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FINANCIAL REGULATION Casablanca
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European Commission consults on proposed gln.hanoi@gide.com
arising from cross‐border account holding arrangements and chains of ownership. Istanbul
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• The EU consultation proposes both a choice of law framework and limited
Kyiv
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London
• This consultation recognises the work of UNIDROIT in the Hague and Geneva Tel. +44 (0)20 7382 5500
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Securities conventions but is a European focused framework and solution.
Moscow
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will make the detailed text available in 2011.
New York
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Scope: EU seeks to harmonise securities laws
The Commission has launched a public consultation to seek stakeholders’ views on a Paris
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Directive to harmonise laws for securities holding and transactions and better protect info@gide.com
investors’ rights enshrined in their securities1. The Directive is expected to address three Prague
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issues: gln.prague@gide.com
a) the legal framework of holding and disposition of securities held in securities
Saint Petersburg
accounts, covering aspects belonging to the sphere of substantive law as well as Tel. +7 812 303 6900
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conflict‐of‐laws; om
b) the legal framework governing the exercise of investors’ rights flowing from securities Shanghai
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c) the submission of any activity of safekeeping and administration of securities to an
Tunis
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…/… Warsaw
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1 gln.warsaw@gide.com
Consultation dated 5 November 2010:
http://ec.europa.eu/internal_market/consultations/docs/2010/securities/consultation_paper_en.pdf
Rationale: national laws lead to lack of clarity for Commission has found that Member States’ laws are
cross border holdings usually incompatible and legal uncertainty arises
Currently EU Member States’ laws on the holding and because, for example, different laws identify different
disposition of securities (such as stocks, bonds, options, owners of the same underlying security. The
futures etc.) differ considerably. This fragmentation Commission believes that it is necessary to address
potentially leads to: these issues by ensuring that Member States’ legal
frameworks are compatible.
• legal uncertainty in cross border situations, so it is
often unclear what an investor owns; and
Actions under consideration
• difficulties for investors to exercise rights such as The Commission is considering the following actions:
receipt of dividends or interest, voting or agreeing • all account providers must be regulated at EU‐
to corporate measures. level and should be subject to a detailed
Member States’ legal frameworks differ considerably authorisation and supervision framework notably
and where a chain crosses borders, different laws are the one provided by MIFID3;
applicable to the same underlying securities.
• conflict‐of‐laws arrangements (answering the
Timing and the consultation process question of which law is applicable) must be
Although the Consultation is the latest in a string of clarified and brought in line with existing EU
supranational attempts to harmonise this area, the measures (the Settlement Finality and Financial
Lehman fallout may provide real impetus for a Collateral Directives);
legislative solution at EU level. The Commission has
• substantive law arrangements (answering the
been asked by the ECOFIN Council to come up with
question of what the applicable laws say in
outline legislative measures to address these issues as a
substance) need to be made compatible;
matter of urgency and intends to:
• propose legislation in the form of a Securities Law • the full exercise of investor rights must be
Directive before summer 2011; and guaranteed.
Regulation of account providers: all account‐
• finalise transposition into Member Statesʹ law end
providers be regulated under MiFID.
2013
The Commission notes that providing the service of
The Commission has already held an initial maintaining securities accounts is an “ancillary service”
consultation dealing with the general issues at stake in under Annex 1 Section B of MiFID and that provision
20092. Respondents to the current Consultation are of an ancillary service per se does not require
asked to provide their views on various principles on authorisation. If provided by an investment firm, the
which the Commission may base the legislation. The rules of MiFID apply. However, if an account provider
deadline for responses is 1 January 2011. is not an investment firm in the sense of MiFID, its
activity is not subject to the rules of MiFID. Hence there
Rationale for Consultation is a regulatory gap as there is no common rule on
The majority of securities are no longer transferred in whether such entities have to be subject to
paper form but through “securities accounts” kept by authorisation and regulation. The Consultation thus
“account providers” (an intermediary such as a bank or suggests that all account‐providers be regulated under
investment firm) acting on behalf of “account holders”. MiFID.
In some Member States only one account provider
intervenes while in others it may be a chain of account Conflicts of law: Commission supports the “PRIMA
providers, one holding for the other. Approach”
The Consultation proposes that national laws be
Member States’ legal frameworks differ considerably clarified and brought in line with existing EU rules set
and where a chain crosses borders, different laws are out in the Settlement Finality and Financial Collateral
applicable to the same underlying securities. The Directives. This means the applicable law would be the
governing law of the EU member state where the
2
securities account is held (the ‘place of the relevant
Consultation dated 16 April 2009:
http://ec.europa.eu/internal_market/consultations/docs/2009/securities-
3
law/hsl_consultation_en.pdf Markets in financial instruments Directive 2004/39/EC
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