Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Finance and Employment,
Considering the Constitution, in particular the second paragraph of article 37;
In light of Commission Directive 2007/16/EC of 19 March 2007 on the implementation of Council Directive 85/611/EEC on the coordination of legislative, regulatory and administrative provisions relating to certain securities collective investment organizations (CSAs), with regard to the clarification of certain definitions;
Considering the insurance code, including articles R. 141-5 and R. 142-14;
Considering the trade code;
Considering the monetary and financial code, including chapter IV of Book II title I;
Having regard to amended Ordinance No. 45-2710 of 2 November 1945 on investment companies;
In view of Decree No. 2005-875 of 25 July 2005 amending the provisions of the insurance code relating to the rules of dispersion for the representation of regulated commitments and the rules of investment of contracts referring to units of account and amending Decree No. 89-623 of 6 September 1989 pursuant to Act No. 88-1201 of 23 December 1988 on collective investment bodies in securities and establishing common debt funds, as amended by Decree No.
Having regard to the Advisory Committee on Financial Legislation and Regulation dated 15 March 2007;
Considering article R. 123-20 of the Administrative Justice Code;
The State Council (Finance Section) heard,
Decrete:
Chapter IV of title I of book II of the monetary and financial code is thus amended:
1° Section R. 214-1-1 is amended as follows:
(a) In the b of 2°, the words: ", excluding trade effects" are replaced by the words: ", other than the commercial effects and the financial instruments mentioned in the f";
(b) The e of 2° is supplemented by the words: "in the sense of I of Article L. 211-1; »
(c) Before the last preambular paragraph, a subparagraph shall read:
“(f) Monetary market instruments. »
2° After article R. 214-1-1, an article R. 214-1-2 was created as follows:
"Art. R. 214-1-2. - I. - The financial instruments referred to in a, b and d of 2° of R. 214-1-1 meet the following conditions:
« 1° The loss to which their detention exposes the securities collective investment organization cannot exceed their acquisition price;
« 2° They are the subject of reliable valuation:
“(a) For financial instruments under section I R. 214-2, in the form of accurate, reliable and regularly established prices, which are either market prices or prices provided by independent valuation systems of issuers;
“(b) For financial instruments other than those mentioned in a, on a periodic basis, from information from the issuer or from a financial analysis service referred to in Article L. 544-1;
« 3° Appropriate information concerning them is available in the following form:
“(a) For financial instruments under Article R. 214-2, specific, complete and regularly provided information to the market on the financial instrument in question or, where appropriate, on the underlying assets of that instrument;
“(b) For financial instruments other than those mentioned in a, specific and regularly provided information to the securities collective investment agency on the financial instrument in question or, where applicable, on the assets underlying this instrument;
"The financial instruments referred to in a, b, or d of 2° of section R. 214-1-1 may be applied to other assets or related to the performance of other assets or features thereof, whether or not these assets fall under section R. 214-1-1.
“II. - Are assimilated to financial instruments mentioned in the second paragraph of Article R. 214-1-1 the shares of companies under Title II of Order No. 45-2710 of 2 November 1945 relating to investment companies, as well as the shares or shares of investment funds under foreign law and not meeting the conditions set out in the second paragraph of Article L. 214-15 or in the first paragraph of Article L.
« 1° They are subject to rules governing the functioning of the legislative organs of the organization, under conditions specified by order of the Minister responsible for the economy;
« 2° For investment funds with corporate personality, where the financial management activity is carried out by another entity on behalf of the organization, the said entity is subject to national regulations to ensure the protection of investors;
« 3° For investment funds that do not have a legal personality, they are managed by an entity subject to national regulations to guarantee the protection of investors.
"III. - The financial instruments referred to in the 2nd of Article R. 214-1-1 are debt securities that meet the following three conditions:
« 1° They meet at least one of the following criteria:
“(a) They have a duration on the program up to 397 days;
“(b) They have a residual duration of up to 397 days;
"(c) Their yield is subject to regular adjustments, in accordance with the conditions of the monetary market, at least every 397 days;
"(d) Their risk profile, particularly with respect to credit risk and interest rate risk, corresponds to that of instruments that have a maturity date consistent with that mentioned in a, or a residual period consistent with that referred to in b, or whose performance is subject to adjustments in accordance with those referred to in c;
« 2° They may be disposed of promptly and without excessive cost;
« 3° There are precise and reliable valuation systems of the financial instrument that simultaneously meet the following two criteria:
“(a) They allow the securities collective investment organization to calculate a liquidative value consistent with the value to which the financial instrument held at the asset could be exchanged between notified parties, knowingly contracting parties, in the course of a transaction under normal competition conditions;
“(b) They are based either on market data or on actuarial valuation models, including the method of updating future flows. These models should not lead to significant deviations from the instrument's market value.
"The conditions referred to in 2° and 3° are deemed to be satisfied for the instruments of the monetary market under Article I R. 214-2, unless the information available to the securities pooling agency is likely to lead the securities dealer to decide otherwise. »
3° Section R. 214-2 is amended as follows:
(a) In the first paragraph, the words "and "d" are replaced by the words ", d and f";
(b) The 4th of the II becomes a 3rd;
(c) The first to fourth subparagraphs of II are replaced by the following:
“II. - The instruments referred to in Article 2(f) of Article R. 214-1-1 shall be assimilated to assets admitted to the negotiation on a market under Article I, provided that, in addition to the conditions set out in Article III, R. 214-1-2, they meet the following:
« 1° Prerequisitely on the issue, the issuer prepares financial documentation and ensures that it is regularly updated, especially whenever a new fact is likely to have a significant impact on the value of issued securities or on the correct end of the program. For issuers other than those mentioned in c of 3° of this II, financial documentation is subject to verification by a qualified third party and independent of the issuer. This documentation, which must allow to properly assess the credit risk associated with the instrument, bears:
“(a) For transmitters mentioned in c of 3°, on their legal and financial situation or on the issuance or program of issuance;
“(b) For other issuers, on their legal and financial situation, as well as on the issuance or program;
« 2° Reliable statistical information is available on the program or program. For transmitters mentioned in c of 3°, this condition is deemed to be met when other available data allow for the proper assessment of the credit risk associated with these instruments; »
(d) The c of 3° of II shall be replaced by the following provisions:
"(c) An establishment subject to prudential supervision, whose seat is located in a Member State of the European Community, or an establishment subject to prudential rules, which therefore complies with one of the following criteria:
“(i) It is established in a State Party to the European Economic Area;
“ii) It is located in a country on a list set by order of the Minister responsible for the economy;
“(iii) It receives an external evaluation of an agency referred to in Article L. 544-1, meeting conditions fixed by the same order;
“(iv) The prudential rules applicable to it are at least as strict as those for establishments under this c and whose seat is located in a Member State of the European Community; »
(e) The e of the 3rd of the II is supplemented by the words "given by an establishment mentioned in this c."
(f) This article is supplemented by a sub-item:
"The instruments issued by the European Central Bank or the Central Bank of a Member State of the European Community are not subject to the conditions mentioned in 1° to 4°. The instruments issued by the European Union, the European Investment Bank, a Member State, one of the members comprising the federation of a federal state, a regional or local community of a member state of the European Community, or an international public body, therefore, in the last two cases, that they are guaranteed by a Member State, or, in the case of a Member State constituted in the form of a federal state, that they are guaranteed by one of the members »
4° Section R. 214-3 is amended as follows:
(a) At 1°, the words: "satisfies sufficient security criteria established by the Autorité des marchés financiers" are replaced by the words: "is subject to prudential supervision and complies with one of the criteria provided for in Article R. 214-2, c. 3° of II; »
(b) At 3°, the words: "for the provision of funds within 24 hours, subject to hours of foreign currency payment" are deleted;
(c) The 4th is replaced by the following:
« 4° The amount paid in response to a claim for reimbursement, diminished of any anticipated repayment fees or penalties, and increased potential interest, is at least equal to the original value of the deposit. »
5° After the article R. 214-5, an article R. 214-5-1 is inserted as follows:
"Art. R. 214-5-1. - For the purposes of this sub-section, the shares of real estate preponderance companies with variable capital referred to in Article L. 214-120 fall within the scope of Article R. 214-5 alone. »
6° In I and in III of Article R. 214-6, the words "and d" are replaced by the words ", d and f";
7° At 1° of I and III of article R. 214-7, the words "and d" are replaced by the words ", d and f";
8° Article R. 214-9 is supplemented by a paragraph as follows:
"This section also applies to the compartments of a foreign law investment fund referred to in 5° of section R. 214-5, where the assets of a specified compartment meet only debts, commitments and obligations and receive only claims relating to that compartment. »
9° Section R. 214-12 is amended as follows:
(a) At 1° of I and in the last paragraph of I, the words "or d" are replaced by the words ", d or f";
(b) The IV is replaced by the following:
"IV. - A collective investment agency in securities may not use the techniques and instruments relating to the assets referred to in a, b, d and f of 2° of Article R. 214-1-1, including pension transactions, assimilated acquisition or temporary assignment of securities only where such techniques and instruments meet the following conditions:
« 1° Their implementation is an economic interest for the securities collective investment organization;
« 2° The objective is either to reduce risks or costs, or to increase the net inventory value or income, or to achieve the management objective of the securities collective investment organization, with a level of risk consistent with its risk profile and with respect to the sixth paragraph of Article L. 214-4. »
10° Section R. 214-13 is amended as follows:
(a) At c of 2° of I shall be replaced by the following provisions:
“(a) They relate to instruments referred to in R. 214-1-1, including one or more of these assets, or interest rates, exchange rates or currencies, a combination of the previous items, or to financial indices that meet the conditions set out in III;
“(b) They are entered into the regulated futures markets referred to in Article L. 214-42. In other cases, they must meet the following criteria:
“(i) They are concluded with an establishment referred to in the second paragraph of Article R. 214-12;
“ii) They may be released or liquidated at any time, at their market value referred to in this iii, at the initiative of the securities collective investment organization;
“(iii) They are the subject of a valuation by the securities collective investment organization, which is not based solely on market prices given by the counterparty and meets the following criteria:
« 1° The valuation is based on a current market value, which has been reliably established for the instrument or, if such value is not available, on a valuation model using a recognized and appropriate method;
« 2° This valuation is verified either by a third party independent of the contractor, on a regular basis and in such terms as the securities collective investment organization can control it, or by a service of the securities collective investment organization independent of the operational functions and able to carry out this audit.
"These contracts may, for collective investment organizations that do not benefit from a procedure for mutual recognition of approvals within the meaning of Council Directive 85/611/EEC of 20 December 1985, co-ordinating the legislative, regulatory and administrative provisions concerning certain securities collective investment organizations, relate to goods, under the conditions set out in this paragraph. Exposure to the same contract for goods cannot exceed 10% of the asset. Significant correlations between contracts for goods entered into by the agency are taken into account in assessing this limit. »
(b) II is replaced by the following:
“II. - The underlying investment in term financial instruments contracts is taken into account in the application of the provisions of the first six paragraphs of Article L. 214-4.
"When these contracts are term financial instruments based on indices that meet the conditions set out in III, it may be derogated from the previous paragraph. »
(c) It is added a III as follows:
"III. - The financial indices mentioned in I meet the following criteria:
« 1° Their composition is sufficiently diverse. To this end, it meets the following conditions:
“(a) The index is composed in such a way that price movements or trading activities affecting one of its components do not adversely affect its overall performance;
“(b) When the index is composed of instruments referred to in R. 214-1-1, its composition complies with the diversification rules referred to in III of R. 214-28. Where the index is not made up of such instruments and the exposure to this index does not meet the limits set out in the sixth paragraph of Article L. 214-4 as well as in Article R. 214-6, its composition is diversified in terms equivalent to the rules referred to in Article R. 214-28;
« 2° They are a representative standard of the market to which they refer. To this end, they meet the following conditions:
“(a) The index measures, in an appropriate manner, the performance of a representative set of underlyings;
“(b) The index is reviewed or weighed again at regular intervals, so that it continues to reflect the market to which it refers, in accordance with publicly available criteria;
"(c) The underlying ones are liquid enough to allow the securities collective investment organization to reproduce the index, if any;
« 3° They are the subject of an appropriate publication. To this end, they meet the following conditions:
“(a) This publication is based on pricing and calculation procedures and then publication of the value of the index, including valuation procedures for components for which no market prices are available;
“(b) Significant information on the methods of calculating and monitoring the index weights, the changes to the index or any operational difficulties encountered in the provision of such information is disseminated in the public in a timely manner. »
11° Section R. 214-14 is amended as follows:
(a) In the first paragraph, the words: "and each of the following conditions:" are deleted;
(b) The 1° is replaced by the following:
"These long-term financial instruments allow for the transfer of credit risk associated with their underlying assets, regardless of the other risks associated with this underlying asset and meet the following criteria:
« 1° Under conditions established by the general regulation of the Autorité des marchés financiers (AMF), the securities collective investment agency shall take appropriately into account the risk that its partner may hold information to which he has no access; »
(c) At 3°, after the words: "active" are inserted the words: ", including species,"
12° Section R. 214-15 is replaced by the following provisions:
"Art. R. 214-15. - Where a financial instrument referred to in a, b, d or f of 2° of Article R. 214-1-1, including when it falls under the last paragraph of Article R. 214-1-2, has a full or partial financial instrument that simultaneously meets the following three conditions, the latter shall be taken into account for the purposes of sections R. 214-12, R. 214-13 and R. 214-14:
« 1° Any or part of the financial flows that would otherwise involve the financial instrument in which it is included may be modified based on a rate of interest, the valuation of a financial instrument, a rate of exchange, an inflation or rate index, a credit rating or a credit index, and therefore vary in a manner similar to a financial instrument in an autonomous term;
« 2° Its economic characteristics and risk profile are not closely related to the economic characteristics of the financial instrument in which it is included, or to the risk profile of the financial instrument;
« 3° It has a significant impact on the risk profile and valuation of the financial instrument in which it is included.
"The financial instrument referred to in a, b, d or f of 2° of section R. 214-1-1 is not deemed to have a full or partial financial instrument when the latter is tradeable independently of that financial instrument. »
13° Section R. 214-16 is amended as follows:
(a) In the second paragraph of I, the percentage: "10%" is replaced by the percentage: "100%";
(b) At 4° of II, the reference: "at the c of 2°" is replaced by the reference: "at the b of 2°";
14° Article R. 214-17 is repealed;
15° Section R. 214-18 is amended as follows:
(a) At 3°, the words "and "d" are replaced by the words ", d and f";
(b) At 4°, the words: "and 6°" are replaced by the words: "6° and 8°", and it is added a sentence as follows: "However, a group investment organization in securities which has a procedure for mutual recognition of the approvals within the meaning of Council Directive 85/611/EEC of 20 December 1985, which coordinates the legislative, regulatory and administrative provisions concerning certain collective investment bodies in securities »
16° The title of subsection 4 of subsection 1 of section 1, including section R. 214-19, becomes "Control, valuation and liquidity", and this section is amended as follows:
(a) The paragraph is preceded by one: "I."
(b) It is added a II and a III as follows:
“II. - The liquidity of the instruments referred to in Article R. 214-1-1 shall allow the collective investment organization to respect, as the case may be, the second paragraph of Article L. 214-15 or the first paragraph of Article L. 214-20.
"The condition referred to in the preceding paragraph is deemed to be audited for financial instruments under section I, R. 214-2, unless the information available to the securities collective investment organization is likely to lead the organization to decide otherwise.
"III. - The acquisition of the assets referred to in R. 214-1-1 and the implementation of the techniques referred to in IV of R. 214-12 shall be consistent with the management objectives of the securities collective investment organization set out in the information documents intended for subscribers. »
17° In subsection 2 of section 1, after section D. 214-20, two articles R. 214-20-1 and R. 214-20-2 are inserted as follows:
"Art. R. 214-20-1. - For the application of the second sentence of the I of Article L. 233-8 of the Commercial Code to companies of investment with variable capital, the information of the shareholders takes the form of a publication, either on the website of the said company, or that of the management company responsible for its management, or on that of the Autorité des marchés financiers, or on a system of place of electronic information that can be consulted on the Internet, the number of shares.
"The accuracy of the data transmitted to the Autorité des marchés financiers and published on its website is the responsibility of the securities collective investment organization.
"Art. R. 214-20-2. - The notice of convening to the general meeting of the shareholders of a variable capital investment corporation and the information of the shareholders on the merger or split projects shall be carried out in the same manner as those provided for in articles R. 225-67 and R. 236-2 of the trade code for companies that do not publicly use the savings and of which all the shares are nominal. »
18° In the second paragraph of Article R. 214-24, the words: "the master organism or" are deleted;
19° The b of the 2° of the II of Article R. 214-25 is thus written:
“(b) Shares or shares of foreign investment funds meeting the criteria referred to in 5° of Article R. 214-5 and whose composition is diversified in terms equivalent to those provided for in Article R. 214-6. »
20° 2° of Article R. 214-26 is replaced by the following provisions:
"2° Shares or shares mentioned in 2° of II of Article R. 214-25, with the exception of the shares or shares of investment funds mentioned in b of the same 2° that can not represent more than 30% of the assets. »
21° Le II de l'article R. 214-27 est ainsi modifié :
(a) In the first paragraph, the reference to "R. 214-13" is replaced by the reference to "R. 214-13 II";
(b) In the second paragraph, the words: "by the potential loss of this body assessed at any time" are replaced by the words: "at any time, by the maximum loss of that body assessed at the same date";
22° Section R. 214-28 is amended as follows:
(a) The first paragraph of I is supplemented by the words: ", including by the use of techniques and instruments referred to in IV of Article R. 214-12, under the conditions set out in paragraph 2 of subsection 1 of this section. »
(b) The 1° to 3° of the II shall be replaced by the following provisions:
« 1° The composition of the index complies with the diversification rules mentioned in this III;
« 2° The index is a representative standard of the market to which it refers: its supplier uses a method that does not, as a general rule, result from a large market issuer to which the index returns;
« 3° The method of establishing and disseminating this index meets the following conditions: it is accessible to the public, and its supplier is independent of the securities collective investment organization that reproduces its composition. Where the index supplier and the securities collective investment organization are part of the same group within the meaning of Article L. 233-16 of the trade code, any provision is made to avoid conflicts of interest. »
(c) In III, the words "and "d" are replaced by the words ", d and f";
23° In the second paragraph of Article R. 214-29, the words: "at 8° of Article R. 214-5" are replaced by the words: "at Article L. 214-130, and 20% of its assets in instruments referred to in Article L. 214-120. The instruments mentioned in Article R. 214-5 8 cannot represent more than 20% of its assets. »
24° Section R. 214-30 is amended as follows:
(a) At 2° and 3° of I and II, the words: "and d" are replaced by the words: ", d and f";
(b) In III, the words: "by the general regulation of the Autorité des marchés financiers" are replaced by the words: "by the full prospectus of the organization";
(c) This article is supplemented by an IV as follows:
"IV. - By derogation from the 5th of Article R. 214-5, the assets of a collective investment organization under this Article may also include, within the limit of 10% mentioned in the same Article, shares or shares of foreign investment funds that do not meet the criteria set out in that same Article. »
25° In I of Article R. 214-32, the words: "at 8° of Article R. 214-5" are replaced by the words: "at Article L. 214-130, and 20% of its assets in instruments referred to in Article L. 214-120. The instruments mentioned in Article R. 214-5 8 cannot represent more than 20% of its assets. »
26° Section R. 214-33 is amended as follows:
(a) At 2° and 3° of I and II, the words: "and d" are replaced by the words: ", d and f";
(b) In III, the words: "by the general regulation of the Autorité des marchés financiers" are replaced by the words: "by the full prospectus of the organization";
(c) This article is supplemented by an IV and a V as follows:
"IV. - By derogation from the 5th of Article R. 214-5, the assets of a collective investment organization under this Article may also include, within the limit of 10% mentioned in the same Article, shares or shares of foreign investment funds that do not meet the criteria set out in that same Article.
"V. - The 10% limit set out in the seventh paragraph of Article L. 214-4 is not applicable to the securities collective investment organizations referred to in Article R. 214-32. »
27° Section R. 214-36 is amended as follows:
(a) The 1° of the I is supplemented by the words: ", including those investing more than 10% of their assets in shares or shares of organizations under Article II D. 214-1, in shares or shares of collective investment bodies in securities or of foreign investment funds invested as stated in Article 4(b) R. 214-172, or in shares or shares of investment funds mentioned »
(b) II is replaced by the following:
“II. - By derogation from the sixth paragraph of Article L. 214-4, a collective investment agency in securities of alternative funds may employ up to 10% of its assets in shares or shares of the same investment fund or agency mentioned in 1 to 6° of the I. It may also use up to 15% of its assets in shares or shares of the same investment fund or agency mentioned in 1° to 6° of I if the total value of these shares or shares exceeding 10% of the asset does not exceed 40% of that asset. »
(c) This article is supplemented by an IV as follows:
"IV. - By derogation from the 5th of Article R. 214-5, the assets of a collective investment organization under this Article may also include, within the limit of 10% mentioned in the same Article, shares or shares of foreign investment funds that do not meet the criteria set out in that same Article. »
28° The last paragraph of section R. 214-43 is supplemented by the words: "and section R. 214-39 II and III do not apply. »
Section 5 of chapter IV of title I of book II of the monetary and financial code is amended as follows:
1° After article R. 214-162, an article R. 214-162-1 was created as follows:
"Art. R. 214-162-1. - I. - Direct or indirect participations in foreign law organizations referred to in e of I of Article L. 214-92 shall be eligible for the assets of a real estate collective investment organization only if these organizations establish annual accounts and intermediate accounts of at least semi-annual frequency.
“II. - Direct or indirect participations held by a real estate investment fund in real estate investment funds or in foreign law organizations having an equivalent and similar object mentioned in the last sentence of 1° of Article L. 214-93 shall meet the requirements of Article R. 214-162. »
2° In the first and second paragraphs of article R. 214-163, after the words: "a to c" are inserted the words: "and e";
3° In R. 214-164, after the words: "a to c" are inserted the words: "and e";
4° Section R. 214-165 is amended as follows:
(a) In I, it is added a 4° as follows:
« 4° Direct participations in organizations referred to in e of Article L. 214-92, as well as direct participations held by the companies mentioned in 2° of this article in the organizations mentioned in the above-mentioned audit e, pro rata of the direct and indirect participations of the real estate collective investment organization in the companies mentioned in 2° of this article. »
(b) In III, the words: "built offered" are replaced by the words: "built, leased or offered";
5° Section R. 214-167 is amended as follows:
(a) At 1° of I, the words: "and d to j" are replaced by the words: ", d and f to i";
(b) The 3rd of I is thus written:
« 3° Direct participations under Article R. 214-163; »
(c) I is supplemented by a sub-item:
« 4° Direct participation in organizations referred to in Article L. 214-92 e. »
(d) After the 4th of the II, it is created a 5th so written:
« 5° Direct participations in organizations referred to in e of Article L. 214-92, as well as direct participations held by the companies mentioned in the 2nd of this article in the organizations mentioned in the above-mentioned audit e, pro rata of the direct and indirect participations of the real estate collective investment organization in the said companies mentioned in the 2nd of this article. »
(e) In the last paragraph of II, after the words: "1° to 3°" are inserted the words: "and at 5°";
(f) After the 2° of the III, it is created a 3° as follows:
« 3° Real property and rights referred to in article R. 214-161 held directly by the organizations referred to in e of article L. 214-92, whose real estate investment fund holds shares that meet the conditions set out in the last sentence of the 1st of article L. 214-93, prorated direct and indirect participations of the real estate investment fund in these organizations. »
6° Section R. 214-171 is amended as follows:
(a) At 1°, the words: "satisfies sufficient security criteria established by the Autorité des marchés financiers" are replaced by the words: "is subject to prudential supervision and complies with one of the criteria provided for in Article R. 214-2, c. 3° of II; »
(b) At 3°, the words: "for the provision of funds within 24 hours, subject to hours of foreign currency payment" are deleted;
(c) The 4th is replaced by the following:
« 4° The amount paid in response to a claim for reimbursement, reduced by any advance refund fees or penalties, but increased by any interest, is at least equal to the original value of the deposit. »
7° In R. 214-174, the percentage: "5%" is replaced by the percentage: "10%";
8° Section R. 214-183 is amended as follows:
(a) At 1°, the reference: "3°" is replaced by the reference: "4°";
(b) In the b of 2°, after the words: "in these societies" are inserted the words: ", as well as the debts of the organizations mentioned in e of the same I, pro rata of the direct and indirect participations of the real estate collective investment agency in these organizations. and the words: "that these companies contract directly" are replaced by the words: "that these companies or organizations contract directly";
9° At 1° of the I of Article R. 214-185, the words: "to d to j" are replaced by the words "to d and f to j";
10° Section R. 214-192 becomes section D. 214-192, and is replaced by the following:
"Art. D. 214-192. - I. - The term financial instruments referred to in Article L. 214-92 (f) and Article L. 214-94 are those referred to in Article D. 211-1 A, 1, 5 and 6.
“II. - A real estate collective investment agency may enter into contracts that constitute financial instruments for the term referred to in I, with a view to protecting its assets or achieving its management objective, under the conditions defined in article R. 214-190 and under conditions 1° to 3°:
« 1° The organization's commitment to term financial instruments, as defined in section R. 214-191, shall not exceed the value of its net assets;
« 2° Contracts have the following characteristics:
“(a) They relate to instruments referred to in Article R. 214-1-1, including one or more of these assets, or to interest rates, exchange rates or currencies, a combination of previous items, or to financial indices that meet the conditions set out in Article R. 214-13 III;
“(b) They are either entered into the regulated futures markets referred to in Article L. 214-42 or meet the following criteria:
“(i) They may be released or liquidated at any time, at their market value referred to in this iii, at the initiative of the real estate collective investment organization;
“ii) They are concluded with an establishment referred to in the second paragraph of Article R. 214-12;
“(iii) They are valued by the real estate collective investment organization, which is not based solely on market prices given by the counterparty and meets the following criteria:
« 1° The valuation is based on a current market value, which has been reliably established for the instrument or, if such value is not available, on a valuation model using a recognized and appropriate method;
« 2° This valuation is verified either by an independent third party of the counterparty to the financial instrument, on a regular basis and on such terms as the real estate collective investment organization can control it, or by a service of the real estate collective investment agency independent of the operational functions and equipped for this purpose;
« 3° With the exception of contracts constituting long-term financial instruments based on indices meeting the conditions set out in II of section R. 214-28, the underlying investment in these contracts is necessarily taken into account for the purposes of the provisions set out in sections R. 214-174 to R. 214-179. »
11° Article R. 214-193 is amended as follows:
(a) In the first paragraph, the words: "and each of the following conditions:" are deleted;
(b) The 1° is replaced by the following:
"These long-term financial instruments allow for the transfer of the credit risk associated with an instrument referred to in R. 214-1-1, regardless of the other risks associated with this instrument and meet the following criteria:
« 1° Under conditions established by the general regulation of the Autorité des marchés financiers (AMF), the real estate collective investment organization takes appropriate account of the risk that its partner holds information to which he does not have access; »
(c) At 3°, after the words: "active" are inserted the words: ", including species,"
12° In R. 214-194, after the word: "particularly" are inserted the words: ", in accordance with R. 214-15,";
13° Section R. 214-200 is amended as follows:
(a) The first paragraph is preceded by: "I" and the percentage: "5%" is replaced by the percentage: "10%";
(b) The 2° of I is repealed and the 3° becomes the 2°;
(c) At 2° of I, the percentage: "5%" is replaced by the percentage: "10%";
(d) This article is supplemented by a II written as follows:
“II. - For the assessment of the 20% ratio referred to in R. 214-164, it is also taken into account for the application of the III of Article R. 214-165 of buildings built, leased or offered for rent, held directly by the organizations mentioned in e of Article L. 214-92, pro rata of direct or indirect participations of the real estate collective investment organization.
"For the assessment of the quota of five buildings referred to in section R. 214-164, it is also taken into account for the application of the III of section R. 214-165 of the buildings built, leased or offered, for rent held directly by the organizations mentioned in e of the same I."
14° After article D. 214-212, an article R. 214-212-1 is inserted as follows:
"Art. R. 214-212-1. - Sections R. 214-20-1 and R. 214-20-2 apply to investment companies with variable capital preponderance. »
15° At 3° of article R. 214-217, the words: "1° to 4°" and the words: "5%" are deleted and a sentence is added as follows: "The conditions of appreciation of the 20% ratio referred to in article R. 214-164 are those provided for in article R. 214-165 I and in the first paragraph of article R. 214- »
In chapter IV of title I of book II of the monetary and financial code, a section 6 is inserted as follows:
“Section 6
" Fixed Capital Investment Corporations
"Art. R. 214-223. - I. - Any investment corporation under Title II of Order No. 45-2710 of 2 November 1945 relating to investment companies, whose shares are admitted to negotiations on a market of financial or foreign instruments whose operation is carried out by a market company or an investment service provider or any other similar foreign agency, shall, on a periodic basis, establish at least monthly the net assets of the company. This document is made available to the public.
“II. - For purposes of coverage or to achieve its management objective, the investment company may conclude financial instruments for the term referred to in 4 of Article L. 211-1, under the conditions set out in 1 and 2 of Article I R. 214-13. »
The above-mentioned order of 2 November 1945 is amended as follows:
1° Section 8 is amended as follows:
(a) In the first paragraph, the words: "a community" and the words: "the same community" are replaced by the words: "a transmitter" and the words: "a single transmitter";
(b) In the second paragraph, the words "of the same community" are replaced by the words "of the same transmitter";
(c) This article is supplemented by a sub-item:
"In the conditions set out in this section, investment companies may also invest in representative rights of an investment in an entity that does not have a legal personality, issued on the basis of a foreign law, as well as in mutual funds mentioned in Article L. 214-20 of the monetary and financial code. »
2° The second to sixth paragraphs of section 9 are repealed.
The insurance code is amended:
1° In the first paragraph of Article R. 141-5 of the Insurance Code, the word "45" is replaced by the word "60";
2° Article R. 142-14 of the Insurance Code is amended as follows:
(a) The first paragraph is supplemented by the words "as well as those mentioned in the 13th of Article R. 332-2";
(b) After the fifth preambular paragraph, a sub-item reads as follows:
"4° Actives mentioned in the 13th of Article R. 332-2. »
I. - The VII of Article 22 of the above-mentioned Decree of 25 July 2005 is repealed.
II. - Collective securities investment agencies comply with the amendments introduced in Chapter I of this Decree by 31 December 2007.
III. - The 10th of Article 2 and Article 3 come into force on November 1, 2007.
The Minister of Economy, Finance and Employment is responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done in Paris, 10 August 2007.
François Fillon
By the Prime Minister:
Minister of Economy,
finance and employment,
Christine Lagarde
