Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Having regard to Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain forms of corporations;
Having regard to Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts;
Having regard to Council Directive 85/611/EEC of 20 December 1985 on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies, as amended in particular by Directive 2001/108/EC of the European Parliament and the Council of 21 January 2002;
Considering Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 on access to the activity of credit institutions and its exercise;
Given the monetary and financial code, including articles L. 211-1, L. 213-1 to L. 213-4, L. 214-1 to L. 214-42, L. 321-1 and L. 422-1;
Considering the trade code, including articles L. 123-12 to L. 123-24;
Having regard to Decree No. 89-623 of 6 September 1989, as amended pursuant to Act No. 88-1201 of 23 December 1988 on collective investment in securities and establishing common debt funds;
The State Council (Finance Section) heard,
Decrete:
Chapter I of the above-mentioned Decree of 6 September 1989 is replaced by the following:
“Chapter I
“Community arrangements to organizations
securities
“Section 1
"General Rules of Composition of Assets
"Art. 1st. - A securities collective investment organization may:
« 1° Make deposits;
« 2° Use the following financial instruments, whether governed by French law or foreign law, other than those mentioned in Article 3:
“(a) Shares and other titles that give or may give access, directly or indirectly, to capital or voting rights, transmitted by registration in account or tradition;
“(b) The titles of receivable that each represents a right of receivable on the entity that issues them, transmitted by registration in account or tradition, excluding the effects of trade;
"(c) Shares or shares of securities collective investment organizations;
"(d) The shares and debt securities issued by mutual funds of receivables;
“e) Financial instruments for term.
"For the purposes of this decree, the shares of investment companies with variable capital are the sole responsibility of c.
“Art. 2. - I. - The financial instruments mentioned in a, b and d of the 2nd of Article 1 eligible for the assets of a securities collective investment organization are:
« 1° be allowed to negotiate on a regulated market within the meaning of Article L. 422-1 of the monetary and financial code;
« 2° Be allowed to negotiate on a regulated market in regular operation of a State or a member of the European Community, or a party to the agreement on the European Economic Area provided that this market is not on a list of excluded markets established by the Autorité des marchés financiers.
"Similar to financial instruments admitted to negotiation in a regulated market are the financial instruments issued as long as their admission to negotiation has been requested.
"However, this assimilation ceases to have effect one year after the program, if, on that date, the admission to the negotiation was not obtained.
“II. - Are assimilated to assets admitted to trading in a regulated market mentioned in 1° and 2° of I the securities of negotiable receivables issued on the basis of French law or foreign law, subject to particular public control to protect the holders of these securities and meeting each of the following four conditions:
« 1° Preliminarily at the first program, the issuer prepares an information document on its economic and financial situation and the program of issue; it ensures that it is updated at least annually and where a new fact is likely to have a significant impact on the evaluation of issued securities or on the correct end of the program;
« 2° The program is supervised by an independent public authority, which, in particular, ensures the compliance of the program with the laws and regulations and the program, the provision of the information document to investors, and which regularly ensures the dissemination of statistical information on the issued securities;
« 3° Securities are subject to an account registration and delivery procedures whose safety and proper operation are controlled;
« 4° The transmitter falls within one of the following five categories:
“(a) A State, or, in the case of a federal State, one of the members comprising the federation, a regional or local community of a Member State of the European Community, the European Central Bank, the Central Bank of a Member State, the European Union, the European Investment Bank, or an international public body of which are part of one or more Member States;
“(b) An entity whose securities are negotiated in a regulated market within the meaning of this Article;
"(c) A facility subject to prudential supervision;
"(d) A transmitter guaranteed by an organization referred to in a or an establishment referred to in c;
“e) another entity belonging to a class on a list established by the Autorité des marchés financiers, subject to rules of protection of investors equivalent to those provided in the preceding four paragraphs, and having the status of either a corporation whose capital increased from reserves is at least 10 million euros and presenting its annual accounts in accordance with Council Directive 78/660/EEC of 25 July 1978 referred to above, transposed by Articles L-24 123-12
"Art. 2-1. - The deposits referred to in 1st of Article 1 eligible for the assets of a securities collective investment organization shall meet each of the following five conditions:
« 1° They are carried out with a credit institution whose headquarters is established in a Member State of the European Community or a party to the agreement on the European Economic Area or with a credit institution whose headquarters is established in another State as long as it meets sufficient security criteria established by the Autorité des marchés financiers;
« 2° They are concluded in accordance with a French or international space framework agreement, approved by the AMF, and which sets out their condition of pay, term and terms of reimbursement or withdrawal;
« 3° Their term is less than or equal to twelve months;
« 4° They may be refunded or withdrawn at any time at the request of the securities collective investment agency for the provision of funds within 24 hours, subject to the hours of payment in foreign currency;
« 5° The amount paid in response to a claim for reimbursement, including any interest, is greater than or equal to the original value of the deposit.
"Art. 2-2. - The liquidity referred to in c of Article L. 214-4 of the monetary and financial code are deposits governed by Article 2-1 held by the securities collective investment agency within the strict limit of the requirements related to the management of the flows of the securities collective investment organization.
"These liquidities may deviate from the provisions of 2° and 5° of 2-1.
"If a exceedance of the limits set out in sections 4 and 4-1 comes due to the liquidity held by the securities collective investment agency, the securities collective investment agency must regulate this situation as soon as possible.
“Art. 3. - By derogation from the provisions of Article 1, the assets of a securities collective investment organization may also include within 10%:
« 1° Subscription vouchers;
« 2° Cash vouchers;
« 3° promissory notes;
« 4° Mortgage tickets;
« 5° shares or shares of foreign investment funds meeting the criteria set out in the general regulation of the Autorité des marchés financiers;
« 6° Shares or shares of securities collective investment organizations governed by chapters III, IV, V, V bis and VI, of securities collective investment organizations under Article L. 214-35 of the monetary and financial code in its writing prior to 2 August 2003 and of securities collective investment organizations under Article L. 214-35-2 of the monetary and financial code;
« 7° Financial instruments referred to in section 1 when they do not meet the requirements of section 2.
"In addition, are included within the 10% limit set out in this section the shares or shares of securities collective investment organizations or investment funds themselves invested to more than 10% in shares or shares of securities collective investment organizations or investment funds.
“Art. 4. - 1° By derogation from the 5% limit set out in the sixth paragraph of Article L. 214-4 of the monetary and financial code, a securities collective investment organization may use up to 10% of its assets in financial instruments referred to in (a), (b) and (d) to the 2nd of Article 1 issued by the same entity if the total value of the instruments invested in several entities forming the same asset as defined in Article 4-2 does not exceed 20% of However, for a period of six months following the date of the organization's approval, the limit of 40% is not applicable.
« 2° It may use up to 20% of its assets in deposits placed with the same credit institution.
« 3° Notwithstanding the provisions of the two paragraphs above and the second paragraph of Article 4-4, a securities collective investment organization may not employ more than 20% of its assets in financial instruments referred to in (a) and (b) of the second paragraph of Article 1 of the same entity, in deposits placed with or at risk of counterparty defined in Part I of Article 4-4 deriving from that entity.
"Art. 4-1. - I. - By derogation from the 5% limit set out in the sixth paragraph of Article L. 214-4 of the monetary and financial code, a securities collective investment agency:
« 1° Can use in financial instruments referred to in a, b and d of the 2nd of Article 1 of the same issuer 35% of its assets if these securities are issued or guaranteed by a Member State of the Organisation for Economic Cooperation and Development, by the territorial authorities of a Member State of the European Community or a party to the agreement on the European Economic Area, or by an international public body of which one or more Member States of the European Community or parties to the agreement on the European Economic Area are part of or if these are securities issued by the Social Debt Fund.
« 2° Can use in bonds of the same issuer up to 25% of its assets if the value of these securities does not exceed 80% of the assets and if these securities are land obligations issued by the land credit companies pursuant to 2° of the I of Article L. 515-13 of the monetary and financial code or obligations issued by a credit institution having its head office in a Member State of the European Community or part of the European Economic Control Agreement Amounts arising from the issuance of these obligations must be invested in assets that cover, for the duration of the validity of the bonds, the obligations arising therefrom and which are assigned by privilege to the reimbursement of capital and to the payment of accrued interest in the event of a failure of the issuer.
"The derogation referred to in the preceding paragraph applies to obligations issued by a credit institution whose exclusive purpose is to refinance promissory notes in accordance with the provisions of sections L. 313-42 to L. 313-49 of the monetary and financial code, issued to mobilize long-term representative claims of housing loans, provided that these obligations have identical characteristics to those of the notes.
“II. - The financial instruments mentioned in I are not taken into account to apply the 40% limit referred to in 1° of Article 4.
"III. - By derogation from the provisions of the 3rd of Article 4, when combined with the financial instruments mentioned in I, investments in the financial instruments referred to in a, b and d of the 2nd of Article 1 of an entity, deposits placed with the entity and the risk of counterparty defined in I of Article 4-4 on the entity may reach 35% of the assets of the securities collective investment organization.
"IV. - The limits set out in sections 4, 4-1 and III of this section are not applicable to securities collective investment organizations that hold securities from at least six different programs from one of the issuers mentioned in 1° of the I provided that securities of the same issue do not exceed 30% of the total amount of the asset.
"Art. 4-2. - For the purposes of the provisions of the sixth paragraph of Article L. 214-4 of the Monetary and Financial Code, Articles 4, 4-1 and 4-4 of this Decree, entities whose accounts are consolidated or combined within the meaning of Council Directive 83/349/EEC of 13 June 1983 referred to above or internationally recognized accounting standards are considered to be a single issuer or institution.
"Art. 4-3. - For the assessment of the ratios set out in sections 5, 13-1 and 13-2, the shares or shares of several compartments of a securities collective investment organization governed by chapter VII are assimilated to the shares and shares of the same securities collective investment organization.
"Art. 4-3-1. - The rules for the composition of the assets set out in Articles L. 214-39 and L. 214-40 of the monetary and financial code and the rules for the division of risks set out in Article L. 214-4 of the same code shall be respected at any time. However, if a exceedance of the limits set by these articles occurs independently of the will of the variable capital investment corporation or the mutual fund management corporation or as a result of the exercise of the subscription rights, the management corporation or the variable capital investment corporation must, in their sales operations, have the priority objective of regularizing this situation as soon as possible, while taking into account the interests of the holders.
“Section 2
“Rules applicable to term financial instruments
and temporary acquisitions and assignments of securities
"Art. 4-4. - I. - For the purposes of this decree, the risk of counterparty on the same contractor is the risk that the contractor fails to meet one of its obligations and thus leads the securities collective investment agency to suffer a financial loss. The risk of counterparty on the same co-contractor is equal to the market value of contracts diminished of constituted guarantees, if any, for the benefit of the organization.
"The exposure of the organization to the risk of counterparty on the same contracting partner resulting from the contracts mentioned in sections 4-5 to 4-9 is limited to 10% of its assets.
"The guarantees referred to in the first paragraph may be granted in the form of deposits, financial instruments, or financial instruments, full ownership as a guarantee of financial instruments or species, loans or pensions of financial instruments, solidarity bonds or first-time guarantees.
"The guarantees referred to in the first paragraph must be granted by an institution having the status of depositary of a collective investment agency in securities, a credit institution whose seat is established in a Member State of the Organisation for Economic Cooperation and Development or an investment company whose seat is located in a Member State of the European Community or part of the agreement on the European Economic Area and which is entitled to provide the service referred to in 1 of Article-2
"When the guarantees are made in the form of deposits, the 2°, 3°, 4° and 5° of section 2-1 do not apply within the scope of the consideration risk coverage requirements.
“II. - For the purposes of this Order, the commitment of a securities collective investment organization to the term financial instruments is constituted by the highest amount between the potential loss of the organization assessed at any time and the product of the leverage effect that these instruments provide to the organization by the value of the organization's assets.
"The leverage effect is defined as the ratio of market value changes in held financial instruments to market value changes in their underlying instruments, taking into account the contribution of these underlyings to the portfolio's risk profile. The underlying instruments may be one or more financial instruments referred to in 2° of section 1, except for e, and one or more features of one of these financial instruments.
"III. - The use by a securities collective investment agency of financial instruments for the term, pension transactions, and any other transaction similar to the acquisition or temporary assignment of securities shall not lead the organization to deviate from the investment objectives set out in the information documents intended for subscribers.
"Subsection 1
"Financial instruments for term
"Art. 4-5. - I. - A collective investment agency in securities may enter into contracts that constitute long-term financial instruments to protect its assets or to achieve its management objective, subject to the terms set out in section 4-4 and each of the following two conditions:
« 1° The commitment of the securities pooling agency to the financial instruments in the term should not exceed the value of its assets;
« 2° Contracts have the following characteristics:
“(a) Either they are entered into the regulated futures markets referred to in Article L. 214-42 of the monetary and financial code;
“(b) Either they constitute futures contracts on interest rates or exchange rates in markets whose rules define operating conditions, access and negotiation conditions, which operate regularly and have a clearing house that provides for daily margin requirements. The list of these markets is stopped by the Minister responsible for the economy;
"(c) Either, when they are not entered into one of the markets mentioned in a or b, they meet each of the following three conditions:
"(i) They may be released or liquidated at any time, at their market value or at a pre-determined value, at the initiative of the securities collective investment organization;
"(ii) They are concluded with an establishment mentioned in the fourth paragraph of Article 4-4;
"(iii) They are concluded in accordance with a French or international framework agreement referred to in Article L. 431-7 of the monetary and financial code. »
“II. - With the exception of contracts constituting long-term financial instruments based on indices meeting the conditions defined in Article 16 II, the underlying investment in these contracts shall be taken into account in the application of the provisions of the first six paragraphs of Article L. 214-4 of the monetary and financial code.
"Art. 4-6. - A collective investment agency in securities may enter into contracts constituting financial instruments in the term that meet the characteristics of credit derivatives defined by the conventions referred to in Article L. 431-7 of the monetary and financial code, under the conditions set out in Articles 4-4 and 4-5 and each of the following conditions:
« 1° The management company that directly or by delegation ensures the management of the securities collective investment organization that would enter into at least such a contract must first have the Autorité des marchés financiers approved a specific activity program. This should include management systems and an organization to:
“(a) A daily evaluation by the aforementioned contract management company. This assessment is the subject of at least monthly comparison with an external evaluation;
“(b) A risk analysis, carried out by an independent unit of commercial and operational units and subjected to at least semi-annually the governing body of the management company with a view, inter alia, to the definition of limits;
"(c) An independent internal control of operational functions.
« 2° The amount of the undertaking resulting from the above-mentioned contracts entered into by a securities collective investment agency with a business related to its management corporation within the meaning of the last paragraph V of Article 10 shall not exceed 20% of the amount of the undertaking resulting from the contracts referred to in this section.
« 3° Transmitters on which credit risk is based may be:
“(a) One or more States;
“(b) One or more international public bodies including one or more Member States of the European Community are members;
"(c) One or more territorial authorities of the European Community;
"(d) At least one or more legal persons issued:
"(i) Be debt securities that meet the criteria set out in II of section 2 or debt securities allowed to negotiations on a regulated market within the meaning of section 2, and that have made public for at least one issue of such debt securities at least one rating obtained from an organization on a list agreed by the Minister responsible for the economy;
"(ii) Be capital securities admitted to negotiations on a regulated market within the meaning of Article 2 I;
“e) Several entities under categories have to d above.
« 4° The termination of the commitments created by these contracts may only result in the delivery or transfer of eligible assets to the assets of a securities investment organization.
"Art. 4-7. - Where a financial instrument referred to in a, b or d of 2° of Article 1 is wholly or partially a financial instrument for the term, the latter shall be taken into account in the application of Articles 4-4, 4-5 and 4-6.
"Subsection 2
“Temporary acquisitions and assignments of securities
"Art. 4-8. - I. - A securities collective investment organization may, within 100% of its assets, carry out temporary disposal of financial instruments.
"A securities collective investment organization may, within 10% of its assets, carry out temporary acquisition of financial instruments.
"The liquidative values of shares or shares of a securities collective investment organization are determined taking into account changes in the value of securities temporarily transferred.
“II. - To carry out operations referred to in I, a securities collective investment organization must meet each of the following conditions:
« 1° These operations are carried out with an establishment referred to in the fourth paragraph of Article 4-4;
« 2° They are governed by a framework agreement referred to in Article L. 431-7 of the monetary and financial code;
« 3° They must be taken into account in the application of the general rules of composition of the asset, the right-of-way ratios, the rules of exposure to counterparty risk and the rules of engagement defined in this chapter;
« 4° They shall comply with the rules of fainting set out in c of 2° I of Article 4-5.
"Art. 4-9. - Without prejudice to Article 4-8, the limit referred to in the second paragraph of Article 4-8 shall be increased to 100% when the securities collective investment agency remits cash in the payment of pension-taking transactions, provided that the pensioned financial instruments are not the subject of any assignment, including temporary or re-guaranteed transactions.
“Section 3
"Ratios of right-of-way
“Art. 5. - For the purposes of the provisions of the eighth paragraph of Article L. 214-4 of the monetary and financial code, each of the following financial instruments is a category:
« 1° Financial instruments with the right to vote of the same issuer;
« 2° The financial instruments referred to in a and d of 2° of Article 1 giving direct or indirect access to the capital of the same issuer;
« 3° The financial instruments mentioned in b and d of 2° of Article 1 directly or indirectly conferring a general right of receivable on the heritage of the same issuer;
« 4° The financial instruments issued by the same issuer referred to in c of 2nd of Article 1; by derogation from the 10 per cent limit set out in the eighth paragraph of Article L. 214-4 of the monetary and financial code, a group investment agency in securities may hold up to 25 per cent of the financial instruments of the same issuer in that class. »
Chapter II of the above-mentioned Decree of 6 September 1989 is thus amended:
I. - In the second paragraph of Article 6, the words: "the assets mentioned in the second paragraph of Article 3" are replaced by the words: "the assets mentioned in Article 3".
II. - 1° In the first paragraph of Article 7, the words: "by derogation from the provisions of the second paragraph of Article L. 214-4 of the monetary and financial code and the first paragraph of Article 4 of this decree" are replaced by the words: "by derogation from the provisions of the sixth paragraph of Article L. 214-4 of the monetary and financial code and to the 1st of Article 4 of this decree".
2° In the second paragraph of Article 7, the words: "the limit provided for in the first paragraph of Article 4" are replaced by the words: "the limit of 10% provided for in Article 4(1)".
3° In the third paragraph of Article 7, the words "by derogation from the fourth paragraph of Article L. 214-4 of the monetary and financial code" are replaced by the words "by derogation from the eighth paragraph of Article L. 214-4 of the monetary and financial code".
III. - In the second paragraph of Article 8, the words: "without the limits or restrictions provided for in Article 13 of this Decree are applicable to them" are replaced by the words: "without the limits or restrictions provided for in Articles 13, 13-1 and 13-2 of this Decree are applicable to them."
IV. - The following paragraphs are added to section 8:
"Common corporate investment funds and employee shareholding SICAV cannot invest in shares or shares of investment funds mentioned in the 5th of Article 3.
By derogation from Article 4-4, the commitment of a securities collective investment organization under Article L. 214-40 of the monetary and financial code is constituted by the potential loss of the securities collective investment organization assessed at any time. »
Chapter III of the above-mentioned Decree of 6 September 1989 is thus amended:
I. - Article 10:
1° (a) In the first paragraph of 1 of II, the words: "the limit set out in the second paragraph of Article L. 214-4 of the monetary and financial code" are replaced by the words: "the limit set out in the sixth paragraph of Article L. 214-4 of the monetary and financial code";
(b) In the first paragraph of 4 of II, the words: "the limit set out in the fourth paragraph of Article L. 214-4 of the monetary and financial code" are replaced by the words: "the limit set out in the eighth paragraph of Article L. 214-4 of the monetary and financial code";
(c) In II, the following sentence is inserted before 1: “The provisions of sections 2 to 4-3-1 and section 3 of chapter I are not applicable to securities collective investment organizations under this chapter. » ;
(d) In the last sentence of the V, the words "management within the meaning of Article L. 321-1 of the monetary and financial code" are replaced by the words "management within the meaning of Article L. 321-1 of the monetary and financial code".
2° (a) The words: "on the 1st of Article L. 214-36 and on the I of Article L. 214-41" are replaced by the words: "on the 1st of Article L. 214-36, on the I of Article L. 214-41 and on the 1st of Article L. 214-41-1", the words: "no Article L. 214-41" are replaced by the words:
(b) In the first paragraph of 2 of II, the words: "or a proximity investment fund" are added after the words: "a mutual investment fund in innovation";
(c) In III: at the 1st of the 1st, at the 2nd and 1st of the 2nd, after the reference: "at the 2nd of Article L. 214-36 of the monetary and financial code" are inserted the words: ", or, for investment funds of proximity, in mutual funds of risk investments or in venture capital companies mentioned in the sixth paragraph of Article L. 214-41-1 of the monetary code".
II. - In sections 10 to 10-4, the words "regulated French or foreign market" are replaced by the words "regulated market within the meaning of section 2".
III. - In 1 of Article 10-4, the words: "The provisions in the second and fourth paragraphs of Article L. 214-4 of the monetary and financial code" are replaced by the words: "The provisions in the sixth and eighth paragraphs of Article L. 214-4 of the monetary and financial code", and the reference "IV" is replaced by the reference "V".
IV. - It is added a section 4 as follows:
“Section 4
"Community Investment Funds
"Art. 10-5. - For the purposes of Article L. 214-41-1, paragraph 1, of the monetary and financial code, a company is considered to be operating primarily in establishments located in the geographic area chosen by a local investment fund when the fiscal year before the first investment of the fund in that business:
« 1° Either these establishments meet two of the following three conditions:
“(a) Their cumulative business figures represent at least 30% of the total turnover of the company;
“(b) Their accumulated permanent staff account for at least 30% of the total number of employees in the company;
"(c) Their used gross capital assets represent at least 30% of the total gross capital used in the business;
« 2° Either these establishments exercise, in relation to two of the three economic data mentioned in the 1°, an activity more important than that carried out by those of the other establishments of the company that are located in another geographical area chosen by a nearby investment fund. The respective situation of these institutions is appreciated either on January 1 of the investment year, or three months before the date of the investment.
"Art. 10-6. - For the companies referred to in c of 1 of Article L. 214-41-1 of the monetary and financial code, the condition of exclusive detention is satisfied when the securities giving access to the capital of companies whose purpose is not the possession of financial participations and which meet the eligibility conditions set out in the first paragraph and to a and b of the same 1 represent 90% of their assets. »
I. - The following provisions are inserted at the beginning of Article 11 of the decree of 6 September 1989 referred to above:
"The 1° of Article 4-5 does not apply to collective investment organizations under Article L. 214-42 of the monetary and financial code. »
II. - Article 12 of the same decree is repealed.
Chapter V of the above-mentioned Decree of 6 September 1989 is replaced by the following provisions:
“Chapter V
"Specific provisions relating to UCITS that invest in shares or shares of other UCITS or investment funds
“Art. 13. - I. The provisions of this chapter apply to UCITS whose assets include more than 10% of shares or shares of collective investment bodies in securities of French or foreign law or investment funds under 5° and 6° of Article 3.
“II. - A securities collective investment organization governed by this chapter may use:
“(a) Up to all of its assets in shares or shares of collective investment bodies in securities of French or foreign law and benefiting from a mutual recognition procedure within the meaning of Council Directive 85/611/EEC of 20 December 1985 referred to above, with the exception of those governed by this chapter;
“(b) Up to 30% of its assets in shares or shares of securities collective institutions governed by section 1 of chapter VI, by chapter VII bis or by chapter VIII, when they do not benefit from a procedure for mutual recognition of the approvals within the meaning of Council Directive 85/611/EEC of 20 December 1985 referred to above, or governed by a foreign law when these bodies have been subject to a bilateral agreement between
"Art. 13-1. - By derogation from the 5% limit set out in the sixth paragraph of Article L. 214-4 of the monetary and financial code, a securities collective investment organization governed by this Article may use up to 20% of its assets in shares or shares of the same securities collective investment organization referred to in Article 13 II.
"Art. 13-2. - By derogation from the limits of 5% and 10% set out in the sixth and eighth paragraphs of Article L. 214-4 of the monetary and financial code, a collective investment organization that does not benefit from a mutual recognition of the approvals within the meaning of Directive 85/611/EEC of the Council of 20 December 1985 referred to above may employ up to 50% of its assets in shares or shares of the same group investment agency in securities mentioned in II of »
In the aforementioned decree of 6 September 1989, after article 13-2, a chapter V bis is inserted as follows:
“Chapter V bis
"Special provisions for investment agencies
collective securities masters and nurses
"Art. 13-3. - I. - By derogation from the foregoing provisions, a nourishing UCITS may employ up to 100% of its assets in shares or shares of the same master UCITS and hold up to 100% of its shares and shares.
“II. - Group foster securities investment organizations may enter into contracts that constitute financial instruments on the terms and conditions set out in sections 4-4, 4-5, 4-6 and 4-7 and on the additional condition that the calculation of the asset engagement of that organization take into account the transactions, if any, carried out by the master agency.
"In addition, unless the master organism or the feeding organism, in the information documents it provides to the subscriber, is prohibited from any intervention in the futures markets, the depositary of the feeding organism is that of the master organism. »
Chapter VI of the above-mentioned Decree of 6 September 1989 is replaced by the following provisions:
“Chapter VI
"Special provisions for collective investment organizations in securities with reduced investment rules
“Section 1
“General rules applicable to collective investment organizations
securities with reduced investment rules
“Art. 14. - I. - Chapter V is not applicable to securities collective investment organizations under sections 1 and 2 of this chapter.
“II. - The limit set out in section 3 is increased to 50% for securities collective investment organizations under sections 1 and 2 of this chapter.
"Art. 14-1. - By derogation from sections 4 and 4-l, a securities collective investment organization under sections 1 and 2 may use:
« 1° Up to 50% of its instrument assets mentioned in c of 2° of Article 1 of the same transmitter;
« 2° Up to 35% of its assets in instruments referred to in a, b and d of 2° of Article 1 of the same transmitter. The limit of 40% defined in 1° of Article 4 is not applicable;
« 3° Up to 50% of its assets in instruments referred to in a, b and d of 2° of Article 1 of the same issuer provided that the securities held were issued under the conditions specified in 2° of Article 4-1 at three different emissions;
« 4° Up to 35% of its assets in deposits placed at the same institution.
"Despite the provisions of the paragraphs above and the second paragraph of Article 4-4, a securities collective investment organization governed by Sections 1 and 2 shall not employ more than 50% of its assets in financial instruments referred to in (a), (b) and (d) of Article 1 of the same establishment, in deposits placed with or at risk of counterparty defined in Article 4-4 of the same institution.
"Art. 14-2. - By derogation from the limit of 10% set out in the eighth paragraph of Article L. 214-4 of the monetary and financial code, a securities collective investment organization under sections 1 and 2 may hold up to 35% of the financial instruments of each of the categories referred to in Article 5. »
“Section 2
"Specific rules applicable to collective investment organizations in securities with reduced investment rules with leverage effect
"Art. 14-3. - Management companies that manage collective securities investment organizations under this section must, in advance, have approved by the Autorité des marchés financiers a specific activity program.
"Art. 14-4. - I. - The second paragraph of Article 4-4, Article 4-5, Part II, and Article 4-8 are not applicable to securities collective investment organizations under this section.
“II. - By derogation from sections 4-5 and 4-9, the undertaking of a securities collective investment organization under this section that is the result of contracts constituting term financial instruments, the assignment or temporary acquisition of securities, the borrowing of cash may reach three times its assets.
“Section 3
"Special provisions for investment agencies
securities of alternative funds
"Art. 14-5. - I. - The UCITS that invests more than 10% of their assets in shares or shares of UCITS or investment funds under this section II and that comply with the rules set out in the III are alternative funds UCITS. Sections 1 and 2 of this chapter are not applicable to them.
“II. - A group investment organization in securities of alternative funds may use up to 100% of its assets:
« 1° In shares or shares of investment funds meeting the conditions set out in the 5th of Article 3 whose shares or shares are admitted to negotiations on a regulated market referred to in Article 2 I;
« 2° Shares or shares of collective investments in contractual securities under Article L. 214-35-2 of the monetary and financial code;
« 3° Shares or shares of securities collective investment organizations governed by sections 1 and 2 of this chapter;
« 4° In shares or shares of securities collective investment organizations under Article L. 214-35 of the monetary and financial code in its writing before 2 August 2003;
« 5° In share of common funds for intervention in futures markets.
"III. - For the application of the ratios defined in Chapter I, the shares or shares issued by the funds or OPCVM mentioned in II of this article are assimilated to instruments mentioned in paragraph 2 of Article 1.
"Art. 14-6. - Management companies that manage collective securities investment organizations that invest in alternative funds must first have the Autorité des marchés financiers approved a specific activity program. »
In the aforementioned decree of 6 September 1989, after Article 15, a chapter VII bis is inserted as follows:
“Chapter VII bis
"Special provisions for investment agencies
in securities
"Art. 15-1. - I. - A group investment organization in securities with a formula is a collective investment agency in securities that meets the following two conditions:
« 1° Its management objective is to achieve, at the expiry of a specified period, an amount determined by mechanical application of a predefined calculation formula, referring to financial market indicators or financial instruments, as well as, where appropriate, to distribute revenues, determined in the same manner;
« 2° The achievement of its management objective is guaranteed by a credit institution whose headquarters is established in a Member State of the Organisation for Economic Cooperation and Development. The guarantee may be granted to the securities collective investment agency or its holders or shareholders.
“II. - For securities collective investment organizations under this chapter, compliance with the limits set out in section 4-5 shall be assessed on the date of conclusion of contracts constituting financial instruments for term.
"III. - The provisions of section 16 apply to a securities collective investment organization under this chapter whose assets replicate the composition of an index. »
Chapter VIII of the above-mentioned Decree of 6 September 1989 is replaced by the following provisions:
“Chapter VIII
“ Provisions relating to investment agencies
indiciel securities
“Art. 16. - I. A collective investment agency in securities securities is a collective investment agency in securities, whose management objective corresponds to the evolution of a financial instrument index.
"The management objective of the securities collective investment organization is the evolution of the index if the standard deviation of the difference between the performance of the securities collective investment organization and that of the index over a reference period does not exceed a specified amount under conditions fixed by the general regulation of the Autorité des marchés financiers. This amount may be set at a higher level for indicial securities collective investment organizations that do not benefit from mutual recognition of approvals under Council Directive 85/611/EEC of 20 December 1985 referred to above.
"The limit set out in the previous paragraph is not applicable for a period of six months following the date of the organization's approval.
“II. - The index must meet the following conditions, which are verified by the Autorité des marchés financiers:
« 1° The composition of the index is sufficiently diverse;
« 2° The index is a representative standard of the market to which it refers;
« 3° The method of establishing and disseminating this index is satisfactory.
"By derogation from the 10% limit set out in section 4, an indicial securities collective investment organization may employ up to 20% of its assets in instruments referred to in a, b and d of the 2nd of Article 1 of the same issuer.
"By derogation from the previous paragraph, the 20% limit referred to in the first paragraph may be increased to 35% for a single transmitter. »
In article 16-1 of Decree No. 89-623 of 6 September 1989 referred to above, the words: "in its writing before Decree No. 2003-1103 of 21 November 2003" are inserted after the words: "this decree is applicable".
I. - Organizations of collective investment in securities under Chapter V of Decree No. 89-623 of 6 September 1989 in its drafting prior to the publication of this decree and approved before the date of publication of this decree shall opt either for the regime of section 3 of chapter VI, or for that of section 13-1, or for that of article 13-2 of the decree of 6 September 1989, as amended by this decree later than 31 December 2004 If they opt for the regime of Article 13-2 of the decree of 6 September 1989 referred to as amended by this decree, they may not apply the provisions of Article 13 II of the decree of 6 September 1989 referred to as amended by this decree.
II. - The securities investment agencies under section 2 of chapter VI of the decree of 6 September 1989 referred to above, as amended by this decree, have until 31 December 2004 to deposit with the Autorité des marchés financiers the programme of activities provided for in article 14-3 of the decree of 6 September 1989 referred to above, as amended by this decree.
III. - The securities institutions under section 3 of chapter VI of the decree of 6 September 1989 referred to above, as amended by this decree, have until 31 December 2004 to deposit with the Autorité des marchés financiers the programme of activities provided for in article 14-6 of the decree of 6 September 1989 referred to above, as amended by this decree, and to comply with the provisions of article 14-5 of the decree of 6 September 1989 referred to above, as amended by
IV. - A certificate issued by their depositary before 31 December 2005 under Chapter VII bis of the above-mentioned decree of 6 September 1989, as amended by this decree, may be waived in the second paragraph of Article 4-4 of the decree of 6 September 1989, as amended by this decree, until the end of the formula.
In this case, they do not benefit from a procedure for mutual recognition of approvals within the meaning of Council Directive 85/611/EEC of 20 December 1985, coordinating the legislative, regulatory and administrative provisions concerning certain securities collective investment organizations.
V. - The collective investment bodies in securities that exist before the date of publication of this decree and fall under Chapter VIII of Decree No. 89-623 of 6 September 1989, in its version before the publication of this decree have until 31 December 2004 to comply with the provisions of Article 16 of the aforementioned decree of 6 September 1989, as amended by this decree.
VI. - The collective investment bodies in securities that exist before the date of publication of this decree and carry out pension transactions have until 31 December 2004 to comply with the provisions of Article 4-8 of the decree of 6 September 1989 referred to above, as amended by this decree.
VII. - Where the collective investment bodies in securities that exist before the date of publication of this decree and which fall under articles L. 214-39 to L. 214-40-1 of the monetary and financial code have carried out or carry out pension transactions, they are not subject to the provisions of article 4-8 of the aforementioned decree of 6 September 1989, as amended by this decree.
VIII. - Collective securities investment organizations that have used financial instruments in the future before the date of publication of this decree have until 31 December 2004 or no later than the date of expiry of these instruments to comply with the provisions of section 2 of chapter I of the aforementioned decree of 6 September 1989, as amended by this decree.
IX. - Collective investment bodies in securities have until 31 December 2005 to comply with the provisions of 1°, 2° and 3° of II of Article 2 of Decree No. 89-623 of 6 September 1989 referred to above, as amended by this decree.
X. - The collective investment bodies in securities existing on the date of publication of this decree have until 31 December 2004 to apply the 3rd of Article 4 of Decree No. 89-623 of 6 September 1989 referred to above, as amended by this decree.
XI. - Until 31 December 2004, the date of 1 January will not be taken into account for the II of Article 10-5 of section 4 newly created by this decree.
XII. - This decree comes into force on the date of the creation of the Autorité des marchés financiers.
The Minister of Economy, Finance and Industry, the Minister Delegate for Budget and Budget Reform and the Secretary of State for Small and Medium Enterprises, Trade, Crafts, Professionals and Consumer Affairs are responsible, each with respect to it, for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done in Paris, November 21, 2003.
Jean-Pierre Raffarin
By the Prime Minister:
Minister of Economy,
finance and industry,
Francis Mer
Minister for Budget
and budgetary reform,
Alain Lambert
Secretary of State
small and medium-sized enterprises,
trade, crafts,
liberal professions
and consumption,
Renaud Dutreil
