UK: Compliance Clarified - May 2013

AIFMD: ESMA FINAL REPORT ON KEY CONCEPTS

On 24 May 2013, the European Securities and Markets Authority (ESMA) published a final report containing guidelines on key concepts of the Alternative Investment Fund Managers Directive (AIFMD).

Aimed at alternative investment fund managers (AIFM) and national regulators, the report seeks to clarify some of the key concepts used in the definition of alternative investment fund (AIF).

Specifically, there is guidance on the meaning of:

  • collective investment undertaking;
  • raising capital;
  • number of investors; and
  • defined investment policy.

ESMA confirms that an undertaking will not be an AIF if it does not meet the definition in Article 4(1)(a) of the AIFMD. It also says that an undertaking will be an AIF if it meets the definition, regardless of whether or not it also exhibits certain features described in ESMA's guidance. For a Directive with such broad scope and so many grey areas, this is somewhat stating the obvious when ESMA could have developed some of the key concepts further.

There is no additional guidance on joint ventures, with ESMA simply referring to the European Commission's Q&A website. The Commission states in a response to a query that joint ventures could only be excluded if they fell within an express exclusion in Article 2(3) or did not meet the definition of an AIF in Article 4(1)(a). The Commission states that each situation should be considered on its own merits, allowing substance to prevail over the formal denomination of the specific structure. National definitions should also be used to determine what a joint venture is. With no pan-European guidance on the features of a joint venture, problems of interpretation could arise when the joint venture parties are from different EU member states which interpret the meaning of a joint venture differently.

The concept of an "ordinary company" has been replaced with an "undertaking not having a 'general commercial or industrial purpose' [which is now defined]". The substance still seems largely the same with this measure intending to ensure consistent interpretation throughout the EU. ESMA has also included a definition of "day to day discretion or control" for the purposes of deciding whether an undertaking is a collective investment undertaking. It says this is again to ensure consistent application across the EU.

The final guidelines are helpful, but one could be forgiven for expecting more from ESMA, especially since many of these concepts can lead to different interpretations and firms are still left without certainty on certain aspects.

The guidelines need to be translated and will be published on the ESMA website. National regulators will need to confirm their compliance or intention to comply with the guidelines to ESMA within two months of the guidelines being published on the ESMA website.

Further reading
ESMA Final Report

AIFMD: FCA WEBPAGE FOR DEPOSITARIES

The FCA has published a draft of the Variation of Permission (VOP) form for depositaries of AIF(s) and is seeking feedback from firms. Feedback should be emailed to AIFMD-Forms-Comments@fca.org.uk by 28 June 2013.

Firms seeking to become depositaries for the first time

Firms which are not currently authorised and are interested in acting as the trustee or depositary of an AIF(s) are not able to use the transitional provisions, but will need to apply to the FCA for authorisation. The FCA expects the forms to be available by 22 July 2013, but it will accept draft applications from unauthorised firms prior to 22 July 2013 to ensure applications are processed as quickly as possible. Such firms should complete the application pack for wholesale investment firms and append it to the completed draft VOP form. The FCA has up to six months to determine complete applications and this period will not commence until 22 July 2013.

Firms already authorised to act as a depositary

Firms that are already authorised will be able to act as the depositary of an AIF without needing to obtain the new permission from the outset under the UK's implementation of the transitional provisions. Such firms should submit their VOP applications in good time to meet the 22 July 2014 deadline, however.

Firms acting as a trustee or depositary of an AIF during the transitional period must still ensure that the service provided complies with the requirements of the AIFMD and the FCA's rules. Such firms will have to certify to the FCA to this effect.

Impact on AIFMs

The FCA expects to receive VOP applications from firms that wish to become a Full Scope UK AIFM (Alternative Investment Fund Manager) before 22 July 2013. Applicants will have to state in their VOP form:

  • the identity of the firm(s) they have appointed, or intend to appoint, to act as the trustee and/or depositary of the AIF(s) being managed from 22 July 2013;
  • that the FCA may contact the firm(s) identified to discuss their suitability to perform that role; and
  • that they have undertaken adequate due diligence and are satisfied the service that will be provided by the trustee or depositary of the AIF(s) will meet the relevant requirements of the AIFMD.

Therefore, it is important that AIFMs engage with potential depositaries as soon as possible as any delays in identifying one could delay your VOP application and authorisation under the AIFMD.

Further reading
Draft VoP form for Depositaries

AIFMD: ESMA LAUNCHES CONSULTATION ON REPORTING OBLIGATIONS

On 24 May 2013, ESMA launched a consultation paper on their guidelines for AIFMs' reporting obligations under Articles 3 and 24 of the AIFMD.

The rationale for the consultation comes from ESMA's desire to standardise the format of the information that AIFMs send to national competent authorities (NCA). According to ESMA, such standardisation will facilitate the exchange of information between relevant NCAs under Articles 25 and 53 of the AIFMD.

The draft reporting guidelines are set out in Annex III of the paper. They provide clarification on the information which AIFMs should report to NCAs, the timing of such reporting and the procedures to be followed when AIFMs move from one reporting obligation to another.

Annex IV of the consultation paper contains a draft reporting template. Annex V contains a diagram which summarises the reporting obligations of AIFMs, as determined by the total value of assets under management and the nature of the AIF which is managed or marketed.

The consultation is accompanied by the publication of IT files that AIFMs will have to use to report information.

The consultation closes on 1 July 2013.

Further reading
ESMA Consultation Paper

AIFMD: HM TREASURY RESPONDS TO MARCH 2013 CONSULTATION

HM Treasury has published its response to its March 2013 consultation on transposing the AIFMD.

The policies addressed in the consultation are focussed on:

  • the managers of common investment funds and common deposit funds and their charity investors;
  • non-UK managers of UK recognised schemes; and
  • non-UK EEA managers of UK authorised funds.

The response was published at the same time as a response to HM Treasury's January 2013 consultation and a revised draft version of the Alternative Investment Fund Managers Regulations 2013 (the Regulations).

Key points to note from responses to the consultations are as follows:

  • Managers of authorised funds: the Government will not impose any new requirements on sub-threshold managers of authorised funds as part of the AIFMD implementation.
  • Definition of AIF: there is not enough time to create separate and exclusive definitions of an AIF and collective investment scheme, but this issue might be re-visited at a later date.
  • Ancillary activities: the ancillary activities listed in Annex 1, paragraph 2 of the AIFMD will be part of the new regulated activity of managing an AIF.
  • Marketing: amendments to Part 8 of the Regulations have been made to improve clarity and ensure that activities outside the scope of the AIFMD are not inadvertently captured.
  • Internally managed investment companies: the Government will not apply the approved persons regime to internally managed investment companies.
  • EEA charities: the Regulations are being amended to permit investment by EEA charities.
  • Extension of the Financial Services Compensation Scheme: coverage of the Scheme will be applied to non-UK managers of UK authorised AIFs.

Further reading
HM Treasury's response to consultation
Alternative Investment Fund Managers Regulations

EMIR: EUROPEAN COMMISSION REQUESTS ADVICE ON TRADE REPOSITORIES

The Commission has issued a formal request for technical advice to ESMA. The request is in relation to the possible delegated acts concerning the procedural rules for taking supervisory measures and imposing fines on trade repositories.

The Commission has asked ESMA to focus on rules of procedure for the exercise of powers to impose fines and penalty payments and on applicable limitation periods. More specifically, the mandate invites ESMA to:

  • reflect on procedures to guarantee the rights of the defence during and on completion of investigations, and advise on a reasonable time limit for submitting written submissions;
  • advise on the procedure for oral hearings;
  • advise on the procedures regarding access to the files for those subject to the investigations;
  • advise on the documents to be submitted by the investigating officer to ESMA, so that ESMA is informed of all relevant facts;
  • advise on the limitation periods for the imposition of penalties and for the enforcement of penalties; and
  • reflect on the methods for collecting fines and periodic penalty payments.

ESMA has until 31 December 2013 to deliver its advice.

EMIR: EUROPEAN COMMISSION MEMO ON APPLICATION TO NON-EU CCPS

On 16 May 2013, the Commission published a memo on the recognition procedure for central counterparties (CCPs) that are established outside the EU but wish to provide services to market participants that are established within the EU. The memo establishes how the recognition procedure will be implemented.

The Commission suggests that two processes will have to be run in parallel:

  • non-EU CCP recognition procedures administered by ESMA; and
  • foreign jurisdiction equivalence procedures administered by the Commission.

Recognition procedures

Non-EU CCPs currently providing services to EU entities must apply to ESMA for recognition under EMIR by 15 September 2013. It should be noted that ESMA's recognition process can take up to nine months, during which time such non-EU CCPs can continue to provide services to EU clearing members already participating with those CCPs. Ultimately, clearing members established in the EU will only be entitled to deal with CCPs which have been recognised under EMIR by ESMA.

The memo also provides further information on the following:

  • the types of CCPs that are subject to the EMIR recognition procedure;
  • the benefits of being recognised under EMIR;
  • how the EMIR recognition procedure works; and
  • the timeline that applies for recognition under EMIR.

Equivalence procedures

The Commission has asked ESMA to provide technical advice on the supervisory framework applicable to third countries so that equivalency procedures can be finalised.

ESMA technical advice for the first set of countries is expected on 15 June 2013 and advice for second set of countries is expected on 15 July 2013. If necessary, further advice will be requested from ESMA by the Commission. We will provide a further update in this regard once ESMA has produced its guidance.

Further reading
Commission Memo

EMIR: EUROPEAN COMMISSION SETS ESMA DEADLINE FOR RTS ON CROSS-BORDER APPLICATION OF EMIR

In a letter from the Commission dated 22 April 2013, the Commission has requested that ESMA produce its draft regulatory technical standards (RTS) on the cross-border application of EMIR by 25 September 2013. The RTS, which had been postponed in June 2012, are now to be prepared to inform international regulatory discussion.

The technical standards are to relate to transactions between non-EU entities which have a direct, substantial and foreseeable effect within the EU.

Further reading
Letter from Commission

LAUNCH OF UK INVESTMENT MANAGEMENT STRATEGY

21 May 2013 saw the formal launch of the UK's investment management strategy. The strategy was formally announced in the Government's March 2013 budget and aims to promote the UK as a global centre of excellence in the investment management sphere.

The strategy focuses on the following three areas as a means of creating jobs and encouraging economic growth:

  • taxation;
  • regulation; and
  • marketing.

The Economic Secretary to the Treasury, Sajid Javid, spoke of the UK's natural investment management strengths noting that the Government's mission is to "make the UK the most competitive location for funds. We want funds domiciled here and we want funds managed here."

Taxation

The Government has pledged to simplify and streamline taxation in the investment management sector.

At the heart of this plan is the abolition of the Schedule 19 (stamp duty reserve tax) charge on funds. The Schedule 19 charge is charged to fund managers on the surrender of units in a fund, although it is investors who ultimately bear the cost.

The regime is regarded as complex and burdensome, requiring frequent tax returns to be sent to HMRC. The tax is difficult to explain to investors and gives rise to presentational complications when marketing UK funds.

Those that do not wish to pay the Schedule 19 tax simply invest in funds domiciled off-shore, thereby creating a major deterrent for establishment of and investment into investment funds in the UK.

The abolition of Schedule 19 will be legislated for in the Finance Bill 2014 to take effect in the 2014/15 tax year.

Regulation

The Government's approach to regulatory issues as part of this strategy will focus on professionalism, operational responsiveness, constructive engagement in the development of European legislation and implementation of new legislation which maximises economic benefits to investors at the same time as ensuring adequate protection.

Marketing

The government has pledged to work closely with key industry bodies to ensure a co-ordinated and focussed approach, creating a pro-active investment management marketing strategy.

Further reading
UK Investment Management Strategy

RETAIL DISTRIBUTION OF UNREGULATED COLLECTIVE INVESTMENT SCHEMES (UCIS)

The FCA has published its policy statement and rules in relation to UCIS which will ban the promotion of UCIS to the vast majority of UK retail investors. UCIS are broadly defined but will generally include investment funds such as private equity, real estate, debt, hedge and infrastructure funds. Other arrangements which do not have typical fund characteristics could also be caught so each investment should be considered on a case by case basis.

The changes mean that promotion of riskier and more complex fund structures will be limited to sophisticated investors for whom these products are suitable. The ban follows extensive work undertaken by the FSA and subsequently the FCA, which found that only one in every four advised sales of UCIS to retail customers was suitable and that many promotions breached the existing UCIS marketing restrictions.

From January 2014, the new policy will extend the products which are caught to include the following:

  • units in qualified investor schemes;
  • traded life policy investments; and
  • securities issued by special purpose vehicles pooling investments in assets other than listed or unlisted shares or bonds.

The FCA has confirmed that the following products will be outside the scope of the marketing restrictions:

  • securities issued by special purpose vehicles pooling investments in listed or unlisted shares or bonds;
  • exchange traded funds;
  • overseas investment companies that would meet the criteria for investments trust status if based in the UK;
  • real estate investment trusts; and
  • venture capital trusts.

Firms should review their procedures to ensure that they are compliant with the new rules, focussing in particular on those products which were not caught by the previous UCIS marketing restrictions.

Further reading
FCA Policy Statement

PAY-DAY LENDERS AND THE SLCB

Following publication of an interim report in November 2012, the Office of Fair Trading (OFT) released its final report on the payday lending industry in March 2013.

Its findings revealed a widespread lack of compliance amongst a large proportion of licensed businesses in the industry. According to the OFT, irresponsible lending practices have arisen across the payday lending spectrum as a result of the competitive advantages which firms can gain by emphasising speed and easy access to credit. As a consequence, lenders fail to conduct adequate (if any) assessments of affordability before lending or rolling over loans.

The OFT estimates that:

  • the payday lending industry was worth £2bn in 2011/2012 (up from an estimated £900m in 2008/2009);
  • the average loan is between £265 and £270 and is borrowed over 30 days;
  • the three largest lenders account for 55 per cent of the market by turnover and 57 per cent of the market by loan value;
  • around one third of loans are either repaid late or not repaid at all;
  • 28 per cent of loans issues in 2011/2012 were rolled over at least once, accounting for almost 50 per cent lenders' revenues; and
  • five per cent of loans were rolled over four times or more, accounting for 19 per cent of lenders' revenues.

The payday loan industry, possibly in a pre-emptive strike to avoid external regulation, has launched a self regulating body known as the Short Term Lending Compliance Board (SLCB) which will seek to tackle, amongst other things, the following example of bad practice, as highlighted in the OFT's report:

  • a failure to conduct adequate assessments of affordability before lending or rolling over loans;
  • the widespread making of misleading claims in lenders' advertising material;
  • a failure to adequately explain to customers how payments should be made; and
  • the widespread use of aggressive debt collection practices.

What's more, the head of the SLCB, Seymour Fortescue, has noted that "the SLCB will have a zero tolerance approach to bad practice and will be using all of its powers, whenever required, to ensure that the Consumer Finance Association's (CFA) members are measuring up to the SLCB's code and that consumers are getting the protection they deserve".

It should be noted that the SLCB will only cover those lenders which are members of the CFA. Whilst it would be in the interests of all payday lenders to get their house in order to avoid formal regulation by the OFT and potentially the FCA from 2014, those lenders which are not members of the CFA will be under no obligation to comply with the SLCB's rules.

Further reading
OFT's final report
CFA Press Release

FCA'S TOUGH STANCE ON CONFLICTS OF INTEREST FAILINGS

On 24 May 2013, the FCA published a decision notice in relation to a non-executive director's (NED) failure to disclose a conflict of interest which arose at the time of her appointment as a NED of two UK mutual societies. The decision notice imposes a financial penalty of £154,800 on Angela Burns and bans her from performing any role in relation to any regulated financial services.

The FCA found that between January 2009 and May 2011, Angela Burns had breached Principle 1 (Integrity) of the Statements of Principle and Codes of Practice for Approved Persons (APER) by recklessly failing to disclose her conflicts of interest to the mutual societies, which arose in dealing with a third party investment manager. FCA Director of Enforcement and Financial Crime, Tracey McDermott, warns NEDs that they need to carefully monitor any existing or potential conflicts of interest and be vigilant in observing corporate governance principles. Such action demonstrates the regulator's willingness to take strong action against senior individuals.

Ms Burns has referred the matter to the Upper Tribunal and its final decision is awaited. She failed to prevent the FCA from publishing the decision notice. In the meantime, we outline below a few key points for NEDs to consider so as to avoid any indication that they are acting in breach of conflicts of interest rules:

  • Existing NED role: the FCA was particularly critical of Ms Burns' use of her role as a NED for her own benefit. NEDs should be vigilant when utilising their role as a NED in business matters which could affect the companies on whose boards they sit.
  • Use of separate email addresses: Ms Burns used the same business email address when conducting her business for both mutual societies. Her role and division of responsibilities may have been clearer had she used separate email addresses depending on who she was conducting business on behalf of.
  • If in doubt disclose: whatever the final outcome may be, it is clear from this decision that the FCA is toughening its stance on conflict of interest issues. A NED is likely to encounter conflicts of interest situations more regularly than many other professionals. If unsure, the simple answer is to disclose.

Further reading
Decision Notice

JP MORGAN WEALTH MANAGEMENT SUBSIDIARY FINED £3M

On 23 May 2013 the FCA published its final notice to JP Morgan's wealth management business, fining it £3,076,200 for systems and controls failings in relation to retail investment advice and portfolio investment services.

The FCA's notice highlighted JP Morgan's failure to comply with Principle 3 (Management and Control) of the FCA's Principles for Business and rule 9.1.1 of the Senior Management Arrangements, Systems and Controls sourcebook (SYSC) setting out record keeping requirements.

The FCA's decision highlights its increasing willingness to crack down on the internal policies and procedures of wealth managers, no matter their size.

What's more, the FSA carried out a thematic review of the wealth management industry in 2011 and found the following:

  • 14 out of 16 firms reviewed were deemed to pose a high or medium risk of causing detriment to their clients;
  • 79 per cent of the files reviewed had a high risk of unsuitability or the suitability could not be determined; and
  • 67 per cent of the files reviewed were not in line with the firm's house model, a client's stated investment objectives or a client's risk profile.

Such information was communicated by the FSA in a letter to the chief executive officers of the wealth managers under review effectively issuing a warning for wealth managers to get their house in order or expect to be fined.

Appendix 1 of the letter contains a summary of the FSA (now FCA) Handbook requirements and wealth managers are advised to review the guidance in light of their current policies and procedures.

Further reading
FSA Dear CEO letter

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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