EC proposes regulation on money market funds

December 2013 | SPECIAL REPORT: INVESTMENT FUNDS

Financier Worldwide Magazine

The European Commission published the Proposal for a Regulation of the European Parliament and of the Council on Money Market Funds (the ‘Proposed Regulation’) on 4 September 2013.

The Proposed Regulation has come about as a result of increased regulatory scrutiny of money market funds (MMFs) at both international and European level. The Proposed Regulation follows a review of shadow banking activities by the Financial Stability Board and the EU Commission, together with a report and recommendations on MMFs issued by the European Systemic Risk Board in February 2013.

On 1 October 2013, the European Parliament updated its procedure file on the Proposed Regulation to indicate that the Parliament will consider the Proposed Regulation in its plenary session to be held from 14 to 17 April 2014.

Overview

The role of MMFs in the so called ‘shadow banking’ sector has come to the forefront following the recent financial crisis. The European Commission, in the explanatory memorandum which prefaces the Proposed Regulation, cites the systemic interconnectedness of MMFs and the failure of local regulators to deal with perceived issues associated with the operation of MMFs as the reason behind the content of the Proposed Regulation.

The Proposed Regulation is designed to focus on the MMF product rather than the fund vehicle. As drafted, the Proposed Regulation requires that collective investment undertakings (CIUs) be authorised explicitly as MMFs, either as part of the harmonised authorisation procedure for UCITS or using the new harmonised authorisation procedure for AIFs. Only CIUs which comply with the Proposed Regulation may identify themselves as MMFs.

The Proposed Regulation, once finalised, will be directly effective in all EU Member States 20 days after its publication in the Official Journal. There will then be a transitional period of six months for existing MMFs to comply.

Key proposals

Constant NAV. The Proposed Regulation provides that only MMFs which establish and maintain at all times a ‘capital buffer’ of 3 percent of the total value of assets under management may advertise a constant NAV (CNAV) per unit or share.

The capital buffer must be composed of cash and held in a protected reserve account in the name of the CNAV MMF. The capital buffer will only be permitted to be used to compensate the difference between the CNAV per unit or share and the ‘real’ value of the unit or share.

The capital buffer will need to be replenished whenever it falls below the 3 percent threshold. Both the competent authority in the relevant EU Member State and ESMA must be immediately notified when the amount of the NAV buffer decreases by 10 basis points below the 3 percent buffer threshold.

The recitals of the Proposed Regulation also note that each competent authority should have the power to convert a CNAV MMF into a variable NAV MMF if it has justifiable reasons and can demonstrate the incapacity of the CNAV MMF to replenish the capital buffer within one month. CNAV MMFs must provide clear procedures for conversion to variable NAV MMFs in their constitutional documents.

The Proposed Regulation provides for a ‘ramp-up’ period for existing CNAV MMFs in relation to the capital buffer as follows: (i) 1 percent of the total value of the CNAV MMF’s assets within one year from the entry into force of the Proposed Regulation; 2 percent within two years; and 3 percent within three years.

Eligible assets. The Proposed Regulation states that MMFs shall only invest in four categories of financial instruments, namely: (i) money market instruments; (ii) deposits with credit institutions; (iii) financial derivative instruments (only to hedge duration/exchange risks); and (iv) reverse repurchase agreements. The Proposed Regulation contains further detailed criteria regarding eligible assets.

Investment restrictions. The Proposed Regulation also contains a detailed list of investment restrictions for MMFs. In summary, MMFs shall be prohibited from short-selling money market instruments, taking direct or indirect exposure to equity or commodities, entering into securities lending agreements, securities borrowing agreements or borrowing and lending cash.

Diversification. The Proposed Regulation contains detailed rules on the diversification of eligible investments including: (i) 5 percent issuer limit for money market instruments; (ii) 5 percent limit on deposits with a single credit institution; (iii) 10 percent aggregate limit in terms of securitisation exposure; and (iv) 10 percent aggregate limit in terms of issuer exposure. These restrictions are waived for sovereign issues of certain countries and public bodies.

Valuation. The Proposed Regulation contains detailed provisions for the valuation of MMF assets. It requires variable NAV MMFs to value their assets daily using mark-to-market methods whenever possible and otherwise mark-to-model. Only CNAV MMFs may value assets using the amortised cost methodology.

External support. Under the Proposed Regulation, CNAV MMFs may only receive support through the specific NAV capital buffer (as detailed above). Other MMFs shall be prohibited from receiving external support, i.e., sponsor support, however in exceptional circumstances, the relevant competent authority may allow a MMF other than a CNAV MMF to receive external support.

Portfolio maturity. The Proposed Regulation differentiates between ‘Short-Term’ MMFs and ‘Standard’ MMFs. Portfolios of Short Term MMFs must have a weighted average maturity (WAM) of no more than 60 days and a weighted average life (WAL) of no more than 120 days. Portfolios of Standard MMFs must have a WAM of no more than 6 months and a WAL of no more than 12 months.

Each MMF must indicate whether it is a short-term or a standard MMF in any internal or external document, report, statement, advertisement, letter or any other written evidence issued by it or its manager, addressed to or intended for distribution to shareholders, prospective investors or competent authorities.

Standard MMFs will not be permitted to operate as CNAV MMFs under the Proposed Regulation.

Further proposals

In order to avoid mechanistic reliance on external ratings, the Proposed Regulation provides that MMFs should establish an internal assessment procedure for assessing the credit quality of MMF investment instruments.

These requirements will include the introduction of stress testing processes in order to identify possible changes in economic circumstances which could adversely affect the MMF. Measures must be taken to reinforce liquidity or asset quality where stress testing identifies any vulnerability of the MMF.

Soliciting or financing an external credit rating is prohibited by the Proposed Regulation.

The Proposed Regulation also requires the manager of a MMF to carry out due diligence on investors with the goal of anticipating the effect of concurrent redemptions by a number of investors.

Reception and timing

The Proposed Regulation represents a substantial change to the current regulatory regime applicable to MMFs. In particular, the capital buffer proposal has been the subject of much industry debate and many commentators believe there is still a chance that this requirement will ultimately be dropped from the MMF proposals.

The Securities Exchange Commission in the US has avoided mandating any kind of a capital buffer in its proposed rules on the operation of MMFs, expressing concerns about the economic effect of such a requirement on the MMF industry. Industry lobby groups are advocating a global approach to the regulation of MMFs and argue that lack of consistency between regulation of MMFs in the US and regulation of MMFs in the EU could prove highly damaging to Europe’s €1 trillion MMF industry owing to the very real possibility of promoters exploiting the regulatory arbitrage.

According to the Irish Funds Industry Association (IFIA), Irish domiciled MMFs had assets of €273bn as at August 2013. The IFIA has already issued a press release calling for alignment between EU and US MMF policies and astrong pan European lobbying effort against the proposed capital buffer is expected prior to the Proposed Regulation being considered by the European Parliament in April 2014.

Sarah Lyons and Damien Barnaville are associates, and Kate Kenneally is a trainee solicitor, at LK Shields. Ms Lyons can be contacted on +353 1 637 1530 or by email: slyons@lkshields.ie. Mr Barnaville can be contacted on +353 1 638 5886 or by email: dbarnaville@lkshields.ie.

Sarah Lyons, Damien Barnaville and Kate Kenneally

LK Shields