France Law on the separation and regulation of banking activities

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1 Ashurst Paris August 2013 France Law on the separation and regulation of banking activities On 27 July 2013, French law no on the separation and regulation of banking activities (the "Law") was published. The main reforms introduced by the Law relate to the separation of proprietary trading activities from the core activities of some institutions, the enhancement of the powers of supervisory authorities and other regulatory institutions in the financial sector, the creation of a new regime for the recovery and resolution of some banking and financial institutions, amendments to the legal regime applicable to clearing houses, regulation of holdings relating to agricultural commodities, regulation of high frequency trading, loans and derivative transactions entered into by French local authorities (collectivités territoriales) and the addition of a new exemption from the solicitation (démarchage) regime. This briefing only covers those aspects outlined above and does not therefore address the entirety of the amendments proposed by the Law. transactions entered into on multilateral trading facilities as previously, these criminal offences only covered transactions entered into on a regulated market. Most of the main matters dealt with under the Law are currently subject to discussions at European level, in particular through the final report of the High-level Expert Group on reforming the structure of the EU banking sector issued on 2 October 2012 (known as the Liikanen Report) and the proposal for a Directive establishing a framework for the recovery and resolution of credit institutions and investment firms, issued by the European Commission on 6 June Therefore, the legal regime resulting from the Law, once adopted, may have to be amended in the future to ensure consistency with the rules which may be adopted at the EU level. Separation of proprietary trading activities The Law prohibits: The Law contains further reforms which are not discussed in this briefing including those relating to: anti-money laundering and tax evasion provisions that encompass, in particular, provisions aiming at reinforcing the powers of the French National Financial Information Unit which is in charge of the fight against money laundering and terrorism financing activities; the capping of remuneration of accountable managers (dirigeants responsables, i.e persons who effectively direct the business of the relevant firm) and employees of a credit institution, a financial company or a mixed financial holding company whose activities have a significant impact on the risk profile of such entities or of the group such entities belong to; the capping of such remuneration is expressed in relation to fixed remuneration; and the extension of the criminal offence regime regarding insider trading, market manipulation and dissemination of false or misleading information to (i) credit institutions (établissements de crédit), financial companies (compagnies financières) and mixed financial holding companies (compagnies financières holding mixtes) (the "Institutions") from carrying out proprietary trading activities in financial instruments, when their trading activities in financial instruments exceed exposure thresholds to be set out by Decree (décret), save in the case where they are carried out under certain conditions (see below), and (ii) credit institutions from entering into any unsecured transactions for their own account with (a) leveraged collective investment schemes, (b) other similar investment vehicles or (c) collective investment schemes invested in or exposed to leveraged collective investment schemes or other similar investment vehicles when such investment or exposure exceeds the threshold to be determined by a ministerial decree (arrêté) AUSTRALIA BELGIUM CHINA FRANCE GERMANY HONG KONG SAR INDONESIA (ASSOCIATED OFFICE) ITALY JAPAN PAPUA NEW GUINEA SAUDI ARABIA SINGAPORE SPAIN SWEDEN UNITED ARAB EMIRATES UNITED KINGDOM UNITED STATES OF AMERICA

2 (together, the "Prohibited Activities") otherwise than via a subsidiary dedicated to such activities and transactions (the "Trading Subsidiary"). The Law does not provide for a general ban on proprietary trading activities but authorises Institutions to carry on proprietary trading activities in financial instruments when these activities are related to: the provision of investment services to clients; the clearing of financial instruments; the hedging of risks incurred by the credit institution or the group within the meaning of Article L of the French Code monétaire et financier (excluding the Trading Subsidiary); market making activities; the sound and prudent management of the treasury of the group, and financial transactions between the Institutions, on the one hand, and their subsidiaries when they belong to the same group, on the other hand, within the meaning of Article L of the French Code monétaire et financier; and investment transactions of the group within the meaning of Article L of the French Code monétaire et financier. resulting from the market making activities is excluded from the scope of the definition of market making activities, but could fall within the scope of the exemption applicable to the hedging of risks incurred by the credit institution or the group. The Institutions are required to identify the Prohibited Activities to be transferred by 1 July 2014, and then to transfer these activities to a Trading Subsidiary by 1 July Such transfer will occur by right without being subject to any formalities, regardless of any provisions of law or contract to the contrary, and will include all of the assets, rights and obligations of any nature relating to the activities to be transferred under the Law, including the guarantees which secure these obligations. The Law further provides that the transfer of ongoing contracts cannot trigger the exercise of any right to terminate the contracts, amend any of their terms or obtain an early payment of the relevant debts. The Law is drafted to ensure that such transfer will be as easy as possible and fully enforceable vis-àvis the counterparties and any third parties. However, attention should be paid to the usual issues which may arise from the transfer of activities but are not catered for under the Law, including any potential recourse of the Institutions' counterparties and conflict of law issues. The Law provides clarification on the scope of the exemptions mentioned above. In particular, market making activities are defined in a way which is broadly similar to the definition given for the purposes of the French financial transaction tax and the EU short selling regime. The minister in charge of economy has the authority to determine a threshold that will be expressed in relation to the net banking income of the Institutions, common for all the Institutions or specific to any one of the Institutions. When the market making activities exceed such a threshold, they will no longer benefit from the market making exemption. The Law goes into further detail regarding the definition of market making activities by providing some indicators to be used by the Autorité de contrôle prudentiel et de résolution (the "ACPR") when assessing whether the Institutions accurately identify market making activities such as indicators relating to continuing presence on the market, minimal activity on the market, requirements in terms of the proposed quotation spreads and internal organisation rules including the limits of the risks. Market makers are required to provide the ACPR and the Autorité des marchés financiers (the "AMF") with these indicators on a regular basis. The precise list of indicators that the Institutions will have to submit to the ACPR and the AMF is still to be determined by a ministerial decree (arrêté). The hedging of positions As regards the regulatory status of such Trading Subsidiaries, the Law states that they must be licensed as investment firms or credit institutions and will not be eligible for the investment services monopoly exemptions under Article L of the French Code monétaire et financier. According to the Law, Trading Subsidiaries licensed as credit institutions are not authorised to receive deposits from the public that benefit from the deposit guarantee scheme nor to provide payment services to clients whose deposits benefit from such guarantee. They are required to comply with prudential ratios. There are no restrictions in terms of initial capitalisation of Trading Subsidiaries by their parent Institutions. However, the Law provides that parent Institutions are required to obtain prior authorisation from the ACPR before they can subscribe to a share capital increase of their Trading Subsidiaries. In terms of activities, the Law sets forth that the Trading Subsidiaries cannot carry out (i) high frequency trading transactions taxable under Article 235 ter ZD bis of the French Code general des impôts (under these provisions, high frequency trading is defined as the act of habitually transmitting orders using an automated processing system for these orders which is characterised by the transmission, modification or cancellation of successive orders on a specific security separated by a time period of less

3 than half a second) and (ii) agricultural commodity derivative transactions. Finally, it is worth noting that investment firms, Institutions and Trading Subsidiaries which carry on transactions in financial instruments are required, by 1 July 2014, to impose on their internal departments performing these transactions, organisational and operational rules designed to ensure that the requirements governing proprietary trading will be satisfied. Reform of supervisory authorities and other institutions Pursuant to the Law: the Autorité de contrôle prudentiel is renamed Autorité de contrôle prudentiel et de résolution, the Fonds de garantie des dépôts is renamed Fonds de garantie des dépôts et de résolution, and the Conseil de régulation financière et du risque systémique is renamed Haut Conseil de stabilité financière. The Law enhances the powers of the abovementioned institutions as well as the powers of the AMF. In particular: the Haut Conseil de stabilité financière is formally designated as the French national authority in charge of macro-prudential policy and as such, becomes entitled, upon proposals made by the Governor of the Banque de France, to apply specific capital requirements in addition to those resulting from the rules commonly applicable to financial institutions; and the powers of both the AMF and the ACPR to require documents or information from the institutions placed under their supervisory functions are significantly broadened to ensure that their supervisory and disciplinary functions can be properly performed. A new regime for the recovery and resolution of certain institutions The Law creates a new regime for the recovery and resolution of certain banking and financial institutions and enhances the related powers of the ACPR. It also creates a new organ within the ACPR, the collège de résolution, in charge of preventing and managing banking crisis situations. Under the Law, credit institutions and investment firms (other than portfolio management companies) having a balance sheet which exceeds the threshold to be set out by Decree (décret), must file and update at least annually and upon every significant change in the organisation or activities of such entities, a plan préventif de rétablissement with the ACPR (the "Recovery Plan"). Such Recovery Plan should anticipate, in the event of any significant deterioration of their financial situation, the different measures which could be taken to effect their recovery. Other firms may also be required by the ACPR to file such a Recovery Plan on a case-by-case basis. In addition, the ACPR will have to adopt a plan which will apply to such credit institutions and investment firms that are required to submit a Recovery Plan (a plan préventif de résolution or "Resolution Plan"). The Resolution Plan will set out the circumstances and conditions under which the ACPR would be entitled to exercise its powers and take specific measures for the resolution of such entities. Where credit institutions and investment firms belong to a group whose balance sheet, in aggregate, exceeds the threshold to be set out by Decree (décret) and are supervised on a consolidated basis, both the Recovery Plan and the Resolution Plan will have to be prepared on a consolidated basis. The ACPR is given the power under the Law to decide whether an institution is in default, as per the defined circumstances within the Law, and the Law sets out a series of measures available to the ACPR if it decides that the entity is in default. Such measures are aimed at the protection of both depositors and taxpayers, at maintaining financial stability and at contributing to the continuity of those activities, services and operations of the relevant entity, the interruption of which could profoundly affect the economy. The measures available to the ACPR include the dismissal of any appointed representative of the defaulting entity, the appointment of an interim administrator, the transfer of all or part of its business activities, the use of a bridge institution to which all or part of its assets, rights and obligations would be temporarily transferred, the suspension of its obligations to pay, and the write-down, cancellation or conversion of its capital instruments. The Law provides further details on the impact of resolution measures on close-out netting (please click here to read our client briefing on such impact). The ACPR can also ask the Fonds de garantie des dépôts et de résolution to intervene with the relevant entity. For the purposes of its intervention, the Fonds de garantie des dépôts et de résolution can take certain measures including: the purchase of all or part of the shares of the relevant defaulting entity;

4 the subscription to the capital increase of the relevant defaulting entity or to the capital of the relevant bridge institution; the granting of credit facilities in any form, including a guarantee, to the relevant entity. The Law also offers the Governor of the Banque de France and the general manager of the French Treasury, as well as their representatives, the option of submitting the matter, with respect to the financial situation of one of the Institutions or an investment firm, to the ACPR with a view to the ACPR taking any of the resolution measures in respect of the relevant entity. Amendments to the regime applicable to French clearing houses The Law makes a number of amendments to the regime applicable to French clearing houses (which are defined as the central counterparties within the meaning of the Regulation no. 648/2012 on OTC derivatives, central counterparties and trade repositories - EMIR). In particular, it is worth noting that under the Law: the operating rules of a French clearing house must be drafted in French, or in cases to be defined by the General Regulations of the AMF, in another language which is customary in the financial sphere (e.g. English); the provisions of the French Code monétaire et financier relating to collateral arrangements which may be put in place between a clearing house and its clearing members (and between clearing members and their clients) now refer to the financial collateral arrangement set out in Article L of the French Code monétaire et financier and resulting from the transposition in France of Collateral Directive no. 2002/47/EC or to any other form of collateral arrangement set out in the operating rules of the clearing house; and there is clarification of the conditions under which, where an event of default occurs with respect to a clearing member, a clearing house may transfer the positions and collateral of the clearing member's clients to another clearing member and take any other measure as set out in its operating rules with a view to reducing or eliminating the risks to which the clearing house is exposed (including liquidation of the assets and positions held by the defaulting clearing member for the account of its client), as well as the conditions under which the clearing house must return any excess collateral after having properly managed such event of default. Further amendments to the regime applicable to clearing houses are expected to be made through the ongoing modification of the General Regulation of the AMF. Regulation of holdings relating to agricultural commodities As from 1 July 2015, the AMF will be in charge of fixing the thresholds of positions that a person can hold in financial instruments, the underlying asset of which includes an agricultural commodity. The AMF will also set out the exemptions which will include the case where the positions are taken for hedging purposes. Furthermore, persons whose position in financial instruments, the underlying asset of which includes an agricultural commodity, exceeds a threshold that will be set forth in the General Regulation of the AMF in respect of each agricultural commodity, will be required to report, on a daily basis, the details of its positions to the AMF. The Law does not contain any conditions in terms of the country of residence of the persons subject to such obligations and there are grounds for considering that both French and non-french persons will have to comply with these obligations. High frequency trading Pursuant to the Law, any person, that uses automatic trading systems, commonly called high frequency trading systems, is required to report to the AMF on the use that has been made of such systems and which has generated buy and sell orders in respect securities issued by companies having their head office in France. Such persons are also required to: ensure the traceability of each order that has been issued by an automatic trading system directed to a regulated market or a multilateral trading facility; safeguard (i) the elements that allow to establish a link between the issued order and the algorithms that have allowed to determine such orders and (ii) the algorithms used to elaborate the orders transmitted to the markets; and communicate such information to the AMF at the AMF's request. Persons using automatic trading systems must set up internal procedures and mechanisms to ensure that their organisation complies with the traceability and safeguarding obligations described above.

5 The Law also provides for a number of obligations in relation to automatic trading systems, which are applicable to the regulated markets and multilateral trading facilities. Local entities The Law sets forth the following conditions under which French local entities (collectivités territoriales, groupements des collectivités territoriales and services départementaux d'incendie et de secours) and certain public housing bodies (organismes d'habitations à loyer modéré) can enter into loans with credit institutions: the loan can be denominated in Euros or in a foreign currency in which case, at the time of subscription of the loan, the local entity must enter into a currency swap of the foreign currency against the Euro, for the global amount and for the term of the loan; the interest rate can be fixed or floating; a decree (décret) will set forth the authorised indexes and the indexes spreads in respect of the indexation clauses of the floating interest rates; indexation formula for the floating interest rates must satisfy the criteria of simplicity or predictability of the financial costs of the relevant local entity. Furthermore, a derivative transaction entered into in respect of a loan granted to a local entity or to a public housing body should not result in a breach of the conditions described above. French local entities and public housing bodies are not required to comply with the conditions described above when entering into a loan or derivative transaction if the new loan or derivative transaction reduces the risks relating to an existing loan or a derivative transaction entered into before 26 July 2013, which was not compliant with the conditions described above. French local entities, collectivités territoriales and établissements publics de cooperation intercommunale à fiscalité propre, are authorised to set up a public limited company of which they will be the sole shareholders. The purpose of such company is to contribute via its subsidiary to the financing of the local entities that hold the share capital of the relevant company. Most of the funds necessary for the financing of local entities by the abovementioned subsidiary will result from issues of securities by the subsidiary. Solicitation The Law adds a new exemption from the solicitation regime with respect to the communication, regardless of the nature of its medium, of simple advertising information, excluding any contractual or precontractual documentation. In addition, the Law clarifies solicitation rules which may apply to an intermediary in banking operations. Contacts Julien Bacus Partner T: +33 (0) E: julien.bacus@ashurst.com Hubert Blanc-Jouvan Partner T: +33 (0) E: hubert.blanc-jouvan@ashurst.com Olga Goncharska Associate T: +33 (0) E: olga.goncharska@ashurst.com This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this publication to specific issues or transactions. For more information please contact us at 18, square Edouard VII, Paris T: F: Ashurst LLP and its affiliates operate under the name Ashurst. Ashurst LLP is a limited liability partnership registered in England and Wales under number OC It is a law firm authorised and regulated by the Solicitors Regulation Authority of England and Wales under number Lawyers of Ashurst LLP who are members of the Paris Bar Association are regulated by the rules applicable to lawyers (avocats) practising in Paris, France. The term "partner" is used to refer to a member of Ashurst LLP or to an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Ashurst LLP's affiliates. Further details about Ashurst can be found at Ashurst LLP 2013 Ref: August 2013