Einde inhoudsopgave
Prudential regulation of investment firms in the European Union (ZIFO nr. 32) 2021/2.1.7
2.1.7 AIFMD and UCITS authorised firms performing investment services
mr. drs. B.J. Nieuwenhuijzen, datum 01-02-2021
- Datum
01-02-2021
- Auteur
mr. drs. B.J. Nieuwenhuijzen
- JCDI
JCDI:ADS262279:1
- Vakgebied(en)
Financieel recht / Bank- en effectenrecht
Financieel recht / Financieel toezicht (juridisch)
Voetnoten
Voetnoten
Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010, OJEU L 174, 1 July 2011, p. 1.
Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast), OJEU L 302, 17 November 2009, p.32.
See also Chapter 6 of Grundmann-van de Krol, C.M., Koersen door de Wet op het financieel toezicht. Deel III – Beleggingsinstellingen en icbe’s, vijfde druk. Boom Juridisch, Deventer, 2016.
See Paragraph 604 on page 394 of Grundmann-van de Krol, C.M., Koersen door de Wet op het financieel toezicht. Deel III – Beleggingsinstellingen en icbe’s, vijfde druk. Boom Juridisch, Deventer, 2016.
These fund managers with “MiFID top-up” do, however, not have to comply with the requirements of MiFIR as they are not authorised under MiFID. See article 1(2) of MiFIR which defines the scope of MiFIR to those entities with a MiFID license. See also Groffen, C.J., “IFR en IFD, gevolgen voor beheerders”, Tijdschrift voor Financieel Recht, nr 6, 11 juli 2019.
Via a reference to Article 15 in MiFID II which then references the initial capital requirements in the CRR. See also Paragraph 615 on page 404 of Grundmann-van de Krol, C.M., Koersen door de Wet op het financieel toezicht. Deel III – Beleggingsinstellingen en icbe’s, vijfde druk. Boom Juridisch, Deventer, 2016
Articles 6(6) of the AIFMD and 6(4) of UCITS actually refer to Article 12 of MiFID I, which has been replaced by Article 15 of MiFID II.
See Article 93 of the CRR, however, which states that the own funds requirement for investment firm may never be lower than the initial capital requirement.
See also Paragraph 601 on page 391 of Grundmann-van de Krol, C.M., Koersen door de Wet op het financieel toezicht. Deel III – Beleggingsinstellingen en icbe’s, vijfde druk. Boom Juridisch, Deventer, 2016.
These fund managers with MiFID top-up will most likely not be classified as an investment firm under the CRR definition, as they would fall in the exemption of Article 4(1)(2)(c) of the CRR. That does not mean, however, that no requirements of the CRR are applicable, as will be discussed in Chapter 7 and more specifically in Section 7.1 where this exemption and its consequences will be discussed. See also Paragraph 622 on pages 407 and 408 of Grundmann-van de Krol, C.M., Koersen door de Wet op het financieel toezicht. Deel III – Beleggingsinstellingen en icbe’s, vijfde druk. Boom Juridisch, Deventer, 2016.
See Groffen, C.J., “IFR en IFD, gevolgen voor beheerders”, Tijdschrift voor Financieel Recht, nr 6, 11 juli 2019.
See also chapter 17 of Financial Conduct Authority, ‘A new UK prudential regime for MiFID investment firms’, Discussion Paper, DP20/2, June 2020, in which the Financial Conduct Authority argues that “the potential for harm is the same for these additional services [MiFID top-up] regardless of who is carrying them out. This means that the treatment should also be the same”.
127. There is another type of firm that can provide investment services as defined in Annex 1 of MiFID II. Firms holding a license to provide collective portfolio management regulated under the ‘Alternative Investment Funds Managers Directive’1 (AIFMD) or the ‘Undertakings for Collective Investment in Transferable Securities Directive’2 (UCITS), may also, under those directives, perform additional “non-core” services such as giving investment advice, safekeeping of financial instruments or portfolio management.3 These fund managers are allowed to perform these investment services without applying for a MiFID license.4 Performing these investment services as a fund manager will however, still lead to the situation where the fund manager qualifies as an investment firm under the MiFID II definition of investment firm. The fund manager is therefore both an authorised fund manager under the AIFMD or UCITS directives, and will also qualify as an investment firm under MiFID II albeit with an exemption to the license requirements of MiFID II.5 These fund managers with a “MiFID top-up” then also have to comply with the requirements of MiFID II.67 It should be noted that the reference from both the AIFMD and UCITS to the applicable MiFID II requirements for those funds managers with MiFID top-up, only refers, besides other conduct requirements in MiFID, to the initial capital requirements of the CRD 2013 and CRR frameworks.8 Article 15 of MiFID II, to which articles 6(6) of the AIFMD and 6(4) of UCITS refer,9 states that investment firms have to comply with the initial capital requirements in the CRR. This is in itself a peculiar reference, as the initial capital requirements for investment firms are included in the CRD 2013 and not in the CRR.10 A further point of interest is that AIFMD and UCITS, nor MiFID II, actually do not refer to the CRR for the own funds requirements. The application of the own funds requirements in the CRR for investment firms is therefore implied from the definition of investment firm in the CRR,11 which also includes the MiFID business of these fund managers with MiFID top-up. As such, fund managers with a MiFID top-up will also be subject to the own funds requirements for investment firms in the CRR.12
128. It could, however, be argued that the reference from AIFMD and UCITS to CRR is an incorrect reference as both directives intended to refer to the initial capital requirements which are part of the CRD 201313 and not the CRR. This interpretation puts an emphasis on the phrase “initial capital” in articles 6(6) of the AIFMD and 6(4) of UCITS to infer that the other requirements included in the CRD 2013 and CRR regime are not applicable. This interpretation, however, fails to acknowledge the wider scope of application of the CRD 2013 and CRR regimes itself. The scope of which encompasses all entities performing MiFID services or activities regardless of the actual authorisation of that entity. Although only the initial capital requirements of the CRD 2013 are directly applicable through articles 6(6) of the AIFMD and 6(4) of UCITS, all other (relevant) provisions of the CRD 2013 and CRR regime are applicable through the intended scoping of the CRD 2013 and CRR regime itself. This can be further highlighted by the fact that article 6(6) of the AIFMD and article 6(4) of UCITS are part of the articles that govern the market access and authorisation of these fund managers. These market access articles in AIFMD and UCITS do not contain, or refer to, the ongoing own funds requirements of fund managers, as these requirements are included in the specific sections of those directives that govern ongoing supervision. It would then not make sense for a market access article of AIFMD and UCITS to refer to the ongoing supervision parts of the CRD 2013 and CRR regimes. As such, the reference to only initial capital requirement appears and the own funds requirements imbedded in the CRD 2013 and CRR regime are consistent.
129. The risk profile of these fund managers with MiFID top-up will, when performing these investment services, not differ from other investment firms performing these investment services.14 As such, this study will not go into further detail on these fund managers as their risk profile fully aligns, for these investment services, with other investment firms. In Chapter 9, this study will discuss the impact of the new prudential regime for investment firms on the applicable own funds requirements for these fund managers with MiFID top-up.