The purpose of the exercise was to see how the detailed requirements of IFRS 7 - Financial Instruments: Disclosures and certain additional recommendations, had been applied (see notes for editors). Information contained in such statements is key to understanding a company’s financial position and performance and its omission might consequently affect the ability of investors to make decisions regarding their investment.

CESR’s analysis also identified that a significant number of companies provided additional disclosures in-line with recommendations published in late 2008 by various organisations such as the Senior Supervisors Group and the IASB Expert Advisory Panel in.

Fernando Restoy, Vice-Chair of the Spanish Comisión Nacional del Mercado de Valores (CNMV) and Chair of CESR-Fin, CESR’s group on accounting and enforcement issues, said:
“The financial crisis that existed during the second half of 2008 and the beginning of 2009 has had a major impact on the financial position and performance of publicly traded companies, particularly those in the financial sector. Strengthening investor confidence requires improved transparency on the actual situation of financial companies in their financial statements. Consequently, CESR would have expected a higher level of compliance with mandatory requirements, although that a significant number of companies provided additional disclosures in-line with recommendations, published in late 2008, is to be welcomed.”

A good level of compliance with disclosures on categories of financial assets or liabilities

CESR found a good level of compliance with disclosure requirements on the classification of financial assets and liabilities and their carrying amounts under IFRS 7. Many entities enhanced their fair value disclosures on certain instruments they believed to be of importance for users and provided additional information to help users to better understand the financial statements. IFRS 7 requires extensive disclosures regarding financial assets and liabilities held at fair value. If the market for a financial instrument is not active, an entity is required to establish fair value by using a valuation technique, which should be explained.

Although most entities disclosed the methods they had applied when using a valuation technique to determine fair values for classes of financial assets and/or liabilities, around 20% of all companies and almost 10% of FTSE Eurotop-companies did not make such disclosures. Around 40% of all companies (10% of FTSE Eurotop-companies) did not disclose the sensitivity of the fair values recognised in the financial statements to changes in the various assumptions.

In addition, around half of all companies reviewed, and about 15% of FTSE Eurotop-companies, did not provide either the aggregate difference in fair value estimates yet to be recognised, or reconciliation between the opening and closing balances.

By contrast, around one third of all companies (half of the FTSE Eurotop-companies) followed recommended practices and disclosed whether valuation techniques were based on significant unobservable inputs and if relevant, a description of the sources of those unobservable inputs into the valuation techniques. Furthermore, although disclosures based on the fair value hierarchy were non-mandatory at the time, more than half of the financial entities CESR examined applied the hierarchy in their financial statements. In addition, more than half of the companies followed CESR’s recommendation (Ref. CESR/08-713b) to disclose a summary of their valuation procedures.

Risks arising from financial instruments

Proper disclosure of risk is crucial for investors and other users of financial statements, particularly during more difficult market conditions. CESR’s analysis showed that for the three types of risk analysed, credit risk, liquidity risk and market risk, the general qualitative and quantitative disclosure requirements of IFRS 7 had been provided by almost all companies. However, some of the more detailed disclosure requirements for credit risk were not provided to the same extent.

CESR’s analysis also notes that, overall, a relatively high proportion of companies had chosen to adopt the amendments to IFRS 7 (which were still at the proposal stage in 2008) relating to liquidity risk in their financial statements early.

20% of financial institutions have not disclosed criteria used to determine impairment loss

In its analysis, CESR noted that around 80% of all companies analysed (90% of the FTSE Eurotop-companies) had impairment losses for financial instruments in 2008. Five per cent of the companies however, did not disclose a summary in their accounting policies of the criteria they use to determine that there is objective evidence that an impairment loss has occurred relating to equity instruments classified as available for sale.

20 % of entities did not disclose how special purpose entities (SPEs) were controlled

The analysis showed that 20% of companies with SPEs did not disclose details of how the SPE is controlled by that entity. FTSE-companies, which tend to have both more transactions and SPEs, complied better with the requirements.
In addition, around 20% of the companies having SPEs did not disclose details of how they had decided that all the significant risks and rewards of ownership of financial assets had been transferred to other entities. CESR would have expected that the number of companies providing adequate disclosures regarding their activities with off balance sheet entities to have been much higher.

The study conducted by CESR revealed areas where further compliance with disclosure requirements on financial instruments is needed. CESR and its Members believe that this information is key for users of financial statements in understanding the financial position and performance of a financial institution and will further assess compliance with disclosure requirements related to financial instruments.

In primis, come evidenziato sul proprio sito, l’European Commission consults on the measures necessary for a new EU framework for Crisis Management in the Banking Sector.

The European Commission has adopted a Communication on an EU framework for crisis management in the banking sector. The purpose of the Communication is to consult as widely as possible on a broad range of issues aimed at safeguarding financial stability and the continuity of banking services in a cross border banking crisis. The Communication sets out questions on the tools that the Commission considers would be necessary for an EU crisis management framework. These tools range from “early intervention” action by banking supervisors aimed at correcting irregularities at banks, to bank resolution measures which involve the reorganisation of ailing banks, , to insolvency frameworks under which failed banks are wound up. The Commission’s consultation will last for three months, and will be followed by a public hearing to present the results and set out the Commission’s intentions.

Internal Market and Services Commissioner Charlie McCreevy said: “The crisis has shown clearly that Europe needs a crisis management framework which mirrors the cross-border nature of financial markets. We must also recognise that no bank will ever be immune to failure. We need a robust set of arrangements which will allow a possible failure to be detected and averted, if at all possible and if not, then the bank should reorganise or wound down. This should be managed in a way that does not threaten the financial system and which minimises the costs for European taxpayers. A clear framework to manage cross-border banking crises is, therefore, an essential complement to our work on supervisory reform.”

The financial crisis has highlighted the importance of putting in place effective cross-border arrangements to handle banking crises. There have been a number of high profile banking failures over the past 18 months (Fortis, Lehman Brothers, Icelandic banks) which revealed serious shortcomings in the existing arrangements.

The Commission takes the view that the existing arrangements are clearly insufficient to stabilise and control the systemic impact of cross border financial institutions and that a new legal framework needs to be put in place. A new framework should equip authorities with the right tools and provide the legal certainty to handle cross-border banking failures, in ways that minimise costs to taxpayers and allow even the largest banks to fail without damaging financial stability.

The Commission’s consultative Communication adopts a broad ranging approach to the complex and interlinked issues surrounding crisis management:

• Under “early intervention” (i.e. when the ailing institution is still a going concern and when supervisory intervention can still remedy the situation) the Communication considers the need for new supervisory tools, possibilities to transfer assets between different legal entities and across borders within a group, and the feasibility of wind-down plans.
• Under “bank resolution”, consideration is given to the need for new re-restructuring tools and a framework to support their use in a cross-border context. Views are also sought on the challenges facing stakeholders in banks such as shareholders and creditors could be best addressed in an EU crisis management framework, especially with respect to changes to insolvency and company law.
• The important question of how bank resolution measures need to be financed is raised with a clear preference for private sector solutions, but recognising that inevitably burden sharing between Member States needs to be addressed.
• Under “insolvency” consideration is given to the need to harmonise existing insolvency procedures in order to facilitate the winding up and re-organisation of cross-border banking groups.

At this stage, the Commission is consulting stakeholders (e.g. public authorities including finance ministries, company law and insolvency experts, the banking industry, bank customers, shareholders and creditors) before coming forward with concrete policies and proposals. The Commission views such a consultation as an essential first step in preparing the ground for what will be an important new policy area. A public hearing will be organised in February 2010.

Vedi anche il COMMISSION STAFF WORKING DOCUMENT sul IMPACT ASSESSMENT

Al fine di una migliore comprensione di quanto precede, si riportano di seguito le Frequently Asked Questions pubblicate sul sito della Commissione. 

Why is a new crisis management framework needed for the EU?

The recent crisis has exposed a clear gap in the EU regulatory framework covering the banking sector. Although much has been accomplished in recent years to ensure adequate capitalisation and prudential supervision of EU banks and to strengthen protection of depositors, far less has been achieved in the area of crisis management. In 2008, Member State authorities and Central Banks signed a Memorandum of Understanding on cross-border financial stability, setting out detailed arrangements for more effective cooperation in the event of a cross-border crisis. However the arrangements are voluntary, and do not provide an adequate legal framework to support reorganisation at a cross-border level. The Commission considers that in light of recent experiences, a more binding framework is necessary. The consultative Communication sets out the range of issues that will need to be considered to provide realistic alternatives to bailing out banks with public funds. The overriding aim is to put in place a framework that will allow a bank to fail - whatever its size - while ensuring the continuity of essential banking services, and minimising the impact of that failure on the financial system. This is essential to avoid the ‘moral hazard’ that arises from the perception that some banks are too big to fail.

Why didn’t the EU have the necessary framework in place before the crisis?

Until recently, many felt that arrangements should only be national, especially if there was a risk that there would be budgetary implications and in view of the close connection of crisis resolution measures with national insolvency regimes in many Member States. However, the experiences of the recent crisis have strengthened the case for action at EU level since they demonstrated clearly that the absence of adequate arrangements can result in ad hoc national solutions which might ultimately prove more costly for national taxpayers.

What issues does the crisis management Communication cover?

The Communication reviews the measures that might be needed at all stages of the failure of a bank.

• Early intervention covers actions by banking supervisors aimed at restoring the stability and financial soundness of an institution when problems are developing, together with intra-group asset transfer between solvent entities for the purposes of financial support. These actions would be taken before the threshold conditions for resolution are met, and before the institution is or likely to become insolvent.
• Resolution covers measures that should be available to national resolution authorities to manage a crisis in a banking institution, to contain its impact on financial stability and, where appropriate, to facilitate an orderly winding up of the whole or parts of the institution. The Communication does not prescribe what authorities should be responsible for deciding on and applying resolution measures in Member States, but discusses what measures are needed and how national actions can be coordinated or integrated when applied to a cross-border group. One option considered is coordination by an EU resolution authority.
• Insolvency covers reorganisation and winding up that takes place under the applicable insolvency regime. The Communication asks what changes are necessary to insolvency law to support resolution measures, and whether greater coordination or integration of insolvency regimes is needed to deal with the reorganisation or winding up of cross-border groups.

Is this work intended to solve the current crisis?

The current crisis has called for extraordinary measures to be taken in order to avert a potential meltdown of the European banking industry. The decisive actions taken by Member States, in cooperation with the European Commission, have succeeded in stabilising financial markets. The measures considered in the Communication are aimed at the management of future crises. Early supervisory intervention should assist in averting preventable bank failures, while an EU resolution framework would equip national authorities with adequate tools to manage the consequences of failures that could not otherwise be avoided.

Resolution measures may interfere with the rights of shareholders and creditors. How does the Communication propose to deal with this?

Bank resolution tools that involve transfer of assets may interfere with the rights of stakeholders (creditors and shareholders), and any EU resolution framework would need to incorporate adequate safeguards to protect those interests.

For example, EU law contains a number of mandatory requirements that confer rights on shareholders. These include pre-emption rights, and the requirements that any increase or reduction of issued share capital is approved by the shareholders’ general meeting. In addition to this, any transfer of ownership or assets of an ailing bank must comply with shareholders’ right to property under the European Convention on Human Rights. A balance needs to be struck between protecting the legitimate interests of shareholders and enabling resolution authorities to intervene quickly and decisively to restructure a failing institution or group to minimise contagion and ensure the stability of the banking system in affected Member States. Where rights granted by EU law are affected, an EU resolution framework would also have to contain appropriate mechanisms for redress and compensation.

EU law does not currently specify the rights of creditors in the context of bank insolvency. Appropriate safeguards under a bank resolution framework might include compensation mechanisms to ensure that no creditor is left worse off than it would have been had the bank under resolution been wound up under the applicable insolvency law.

Who will pay the costs of a cross-border crisis?

The Communication addresses the issue of financing resolution measures. The emphasis is on avoidance of public sector bail-outs and on facilitating private sector solutions, such as the purchase of the whole or parts of a failing bank by another institution. Various possibilities are considered, such as putting in place a framework for intra-group financial support, or the possible involvement of deposit guarantee schemes in the financing of resolution measures. However, there is also recognition that use of public funds may be unavoidable at some stage of a resolution, and that progress is needed in clarifying how the potential costs of managing a crisis in a cross-border bank would be shared between affected Member States. Work is currently underway on burden sharing in a working group of the Economic and Financial Committee.

What resolution tools will be needed, and how will that affect national systems?

As the Communication is consultative, the question of what tools will be needed as part of a cross-border crisis management framework remains open at this stage. There are significant differences between the existing tools and systems for crisis management across Member States. A recent study by the IMF has suggested that authorities should at least have powers to facilitate or effect private sector acquisitions, transfer business to a temporary structure (such as a “bridge bank”) or to separate clean and toxic assets between “good” and “bad” banks through a partial transfer of assets and liabilities. However, the Communication also notes that some Member States currently deal with failing banks using other measures, such as the appointment of a ’special administrator’ under adapted national insolvency regime. It seeks views on the suitability of these, or other measures, for an EU bank resolution framework.

The Communication focuses on crisis management for cross-border banking groups, and on the need for systems which allow measures to be applied in a consistent and timely manner.

What kinds of financial institution would be covered by an EU regime?

The Communication focuses principally on crisis management in the banking sector. This focus is justified by the special nature of banks - their unique role as providers of credit, deposit-takers and payment intermediaries - which give rise to particular problems and public policy objectives in the event of a bank failure. However, it also asks whether the scope of a resolution framework should be wider and cover other kinds of financial institution, such as investment firms. Banking groups often include such institutions, and their failure may pose systemic risks to the financial system, as the collapse of Lehman Brothers clearly demonstrated. The Communication recognises that different kinds of crisis management measures may be necessary to address the specific risks to market stability represented by other types of financial institution.

How does this relate to discussions at international level?

Discussions have taken place on crisis management in a number of international fora (G20, Financial Stability Board, Basel Committee). There is broad recognition that the problems of cross-border banking groups extend beyond the EU, and many significant financial groups are global in their organisation. While certain of the problems which need to be addressed are the same - for example, the difficulties of cooperation and coordination, information sharing, the lack of effective tools, the need for better advance planning, the territorial scope of national insolvency regimes when applied to a group - there are nevertheless significant distinctions between the progress that can be reasonably expected at international level and what can be achieved within the EU. The depth of integration of both banking business and the legal framework at European level both allows and requires greater cooperation and convergence in order to develop a more robust framework to underpin the Internal Market.

Would a requirement for cross-border groups to prepare “living wills” help authorities to manage a cross-border banking crisis?

There are currently no harmonised powers for supervisors to require banking groups to prepare contingency and resolution plans, often referred to as “living wills”. The idea is that systemically important cross-border financial institutions could be required to produce detailed plans to facilitate, in a period of severe financial stress or instability, the preservation of the firm as a going concern, the continuity of its financial infrastructure services, and the rapid resolution or winding down where necessary of the institution (or part of the institution). Work by national and international regulatory bodies on this subject is still at an early stage, and further analysis will be needed to assess whether a requirement for institutions to maintain detailed and up-to-date plans would be realistic, the implications of such plans for group structures and their usefulness for authorities as tool both for ongoing supervision and for crisis management.

La Comissione Europea è poi intervenuta sui derivati, comunicando che: Commission sets out future actions to strengthen the safety of derivatives markets

The European Commission has adopted a Communication for ensuring efficient, safe and sound derivatives markets. The Communication sets out future policy actions to increase transparency of the derivatives market, reduce counterparty and operational risk in trading and enhance market integrity and oversight. They follow the stakeholder consultation launched with the Communication in July ( IP/09/1083 ) and the public hearing in September. The Commission will come forward with legislative proposals in 2010. These proposals will be in line with the G20 Pittsburgh statement and will be accompanied by a thorough impact assessment. In order to avoid any risk of regulatory arbitrage and to ensure a global consistency of policy approaches, the Commission stands ready to work with authorities around the world when finalising the proposals.

Internal Market and Services Commissioner Charlie McCreevy said: “This Communication marks a paradigm shift away from the traditional view that derivatives are financial instruments for professional use and thus require only light-handed regulation. The Commission proposes a comprehensive approach that will ultimately enable markets to price risks properly. We cannot afford another situation where the risks of the financial sector are ultimately borne by the taxpayer.”

This Communication lays out the Commission’s future policy actions. It builds on the Commission’s July Communication ( IP/09/1083 ) and the subsequent stakeholder consultation and high-level conference.

The future policy actions will:

• Reduce counterparty risk by (i) proposing legislation to establish common safety, regulatory and operational standards for central counterparties (CCPs), (ii) improving collateralisation of bilaterally-cleared contracts, (iii) substantially raising capital charges for bilaterally-cleared as compared with CCP-cleared transactions, and on top of this (iv) mandate CCP-clearing for standardised contracts;
• Reduce operational risk by promoting standardisation of the legal terms of contracts and of contract-processing;
• Increase transparency by (i) mandating market participants to record positions and all transactions not cleared by a CCP in trade repositories, (ii) regulating and supervising trade repositories, (iii) mandating trading of standardised derivatives on exchanges and other organised trading venues, and (iv) increase transparency of trading as part of the review of the Markets in Financial Instruments Directive (MiFID) for all derivatives markets including for commodity derivatives;
• Enhance market integrity and oversight by clarifying and extending the scope of market manipulation as set out in the Market Abuse Directive (MAD) to derivatives and by giving regulators the possibility to set position limits.

The Commission will now start the process of drafting legislation, notably by launching impact assessments, in order to come forward with ambitious legislation to regulate derivatives in 2010.

The market for derivatives is global. To ensure an ambitious and convergent international regulatory outcome, the proposals are in line with the objectives agreed at the G20 meeting of 25 September 2009. The Commission intends to further develop the technical details in cooperation with its G20 partners in order to ensure a coherent implementation of these policies across the globe and thus avoid regulatory arbitrage. Such cooperation is particularly important with the US, which is also in the process of designing a new approach to derivatives markets.

Background

Derivatives play an important role in the economy but are associated with certain risks. The financial crisis - notably the events surrounding Bear Sterns, Lehman Brothers and AIG - has highlighted that these risks are not sufficiently mitigated in the OTC part of the market. In view of the central role played by derivatives markets in the financial crisis, on 3 July 2009 the Commission published a Communication on ensuring the efficiency, safety and soundness of derivatives markets, accompanied by a Commission Staff Working Paper and a Consultation Paper. The consultation resulted in over 100 replies, and 450 participants attended a high-level conference on 25 September in Brussels. The July Communication announced operational conclusions for the end of October, which is the subject matter of the present communication.

 Anche in questo caso, la Commissione ha pubblicato le Frequently Asked che si riportano di seguito:

GENERAL APPROACH

You propose a comprehensive solution for all derivatives markets. Does that not ignore the different risk of different asset segments?

The various derivatives market segments differ in their characteristics, namely in terms of risk, operational arrangements and market participants. At first sight, a market segment specific regulatory approach could therefore seem warranted. However, the boundaries between market segments are blurred, as any derivative contract can be partitioned and reconstructed into different but economically equivalent contracts. Therefore, an asset-specific policy approach would enable market participants to exploit differences in rules to their advantage. The Commission accordingly believes that a comprehensive policy on derivatives is necessary to address the current market failure in the most efficient way.

Moreover, the effect of the policy proposals depends on the effectiveness of current risk mitigation infrastructures. In asset segments where e.g. CCP clearing is already up and running, the effects will be more limited.

What measures exactly is the Commission proposing?

The Commission’s objectives are to reduce counterparty credit and operational risks, increase transparency and to strengthen market integrity and oversight. To that end, the Commission proposes a package of actions that will be developed into legislative proposals in 2010.

• To reduce counterparty credit risk, the Commission will (i) propose legislation to establish common safety, regulatory and operational standards for central counterparties (CCPs), (ii) improve collateralisation of bilaterally-cleared contracts, (iii) substantially raise capital charges for bilaterally-cleared as compared with CCP-cleared transactions, and on top of this (iv) mandate CCP-clearing for all standardised contracts.
• To reduce operational risk, the Commission will work with industry to promote standardisation of the legal terms of contracts and of contract-processing.
• To increase transparency, the Commission will (i) mandate that positions and all transactions are recorded in trade repositories, (ii) regulate and supervise trade repositories, (iii) mandate trading of standardised derivatives on exchanges and other organised trading venues, and (iv) increase pre- and post-trade transparency as part of the upcoming review of the Markets in Financial Instruments Directive (MiFID) for all derivatives markets including for commodity derivatives.
• To enhance market integrity and oversight, the Commission will propose clarifying and extending the scope of the Market Abuse Directive (MAD) to derivatives and by giving regulators the possibility to set position limits.

GLOBAL COOPERATION

Will the Commission consult with other jurisdictions when finalising its proposals?

Yes. The market for derivatives is global, and regulatory arbitrage must be excluded. The Commission wants to ensure a robust and convergent international regulatory outcome. T he proposals are therefore in line with the objective outlined in the G20 meeting of 25 September 2009 .

In order to ensure an ambitious and coherent implementation of these policies across the globe, the Commission intends continue to develop its policy in this area in close cooperation with its G20 partners, and in particular with the US, which is also in the process of designing a new approach to derivatives markets.

COUNTERPARTY CREDIT RISK

What is a Central Counter-party (CCP)?

A CCP is an entity that interposes itself between the counterparties to a transaction, becoming the buyer to every seller and the seller to every buyer.

Why does the Commission propose to mandate more collateral? Aren’t current collateral levels sufficiently high?

No. There is a considerable amount of uncertainty surrounding the current level of collateralisation. Moreover, recent studies, notably by the ECB, highlight that current collateral levels are lower than previously thought. It is therefore necessary to require financial firms to supply both initial margin and variation margin when entering into a bilateral deal OTC.

Why is it necessary to further strengthen the favourable regulatory capital treatment of CCPs? Isn’t a zero-rating enough?

The current treatment has not provided a sufficient incentive to take up CCP clearing irrespective of the benefits. It is therefore necessary to strengthen the differentiation to ensure that the rules properly distinguish between, on the one hand, the lower counterparty credit risk of contracts that are cleared on a CCP, and the higher counterparty credit risk of those where clearing is done bilaterally.

Why do you propose to mandate CCP clearing on top of capital charges?

Capital charges will provide the necessary incentives toward standardisation and CCP clearing. In order to ensure that the G20 deliberations are respected, the Commission decided to mandate the use of CCPs for standardised products.

How will you implement the mandate to clear standardised contracts on CCPs?

When developing its detailed proposals, the Commission will work with its partners in the G20, and notably the US, to achieve ambitious solutions to the practical issues related to making the requirement operational. This involves, in particular, defining which contracts can be regarded as standardised for central clearing. The Commission will undertake a rigorous impact assessment before finalising its proposals. The impact assessment will take due account of all the costs and benefits, including the impact on competitiveness.

OPERATIONAL RISK

Why does the Commission propose to work with industry to reduce operational risk? Does this not duplicate ongoing global efforts to the same effect?

The Commission considers that more collective action is needed by market participants to increase standardisation so as to reduce operational risk. Therefore, the Commission will further build on the success of the Derivatives Working Group and set ambitious European targets, with strict deadlines, for legal- and process-standardisation. This complements global actions, as the focus will be to ensure that global efforts take due account of European specificities so as to deliver full benefits also in Europe.

TRANSPARENCY

What are trade repositories?

A trade repository collects data on contracts traded in one or more segments of the OTC derivatives markets. Through a trade repository one can therefore obtain information on, for example, the number of outstanding contracts, the size of outstanding positions in a particular contract, the exposures of a particular institution, etc. This contributes to improve the level of transparency and knowledge of both supervisors and the public. A repository can also provide other services (e.g. facilitate settlement and payment instructions), thus improving operational efficiency. A trade repository exists for CDS in the form of the Trade Information Warehouse, operated by the US Depository Trust and Clearing Corporation (DTCC).

Do you require trade repositories to be located in Europe?

No, provided that (i) third country repositories are subject to comparable regulation and supervision and (ii) European regulators have unfettered access to the information stored at repositories in third countries. Should such access not be achieved, the Commission will encourage the creation and operation of European-based trade repositories.

Why do you propose to extend post-trade transparency to OTC derivatives? Will it not reduce liquidity?

Derivatives trading can take place on many types of venues, ranging from on-exchange to OTC. This competition is beneficial, provided that the price discovery function for the derivatives market as a whole is supported and information asymmetries are minimised. To achieve that it is necessary to extend transparency requirements to OTC trading as well. However, the increased transparency obligations will need to be measured so as to mitigate any excessive negative side-effects on liquidity.

What is an organised trading venue?

An organised trading venue is a venue where trades are executed in an automated manner according to pre-defined rules and where prices and other trade-related information are publicly displayed. According to the categorisation in the Markets in Financial Instruments Directive (MiFID), organised trading venues are regulated markets, multilateral trading facilities (MTFs) and systematic internalisers.

Why do you propose to mandate trading of standardised contracts on such venues?

This requirement is in line with the global principles agreed by the G20. In the EU, this implies ensuring that eligible trades for exchange-trading take place on organised trading venues, as defined by MiFID. Mandating trading on such venues, together with the introduction of transparency rules, will help to ensure greater efficiency in the trading of eligible products and ensure a consistent framework in how financial instruments, from equities to derivatives, are traded.

MARKET INTEGRITY AND OVERSIGHT

What is the purpose of giving regulators the power to set position limits?

Proposing these powers is part of the Commission’s efforts to improve pan-European supervision and oversight. The possibility to impose position limits is an important ancillary tool for supervisors to ensure the stability and soundness of markets. It allows them to limit the concentration of risk, excessive position taking and therefore counterparty risk. Especially in the field of commodity derivatives markets, it can also be a way to curb excessive price volatility, which distorts the orderly functioning of markets.

NON-FINANCIAL INSTITUTIONS

Why are non-financial institutions affected by the future policy actions?

Non-financial institutions are users of derivatives products and are therefore part of the web of mutual dependence. Inasmuch as non-financial firms have bought protection from a financial firm and in so doing have transferred their risks into the financial system, they have generally benefited from the underpricing of risk in the build-up phase of the crisis. Through the severe decline in economic activity, they have also fallen victim of the financial crisis.

Even though non-financial institutions’ use of derivatives is relatively small compared to financial users, history suggests that they may sometimes build up sizeable positions and hence be a risk to their counterparties and possibly to the system as a whole should they default. Non-financial institutions should therefore not be completely excluded from the scope of the forthcoming actions.

Moreover, a principle underpinning the Commission’s proposals is that the cost of strengthening the market infrastructure for OTC derivatives should be carried by those who directly enjoy the economic benefit from using derivatives and not taxpayers. This was not the case during this financial crisis and the Commission proposes to address this. Risk will have to be adequately priced. What the precise price will be, is part of the ongoing work and analysis that needs to be done to enable the Commission to define its proposals.

Non-financial institutions’ use of derivatives poses less of a risk to the financial system. Will this be taken into account when finalising the proposals?

In view of the different level of risk to the financial system associated with non-financial institutions’ use of derivatives, they may not be subject to exactly the same level of obligations as financial institutions. The Commission will take due account of the differences when finalising its proposals. However, although most non-financial institutions are not of systemic importance, legislation should not be undermined by loopholes.

Do these measures not risk hurting non-financial institutions’ competitiveness?

The financial crisis is already hurting ‘competitiveness’. Potential growth has declined from 1.8% p.a. on average 2000-2006 to 0.7% in 2009. Hence, the crisis has thrown back the Lisbon strategy’s objectives. The financial crisis has therefore amply illustrated how vulnerable the real economy is to financial instability and the enormous costs of mitigating the impact. Addressing the root causes for the financial crisis in order to provide a more stable financial foundation for the real economy is therefore a vital interest for us all, non-financial institutions included. Strengthening financial stability will make severe economic crises less likely in the future and put Europe on a more sustainable growth path.

Will European companies be disadvantaged vis-à-vis other countries?

No, the Communication states clearly the need for close cooperation with G20 partners. Also, the forthcoming proposals will be subject to rigorous impact assessments. The Commission will take full account of the impact of any proposal on Europe’s competitiveness.

Will companies still be able to hedge?

Yes. The Commission’s proposals do not limit the freedom to set the economic terms of derivative contracts. The Commission recognises the vital role of customised derivatives contracts traded OTC in hedging the risks that result from normal business operations. The Commission does neither propose to ban customised contracts nor to make them prohibitively costly. However, the function of prices to allocate resources must be restored: derivatives should be appropriately priced in relation to the risks they entail (including systemic risk), in order to avoid those risks being ultimately passed on to taxpayers.

Will hedging become more costly?

The Commission’s forthcoming proposals aim at better management of the risks of derivatives, hence there is an efficiency gain. Initially, however, traditional OTC trades (i.e. bilaterally cleared) are likely to become more costly. However, over time, as more contracts will get centrally cleared, the cost per contract is likely to fall, as economies of scale come into play.

Will financial firms pass on the costs to non-financial firms?

The fee a financial firm charges for a derivatives trade depends on whether its counterpart provides collateral or not. If not, the financial firm has to use its own capital to cover its exposure. This results in a higher fee.

Therefore, if non-financial firms provide no collateral, financial firms are likely to pass on some of their costs to them. However, derivatives markets are competitive and financial firms are unlikely to be able to pass on their costs in full. The measures proposed are also likely to increase competition as the reduction of counterparty credit risks through CCPs may allow smaller players to enter the field. Moreover, the Commission’s proposal to increase post-trade transparency is likely to further limit financial firms’ ability to pass on the costs. US experience from corporate bonds has shown that intermediation margins fall with more transparency.

NEXT STEPS

Legislation is announced for 2010. What are the next steps?

The Commission will now launch the impact assessments. It will take into account all stakeholders’ evidence about the potential impacts, in terms of costs and benefits, of the policy orientations set out below when preparing the impact assessment with a view to finalising its proposals.

* * *

Infine, la Commissione Euripea ha pubblicato una Raccomandazione per semplificare  procedures for claiming cross-border withholding tax relief

The European Commission has adopted a recommendation that outlines how EU Member States could make it easier for investors resident in EU Member States to claim withholding tax relief on dividends, interest and other securities income received from other Member States. The recommendation also suggests measures to eliminate the tax barriers that financial institutions face in their securities investment activities while at the same time protecting tax revenues against errors or fraud. The recommendation is designed to provide guidance to Member States in how to ensure that procedures to verify entitlement to tax relief do not hinder the functioning of the Single Market.

Internal Market and Services Commissioner McCreevy said: “If we are serious about promoting cross-border investments in securities in the Internal Market, EU Member States will have to simplify their withholding tax relief procedures, so that foreign investors receive any tax refunds to which they are entitled more quickly and so that tax rules do not hinder financial institutions from getting involved in managing such cross-border investments.”

Taxation and Customs Commissioner Kovács said: “While it is true that complicated refund procedures may discourage cross-border investment, Member States must be allowed to have sufficient safeguards in place to protect their tax systems against errors and fraud. The recommendation contains solutions that are designed to balance these opposing concerns.”

The recommendation:

• encourages Member States to apply at source rather than by refund any withholding tax relief applicable to securities income under double taxation treaties or domestic law;
• encourages Member States to apply quick and standardised refund procedures where they cannot provide relief at source, for example because the investor has not provided all necessary information, and lists possible elements of such refund procedures;
• encourages Member States to accept alternative proofs of investors’ entitlement to tax relief besides certificates of residence ;
• suggests how Member States can involve financial intermediaries in making claims on behalf of investors and, in particular, how the procedures could operate where there is a chain of financial intermediaries, in different Member States, between the issuer of the securities and a beneficiary;
• encourages greater acceptance by Member States of electronic rather than paper information;
• suggests that Member States could apply a risk-based approach to setting requirements of proof of entitlement to tax reliefs;
• suggests how Member States could set up single or joint audits or even external audits to investigate the compliance of financial intermediaries with obligations created in line with the recommendation;
• suggests follow-up discussions with Member States on the implementation of the Recommendation.
• encourages greater use of existing channels for exchange of information between Member States and the exploration of new channels.

Background

The tax laws of Member States usually provide for withholding taxes on dividend and interest income paid to non-resident investors. These withholding taxes are often reduced under Member States’ bilateral double taxation conventions, when the two treaty partner countries involved agree on sharing taxing rights. In certain circumstances, some Member States even unilaterally reduce withholding taxes or apply exemptions on securities income paid to foreign investors.

However, Member States’ procedures to verify claims for withholding tax reliefs are often so complicated and time consuming that investors may forego the reliefs to which they are entitled or even be discouraged from investing across borders. Furthermore, these procedures often do not take into account the present-day multi-tiered financial environment where there may be a chain of financial intermediaries, based in several countries, between the issuer of the securities and the investor. In fact, a study by the Commission services shows that the costs related to these present reclaim procedures are estimated to a value of € 1.09 billion annually whereas the amount of foregone tax relief is estimated at € 5.47 billion annually.

The amount of cross-border holdings within the European Union was 16.7 trillion dollars in 2006, composed of 6.4 trillion dollars in equity securities and 10.3 trillion dollars in debt securities. The European Union accounts for more than 50 % of the worldwide amount of such holdings, both with respect to the origin and the destination of the investments.

The recommendation is based on the (2006-2007) reports of the EU Clearing and Settlement Fiscal Compliance Experts’ Group (FISCO) ( IP/07/1569 ), follows upon an extensive stakeholders’ consultation and has been discussed on several occasions with the financial services industry and tax administrations in Member States.

Si riportano di seguito le Frequently Asked Questions su tale topic.

What is the recommendation designed to do?

The Recommendation aims to show EU Member States how they could simplify the procedures that they currently apply to verify investors’ entitlement to relief from withholding tax on cross-border securities income. The objective is both to facilitate investors who wish to invest across borders and to ensure that EU-based financial intermediaries can provide services freely across borders, as they are entitled to do under Article 49 of the EC Treaty. The Recommendation also suggests ways in which Member States could ensure that the proposed simplifications would not open their tax bases to errors or fraud.

What is the scope of the Recommendation?

The Recommendation applies to withholding taxes levied on securities income (mainly dividends and interest) that is sourced in an EU Member State, and that is paid to EU resident investors, via one or more financial intermediaries established in the EU or in an EFTA country that provides for a level of administrative assistance to other countries equivalent to that applicable by EU Member States under EU legislation.

Why is the Recommendation necessary?

Under the bilateral double taxation treaties that EU Member States have with each other, Member States generally agree to reduce source country withholding taxes on securities income, in order to share taxing rights between the two treaty partner countries. Some Member States even apply a reduced withholding tax or exemption on securities income paid to foreign investors under their domestic law where certain conditions are met. However, the procedures to reduce the withholding tax rates at the payment stage or to claim refunds of tax withheld are often so complicated and varied that investors do not bother claiming relief or refunds and may even be discouraged from investing abroad.

How would the Recommendation benefit investors?

The recommendation would benefit investors in the first place because it suggests that Member States should apply at source (i.e. at the time of payment of the securities income), rather than by refund, any withholding tax relief to which an investor is entitled.

Second, in cases where investors are not able to obtain withholding tax relief at source , the recommendation encourages Member States to apply quicker and simpler tax refund procedures, including the following elements:

• permission for any authorised financial intermediary in a custody chain to submit refund applications on behalf of the investors;
• use of a single contact point for the introduction and handling of all the refund applications and publication of the relevant information on refund procedures on a website;
• use of common formats for refund applications, and permission to file them electronically;
• refunding in a reasonable period of time, i.e. normally within 6 months;
• allowing investors and financial intermediaries to provide alternative proofs to certificates of residence in connection with their claims.

Explain in more detail what the Recommendation suggests with regard to certificates of residence

It can take tax authorities some time to issue formal certificates of residence to taxpayers and even then the certificates are usually time-limited in validity. This can make it difficult for taxpayers who wish to use these certificates to claim withholding tax relief from a tax authority of another Member State. The Recommendation therefore suggests that, for the purposes of claims for withholding tax relief, tax authorities should consider whether alternative proofs that the taxpayer is resident where he says he is resident would be acceptable and sufficiently risk-proof. Such alterative proofs could include self-certification by the investor and/or residence documentation gathered by financial intermediaries (sometimes referred to as “Know Your Customer” rules). For instance, when an investment firm provides investment advice and discretionary portfolio management to its clients, it is required under Article 19 (4) of the Market in Financial Instruments Directive 2004/39/EC of 21 April 2004 ( IP/07/1625 ) to obtain information about its clients/investors. The Recommendation suggests that tax authorities might, in particular, find these alternative proofs sufficient in the case of small claims, for example claims of less than €1,000.

How would the Recommendation benefit financial intermediaries?

The Recommendation proposes that Member States should allow foreign financial intermediaries to become involved in providing withholding tax relief services in the Single Market. Currently many Member States only allow resident financial intermediaries to provide such services. The Recommendation suggests that foreign financial intermediaries in a custody chain should, subject to authorisation by the source Member State, be allowed to take part in the relief procedures by acting as “withholding agents” or as “information agents”. “Withholding agents” would be able to grant withholding tax relief at source by deducting the amount to be withheld. “Information agents” would provide information on the correct rate of withholding tax applicable to given investments up the custody chain so as to reach the withholding agent.

The Recommendation also suggests that financial intermediaries should only have to pass on “pooled” withholding tax rate information (i.e. information in a format which groups securities income according to the withholding tax rate applicable without identifying the owners of the securities) to the next financial intermediary in a custody chain. Providing information in a pooled format would lead to important savings for all parties concerned and would eliminate the competition and data protection concerns that financial intermediaries would have about passing client information to other financial intermediaries.

Would the Recommendation if implemented create administrative problems and tax revenue risks for Member States?

No, it should not do so.

First, the Recommendation should, if applied by Member States, lead to savings for tax administrations by reducing the administrative costs involved in processing refund applications and issuing certificates of residence.

Second, the Recommendation envisages that only authorised financial intermediaries should be able to take part in the simplified procedures. Member States could lay down conditions and obligations for the authorisation of financial intermediaries, such as, for example, making them liable for under-withholding of taxes. These conditions and obligations would, of course, have to be proportionate and non-discriminatory in order to allow foreign financial intermediaries to benefit fully from the freedom to provide services guaranteed under Article 49 of the EC Treaty. Member States may also withdraw authorisation from non-compliant financial intermediaries.

Third, the Recommendation suggests procedures that Member States could set up in order In order to monitor authorised financial intermediaries’ compliance with their obligations (e.g. single or joint audits by the tax authorities of the source Member States, that of the Member States where the financial intermediary is established or by external auditors).

Fourth, while proposing the pooled information system described above so as to protect the commercial interests of financial intermediaries, the Recommendation also suggests a system to ensure that Member States have the information they need to know that the right rate of withholding tax was applied to all payments made from that country to investors in other EU Member States. The Recommendation proposes that, where there is a chain of financial intermediaries, the financial intermediary closest to the beneficial owner would be made responsible for reporting payments to that beneficial owner, annually or on request, to the source Member State.

How does the Commission intend to follow up on this recommendation?

The Commission suggests follow-up discussions with Member States in a Working Party, in order to examine in detail the ideas set out in the Recommendation and to consider other possible ways to improve withholding tax relief procedures.

The Commission may also launch further related initiatives at a later stage, notably in order to develop new channels of information exchange between Member States as well as to suggest common conditions and obligations, for example regarding liability for under-withholding of tax, to be met by authorised intermediaries. In addition, the Commission’s proposals for improving mutual assistance in the tax area and mutual assistance in the recovery of taxes (COM/2009/28 and COM/2009/29) ( IP/09/201 ), which are currently under discussion in the Council, should, if adopted by Member States, help to ensure that the simplifications suggested under the Recommendation do not lead to losses of tax revenues through evasion or error.

What is the origin of this initiative?

The problems with withholding tax relief procedures were first highlighted in 2001 by the Giovannini Group that advised the European Commission on financial market issues. The Group identified 15 barriers to the integration of EU securities post-trading systems, including the fact that financial intermediaries established within the EU were not allowed to offer withholding agent services in all of the Member States, which it listed as “Giovannini barrier 11″. The EU Clearing and Settlement Fiscal Compliance Experts’ Group (FISCO), that was created in March 2005 and met until 2006, had as one of its key issues the resolution of Giovannini Barrier 11. FISCO examined the withholding tax relief procedures in the various Member States and came up with suggestions on how to improve these procedures in a report in 2007 ( IP/07/1569 ) . These suggestions are reflected in the present recommendation that has been drawn up following lengthy consultations with Member States.

Over the past years there has been a growing interest in this topic, stimulated also by ongoing discussions at the Organisation for Economic Cooperation and Development (OECD) on improving procedures for tax relief for cross-border investors.

Are Member States likely to agree to follow the Recommendation?

We believe so. Some have, in fact, already have procedures in place that are along the lines being proposed in the Recommendation. This is the case, in particular, for the Czech Republic, Finland, France, Ireland, Germany, the Netherlands, the Slovak Republic and Sweden. The results in these countries from the steps taken to simplify withholding tax relief procedures appear to have been positive, not just for non-resident investors but also for the tax administrations and financial intermediaries.

Is any estimate available of the costs or savings that would result from the implementation of the Recommendation?

Some rough estimates carried out within the Commission are that improved tax procedures would increase EU GDP by € 3.4 billion or 0.028% per year compared to a situation where no tax relief at source or quick refund procedures are available (or more than € 37billion over a 10 year period with an assumed 2 % growth rate of real GDP).

Why a Recommendation rather than a proposal for a Directive?

The Commission believes that a non-legally-binding Recommendation is the appropriate tool. Member States have already moved in the direction proposed in the Recommendation and there are also international moves along these lines. The Commission welcomes this trend and aims with this Recommendation to stimulate the debate further, share information on best practices and provide a forum for further discussion.

- The provision of personal recommendations;
- The presentation of recommendations;
- Perimeter issues around the definition of personal recommendation; and
- Issues around the form of communication.

Come evidenziato nell’Executive Summary del documento di consultazione: This paper seeks to clarify and illustrate situations where firms will, or will not, be considered as providing investment advice. It does this using a question and answer format. Investment advice is an investment service under MiFID, which is why the distinction is important. The main questions for consideration are laid out in „Diagram: the five key tests for investment advice‟ in the introduction, showing key tests for determining investment advice, with issues to consider in each case.

The main areas focus on topics including:

- The provision of personal recommendations and whether other forms of presenting information such as „investment research‟, filtering, general recommendations, generic advice, presenting multiple products or access to model investment portfolios could constitute investment advice.

- The presentation of recommendations as suitable for clients and the presentation of recommendations based on the clients circumstances, including making recommendations to become a client of a particular firm, making recommendations which are clearly unsuitable in light of knowledge of the customer, definitions of a „persons circumstances‟ and when recommendations will be viewed as based on a view of a person‟s circumstances.

- Perimeter issues around the definition of personal recommendation, including disclaimers to the client and failing to use known customer information

- Issues around the form of communication, including whether the internet is always a „distribution channel‟, messages to multiple clients, distinguishing corporate finance and investment advice and whether these are mutually exclusive.

Stakeholders are being consulted on their views on CESR‟s stance for determining whether information constitutes investment advice, and whether there are other areas where they would like CESR to conduct further work or provide clarifications.

Il documento di consultazione è disponibile sul sito

In aggiunta a quanto sopra, il CESR ha di recente aggiornato tre protocolli MiFID.

Infatti, come evidenziato sul sito della Committee:

(i) The first Protocol that CESR updated, deals with the operation of the CESR MiFID Database (Ref. CESR/09-172b) which now includes an Annex 2 that provides information on how CESR Members will make the calculations to be published in the database on the first trading day of March 2010. These calculations are required for the operation of the MiFID market transparency regime. In addition to the currently used regulated market data, CESR Members will include in these calculations the trading data from the three most relevant Multilateral Trading Facilities (MTFs) in terms of overall market share.

(ii) The second Protocol updated focuses on the Supervision of Branches under MiFID (Ref. CESR/07-672b) which has been modified by noting that Standing Requests for Assistance will refer to both present and future branches.

(iii) Finally, the third Protocol updated is on MiFID Passport Notifications (Ref. CESR/07-317c). It has been amended to include into the standard notification forms information about investment services provided through tied agents. Some of the contact details in the Annexes of this Protocol have also been updated.

Di recente ben due sono stati gli aggiornamenti sulle domande più frequenti e sui temi più importanti connesse alla summenzionata direttiva comunitaria.

1) La Commissione Europea ha infatti pubblicato il documento denominato Prospectus Directive: Frequently Asked Questions, contenente le risposte alla domande più frequenti a riguardo, connesse alla proposta di modifica della Prospectus Directive, di cui abbiamo parlato nelle scorse settimane in questo blog.

Vediamo alcune tra le più interessanti, connesse in particolare alle questioni più tecniche.

Domande relative alle proposals for the simplification and increase of efficiency in the current regime of the Prospectus Directive.

Will the exemptions from the obligation to publish a prospectus when companies sell through intermediaries (”retail cascade”) be clarified?

The obligations attached to “retail cascade” offers need some clarification. A retail cascade typically occurs when securities are sold to investors (other than qualified investors) by intermediaries and not directly by the issuer. In particular, it is unclear how the requirement to produce and update a prospectus, and the provisions on responsibility and liability, should apply when securities are placed by the issuer with financial intermediaries and are subsequently, over a period that may run to many months, sold on to retail investors, possibly through one or more additional tiers of intermediaries. This may increase costs for issuers and intermediaries resulting in certain cases in duplication of disclosure requirements. A valid prospectus, drawn up by the issuer or the offeror and available to the public in the final placement of securities through financial intermediaries or in any subsequent resale of securities, shall provide sufficient information for investors to make informed investment decisions.

Therefore, financial intermediaries placing or subsequently reselling the securities should be entitled to rely upon the initial prospectus published by the issuer or the offeror as long as this is valid and duly supplemented and the issuer or the offeror responsible for drawing up such prospectus consents to its use. In this case no other prospectus should be required. However, in case the issuer or the offeror responsible for drawing up such initial prospectus does not consent to its use, the financial intermediary should be required to publish a new prospectus. The financial intermediary could use the initial prospectus by incorporating the relevant parts by reference into its new prospectus.

Will the definitions of qualified investor under the Prospectus Directive and of professional clients under MiFID be aligned?

The definition of qualified investors in the Prospectus Directive is different from the definition of professional clients set out in the Market in Financial Instruments Directive (MiFID,) and investment firms cannot rely on their categorization for a private placement and thus benefit from the exemption in the Prospectus Directive. This creates complexity and costs for investment firms in case of private placements: a firm has to double check whether its professional clients are registered as qualified investors or it has to renounce to place securities within its professional clients. As the categories of qualified investors in the Prospectus Directive and of professional clients in MiFID target the same classes of experienced individual investors, for the purposes of private placements of securities, investment firms and credit institutions shall be entitled to treat as qualified investors those natural or legal persons that the firms consider to be professional clients in accordance with MiFID.

Does the proposal clarify the rules on the obligation to supplement a prospectus and the exercise of the right of withdrawal?

Every significant new factor relating to the information included in the prospectus, which is capable of affecting the assessment of the securities and which arises between the time when the prospectus is approved and the final closing of the offer to the public or the time when trading on a regulated market begins, triggers the publication of a supplement to the prospectus. The current Prospectus Directive creates a certain degree of uncertainty in cases where the securities offered are also to be admitted to trading on a regulated market. The relationship between the “final closing of the offer to the public” and “the time when trading on regulated market begins” requires a clarification as to whether the requirement to supplement a prospectus ends with the start of trading of the securities on a regulated market irrespective of whether the offering period has finally closed. Therefore the proposal clarifies that the obligation to supplement a prospectus shall terminate at the final closing of the offering period or the time when trading of such securities on a regulated market begins, whichever occurs earlier.

Does the proposal clarify the rules on the right of withdrawal?

Yes. Every time a prospectus is supplemented in the course of an offer, the Prospectus Directive grants investors a right of withdrawal of their previous acceptances. Such right can be exercised during a period no shorter than two days following the publication of the supplement. As the time frame for the exercise of such right is not harmonised, Member States have set different periods through national implementing legislation and, in the case of a cross-border offer, it is unclear whether the time frame set out in the national legislation of the home Member State of the issuer should apply or those stemming from the legislation of each of the Member States where the offer or admission to trading takes place.

This lack of common time frame increases the costs of legal advice. Therefore, when a prospectus is supplemented, the harmonization at EU-level of the time frame for the exercise by investors of the right of withdrawal of their previous acceptances will provide certainty to issuers making cross border offers of securities. Moreover, the proposal provides flexibility to issuers from countries with traditionally a longer time frame, enabling the issuers to extend voluntarily the term for the exercise of this right.

Will retail investors be able to more effectively analyse the prospects and risks posed by a security before investing?

The prospectus regime provides a set of disclosure requirements in order to enable investors to assess securities and issuers. Moreover, the prospectus already requires a summary conveying the essential characteristics and risks associated with the issuer and the securities. This summary is in practice a key source of information for retail investors in their investment decisions. However, in order to enhance even more investor protection and assist retail investors in their investment decisions and to ensure comparability with a wide range of other investment products, the proposal requires the summary to be simple and comprehensible to the targeted investors. In particular, it should focus on the key information and it should not be restricted to any predetermined number of words. Moreover, the content of the summary should be determined in a way that ensures comparability with other investment products that are comparable to the investment proposal described in the prospectus. A more substantial summary document will strike a better balance between the need for investor protection and the need for comprehensibility for retail investors and it will help targeted retail investors to make informed investment decisions. A logical consequence of having a more substantial summary document is to attach civil liability on the basis of the summary not only if it is misleading, inaccurate or inconsistent, when read together with the other parts of the prospectus, but also if it does not provide key information enabling investors to take informed investment decisions and to compare the securities with other investment products.

Domande relative alle proposals for the reduction of administrative burden on issuers and intermediaries raising capital in the Single European Securities Market.

Will issuers of all non-equity securities be able to determine their home Member State?

The current Directive imposes a restriction on the choice of the “home Member State” for issues of non-equity securities. The choice is available only for debt securities with a denomination above €1.000 (issuers can choose supervisors among those Member States where the issuer has its registered office or where the debt is going to be admitted to trading on a regulated market or where the debt is offered to the public). Below this threshold the home Member State mandated by the Directive is the one where the issuer has its registered office.

The threshold of EUR 1 000 is causing practical problems to issuers of non-equity securities who may need to draw up several prospectuses for a single issue, i.e. one to cover a debt issuance program within the threshold and another for the remaining debt issuance activities which might exceed that threshold. Moreover, the threshold cannot apply to certain structured products which are not denominated. Therefore, in order to make the Single European Securities Market more attractive and competitive and in order to clarify the scope of the Prospectus Directive, the limitation on the determination of the home Member State for issues of non-equity securities with a denomination below EUR 1.000 shall be removed. Such a change would not create concrete risks in terms of investor protection because the characteristics of and the risks associated with debt securities do not depend on the denomination of the securities offered or traded in a regulated market. As a consequence of this proposal, the mechanism for the determination of the home and the host Member States in the Transparency Directive shall be amended accordingly.

Will the exemptions for employee share schemes be clearer?

This current exemption in the Prospectus Directive specifically for offers of securities to employees does not apply equally to all employees, but creates a less advantageous situation for the employees of two categories of companies, namely third country companies that do not have a listing on a regulated market within the EU, and EU non-listed companies or EU companies that have securities traded on EU “exchange-regulated” markets. The exemption is not available to third country issuers that do not have a listing on a regulated market because the concept of regulated market is by definition limited to the EU, as provided for in MiFID, and it is equally impossible for EU non-listed companies or EU companies that have securities traded on EU exchange-regulated markets to satisfy this condition because once again they are not listed on a regulated market in line with the applicable MiFID definition. Therefore, the exemption relating to employee shares schemes should be widened in order to cover the employee shares schemes of companies that are not listed on a regulated market.

Will some types of securities issue be subject to a more proportionate disclosure regime?

As said under question 4, the current “one size fits all” approach of the prospectus regime might be in certain cases too costly and not effective. Indeed, there are cases where a reduced amount of information may be justified without impairing the level of investor protection. This is the case for Rights Issues because existing shareholders have already made the initial decision to invest in the company and they should be familiar with it. Moreover, the disclosure requirements of the Directive might be overly burdensome and costly also for companies with smaller market capitalization in the case of offers of or above EUR 2 500 000, and for small credit institutions in the case of offers of non-equity securities referred to in Article 1(2)(j) of or above EUR 50 000 000. A proportionate disclosure regime corresponds better to the needs and size of small firms. However, this will need to be further specified at the Level 2 of the Lamfalussy process bearing in mind that the priority of this exercise will be to maintain a high level of investor protection regardless of the size of the issuer. Moreover, in relation to government guarantee schemes, as Member States publish abundant information on their financial situation and this is in general available to the public, there is no added value for investors in requiring the issuer to disclose in the prospectus information about Member States, as guarantors. Therefore, issuers of securities guaranteed by a Member State, when drawing up a prospectus according to Article 1(3) of the Directive, shall be entitled to omit information about such guarantors.

Will the validity period of a prospectus, a base prospectus and a registration document be extended?

The current Prospectus Directive limits the validity of the prospectus up to 12 months after its publication for offers to the public or admissions to trading on a regulated market in order to avoid that it becomes outdated. However, as this document can currently be supplemented according to Article 16 of the Directive or currently updated according to Article 12 of the Directive, and considering the costs and the time for drafting and approving a prospectus, the current validity period of 12 months of a prospectus, a base prospectus and a registration document shall be extended to 24 months, provided they are properly supplemented.

Will the disclosure requirements of the Prospectus Directive that currently overlap with the Transparency Directive be repealed?

Article 10 of the Prospectus Directive currently requires issuers with listed securities to provide annually a document containing or referring to all information published in the twelve months preceding the issuance of the prospectus. As the Prospectus Directive was adopted before the Transparency Directive, this requirement has now been superseded by the Transparency Directive, which provides for a comprehensive regime for the disclosure of information about issuers with listed securities, comprising the periodic financial information (annual and half-yearly financial reports, interim management statement) and the ongoing information (market abuse disclosures - i.e. inside information, information about major holdings, etc), and therefore it shall be repealed.

How can the “passport system” and the notification of the certificate of approval become more effective?

The current Directive requires that the competent authority of the home Member State shall notify the host competent authorities the certificate of approval attesting that the prospectus has been drawn up in accordance with the Prospectus Directive. However, in practice, uncertainty has arisen for the issuers as to whether and when a notification has actually been effected. Therefore the proposal amends the notification procedure of Article 18 of the Prospectus Directive so that the competent authority of the home Member State shall at the same time notify also the issuer or the person responsible for drawing up the prospectus of the certificate of approval in addition to the competent authority of the host Member State. This will reduce costs and risks for the issuer or the person responsible for drawing up the prospectus who will have certainty that it has not inadvertently contravened the law by offering securities to the public in a Member State where the passport is not yet effective due to an oversight or error on the part of competent authority of the home Member State.

2) Inoltre, la Committe of European Securities Regulators ha pubblicato le 9th updated to the Frequently asked questions regarding Prospectuses: Common positions agreed by CESR Members.

Tra le nuove risposte inserite, menzioniamo le seguenti (riportando la numerazione del documento):

 21) Supplement to prospectuses: right of withdrawal;
73) Material contracts
75) Definition of public offer

Come ben risaputo dagli esperti del settore, il decreto era atteso, in quanto la situazione Italiana ha creato una serie di incertezze.

A riguardo, è opportuno riassumere gli accadimenti dei mesi scorsi.

Con comunicazione n. DEM/9034174 del 16-4-2009, la Consob aveva affrontato il problema delle offerte pubbliche di scambio, aventi ad oggetto titoli obbligazionari, promosse contestualmente in più paesi dell’Unione Europea.

A riguardo, va evidenziato come in alcuni Paesi europei, per lo svolgimento di un’offerta pubblica di scambio è previsto l’obbligo di pubblicare un prospetto redatto e approvato ai sensi della Direttiva 2003/71 e del regolamento comunitario attuativo della stessa (Regolamento n. 809/2004, in seguito anche il “Regolamento 809“) mentre invece in Italia la promozione di offerte pubbliche di scambio presuppone l’approvazione da parte della Consob di un documento d’offerta redatto in conformità agli schemi previsti dall’articolo 37, comma 1, del Regolamento Consob adottato con delibera n. 11971 del 14 maggio 1999, quale successivamente modificato e integrato (di seguito il “Regolamento Emittenti“).

Vi era quindi un distinguo di disciplina tra Italia ed altri Paesi Europei.

Infatti, in occasione di offerte di scambio transfrontaliere la suddetta riconducibilità nel nostro ordinamento delle offerte pubbliche di scambio nell’ambito di applicazione della disciplina delle offerte di acquisto anziché di quella delle offerte di vendita e sottoscrizione non consente di fruire del c.d. “passaporto europeo” che, a differenza del riconoscimento del documento d’offerta previsto dall’articolo 6, comma 2, secondo paragrafo, della Direttiva n. 2004/25 (c.d. Direttiva OPA), prescinde da qualsivoglia intervento dell’autorità del paese ospitante e può comportare, ove il prospetto sia redatto in una lingua comunemente utilizzata nel mondo della finanza internazionale, la traduzione della sola nota di sintesi.

Tale circostanza era stata addotta a motivazione della mancata promozione in Italia di alcune offerte di scambio aventi ad oggetto titoli obbligazionari recentemente svolte in Europa. In particolare in tali casi gli offerenti, senza peraltro informarne preventivamente la Consob, hanno escluso i portatori italiani di tali titoli dal novero dei destinatari dell’offerta a causa dell’eccessiva onerosità delle procedure previste dal nostro ordinamento per la promozione di un’offerta in Italia. In particolare è stato sostenuto che, stante l’applicabilità alle offerte di scambio della disciplina prevista per le offerte d’acquisto e la conseguente impossibilità di godere del passaporto europeo, l’estensione dell’offerta agli investitori italiani avrebbe richiesto la redazione, non prevista dalle vigenti disposizioni comunitarie, di un ulteriore documento da sottoporre all’approvazione della Consob.

Con la comunicazione menzionata in premessa, la Consob aveva risolto momentaneamente il problema, prevedendo, inter alia, che:

(i) è possibile promuovere in Italia un’offerta di scambio, avente ad oggetto titoli obbligazionari, mediante la diffusione di documenti non redatti in base allo schema sub allegato 2 A al Regolamento Emittenti;

(ii) tale orientamento costituisce un’interpretazione della normativa nazionale in linea con lo scopo dettato dalle direttive comunitarie di riferimento, di favorire la circolazione dei capitali nell’Unione Europea eliminando gli ostacoli frapposti alla creazione di un mercato finanziario unico. Peraltro le regole di trasparenza informativa dettate dalla Direttiva Prospetto devono ritenersi idonee al perseguimento delle finalità di tutela proprie, sul piano degli obblighi informativi, anche della disciplina italiana in materia di offerte pubbliche d’acquisto;

(iii) in tal senso in occasione di offerte di scambio transfrontaliere, aventi ad oggetto titoli obbligazionari con emissione di nuovi titoli, l’offerente potrà utilizzare, in luogo del documento d’offerta redatto secondo lo schema 2 A allegato al Regolamento Emittenti, il prospetto redatto per l’offerta di scambio ai sensi della Direttiva Prospetti, ovvero la traduzione della nota di sintesi dello stesso, debitamente approvata dall’autorità a competente del Paese d’origine.

Con il Decreto approvato di recente la Consob sembra essere intervenuta (anche) per risolvere tale problematica in modo sistematico.

Invero, il Decreto prevede che l’articolo 102 TUF, dopo il comma 4, è aggiunto il seguente comma:

“4-bis. Limitatamente alle offerte pubbliche di scambio che abbiano ad oggetto obbligazioni e altri titoli di debito, l’offerente può richiedere alla Consob che l’offerta sia soggetta, anche in deroga alle disposizioni del presente Capo, alla disciplina delle offerte al pubblico di vendita e di sottoscrizione, di cui al Capo I del presente Titolo. La Consob, entro quindici giorni dalla presentazione della richiesta, accoglie la medesima, ove ciò non contrasti con le finalità indicate nell’articolo 91″.

Quali sono le conseguenze di tale previsione?

È opportuno, a riguardo, richiamare un autorevole intervento: infatti, il provvedimento è stato di recente commentato dal mondo legale, rappresentato dall’illustre Avvocato Paola Leocani, partner del dipartimento ICM dello Studio Legale Allen & Overy e responsabile del team ICM di Milano (La nuova Opa al nodo dei riassetti, Il Sole 24 Ore, 3 ottobre 2009, pag. 43). In tale sede l’avvocato Leocani - anche alla luce della notevole expertise in tale settore - ha evidenziato che: “Per capire la portata del potere attribuito a Consob di derogare alla disciplina delle Opsc e di applicare, su richiesta dell’offerente, la disciplina delle Opvs non solo nel contesto di offerte transfrontaliere, ma anche in ambito domestico, occorre riferirsi alle principali differenze tra i due corpus normativi e relative prassi di riferimento ed, in particolare, al grado di flessibilità del periodo di adesione e alla connessa facoltà di chiudere anticipatamente l’offerta, all’obbligo di pubblicazione di un supplemento ed al conseguente diritto di recesso in capo all’aderente, alla revocabilità dell’offerta (anche discrezionalmente dall’offerente purché sia previsto nel prospetto), alla responsabilità prevista in materia di prospetto per gli autori del medesimo e per il cd Responsabile del collocamento…omissis….cui si aggiungono difficoltà qualificatorie e di determinazione del regime applicabile al servizio di investimento prestato dagli intermediari incaricati della raccolta nel contesto di un’Opsc e relativi obblighi di trasparenza e correttezza degli investitori“.

Un potere di deroga non scevro da conseguenze, anche sostanziali, sul piano giuridico, che troverà la possibilità di essere utilizzato (o non utilizzato), nelle prossime operazioni di tale genere che saranno svolte nel mercato domestico.

Nella propria risposta, disponibile sul sito, la CESR “welcomes this consultation as it initiates a public debate and discussions on issues regarding divergent interpretations of the UCITS Directive provisions in relation to depositaries. As a starting point, CESR would like to emphasise that UCITS depositaries are a core element of European investment fund regulation. They provide an important element of investor protection which is not present in some other products in competition with UCITS for retail savings. CESR acknowledges that under the proposed Directive on Alternative Investment Fund Managers (AIFM), the liability of non-UCITS depositaries would be strengthened to include an inversion of the burden of proof and be more detailed. Commissioner McCreevy announced5 on 28 May 2009 that he ‘wants to extend such provisions to UCITS funds’. Apart from the issue of the inversion of the burden of proof, where there are mixed view among its Members. CESR would like to express disagreement with such an approach for the following reasons. The AIFM Directive proposal is a draft that is under discussion within the European Council and Parliament and, hence, may be amended. In particular, the draft provisions regarding depositaries do not seem consensual at present. Moreover CESR disagrees with the idea of extending the current draft AIFM provisions regarding depositaries to UCITS depositaries as these do not seem appropriate. CESR sets out below what it believes is an appropriate framework for UCITS depositaries. More generally, only two CESR Members suggest that the European investment fund legislation relating to depositaries should clearly distinguish between: - retail fund regulation that would encompass a strict liability regime for depositaries; and - rules for funds that are reserved for professional or sophisticated investors who are capable of carrying out due diligence. These rules would introduce an attenuated liability regime for depositaries, provided that the depositary/custody risk level is made clear to investors. However, a majority of CESR Members question whether such a distinction would be workable in practice and do not see grounds for differentiating the depositary liability regime according to the type of investor”.

Nel medesimo documento, inter alia, la Commissione evidenzia l’importanza della problematica, rilevando come: “In Europe, the requirement to entrust the UCITS’ assets to a depositary that is in charge of safekeeping is the basis for a high level of UCITS investor protection. Investors in UCITS are protected from the risk of default of the UCITS manager by the presence of a depositary in the value chain (should the manager default, the depositary which holds the UCITS assets could find another manager or call for an orderly liquidation of the UCITS fund). Finally, there is an additional level of protection from the risk of wrongdoing or fraud by the manager as the depositary is required to comply with the duties of Articles 22 and 32 of the modified UCITS Directive. The question arises as to what would happen if the depositary itself were to default. This risk is perceived as relatively low as UCITS depositaries are generally large financial institutions, and they are required to segregate the UCITS assets under their custody6 from their own assets. Should the depositary default, the UCITS assets would be identified as belonging to the UCITS and would not be seized by the defaulting depositary’s creditors. This system has worked well for almost 25 years in Europe. Then, the Madoff fraud occurred. It highlighted that some UCITS depositaries in Europe may have delegated the custody to a sub-custodian that was in fact an entity which belonged to the Madoff group. The Madoff fraud together with the Lehman default have revealed the existence of a depositary/custody risk for investors, despite the fact that UCITS depositaries are expected to be institutions which investors can trust to keep their savings safe. The debate and the legal proceedings arising from these episodes have also revealed divergent interpretations of the UCITS Directive. Some CESR Members consider that the depositary cannot be held liable if it can prove that it has correctly performed due diligence on the sub-custodian and correctly monitored its performance putting in place all the required controls. Other Members consider that, in such circumstances, the UCITS depositary remains, in any case, liable for the restitution of the assets even though it has delegated the custody to a third party. Because of this situation, investors in Europe and beyond may be losing the confidence they have traditionally placed in UCITS. There is a strong need to restore this confidence“.

La CESR ha, inoltre, di recente aperto una consultazione “on its technical advice to the European Commission on level 2 measures relating to mergers of UCITS, master-feeder UCITS structures and cross-border notification of UCITS”

Nel documento di consultazione, disponibile sul sito, la CESR sommarizza gli steps precedenti che hanno portato alla consultazione de qua:

1. In March 2007, the European Commission announced a series of targeted enhancements to the UCITS Directive (85/611/EC). Following further work and consultation, the Commission adopted a proposal for the revised UCITS Directive in July 2008, an amended version of which was approved by the European Parliament in January 2009 and adopted by the Council in June 2009. The final text of the revised Directive is expected to be published shortly in the Official Journal.

2. In the light of the approval of a compromise text by the European Parliament and the Council early in 2009, the Commission prepared a provisional request to CESR for technical advice on possible implementing measures concerning the future UCITS Directive (”the mandate”). The mandate is split into three parts as set out below. This consultation paper sets out CESR’s proposals under Part III.

3. Part I concerns measures related to the management company passport, while Part II covers implementing measures on the form and content of key investor information disclosures for UCITS. CESR’s draft advice on these implementing measures are set out in two consultation papers published on 8 July 2009 (Ref. CESR/09-624 and Ref. CESR/09-552 respectively). The deadline for delivery of CESR’s advice on Parts I and II is 30 October 2009.

4. Part III concerns measures related to mergers of UCITS, master-feeder structures and the notification procedure for cross-border marketing. The Commission is not under a legal obligation to adopt implementing measures in any of these areas. As such, the Commission encouraged CESR to focus firstly on the advice for Parts I and II. However, the Commission invited CESR to reflect on the best way to organise its work such that all necessary level 2 measures, including those under Part III of the mandate, are adopted in time to be implemented by Member States within the timeframe imposed by the level 1 Directive.

5. Following receipt of the mandate, CESR published a call for evidence on 17 February 2009 (Ref. CESR/09-179) to which it received 30 responses. These responses, which are available on CESR’s website, have been taken into account in the preparation of CESR’s advice. The advice has been prepared by the Investment Management Expert Group which is chaired by Mr Lamberto Cardia, Chairman of the Italian securities regulator, the Commissione Nazionale per le Società e la Borsa (CONSOB). Impact of the proposed approach

6. CESR is mindful of the impacts of its proposals. In order to develop a better understanding of the possible costs and benefits of CESR’s approach, stakeholders are invited to give specific input on likely impacts - including quantitative estimates wherever possible - of the draft advice. For this purpose, questions on costs and benefits are included throughout the document. This approach is in line with the request in the Commission’s mandate that CESR should present appropriate impact assessments in support of its advice.

A conclusione, la Committee “invites responses to this consultation from all stakeholders by 17 November 2009. During the consultation, an open hearing will be held at CESR’s premises, full details of which will be made available on CESR’s website in due course“.

Come evidenziato nella relazione di accompagnamento,  nel gennaio 2007 la Commissione europea ha lanciato un programma di azione per ridurre gli oneri amministrativi dovuti alla regolamentazione in vigore nell’Unione europea, sottolineando il proprio impegno a favore di una migliore regolamentazione nel quadro della strategia “crescita e occupazione”. 

Nel marzo 2007 il Consiglio europeo ha fissato un obiettivo di riduzione del 25% che dovrà essere conseguito congiuntamente dall’UE e dagli Stati membri entro il 2012 per migliorare la competitività delle imprese della Comunità. Inoltre, l’articolo 31 della direttiva sul prospetto impone alla Commissione di valutare l’applicazione della direttiva dopo cinque anni dall’entrata in vigore e di presentare, se del caso, proposte di revisione.

Dopo cinque anni dall’entrata in vigore, la valutazione complessiva degli effetti generali della direttiva è stata positiva. 

Tuttavia, nonostante questo successo complessivo, nella direttiva sono state individuate una serie di incertezze giuridiche e di obblighi complessi e ingiustificati che aumentano i costi e creano inefficienze che ostacolano il processo di raccolta dei capitali sui mercati degli strumenti finanziari da parte delle società e degli intermediari finanziari nell’UE. Inoltre, per migliorare ulteriormente la tutela degli investitori e rispondere in tal modo all’attuale crisi finanziaria, occorre accrescere la semplicità e la leggibilità della nota di sintesi del prospetto. 

L’obiettivo prioritario della proposta di modifica della Direttiva Prospetti è semplificare e migliorare l’applicazione della direttiva, aumentarne l’efficienza e accrescere la competitività internazionale dell’UE, tenendo conto dell’importanza di aumentare il livello di protezione degli investitori previsto nella direttiva e di assicurare che l’informazione fornita sia sufficiente e adeguata a coprire le esigenze degli investitori al dettaglio, in particolare nel contesto delle turbolenze dei mercati finanziari iniziate nel 2007. 

In linea con l’azione mirante a migliorare la regolamentazione, la Commissione ha effettuato una valutazione dell’impatto di alternative politiche. Sono state considerate opzioni politiche per i seguenti aspetti:

- definizioni divergenti di “investitori qualificati” di cui all’articolo 2, paragrafo 1, lettera e), della direttiva e di “clienti professionali” di cui all’allegato II, sezione II, della MiFID; 
- restrizioni alla scelta dello Stato membro per gli emittenti di strumenti finanziari diversi dai titoli di capitale di importo inferiore a 1.000 EUR di cui all’articolo 2, paragrafo 1, lettera m); 
- chiarimento degli obblighi di cui all’articolo 3, paragrafo 2, della direttiva in caso di collocamento successivo di strumenti finanziari tramite intermediari finanziari; 
- regime dei piani azionari per i dipendenti di cui all’articolo 4, paragrafo 1, lettera e), della direttiva; 
- funzionamento della nota di sintesi del prospetto; 
- complessità degli obblighi di informativa in caso di emissione di diritti di società quotate, di offerta di strumenti finanziari diversi dai titoli di capitale emessi da enti creditizi oltre la soglia di cui all’articolo 1, paragrafo 2, lettera j), della direttiva e di offerta di titoli di emittenti con ridotta capitalizzazione di mercato; 
- mancanza di norme armonizzate in materia di responsabilità ai sensi dell’articolo 6 della direttiva; 
- complessità del regime informativo per i sistemi di garanzia governativa; 
- duplicazione degli obblighi di informativa di cui all’articolo 10 della direttiva; 
- obblighi di cui all’articolo 14 della direttiva relativi alla forma stampata del prospetto; 
- chiarimenti sull’obbligo di pubblicare un supplemento al prospetto e sull’esercizio del diritto di revoca di cui all’articolo 16 della direttiva; 
- obblighi di cui all’articolo 18 della direttiva relativi alla traduzione della nota di sintesi del prospetto. 

Ogni opzione politica è stata valutata sulla base dei seguenti criteri: tutela degli investitori, fiducia dei consumatori, efficienza, chiarezza e certezza giuridica e riduzione di oneri amministrativi sproporzionati. 

Le modifiche della Direttiva Prospetto porteranno notevoli benefici in termini di semplificazione, pur conservando il livello di tutela degli investitori previsto dalla direttiva. Si prevede che la riduzione degli obblighi di informativa a carico delle imprese con ridotta capitalizzazione di mercato possa generare risparmi complessivi pari a 173 milioni di euro ogni 2 anni.

Vengono soppresse le norme che determinano una duplicazione degli obblighi di trasparenza, eliminando in questo modo costi inutili per un totale di 30 milioni di euro per le imprese. L’esenzione dei piani azionari per I dipendenti dall’obbligo di pubblicazione del prospetto consentirà di risparmiare più di 18 milioni di euro. La riduzione degli obblighi di informazione per la raccolta di capitali tramite l’emissione di diritti consentirà di risparmiare quasi 80 milioni di euro. 

L’esclusione di informazioni dettagliate sulla situazione finanziaria del garante nel caso di sistemi di garanzia governativa consentirà di risparmiare altri 812 000 EUR. 

I risparmi totali potenziali derivanti da tutte queste misure sono stimati a 302 milioni di euro all’anno.

Vi era la paura che le banche di una certa dimensione ancora attiva avessero poco capitale ed un’esposizione eccessiva ai rischi dei mutui. Ciò ha fatto si che la crisi economica si trasformasse in una crisi dell’economia reale, impattando sui prezzi delle abitazioni, sull’accesso al credito e sull’occupazione.

Il Presidente degli Stati Uniti lancia il proprio avvertimento, evidenziando come ci siano alcune istituzioni finanziarie che, invece di imparare dalla lezione di Lehman Brothers e della crisi da cui non si è ancora usciti totalmente, stanno scegliendo di ignorare tutto ciò.

Siccome il loro comportamento produce effetti a tutta la nazione, Obama - sottolineando che “I want them (tali istituzioni finanziarie, n.d.a.) to hear my words” - dichiara che non si tornerà mai più ai giorni passati, caratterizzati dagli eccessi presenti al momento dell’apice della crisi, quanto troppe persone erano motivate solo dagli enormi bonus.

In ragione di quanto precede, vi è la necessità di regole dure, che individuino la strada per evitare i rischi sistemici che i mesi scorsi hanno evidenziato: e la responsabilità di scrivere e far rispettare tale leggi appartiene ai governi, al fine di proteggere gli investitori di prodotti finanziari, i cittadini, e l’economia nel proprio complesso.

Emblematica la frase di Obama in merito al fatto che la crisi attuale e (si spera) presto passata, non si ripeta: history cannot be allowed to repeat itself.

Ma l’amministrazione Obama non vuole scrivere da sola le nuove regole: le regole interessano il mercato finanziario, e per questo le istituzioni finanziarie sono invitate a partecipare in tale sforzo costruttivo di aggiornamento delle regole e dei regolamenti per affrontare le sfide del nuovo secolo. E questo è l’obiettivo dell’attuale amministrazione degli Stati Uniti.

Vediamo ora quali sono i propositi di Obama:

1) proporre nuove regole per proteggere i consumatori e la costituzione di una nuova Consumer Financial Protection Agency;

2) colmare i gaps e gli overlaps delle regole del mercato finanziario

3) ridurre, se non eliminare, le differenze tra i vari stati, e non soltanto nell’ambito degli Stati degli Stati Uniti.

 Obiettivi ambiziosi, come quello della riforma del sistema sanitario americano, con la differenza che in questo caso il campo di azione non è meramente domestico ma globale, come la crisi che ci si sta lasciando alle spalle.

Dopo aver osservato che: “The global regulatory framework failed to prevent the build-up of risk in the financial system in the years leading up to the recent crisis. Major financial institutions around the world had reserves and capital buffers that were too low; used excessive amounts of leverage to finance their operations; and relied too much on unstable, short-term funding sources“, il dipartimento americano afferma ineluttabilmente: “Going forward, global banking firms must be made subject to stronger regulatory capital and liquidity standards that are as uniform as possible across countries. Today the Treasury Department set forth the core principles that should guide reform of the international regulatory capital and liquidity framework to better protect the safety and soundness of individual banking firms and the stability of the global financial system and economy“.

Di seguito gli otto importanti principi che - è lecito attendersi - potranno trovare applicazione nel prossimo futuro, atteso che il dipartimento suggerisce che: “A comprehensive agreement on new international capital and liquidity standards should be reached by December 31, 2010 and should be implemented in national jurisdictions by December 31, 2012“.
 - Core Principle #1: Capital requirements should be designed to protect the stability of the financial system (as well as the solvency of individual banking firms).
- Core Principle #2: Capital requirements for all banking firms should be higher, and capital requirements for Tier 1 FHCs should be higher than capital requirements for other banking firms.
- Core Principle #3: The regulatory capital framework should put greater emphasis on higher quality forms of capital.
- Core Principle #4: Risk-based capital requirements should be a function of the relative risk of a banking firm’s exposures, and risk-based capital ratios should better reflect a banking firm’s current financial condition.
- Core Principle #5: The procyclicality of the regulatory capital and accounting regimes should be reduced and consideration should be given to introducing countercyclical elements into the regulatory capital regime.
- Core Principle #6: Banking firms should be subject to a simple, non-risk-based leverage constraint.
- Core Principle #7: Banking firms should be subject to a conservative, explicit liquidity standard.
- Core Principle #8: Stricter capital requirements for the banking system should not result in the re-emergence of an under-regulated non-bank financial sector that poses a threat to financial stability.

Ancora una volta (è già accaduto per le agenzie di rating) gli Stati Uniti cercano di dare un fattivo contributo per uscire dalla crisi finanziaria globale; apprezzabili, a riguardo, le conclusioni del U.S. Treasury Department: “Global financial stability depends on the achievement of a high and level regulatory playing field for all global banking firms. Accordingly, once the financial system has emerged from the recent financial crisis, global banking firms must be made subject to stronger, more macro-prudential, and more uniform regulatory capital, liquidity, and accounting rules. This policy statement lays out what Treasury seems to be the key principles for reforming these regimes to promote long-term financial stability. We look forward to continuing to work with the U.S. federal financial regulatory agencies to advance these reform principles domestically and internationally“.

L’utilizzo delle obbligazioni per implementare le possibilità di funding degli istituti scolastici rappresenta altresì, in questo momento di crisi economica, un importante strumento di stimolo delle economie locali e della creazione di posti di lavori, come evidenziato dal Segretario  Geithner :”The Recovery Act’s bond programs are an innovative way of giving communities direct access to the funding needed to increase development and stimulate the local economy. Because of the Recovery Act’s bonds program, state and local governments are able to obtain the funds needed to create jobs and revitalize our communities.”

Ma come funzione questo programma? E qual è l’appeal di questi bond? In primis, va evidenziata la portata del programma: the Recovery Act included $22 billion for Qualified School Construction Bonds nationwide.

Relativamente al secondo punto, gli school bond non pagano interessi (come invece di norma), ma crediti fiscali: Investors who buy these bonds receive federal income tax credits in lieu of interest, allowing state and local governments to obtain financing without incurring interest expense. States may directly issue the bonds on behalf of eligible schools or provide school districts with the authority to issue the bonds within the state.

Nell’Ohio, lo strumento è già un successo: come rilevato dal Governatore  Strickland: “The impact of President Obama’s Recovery Act is clear - because of just one of the Recovery Act’s innovative bond programs, we are creating jobs and building the schools of the future today. Ohio is a clear example of how successful Recovery Act bonds can be in helping states pursue much-needed development infrastructure projects during these challenging times.”

É facile ipotizzare l’utilizzo di tale struttura anche in altri ambiti. C’è da chiedersi se tale esperienza sia passibile di ricezione in Europa: in un momento in cui la realtà scolastica sta subendo notevoli mutamenti, la possibilità di fornire strumenti di finanziamento diversi da quelli canonici potrebbe essere un valida ipotesi, apportatrice - come dimostrato dall’esperienza americana - anche di benefici collaterali (posti di lavoro) importanti quanto - se non più - delle esigenze di funding che gli school bond sono in prima istanza deputati a soddisfare.