Entities engaging in securities financing transactions and total return swaps, including both UCITS and Alternative Investment Fund Managers ("AIFMs") should be aware that the Council of the European Union formally adopted the draft EU Regulation on reporting and transparency of securities financing transactions (the "Regulation") in November 2015. The Regulation will provide for reporting and disclosure requirements (subject to certain transitional implementation dates) in relation to securities financing transactions ("SFTs"). Once the Regulation enters into force, it shall be directly applicable in all EU Member States.
The Regulation is expected to be published in the Official Journal of the EU shortly and will come into force 20 days after publication.
A link to the current draft Regulation can be found here.
Set out below is an overview of the Regulation, its key requirements and the dates by which those requirements come into force.
The Regulation is one of the responses to the global financial crisis and the risks that SFTs pose. Bodies such as the Financial Stability Board and the European Systemic Risk Board involved in examining the risks associated with shadow banking have identified that a lack of transparency in the use of SFTs has prevented regulators and supervisors, as well as investors, from correctly assessing and monitoring the associated risks.
The Regulation introduces measures to improve transparency in three main areas, namely:
- the monitoring of the build-up of systemic risks in the financial system related to SFTs;
- the disclosure of information on such transactions to investors whose assets are employed in the transactions; and
- reuse of collateral provided by counterparties.
The Regulation is designed to improve transparency with the aim of preventing banks and other financial intermediaries from trying to circumvent banking regulation by shifting parts of their activities to the less-regulated bank-like credit intermediation (the so called shadow banking sector).
Scope and Impact
The Regulation applies to counterparties to an SFT and also to a counterparty that is engaging in reuse of collateral (not just confined to STF counterparties).
It applies in respect of total return swaps (as defined in the Regulation) and SFTs which are defined as:
(a) repurchase transactions;
(b) securities or commodities lending and securities or commodities borrowing;
(c) buy-sell back transaction or sell-buy back transaction;
(d) margin-lending transaction.
Each of the above is a defined term in the Regulation.
In addition to these categories, the European Commission may by delegated act expand the list of the types of transaction that will constitute an SFT having regard to whether such other types of transaction have an equivalent economic effect and pose similar risks to SFTs. The definition of SFT in the Regulation does not include derivative contracts as defined under the European Markets Infrastructure Regulation ("EMIR").
Not just EU entities!
The Regulation is not confined to entities located within the EU.
The Regulation shall apply to:
(i) an EU entity's non-EU branch that is party to an SFT or engaging in collateral reuse; and also
(ii) a non-EU entity that is party to an SFT or engaging in collateral reuse, if (a) the SFT is concluded or the reuse if effected by that non-EU entity's EU branch or (b) the reuse concerns financial instruments provided under a collateral arrangement by an EU counterparty or EU branch.
A Package of Measures
The key requirements include:
The Regulation provides that counterparties to an SFT are required to report certain details to a trade repository within one working day of the conclusion, modification and termination of the SFT and are also obliged to keep records of the SFT for at least five years following its termination.
A similar reporting obligation is imposed on counterparties to derivatives under EMIR and therefore clients may be in a position to build on pre-existing infrastructures, operational processes and formats.
Both counterparties are required to report the details of the SFT. However, there are exceptions for certain non-financial counterparties (criteria set out in the Regulation) whereby a financial counterparty is required to report the details on behalf of both parties. The UCITS management company or AIFM shall be responsible for reporting on behalf of its respective funds under management. It should be noted that any counterparty subject to the reporting obligation may delegate the reporting. Clients may be currently delegating reporting under EMIR and therefore should consider discussing the Regulation with their service provider.
The reports shall include (a) the parties to the SFT and, where different, the beneficiary of the rights and obligations arising from it; (b) the principal amount; currency; assets used as collateral and their type, quality, and value; the method used to provide collateral; whether collateral is available for reuse; in cases where it is distinguishable from other assets, whether it has been reused; any substitution of the collateral; the repurchase rate, lending fee or margin lending rate; haircut; value date; maturity date; first callable date; and market segment.
(ii) Periodic Accounts
UCITS management companies and AIFMs shall inform investors on the use they make of SFTs and total return swaps and this shall be included in the annual and semi-annual accounts for UCITS and annual accounts for AIFs. The information shall include the data provided for in Section A of the Annex to the Regulation.
(iii) UCITS Prospectus and the disclosure by the AIFM to investors
The UCITS Prospectus and the disclosure by the AIFM to investors shall specify the SFT and total return swaps that the fund can use and include a clear statement that these techniques are used.
The Prospectus and the disclosure by the AIFM to investors shall include the data provided for in Section B of the Annex to the Regulation. Section B provides as follows:
- General description of the SFTs and total return swaps used by the fund and the rationale for their use;
- Overall data to be reported for each type of SFTs and total
- 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 fund, 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.
UCITS funds may be in a position to rely on existing disclosure (subject to a review of the relevant fund documentation) for certain of the above disclosure requirements. For example, UCITS funds are currently subject to disclosure requirements in relation to collateral including disclosing (i) permitted types of collateral; (ii) level of collateral required; (iii) haircut policy; and (iv), in the case of cash collateral the re-investment policy (including the risks arising from the re-investment policy).
However, while qualifying investor AIFs are required to disclose any collateral and asset reuse arrangements, the collateral disclosure requirements under the Regulation are more prescriptive.
Other requirements are new and will require input from the investment manager (e.g. type of assets that can be subject to SFTs and maximum and expected proportion of AUM that can be subject to each of them).
When considering disclosure, it will also be necessary to have regard to existing requirements pursuant to other relevant legislation. For example, in relation to the disclosure requirements relating to criteria used to select counterparties, this will need to comply with the UCITS requirements in relation to counterparty criteria.
(iv) Collateral Reuse
A party reusing collateral received shall be required to disclose the risks and consequences of either (i) granting a right of use of collateral provided under a security collateral arrangement or (ii) concluding a title transfer arrangement. In addition, the receiving party must obtain the express written consent of the providing party in respect of a security collateral arrangement that includes a right of reuse or the provision of collateral under a title transfer arrangement. Such right of reuse must be exercised in accordance with the collateral arrangement's terms under the agreement.
For the purpose of the Regulation, "reuse" means the use by a receiving counterparty, in its own name and on its own account or on the account of counterparty, of financial instruments received under a title transfer or security collateral arrangement.
It is worth noting that for UCITS funds, non-cash collateral cannot be sold, pledged or re-invested and therefore there are higher standards already imposed for UCITS funds.
While subject to transition period as outlined below, clients will need to review and potentially amend their existing collateral arrangements, including master agreements, and to ensure new collateral arrangements comply with the Regulation.
(v) Additional Matters
The Regulation also sets out requirements relating to the registration and supervision of a trade repository, transparency and availability of such data, supervision and competent authorities and administrative sanctions and other measures.
In relation to administrative sanctions and other measures, the Regulation provides that Member States must empower competent authorities to impose sanctions for breaches of the SFT reporting and reuse requirements. Such measures include a public statement, the withdrawal or suspension of authorisation and a temporary ban against any person discharging managerial responsibilities. A breach of the reporting requirement shall not affect the validity of the terms of the SFT itself or the possibility of the parties to enforce the terms of the SFT.
The Regulation also provides that counterparties shall have in place appropriate internal procedures for their employees to report breaches of the SFT reporting and reuse requirements.
It is also worth noting that the Regulation shall amend the definition of "OTC derivative or OTC derivative contract" under EMIR.
ESMA Technical Standards
The Regulation provides that the Commission should be empowered to adopt regulatory technical standards by means of delegated acts in the following areas: the details of the different types of SFTs; the details of the application for registration or extension of services of a trade repository; the details of procedures to verify the details of SFTs reported to trade repositories; the frequency and the details of publication of, the requirements for, and the access to, trade repositories' data; and, if necessary, the content of the Annex.
ESMA will issue regulatory technical standards for this Regulation and the European Council has advised that ESMA should take into consideration the existing technical standards established under EMIR regulating trade repositories for derivative contracts and their future developments.
The Commission should be empowered to adopt implementing technical standards developed by ESMA with regard to the format and frequency of the reports, the format of the application for registration or extension of services of a trade repository, as well as the procedures and forms for exchange of information on sanctions with ESMA.
Transitional Arrangements - Time to Start Preparing
The Regulation shall enter into force on the 20th date following that of its publication. The Central Bank indicated in January 2014 that the earliest the Regulation would enter into force was mid-2015. It now seems that it will enter into force by the end of 2015 or early 2016. However, the precise timing is yet to be confirmed.
There are a number of transitional periods associated with various requirements in the Regulation
Requirements on reuse of collateral
Six months following entry into force and shall apply to collateral arrangements existing at the date of entry into force
Disclosure in periodic reports
Twelve months following entry into force
Disclosure in UCITS Prospectus and pre-investment disclosure for AIFs
Eighteen months following entry into force in the case of collective investment undertakings subject to the UCITS Directive or AIFMD that are constituted before the date of entry into force of this Regulation
The transitional period includes a phased introduction after the date of entry into force of the delegated act adopted by the Commission relating to the reporting obligation. The reporting obligation will apply to an SFT existing before the date on which the obligation takes effect (as set out in the table below) if (i) the remaining maturity of the SFT is greater than 180 days; or (ii) the SFT has an open maturity and remains outstanding 180 days after the date of application.
The first reporting period will depend on the type of financial counterparty as follows:
Type of financial counterparty
Investment firms and credit institutions
Twelve months following entry into force
Central securities depositaries and central counterparties
Fifteen months following entry into force
Insurance/reinsurance undertakings, UCITS/UCITS management companies, AIFs/AIFMs and institutions for occupational retirement provision
Eighteen months following entry into force
Twenty-one months following entry into force
We would advise that clients consider the Regulations and its requirements and to start preparing for its entry into force.
For asset managers contemplating any new collective investment schemes and/or new sub-funds, we would advise that you now reach out to your usual contact within Dillon Eustace to discuss the impact of the Regulation, particularly as funds approved by the Central Bank of Ireland 20 days or more following the entry into force of the Regulation shall be required to comply with the disclosure requirements.
In order to minimise additional operational costs for market participants, clients should consider in what areas they can build on pre-existing infrastructures, operational processes and formats which have been introduced with regard to reporting derivative contracts to trade repositories under EMIR.
Clients may also wish to engage in any ESMA consultation in relation to the technical standards to be adopted.
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.