The European Securities and Markets Authority (ESMA) has today published its final guidelines on repurchase and reverse repurchase agreements for UCITS funds.  The guidelines state that UCITS should only enter into such agreements if they are able to recall at any time any assets or the full amount of cash.

  Executive Summary Reasons for publication On 23 February 2012, ESMA published a discussion paper (DP) on key concepts of the Alternative Investment Fund Managers Directive and types of AIFM (2012/117), which was followed on 19 December 2012 by the publication of a consultation paper (CP) on guidelines on key concepts of the AIFMD (2012/845). The CP set out formal proposals for guidelines ensuring common, uniform and consistent application of the concepts in the definition of ‘AIF’ in Article 4(1)(a) of the AIFMD by providing clarification on each of these concepts. This final report sets out the final text of the guidelines on key concepts of the AIFMD.

The European Securities and Markets Authority (ESMA) is issuing this statement to inform stakeholders and especially investors about the potential for some European collective investment funds to be ‘closet index trackers’, and to give details on the work that ESMA has been doing in this context.

Introduction

1. ESMA’s attention was drawn to an alleged practice in the European collective investment management industry whereby asset managers claim, according to their fund rules and investor information documentation, to manage their funds in an active manner while the funds are, in fact, staying very close to a benchmark and therefore implementing an investment strategy which requires less input from the investment manager. At the same time, it is alleged that these funds charge management fees in line with those of funds that are considered to be actively managed[1]. This practice is commonly referred to as ‘closet indexing’ or ‘index hugging’.
2. In many EU Member States, NCAs have launched or are in the process of launching specific investigations, in addition to their regular monitoring and supervisory functions, to determine the potential extent of closet indexing in their jurisdictions, with a focus on equity funds at this stage. At the same time, the issue has been the subject of considerable attention by investor protection groups and the media throughout the European Union.

Reasons for issuing this statement

3. The issues around ‘closet indexing’ form part of a broader issue on the effectiveness of investor disclosure and the legitimate expectations of investors in respect of the service provided by some asset managers. Nonetheless, the potential practice of closet indexing in Europe raises questions that merit closer analysis. The analysis carried out by ESMA (see paragraphs 9 to 16 for more details) indicates that there might be a small, but not insignificant number of funds in the EU equity fund sector that may be closet index trackers. If the existence of this practice were to be confirmed by further supervisory scrutiny carried out at national level, this could mean that:

1. investors could be making investment decisions based on an expectation that they will be provided with a more active fund management service than they receive in practice and, therefore, may be paying higher management fees than that usually envisaged for a passive/not significantly active management service;
2. investors may be exposed to a different risk/return profile than they expect; and
3. some asset managers may not provide clear descriptions of how funds are managed in key disclosure documents such as the fund’s Prospectus and Key Investor Information Document (KIID).

4. ESMA considers it important that fund managers take their commitments in disclosure documents seriously. Managers should expect supervisory consequences where evidence for incorrect disclosures is proven.

The Board of Supervisors of the European Securities and Markets Authority (ESMA) has appointed the following individuals to serve as chairs of its standing committees:

• Hannelore Lausch, Executive Director of the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin), Germany, will chair the Market Data Standing Committee;
• Cyril Roux, Deputy Governor of the Central Bank of Ireland (CBI, will chair the Investment Management Standing Committee; and
• Merel van Vroonhoven, Chair of the Autoriteit Financiële Markten (AFM), Netherlands, will chair the Investor Protection and Intermediaries Standing Committee.

The standing committees are expert groups drawn from ESMA staff and the national competent authorities for securities markets regulation in the Member States, and are responsible for the development of policy in their respective areas.  The appointments are for a period of two years and commence with immediate effect.

Joint Statement of the SMSG and the BSG on the Draft Guidelines on the Assessment of the Suitability of Members of the Management Body and Key Function Holders

The European Securities and Markets Authority (ESMA), the EU supervisor of trade repositories (TRs), has registered Bloomberg Trade Repository Limited as a TR under the European Market Infrastructure Regulation (EMIR), with effect from 7 June 2017. Bloomberg Trade Repository Limited is based in the United Kingdom and covers the following derivative asset classes: commodities, credit, foreign exchange, equities and interest rates.