EFAMA response to the Commission s Call for Evidence on Directive 1997/9/EC on Investor-Compensation Schemes

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1 EFAMA response to the Commission s Call for Evidence on Directive 1997/9/EC on Investor-Compensation Schemes EFAMA s Register ID number: Introduction EFAMA 1 is grateful to the European Commission for the opportunity to participate in the call for evidence in relation to the review of Directive 1997/9/EC on investor-compensation schemes ( ICSD ). We believe an investigation into the functioning of the ICSD in light of market developments since 1997 and the current crisis to be sensible, and, to a certain extent, we welcome the proposed alignment with the revised Deposit Guarantee Schemes Directive ( DGSD ) in order to ensure coherence in the regulatory framework across sectors. However, before proposing any substantial change to loss events, a clear case for European action needs to be made. Last but not least, a special treatment of money market funds under the ICSD is not appropriate. SCOPE - INVESTMENT SERVICES COVERED BY THE ICSD AND LOSS EVENTS (ARTICLE 1, POINT 2 AND ARTICLE 2 (2) OF THE ICSD) MTFs 1) Should the operation of multilateral trading facilities be excluded from the scope of the ICSD? EFAMA members support the extension of the ICSD to multilateral trading facilities, but only to those that provide services to retail clients. In most Member States, only retail investors are entitled to benefit from the compensation scheme. Therefore, only providers operating in the retail market should be required to adhere to the ICSD and pay compensation levies. Providers whose clients do not benefit from the compensation should not be expected 1 The European Fund and Asset Management Association (EFAMA) is the representative association for the European investment management industry. EFAMA represents through its 24 member associations and 44 corporate members about EUR14 trillion in assets under management of which EUR 6.1 trillion was managed by around 53,000 investment funds at end For more information, please visit 18 Square de Meeûs B-1050 Bruxelles Fax

2 P. 2 to make contributions. Most MTF operators deal only with professionals who fall outside the scope of compensation schemes. Loss covered 2) Would it be appropriate to include in the scope of the ICSD all investment firms seeking authorisation to the provision of investment services, although their authorisation would not allow holding clients' assets? A broad majority of EFAMA members rejects the extension of the scope to investment firms that are not authorised to hold clients assets. Since the firm is not allowed to hold clients assets, there is no need for additional safeguards. If the assets are not held in the firm s name, they are held in the client s name or in a collective investment scheme; in either case they are segregated from the investment firm s assets and would not be affected by the firm s bankruptcy or default. 3) Would it be appropriate to include in the scope of the ICSD all investment firms seeking authorisation to the provision of investment services, although they provide their services only to non-retail clients? According to the ICSD, Member States can exclude certain investors from cover by schemes. To the best of our knowledge, most Member States made use of this option with the result that only retail investors are entitled to benefit from the compensation scheme. Therefore, only investment firms operating in the retail market should be required to adhere to the ICSD and pay compensation levies. It would be unjustifiable if an investment firm only operating in the professional market were to pay membership fees for something its clients did not benefit from. 4a) Should investors be able to claim compensation in the case of default of the third party where their assets had been deposited? 4b) Should investors (such as UCITS or a UCITS unit holder) be able to claim compensation for loss of assets under the ISCD in those cases where the UCITS depositary or the institution which has been mandated to safe keep the assets, fail to perform its duty? The question as to whether investors can claim compensation for losses incurred by the third party has become relevant in the context of the Madoff fraud where the depositaries of three UCITS funds had entrusted fund assets with Madoff entities.

3 P. 3 The UCITS Directive states in Article 9 that a depositary shall, in accordance with the national law [...], be liable to the management company and the unit-holders for any loss suffered by them as a result of its unjustifiable failure to perform its obligations or its improper performance of them. Liability to unit-holders may be invoked either directly or indirectly through the management company, depending on the legal nature of the relationship between the depositary, the management company and the unit-holders. At present, it is impossible to predict whether or not investors in the three UCITS funds will be indemnified for losses incurred under the law of the Member States where the depositaries concerned were domiciled. Investigations and proceedings are still ongoing and EFAMA members believe that any proposed changes to the ICSD should be deferred until after the outcome of the proceedings. Moreover, the ICSD is to be seen as a complement to the existing provisions of the UCITS Directive. The Commission, along with CESR, is currently reviewing the manner in which Member States have implemented the relevant provisions of the UCITS Directive, and is evaluating how responsibilities and liabilities of depositaries are defined with regard to national civil law. Depending on the outcome of this mapping exercise, further clarification or even harmonisation of responsibilities might be proposed. Any modifications to the ICSD should be coherent with the outcome. Therefore, EFAMA members call on G3 to monitor carefully the developments in the UCITS Directive before amending the ICSD in this respect. Without anticipating further steps, we would like to make the following remarks: Firstly, as a general principle, claims and hence compensation should be restricted to loss of assets/cash which had been deposited with the third party or object of a transaction in the course of trading, and not to losses arising from investment risk. Secondly, any extension to third parties would probably increase the price of their services and incur additional costs which ultimately would have to be borne by investors. A rigorous cost-benefit analysis should therefore be carried out. Should a modification of the ICSD be deemed necessary in this respect, there is no unanimous view among EFAMA members regarding the possibility for UCITS investors to claim compensation, some believing that individual investors should be able to make claims directly, whilst others think that only the fund (or the management company on its behalf, in the case of contractual funds) should be entitled to claim damages. 5) Should loss events include also any losses suffered by (retail) investors as a consequence of the violation of conduct of business rules? A broad majority of EFAMA members reject the coverage by the ICSD of any losses as a consequence of the violation of conduct of business rules. These differ widely across Member

4 P. 4 States and companies, and it would be extremely difficult to define and prove the casual link between the rule breach and the loss. The result would be increased legal uncertainty as opposed to enhanced investor protection, lulling investors into a false sense of security. Any claim for damages would need to be established on a case-by-case basis, depending upon the rules of national civil law, procedures would be lengthy and burdensome and equal treatment of investors might become difficult (between those who were successful before the courts and those who were not). Moreover, companies would be discouraged from applying conduct of business rules that go beyond legal requirements. A broad majority of EFAMA members favours maintaining the current coverage of the Directive, without extensions. THE AMOUNT OF COMPENSATION (ARTICLE 4 OF THE ICSD) 6) Do you agree with the idea that the amount covered by the ICSD should be adapted following the updating of the DGSD? In order to establish a level playing field between banking products on the one hand and investment products on the other, a majority of EFAMA members agree that the amount covered by the ICSD should be adapted following the revision of the DGSD. It is important to maintain investor confidence and to prevent flows of funds from investment- to depositbased products. FUNDING OF THE INVESTOR COMPENSATION SCHEMES (RECITAL 23 OF THE ICSD) 7) The ICSD does not harmonise the funding systems of the schemes. Should the ICSD provide for some general principles concerning the funding of the schemes? EFAMA members acknowledge that different national funding systems might have an impact on the smooth functioning of the scheme and timely compensation of investors. The report by Oxera prepared for the Commission in January 2005 on Description and assessment of the national investor compensation schemes established in accordance with Directive 97/9/EC states that although funding difficulties have been reported in some instances, to date no EU compensation scheme has experienced a significant shortfall of funds that would have prevented it from making payments to investors. However, this does not necessarily imply that scheme funding can be considered adequate going forward. Few EU compensation schemes have undertaken a rigorous assessment of the adequacy of their funding arrangements in light of potential loss exposures. (p. 89/90) Before proposing any provisions aiming at a further harmonisation of the funding mechanisms, we believe that the Commission, in light of the financial crisis, should examine the performance of national schemes over the past months. Based on these results, it should draw further conclusions as to the need for EU harmonisation whilst taking into account the

5 P. 5 need for sufficient flexibility of funding, in particular the availability of multiple sources, as well as the size of financial markets: Any new financing system should not jeopardize the stability of the financial system of the Member State concerned (Recital 23 of the ICSD). THE RESTRICTIONS ON THE CARRYOVER OF UNPAID REIMBURSEMENT DEBTS 8a) Does the legislation of the Member State you know the best provide mechanisms aimed at limiting compensation schemes' obligations over time? If yes, how many clients saw their compensation unpaid as a result of such mechanisms? 8b) Should this kind of mechanisms be prohibited? EFAMA members oppose any arrangements whereby consumers remained unpaid as a result of any mechanism to prevent the carryover of unpaid reimbursement debts, thus limiting compensation schemes obligations over time. THE REDUCTION OF PAYOUT DELAY (ARTICLE 9 (2) OF THE ICSD) 9a) Should the process of recognising the eligibility of the claim be regulated for the purposes of the ICSD? 9b) Should, at least, a mechanism be introduced providing for provisional partial compensation based on a summary assessment of clients' positions? 9c) Irrespective of the harmonisation of their funding systems, should compensation schemes ensure that they have minimum reserve funds in order to comply rapidly with any immediate needs? Although a streamlining of the assessment process would be desirable, EFAMA members have doubts as to the feasibility of harmonising the relevant parts of insolvency law to establish common criteria for eligibility and the amount of the claim. Instead, the Commission might consider following the approach taken in the DGSD as far as possible, reporting in due time after implementation on the effectiveness of the procedures. MONEY MARKET FUNDS 10) Do you think special attention should be given to money market funds? EFAMA members strongly disagree with the suggestion that investors in money market funds should be compensated for any losses in market value. All UCITS, including money

6 P. 6 market funds, are investment products, and there is no guarantee as to investment results. There is no reason to depart from this important principle. However, the documentation and the distributors of Money Market Funds should clearly explain the objectives of the fund in terms of capital preservation, liquidity and yield, in order to enhance understanding of the investment risks and investor protection. If some providers want to offer some form of guarantee to investors in money market funds, they should specify the details of the guarantee, just as for any other type of investment funds. 11) Based on the concrete application of the ICSD do you see further issues other than the ones mentioned in the present document that might be of relevance to this analysis? Provisions might be necessary to ensure that scope and cover of the scheme are clearly disclosed to investors. Brussels, 7 April 2009 Peter De Proft Director General

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