Nieuws Asset Management

On 30 January 2012, the European Securities and Markets Authority (“ESMA”) published a consultation papersetting out future draft guidelines on a number of topics relating to certain types of Undertakings for Collective Investment in Transferable Securities (“UCITS”), namely:
(a)    prospectus, annual and half-yearly disclosure for UCITS using index-tracking strategies;
(b)    prospectus and Key Investor Information disclosure for UCITS using leveraged index-tracking strategies;
(c)    the employment of so-called “efficient portfolio management techniques” by UCITS and related disclosure requirements;
(d)    the use of total return swaps by UCITS and related disclosure requirements;
(e)    specific rules for UCITS gaining exposure to an index that aims at replicating a quantitative or a trading strategy; and
(f)    definition of “UCITS Exchange-Traded Funds” (“UCITS ETFs”) and related specific rules and disclosure requirements (including rules designed to protect investors when redeeming units in UCITS ETFs).

On 24 January 2012, the European Securities and Markets Authority (“ESMA”) published a consultation paper on draft technical standards in respect of the new regulation on short selling and certain aspects of Credit Default Swaps, of which it is required to submit definitive versions to the European Commission by 31 March 2012.
The new regulation will enter into force on 1 November 2012. It provides for a harmonised European framework governing short selling of certain listed instruments. Among others the Regulation:
(a)    prohibits the use of ‘uncovered’ Credit Default Swaps (“CDs”) in sovereign debt, i.e. transactions where no underlying long position exists in the relevant sovereign bond are no longer permitted (Member States are however allowed to suspend the prohibition in their own jurisdiction in certain circumstances);
(b)    imposes certain ‘certainty of settlement’-requirements in relation to uncovered short selling of shares and sovereign bonds;
(c)    introduces an harmonised notification and reporting regime for shares, whereby holders of net short positions must notify these privately to the regulator when they exceed 0.2% of the issued share capital of the issuer company and must publicly disclose these (on a named basis) when they exceed 0.5%. In each case, further notification or reporting is required at each 0.1% above the initial threshold;
(d)    provides national competent authorities and ESMA with additional powers to intervene in the markets in times of stress; and
(e)    excludes sales under a repo agreement or futures contracts from the definition of short sales in shares and debt instruments.

 

The consultation is designed to obtain comments from stakeholders concerning the draft technical standards that ESMA proposes to submit to the European Commission for endorsement by the end of March 2012. The deadline for stakeholders to submit comments has been set on 13 February 2012.

 On 20 January 2012 the government published a letter to the Lower House setting out its preliminary views regarding the European Commission proposals for a European regulation on European Venture Capital Funds(“VCFs”) and a European regulation on European Social Entrepreneurship Funds (“SEFs”). These proposals provide for a European framework (including passporting rights) for the marketing to “professional investors” of VCFs and SEFs that are exempted under the Alternative Investment Fund Managers Directive (“AIFMD”) due to their size (i.e. ‘registration only’ regime due to assets under management not exceeding €500 million or €100 million for non-leveraged, five-year close-end funds). The government is positive concerning the proposal for a European regulation on VCFs. In contrast, it does not consider it necessary to establish a European framework for SEFs. In the government’s opinion, the practical implications of both proposals and potential implementation issues should be carefully looked into. Furthermore, implementation should not result in excessive administrative costs. Due attention should be given to the relation between the AIFMD and the proposed regulations, notably in terms of potential inconsistencies.

On 4 January 2012, the 2012 regulation on (one-off and ongoing) supervision costs was published in the Dutch government gazette (Staatscourant).

As of 1 January 2012, the conditions for reliance on the ‘minimum amount’ and the ‘minimum denomination’ exemption for offerings of individual investment objects, participation rights in collective investment schemes and securities in the Netherlands have been tightened. These changes have been implemented through amendment of the Exemption Regulation to the Dutch Act on Financial Supervision (Vrijstellingsregeling Wft).
As a result, the minimum investment thresholds resulting in exemption from the relevant licensing and/or prospectus requirements have been increased to EUR 100,000 instead of EUR 50,000. The new stricter rules apply in any event to all "offerings" taking place after 1 January 2012 (an "offering" includes the management of a financial product during its life time). Certain transitional provisions have been enacted for:
(a)    parties merely managing individual investment objects offered before 1 January 2012 under the EUR 50,000 exemption; and
(b)    collective investment schemes offered before 1 January 2012 in reliance on the 50,000 exemption.
Further explanation concerning those changes and the transitional provisions can be found in a letter from the Dutch Minister of Finance (Dutch only) and on the AFM website (Dutch only).
As of 1 January 2012, new mandatory warning rules apply to advertisements, offerings and marketing documentation relating to exempted offerings of individual investment objects, participation rights in collective investment schemes and securities.

Inclusion of these warning is not required for exempted offerings of securities to only “qualified investors” as defined under Dutch regulations.

As of 1 January 2012, the scope of the rules governing the notification of voting rights and participating interests in –briefly put– listed Dutch public companies and non-European issuers with a Dutch listing has been extended to certain cash-settled instruments, such as ‘contracts for difference’ and ‘total return equity swaps’. The rationale behind this extension is that under certain circumstances these instruments may give the holder the possibility to influence the underlying voting rights and to obtain a participating interest in the relevant issuer. In relation to this change the Dutch Authority for the Financial Markets (“AFM”) has recently issued a policy rule and an updated version of the AFM brochure for shareholders.