The Front Page, Asset Management & Investment Funds: EU & International Developments

SFT Regulation

As flagged in our February Front Page, the European Commission announced that the European Parliament has adopted the proposed Regulation on reporting and transparency of securities financing transactions (SFTR).

The Commission also published Frequently Asked Questions (FAQs) on the SFTR.

On 16 November 2015, the Council of the EU announced that it adopted the SFTR with a draft text dated 5 November 2015.

The SFTR includes a reporting obligation for SFT counterparties (including UCITS and AIFs), as well as provisions on transparency, the registration and supervision of trade repositories and public disclosure to investors. SFTs are transactions that use assets belonging to one counterparty to generate financing, such as lending or borrowing of securities and commodities, repurchase or reverse repurchase transactions, or buy-sell back or sell-buy back transactions. The SFTR will impact UCITS management companies, self- managed UCITS, AIFMs and internally managed AIFs in respect of investment fund SFT activity.

The SFTR will enter into force on the 20th day following the date of its publication in the Official Journal of the EU. It will apply from the date of its entry into force with the exception of certain provisions (which will be set out in Article 33, and which include prospectus disclosures). The European Commission and ESMA will be required to produce certain delegated acts and technical standards (level 2 measures) and guidelines (level 3 measures).

Section A of the Annex to draft SFTR sets out the information to be provided in the UCITS half-yearly and annual reports and the AIF's annual report:

Global data:

  • The amount of securities and commodities on loan as a proportion of total lendable assets defined as excluding cash and cash equivalents;
     
  • The amount of assets engaged in each type of SFTs and total return swaps expressed as an absolute amount (in the collective investment undertaking's currency) and as a proportion of the collective investment undertaking's assets under management (AUM).

Concentration data:

  • Ten largest collateral issuers across all SFTs and total return swaps (break down of volumes of the collateral securities and commodities received per issuer's name);
     
  • Top 10 counterparties of each type of SFTs and total return swaps separately (Name of counterparty and gross volume of outstanding transactions).

Aggregate transaction data for each type of SFTs and total return swaps separately to be broken down according to the below categories:

  • Type and quality of collateral;
     
  • Maturity tenor of the collateral broken down in the following maturity buckets: less than one day, one day to one week, one week to one month, one to three months, three months to one year, above one year, open maturity;
     
  • Currency of the collateral;
     
  • Maturity tenor of the SFTs and total return swaps broken down in the following maturity buckets: less than one day, one day to one week, one week to one month, one to three months, three months to one year, above one year, open transactions;
     
  • Country in which the counterparties are established;
     
  • Settlement and clearing (e.g., tri-party, Central Counterparty, bilateral).

Data on reuse of collateral:

  • Share of collateral received that is reused, compared to the maximum amount specified in the prospectus or in the disclosure to investors;
     
  • Cash collateral reinvestment returns to the collective investment undertaking.

Safekeeping of collateral received by the collective investment undertaking as part of SFTs and total return swaps.

Number and names of custodians and the amount of collateral assets safe-kept by each of the custodians.

Safekeeping of collateral granted by the collective investment undertaking as part of SFTs and total return swaps.

The proportion of collateral held in segregated accounts or in pooled accounts, or in any other accounts.

Data on return and cost for each type of SFTs and total return swaps broken down between the collective investment undertaking, the manager of the collective investment undertaking and third parties (e.g. agent lender) in absolute terms and as a percentage of overall returns generated by that type of SFTs and total return swaps.

Section B of the Annex to draft SFTR sets out the information to be included in the UCITS Prospectus and AIF disclosure to investors:

General description of the SFTs and total return swaps used by the collective investment undertaking and the rationale for their use.

Overall data to be reported for each type of SFTs and total return swaps:

  • Types of assets that can be subject to them;
     
  • Maximum proportion of AUM that can be subject to them;
     
  • Expected proportion of AUM that will be subject to each of them.

Criteria used to select counterparties (including legal status, country of origin, minimum credit rating).

Acceptable collateral: description of acceptable collateral with regard to asset types, issuer, maturity, liquidity as well as the collateral diversification and correlation policies.

Collateral valuation: description of the collateral valuation methodology used and its rationale, and whether daily mark-to-market and daily variation margins are used.

Risk management: description of the risks linked to SFTs and total return swaps as well as risks linked to collateral management, such as operational, liquidity, counterparty, custody and legal risks and, where applicable, the risks arising from its reuse.

Specification of how assets subject to SFTs and total return swaps and collateral received are safe-kept (e.g. with fund custodian).

Specification of any restrictions (regulatory or self-imposed) on reuse of collateral.

Policy on sharing of return generated by SFTs and total return swaps: description of the proportions of the revenue generated by SFTs and total return swaps that is returned to the collective investment undertaking, and of the costs and fees assigned to the manager or third parties(e.g. the agent lender). The prospectus or disclosure to investors shall also indicate if these are related parties to the manager.

KIDs for PRIIPs

On 11 November 2015, the Joint Committee of the European Supervisory Authorities (ESAs, being the EBA, EIOPA and ESMA) published a consultation paper on key information documents (KIDs) for packaged retail and insurance-based investment products (PRIIPs). UCITS will not be obliged to move to producing a PRIIPs KID (which is based on the UCITS KIID) until 2019 at the earliest. The consultation sets out the proposed requirements to include in the preparation of the KIDs. These include the following:

  • A common mandatory template for each KID, including the texts and layouts to be used.
     
  • A summary risk indicator of seven simple classes for the risk and reward section of the KID.
     
  • A methodology to assign each PRIIP to one of the seven classes contained in the summary risk indicator and for the inclusion of additional warnings and narrative explanations for certain PRIIPs.
     
  • Detail on performance scenarios and a format for their presentation, including possible performance for different time periods.
     
  • Specific layouts and contents for the KID for products offering multiple options that cannot be covered in three pages.

The consultation closes on 29 January 2016. The ESAs will hold a public hearing on 9 December 2015. The RTS and accompanying impact assessment will be submitted to the European Commission by 31 March 2016.

The European Commission has published a report on the consumer testing study that it has carried out relating to the possible new format and content for the PRIIPs KID together with a summary thereof.

Council of the EU conclusions on European Commission CMU action plan

On 10 November 2015, the Council of the EU published a press release setting out its conclusions on the European Commission's action plan on building a capital markets union (CMU).

Of particular interest in an investment funds context, the Council:

  • Supports a number of the Commission's priority areas, including increasing investment and choices for retail and institutional investors and flags the publication, by year end, of a green paper on retail financial services and insurance.
     
  • Stresses the importance of preserving the financial stability objectives of financial legislation, consumer and investor protection as well as the single market, including through the single rulebook. The Council notes the Commission's plan to review this body of law to ensure coherence, internal consistency and proportionality and looks forward to the outcome of the Commission's call for evidence on the EU regulatory framework for financial services.
     
  • Invites the Commission, in the context of the relevant sectoral reviews, to assess the impact of third-country regimes in current regulations on the structure of EU capital markets, the competitiveness of the EU financial industry as well as effective access to third-country markets.
     
  • Recognises the need for the ESAs to work on strengthening supervisory convergence, where appropriate through peer-review procedures and, if necessary, enhanced co-operation.

IOSCO report on standards for custody of collective investment scheme assets

On 10 November 2015, the International Organization of Securities Commissions (IOSCO) published its final report on standards for the custody of collective investment scheme (CIS) assets.

The report sets out eight standards (in two sections) aimed at identifying the core issues that should be kept under review by the regulatory framework to ensure investors' assets are effectively protected. Section 1 of the report focuses on the custody function, highlighting the need for the regulatory framework to require that appropriate custodial arrangements be in place, clear segregation requirements and appropriate independence. Section 2 deals with standards concerning the appointment and ongoing monitoring of custodians.

The report usefully identifies some of the key risks associated with the custody of CIS assets, such as operational risk, misuse of CIS assets, risk of fraud or theft and IT risk.

For more information please contact Nollaig Greene or a member of the Asset Management & Investment Funds Team.

Date published: 30 November 2015