Investment Fund Regulatory and Tax developments in selected jurisdictions

FUND NEWS January 2013 Investment Fund Regulatory and Tax developments in selected jurisdictions Regulatory Content Issue 99 – Regulatory and Tax Regulatory & implementing technical standards for OTC derivatives, CCPs & trade repositories Page 1 ESMA Q&A Short selling and certain aspects of credit default swaps Page 2 Tougher credit rating rules voted by European Parliament Page 2 ESMA approves co-operation agreement with Brazilian regulator Page 2 Luxembourg New status for Advisers of UCIs and SIFs Page 3 Circular 13/557 on EMIR Page 3 CSSF Anti-money laundering Regulation 12-02 Page 4 UK Progress in transposing the AIFMD into UK law Page 5 International IOSCO Suitability rules for distribution Regulatory News of Complex Financial Products Page 6 European Union Commission adopts regulatory and implementing technical standards for the Regulation on OTC derivatives, central counterparties and trade repositories On 19 December 2012, the European Commission adopted nine regulatory and implementing technical standards to complement the obligations defined under the Regulation on OTC derivatives, central counterparties (CCPs) and trade repositories. They were developed by the European Supervisory Authorities and have been endorsed by the European Commission without modification. The adoption of these technical standards finalises requirements for the mandatory clearing and reporting of transactions. The full texts of the standards are available via the following web link: Tax Content European Union Council agreement on enhanced cooperation for FTT Belgium Modification of ‘exit tax’ regime & increase in interest WHT Germany Draft Investment Tax Act UK HMRC draft guidance on Unauthorised Unit Trusts Page 7 Page 7 Page 8 1 Page 9 USA FATCA Final Regulations released Page 10 Fund News – January 2013 ESMA Q&A on Implementation of the 3) Reducing over-reliance on ratings Regulation on short selling and ESMA approves co-operations agreements with Brazilian regulator certain aspects of credit default swaps On 30 January 2013 the European Securities and Markets Authority (ESMA) issued a second update of its Questions and Answers paper (Ref: To reduce over-reliance on ratings, MEPs urge credit institutions and investment firms to develop their own rating capacities. By 2020 no EU legislation should directly refer to external ratings. The European Securities and Markets Authority (ESMA) approved the co-operation arrangements between the Brazilian Comissão de Valores Mobiliários (CVM) and the EU securities regulators for the supervision of ESMA/2013/159) on the practical 4) Capping shareholdings alternative investment funds (AIFs). The implementation of the Regulation on short selling and credit default swaps which is available via the following link: Tougher credit rating rules voted by European Parliament In a Press Release dated 16 January 2013 the European Parliament advised that in the plenary session of the same day, new rules were voted on credit A credit rating agency will have to refrain from issuing ratings, or disclose that its ratings may be affected, if a shareholder or member holding 10 % of the voting rights in that agency has invested in the rated entity. The new rules will also bar anyone from simultaneously holding stakes of more than 5% in more than one credit rating agency, unless the agencies concerned belong to the same group. co-operation arrangements include the exchange of information, cross-border on-site visits and mutual assistance in the enforcement of the respective supervisory laws. This co-operation will apply to Brazilian alternative investment fund managers (AIFMs) that manage or market AIFs in the EU and to EU AIFMs that manage or market AIFs in Brazil. rating agencies. The rules cover the following main areas: 1) Set dates for sovereign debt ratings Unsolicited sovereign ratings could be published at least two but no more than three times a year, on dates published by the rating agency at the end of the previous year. 2) Agencies to be liable for ratings Investors will be able to sue an agency for damages if it breaches the rules set out in the legislation either intentionally or by gross negligence, regardless of whether there is any contractual relationship between the parties. Such breaches would include, for example, issuing a rating compromised by a conflict of interests or outside the published calendar. 2 Fund News – January 2013 Luxembourg New status for Luxembourg investment advisers of undertakings for collective investment (UCI) and specialised investment funds (SIF) On 10 January 2013 the Commission de Surveillance du Secteur Financier (CSSF) published a press release relating to the new status of Luxembourg based investment advisers of UCIs subject to The full text (in French) is available via the following web link: Circular 13/557 on EMIR The CSSF issued Circular 13/557 on 23 January 2013 which provides an overview of the requirements of the European Markets and Infrastructure Regulation (EMIR). The Circular recommends that financial counterparties should assess their EMIR readiness and lists the following questions that should be considered: the Law of 17 December 2010, and of SIFs subject to the Law of 13 February 2007. The new status will not impact foreign advisers of Luxembourg UCIs/SIFs. Further to the entry into force of the Law of 21 December 2012 implementing Directive 2010/78/EU amending the powers of the European supervisory authorities, the scope of the Law of 5 April 1993 on the financial sector has been modified. Luxembourg based investment advisers of UCIs or SIFs will now fall in the scope of the Law on the financial sector and they will have to apply for authorisation under Article 24 of that law. The authorisation will be granted by the Minister of Finance. Each Luxembourg based investment adviser of UCIs or SIFs exercising the activity at the time of the entry into force of the Law of 21 December 2012 has • Which trade repository can you report to for the types of derivatives you trade? • Will you report directly to the trade repository or delegate reporting to your counterparty or a third party? • Which CCPs accept to clear the types of OTC derivatives you trade? Will you access clearing directly as a ‘clearing member’? If not, you will need to be a client of a clearing member. • Are your existing systems and processes adequate to implement the new operational risk mitigation requirements set out in EMIR? • Do you have collateral agreements in place and sufficient collateral available to collateralise non-cleared OTC derivative trades? until 30 June 2013 at the latest to comply with the requirements of Article 24 of the Law on the financial sector. The entity must contact the CSSF by email (agrements.psf@cssf.lu), before 1 March 2013 in order to ensure that the application can be dealt with within the legal delay. The Circular is available on www.cssf.lu 3 Fund News – January 2013 CSSF Anti-money laundering Regulation 12-02 The CSSF Regulation 12-02 of 14 December 2012 on the fight against money laundering and terrorist financing has been published on 9 January 2013. Its purpose is first to respond to the FATF criticism set out in the evaluation report of Luxembourg published in 2010, where the legally binding character of the AML/CTF circulars issued by the CSSF and the CAA was challenged. This regulation aims to complete the current AML/CTF legislation in place and to finally transcribe the latest amendments introduced by the Grand-Ducal Regulation of 1 February 2010 and the Law of 27 October 2010. In addition CSSF circulars 08/387 and 10/476 are repealed. What are the main innovations introduced by this Regulation? To follow is a summary of the provisions mentioned in this Regulation that are the most relevant for the investment funds industry. Chapter 2: Scope In cases where investment funds are distributed through intermediaries acting on behalf of underlying investors, i.e. account opened in the name of the intermediaries or in the name of indirect investors, professionals are required upon starting a business relationship to apply enhanced due diligence measures for these intermediaries taking into consideration the same principles applicable to the cross-border correspondent banking relationships or other similar relationships with institutions in Third Countries. As such professionals should gather sufficient information to be in a position to determine the reputation of the intermediary, the quality of supervision, as well as to assess its AML/CTF measures and controls. This information should enable the professionals to assign a level of risk to this intermediary and determine the level of due diligence to apply. Chapter 3: Risk Based Approach According to articles 4 and 5 of the Regulation and as stipulated by article 3(3) of the modified Law of 12 November 2004, ‘professionals are required to perform an analysis of the risks inherent to their business activities’ taking into consideration the risks linked to the nature of their customers, the offered products and provided services. Professionals should set down the outcomes of this analysis in writing and be in a position to communicate this analysis to the CSSF. As such, professionals should assess and categorise their customers according to a certain level of risk. This categorisation needs to be performed prior to client acceptance. It should not be considered as a “one shot exercise” but must be continuously reviewed in order to apply the appropriate due diligence measures to mitigate the identified risks. Article 7 of the Regulation states that in order to apply simplified due diligence measures for direct customers, where the customer is a credit or financial institution of another EU Member State or in a third country as defined by article 3-1 of the modified Law of 12 November 2004 or in order to rely on customer due diligence performed by third parties as defined by article 3-3 of the modified Law of 12 November 2004, professionals should perform a risk assessment of the country where the credit/financial institution or the third party is located. This assessment should enable the professionals to demonstrate that they have sufficiently documented their comfort that the country has equivalent AML/CTF requirements in place to those applied in Luxembourg and that simplified due diligence measures could be applied. The outcomes of such assessment should be reviewed and updated on a regular basis. Chapter 4: Customer due diligence procedures Beneficial owner The obligation to identify the customer and verify its identity includes the identification of the beneficial owner and the fact that professionals should take all reasonable measures and use relevant information or data obtained from a reliable source to verify properly the identity of the beneficial owner. Art 17 of the Regulation indicates that professionals should obtain a written declaration from the customer whether he is acting or not for his own account. The customer will need to agree to inform the professional about any change in the beneficial ownership. There is nevertheless no longer a reference to the former declaration of beneficial owner signed by the beneficial owner itself that was recommended by 4 Fund News – January 2013 repealed CSSF circulars 05/211 and 08/387. In addition, there is also a question mark regarding article 23 of this Regulation and the more stringent reinterpretation of the definition of beneficial owner and the 25% ownership threshold defined by article 1(7) of the modified Law of 20 November 2004. UK Progress in transposing the AIFMD into UK law On 11 January 2013, HM Treasury (“HMT”) published its first Consultation Paper on the “Transposition of the Alternative Investment Fund Managers Directive” (“AIFMD”). This is the first of two consultations planned by HMT. The Investor Schemes (“QIS”); together with UK managers where the assets under management (“AUM”) are less than €100million will have to comply with the requirements of the AIFMD. • AIFMs of AUM under €100m are, however, to be exempt from three aspects of AIFMD: Information on the purpose and intended nature of the business relationship While identifying its customers and in order to understand the aim of the business relationship, professionals have the obligation to obtain information as regards the origin of funds of the customers but also as regards the type of transactions foreseen. This information should enable the professionals to conduct an ongoing monitoring of the customers’ business relationship according to article 24 of the Regulation. second consultation, to be published later in quarter one of 2013, will include guidance on: • scope of application of the Directive, including charity funds; the European Venture Capital Funds (“EuVECA”) and European Social Entrepreneurship Funds (“EuSEF”) Regulations; • marketing of EEA retail funds, third country retail funds, and Financial Services and Markets Act 2000 Section 270 and 272 funds; i) the Delegation Test: that is the requirement for the AIFM to undertake substantially more activities primarily portfolio management or risk management than their delegates and therefore would not be considered a ‘letter-box entity’; ii) certain reporting and transparency Although this new Regulation does not reinvent the wheel, we believe that some of its provisions will definitely have an impact on the Investment Funds industry, at the level of the UCI and the Management Company as well as the Registrar, from both a commercial and operational point of view. • application of the approved persons regime to internally managed investment companies; and • application of the Financial Services Compensation Scheme and Financial Ombudsman Service to AIFM. requirements such as reporting data to the regulator on leverage; and iii) the remuneration provisions and disclosure requirements of the Directive. This consultation includes a wider scope for AIFMs than the Directive: However, all other aspects of the Directive are to apply including the • UK managers of authorised funds which are not UCITS authorised funds, so the management of authorised Non-UCITS Retail Schemes (“NURS”) and Qualified regulatory capital and conduct of business rules. Additionally some firms will need to comply with special provisions in regard to the de minimis threshold (€100m), 5 ... - tailieumienphi.vn