contribute to increase macro-prudential risks. They have experienced challenges relating to the availability of credit and the financial health of their portfolio companies. The inability to obtain leverage has significantly reduced buy-out activity and a number of portfolio companies previously subject to leveraged buy-outs are reported to be faced with difficulties in finding replacement finance.
The cross-border dimension of these risks calls for a coherent EU regulatory framework:
Currently, the activities of AIFM are regulated by a combination of national financial and company law regulations and general provisions of Community law. They are supplemented in some areas by industry-developed standards. However, recent events have indicated that some of the risks associated with AIFM have been underestimated and are not sufficiently addressed by current rules. This is partly a reflection of the predominantly national perspective of existing rules: the regulatory environment does not adequately reflect the cross-border nature of the risks.
This is particularly striking in relation to the effective oversight and control of macro-prudential risks. The individual and collective activities of large AIFM, particularly those employing high levels of leverage, amplify market movements and have contributed to the ongoing instability of financial markets across the European Union. Yet there are currently no effective mechanisms for gathering, pooling and analysing information on these risks at European level.
There is also a potential cross-border dimension to the quality of risk management by AIFM: investors, creditors and trading counterparties of AIFM are domiciled in other Member States and are dependent on the controls implemented by the AIFM. Currently, jurisdictions differ widely in the way that they supervise the ongoing operations of AIFM.
Nationally fragmented approaches do not constitute a robust and comprehensive response to risks in this sector. Effective management of the cross-border dimension of these risks demands a common understanding of the obligations of AIFM; a coordinated approach to the oversight of risk management processes, internal governance and transparency; and clear arrangements to support supervisors in managing these risks, both at domestic level and through effective supervisory cooperation and information sharing at European level.
The current fragmentation of the regulatory environment also results in legal and regulatory obstacles to the efficient cross-border marketing of AIF. Provided that AIFM operate in accordance with strict common requirements, there is no obvious justification for restricting an AIFM domiciled in one Member State from marketing AIF to professional investors in another Member State market.
It is in recognition of these weaknesses and inefficiencies in the existing regulatory framework that the European Commission has committed to bring forward a proposal for a comprehensive legislative instrument establishing regulatory and supervisory standards for hedge funds, private equity and other systemically important market players.
While the enhancement of the regulatory and supervisory environment for AIFM at European level is important and necessary, it should – to be fully effective - be accompanied by parallel initiatives in other key jurisdictions. The European Commission hopes that the principles embodied in this proposal will make an important contribution to the debate on the reinforcement of the architecture for a global approach to supervision of the alternative investment industry. The Commission will continue to work with its international partners, in particular the United States, to ensure regulatory and supervisory convergence of the rules applying to AIFM and avoid regulatory overlap.
The European Commission has consulted extensively on the adequacy of regulatory arrangements for non-UCITS fund managers and for the marketing of non-UCITS funds in the European Union. It has also consulted specifically on a series of issues relating to the activities of hedge funds. The numerous initiatives and studies that the Commission has drawn upon for the purposes of this legislative proposal are described at length in the Impact Assessment.
This proposal focuses on those activities that are specific or inherent to the AIFM sector and hence need to be addressed by targeted requirements. A number of the concerns that are commonly expressed about the activities of AIFM are linked to behaviours (e.g., short-selling, use of stock borrowing or other instruments to build a stake in company) which are not unique to this category of financial market participant. To be fully effective and coherent, these concerns must be addressed by comprehensive measures which apply to all market participants who engage in the relevant activities. A number of these issues will form the focus of the review of relevant EU Directives, which will determine the appropriate scope and content of any corrective measures.
The present proposal is therefore designed to address matters that call for provisions specific to AIFM and their business. The proposed Directive aims to:
- Establish a secure and harmonised EU framework for monitoring and supervising the risks that AIFM pose to their investors, counterparties, other financial market participants and to financial stability; and
- Permit, subject to compliance with strict requirements, AIFM to provide services and market their funds across the internal market.
The following section sets out the key principles underpinning the provisions of the proposed Directive. Specific provisions are described in greater detail in Section 3.5.
While the focus is currently on hedge funds and private equity, the European Commission believes that it would be ineffective and short-sighted to limit any legislative initiative to these two categories of AIFM: ineffective because any arbitrary definition of these funds might not adequately capture all the relevant actors and could be easily circumvented; and short-sighted because many of the underlying risks are also present in other types of AIFM activity. The regulatory solution which is likely to prove the most enduring and productive is therefore to capture all AIFM whose activities give rise to those risks. Accordingly, the management and administration of any non-UCITS in the European Union must be authorised and supervised in accordance with the requirements of the Directive.
This broad coverage does not imply a one size fits all approach
A common set of basic provisions will govern the conditions for the initial authorisation and organisation of all AIFM. These core provisions will be tailored to the different asset classes so that irrelevant or inappropriate requirements are not imposed on investment policies for which they make no sense. In addition to these common provisions, the proposal foresees a number of specific, tailored provisions which will only apply to AIFM that employ certain techniques or strategies when managing their AIF (for instance, systematic use of a high degree of leverage, acquisition of control of companies) and will ensure an appropriate degree of transparency with respect to these techniques.
The proposed Directive contains two de minimis exemptions for small managers. All AIFM managing AIF portfolios with total assets of less than €100 million will be exempt from the provisions of the proposed Directive. The management of these funds is unlikely to pose significant risks to financial stability and market efficiency. Hence extending these regulatory requirements to small managers would impose costs and administrative burden which would not be justified by the benefits. However, for AIFM which only manage AIF which are not leveraged and which do not grant investors redemption rights during a period of five years following the date of constitution of each AIF a de minimis threshold of €500 million applies. This significantly higher de minimis threshold is justified by the fact that managers of unleveraged funds are not likely to cause systemic risks. Exempted AIFM would have no rights under the Directive, unless they opt to apply for authorisation under the Directive.
On this basis, supervisory attention will be focused on the areas where risks are concentrated. A threshold of €100 million implies that roughly 30% of hedge fund managers, managing almost 90% of assets of EU domiciled hedge funds, would be covered by the Directive. It would capture almost half of managers of other non-UCITS funds and provide an almost full coverage of the assets invested in their funds.
The risks to market stability, efficiency and investors stem primarily from the conduct and organisation of the AIFM and certain other key actors in the fund governance and value-chain (depositary bank where relevant and valuation entity). The most effective way to tackle the risks is therefore to focus on these entities which are decisive in terms of the risks associated with the management of AIF.
Authorisation as an AIFM will entitle the manager to market the AIF to professional investors only (as defined by MiFID). Many AIF entail a relatively high level of risk (of loss of much or all of the capital invested) and/or have other features which render them unsuitable for retail investors. In particular, they may lock investors in to their investment for longer than is acceptable for retail funds. Investment strategies are typically complex and often involve investment in illiquid and harder-to-value investments. The marketing of these AIF will therefore be limited to those investors that are equipped to understand and to bear the risks associated with this type of investment.
The limitation to professional investors is consistent with the current situation in many Member States. However, some of the categories of AIF covered by the proposed Directive – such as funds of hedge funds and open-ended real estate funds - are accessible to retail investors in some Member States, subject to strict regulatory controls. Member States may allow for marketing to retail investors within their territory and may apply additional regulatory safeguards for this purpose.
… including the right to market funds cross-border:
Compliance with the requirements of the proposed Directive would be sufficient to permit AIFM to market AIF to professional investors on markets in other Member States. Cross-border marketing would be subject only to the filing of appropriate information with the host competent authority.
Currently, many EU domiciled managers manage funds which are domiciled in third countries and market them in Europe. The Directive introduces new conditions to address any additional risks to European markets and investors that could arise from such operations. It also ensures that national tax authorities may obtain all information from the tax authorities of the third country which are necessary to tax domestic professional investors investing in offshore funds. The activities of management and administration of AIF are reserved to EU domiciled and authorised AIFM, with the possibility for AIFM to delegate administration (but not management) functions to offshore entities subject to appropriate conditions. In particular, depositaries appointed to take custody of money and assets must be EU established credit institutions which can only sub-delegate functions subject to strict conditions. Valuators appointed in third country jurisdictions must be subject to equivalent regulatory standards. Subject to these strict conditions, the proposals envisage that EU AIFM could market AIF domiciled in third countries to professional investors throughout Europe after an additional period of three years. In the meantime Member States may allow or continue to allow AIFM to market AIF domiciled in third countries to professional investors on their territory subject to national law.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1. Context, grounds for, and objectives of the proposal
- Source of Risk
- 1.2. Preparation of the proposal: consultation and impact assessment
- 2. GENERAL APPROACH
- Managers of all non-UCITS funds require authorisation under the Directive
- De minimis exemption for managers of small asset portfolios
- The focus is on the decision making and risk-taking entities in the value chain
- AIFM will be entitled to market AIF to professional investors
- AIFM will be permitted to manage and market AIF domiciled in third countries
- 3.1. Legal basis
- 3.2. Subsidiarity and proportionality
- 3.3. Choice of instrument
- 3.4. Comitology
- 3.5. Content of the proposal
- 3.5.1. Scope and definitions
- 3.5.2. Operating conditions and initial authorisation
- 3.5.3. Treatment of investors
- 3.5.4. Disclosure to regulators
- 3.5.5. Specific requirements for AIFM managing leveraged AIF
- 3.5.6. Specific requirements for AIFM acquiring controlling stakes in companies
- 3.5.7. Rights of AIFM under the Directive
- 3.5.8. Third country aspects
- 3.5.9. Supervisory cooperation information sharing and mediation
The proposal is based on Article 47 i o the EC Treaty.
Article 5 i of the EC Treaty requires the Community to act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
The activities of AIFM affect investors, counterparties and financial markets located in other Member States and hence the risks associated with the activities of AIFM are often cross-border in nature. The effective monitoring of macro-prudential risks and oversight of AIFM activity thus requires a common level of transparency and regulatory safeguards across the EU. The Directive also provides a harmonised framework for the safe and efficient cross-border marketing of AIF, which could not be established as effectively through the uncoordinated action of Member States.
The proposed Directive is also proportionate, as required by Article 5 i of the EC Treaty. Many of the provisions of the Directive relate to particular activities; if an AIFM does not engage in these activities, the provisions shall not apply. Moreover, the Directive provides two de minimis exemptions: authorisation requirements are to be waived for AIFM managing AIF below a threshold of €100 million, since these are unlikely to give rise to important systemic risks or to be a threat to orderly markets. For AIFM managing only AIF which are not leveraged and which do not grant investors redemption rights during a period of five years following the date of constitution of each AIF a de minimis threshold of €500 million applies.
The choice of a Directive as the legal instrument represents a sensible trade-off between harmonisation and flexibility. The proposed Directive provides a sufficient degree of harmonisation to provide a consistent and secure pan-European framework for the authorisation of AIFM and their ongoing supervision. The choice of a Directive allows Member States a degree of flexibility in deciding how to adapt their national legal orders to the new framework. This is consistent with the principle of subsidiarity.
The proposal is based on the Lamfalussy process for regulating financial services. The proposed Directive contains the principles necessary to ensure that AIFM are subject to consistently high standards of transparency and regulatory oversight in the European Union, while foreseeing the adoption of detailed implementing measures through comitology procedures.
In order to ensure that all AIFM operating in the European Union are subject to effective supervision and oversight, the proposed Directive introduces a legally binding authorisation and supervisory regime for all AIFM managing AIF in the European Union. The regime will apply irrespective of the legal domicile of the AIF managed. For reasons of proportionality, the Directive will not apply to AIFM managing portfolios of AIF with less than € 100 million of assetsor of less than €500 million, in case of AIFM managing only AIF which are not leveraged and which do not grant investors redemption rights during a period of five years following the date of constitution of each AIF.
To operate in the European Union, all AIFM will be required to obtain authorisation from the competent authority of their home Member State. All AIFM operating on European soil will be required to demonstrate that they are suitably qualified to provide AIF management services and will be required to provide detailed information on the planned activity of the AIFM, the identity and characteristics of the AIF managed, the governance of the AIFM (including arrangements for the delegation of management services), arrangements for the valuation and safe-keeping of assets and the systems of regulatory reporting, where required. The AIFM will also be required to hold and retain a minimum level of capital.
To ensure that the risks associated with AIFM activity are effectively managed on an ongoing basis, the AIFM will be required to satisfy the competent authority of the robustness of internal arrangements with respect to risk management, in particular liquidity risks and additional operational and counterparty risks associated with short selling; the management and disclosure of conflicts of interest; the fair valuation of assets; and the security of depository/custodial arrangements.
Given the diversity of AIFM investment strategies, the proposed Directive foresees that the precise requirements, in particular with regard to disclosure, will be tailored to the particular investment strategy employed.
The proposed Directive provides for a minimum level of service and information provision to its (professional) investors, on an initial and ongoing basis, to facilitate their due diligence and ensure an appropriate level of investor protection. The proposed Directive requires AIFM to provide to their investors a clear description of the investment policy, including descriptions of the type of assets and the use of leverage; redemption policy in normal and exceptional circumstances; valuation, custody, administration and risk management procedures; and fees, charges and expenses associated with the investment.
To support the effective macro-prudential oversight of AIFM activities, the AIFM will also be required to report to the competent authority on a regular basis on the principal markets and instruments in which it trades, its principal exposures, performance data and concentrations of risk. The AIFM will also be required to notify the competent authorities of the home Member State of the identity of the AIF managed, the markets and assets in which the AIF will invest and the organisational and risk management arrangements established in relation to that AIF.
The use of a systematically high level of leverage allows AIFM to have an impact on the markets in which they invest which may be a multiple of the equity capital of the fund. The proposal empowers the Commission to set leverage limits through comitology procedures where this is required to ensure the stability and integrity of the financial system. The proposed Directive grants additional emergency powers to the national authorities to restrict the use of leverage in respect of individual managers and funds in exceptional circumstances. It furthermore foresees that AIFM employing leverage on a systematic basis above a defined threshold will be required to disclose aggregate leverage in all forms, and the main sources of leverage to the home authority of the AIFM. The draft proposal does not impose obligations upon competent authorities as regards the use of this information. It requires competent authorities for such leveraged funds to aggregate and share, with other competent authorities, information that is relevant for monitoring and responding to the potential consequences of AIFM activity for systemically relevant financial institutions across the EU and/or for the orderly functioning of the markets on which AIFM are active.
The proposal provides for disclosures of information to other shareholders and the representatives of employees of the portfolio company in which the AIFM acquired a controlling interest. It foresees that the AIFM issues annual disclosure on the investment strategy and objectives of its fund when acquiring control of companies, and general disclosures about the performance of the portfolio company following acquisition of control. These reporting obligations are introduced in view of the need for private equity and buy-out funds to account publicly for the manner in which they manage companies of wider public interest. The information requirements address the perceived deficit of strategic information about how private equity managers intend to, or currently, manage portfolio companies.
For reasons of proportionality the draft proposal does not extend these requirements to acquisitions of control in SMEs – and thereby seeks to avoid imposing these obligations on start-up or venture capital providers (to the extent that they are not already exempted from the scope of the entire Directive). To meet concerns about reduction in information following the delisting of public companies by private equity owners, the draft proposal requires that such delisted companies continue to be subject to reporting obligations for listed companies for up to 2 years following delisting.
In order to facilitate the development of the single market, an AIFM authorised in its home Member State will be entitled to market its funds to professional investors on the territory of any Member State. As a corollary of the high common regulatory standard achieved by the proposed Directive, Member States will not be permitted to impose additional requirements on AIFM domiciled in another Member State insofar as marketing to professional investors is concerned. The cross-border marketing of AIF shall be subject only to a notification procedure, under which relevant information is provided to the host Member State.
The proposed Directive does not provide rights in relation to marketing AIF to retail investors. Member States may allow for marketing to retail investors within their territory and may apply additional regulatory safeguards for this purpose. Such requirements shall not discriminate according to the domicile of the AIFM.
The proposed Directive permits AIFM to market AIF located in third country domiciles subject to strict controls on the performance of key functions by service providers in those jurisdictions. The rights granted under the Directive to market such AIF to professional investors will only become effective three years after the transposition period, because of the time needed to provide for additional requirements in implementing measures. In the meantime Member States may allow or continue to allow AIFM to market AIF domiciled in third countries to professional investors on their territory subject to national law. The key functions and activities which are likely to give rise to risks for European markets, investors or counterparties are required to be undertaken by EU established entities, operating subject to harmonised rules. The Directive contains provisions which define the functions which can be undertaken by third country entities or delegated to them under the responsibility of EU authorised institutions. These provisions also define the conditions (regulatory and supervisory equivalence) under which limited functions can be undertaken by third country entities. In addition, the draft Directive only permits the marketing of AIF domiciled in a third country, if their country of domicile has entered into an agreement based on Article 26 of the OECD Model Tax Convention with the Member State on whose territory the AIF shall be marketed. This shall ensure that national tax authorities may obtain all information from the tax authorities of the third country which are necessary to tax domestic professional investors investing in offshore funds. Three years after the transposition period the Directive will allow AIFM established in a third country to market their funds in the EU provided that the regulatory framework and supervisory arrangements in that third country are equivalent to those of the proposed Directive, and EU operators enjoy comparable access to that third country market. In all cases, decisions on the equivalence of the relevant third country legislation and comparable market access will be taken by the Commission.
In order to ensure the secure functioning of the AIFM sector, competent authorities of the Member States will be required to cooperate whenever necessary so as to achieve the aims of the Directive. Given the cross-border nature of risks arising in the AIFM sector, a prerequisite for effective macro-prudential oversight will be the timely sharing of relevant macro-prudential data at the European, or even global, level. The competent authorities of the home Member State will thus be required to transmit relevant macro-prudential data, in a suitably aggregated format, to public authorities in other Member States. In case of disagreement between competent authorities the matter shall be referred to CESR for mediation with the aim to reach a rapid and effective solution. The competent authorities shall duly consider the advice of CESR.
Budgetary Implications
The proposal has no implications for the Community budget.