Response to discussion on a new prudential regime for investment firms

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Question 1: What are your views on the application of the same criteria, as provided for G-SIIs and O-SIIs, for the identification of ‘systemic and bank-like’ investment firms? What are your views on both qualitative and quantitative indicators or thresholds for ‘bank-like’ activities, being underwriting on a firm commitment basis and proprietary trading at a very large scale? What aspects in the identification of ‘systemic and bank-like’ investment firms could be improved?


The Vanguard Group, Inc. (“VGI”) began operations in the USA in 1975 and is headquartered in Valley Forge, Pennsylvania, USA. Today VGI (together with its affiliates) operates in Europe, Asia, Australia and Canada. Vanguard Asset Management Limited (“VAM”) (a wholly owned subsidiary of VGI) is based in London and provides services throughout the European Economic Area pursuant to the Markets in Financial Instruments Directive (“MiFID”). As at 31 December 2016, Vanguard collectively managed approximately €3.85 trillion in assets under management (“AuM”) of which just over €110 billion was managed by VAM.

VGI is owned by certain of Vanguard’s US domiciled mutual funds, which in turn are owned by the investors in those funds. This mutual structure aligns our interests with those of our investors and drives the culture, philosophy and policies throughout the Vanguard organisation worldwide. We have an unwavering focus on investor value and costs and a stated intention of cutting the cost of investing.

Vanguard’s mission is to take a stand for all investors, to treat them fairly and to give them the best chance of investment success. It is our belief that investment success is based on four key principles, being: (a) clear and appropriate investment goals; (b) suitable asset allocation using broadly diversified funds; (c) minimising costs; and (d) maintaining perspective and long-term discipline.


We appreciate the opportunity to respond to the EBA’s discussion paper on a new prudential regime for investment firms. As detailed further below, we do not think that the current regime under the EU Capital Requirements Directive and Regulation (CRD/CRR) is appropriate for asset managers and we are fully supportive of a separate proportionate regime to take into account the specific risks associated with investment firms. We support an activities based approach to identifying risk to ensure that all investment firms are subject to the same rules regardless of their size.

We support the proposal to redesign the regime to distinguish between investment firms that are: (a) systemic AND bank like (class 1); (b) not systemic and bank like (class 2); and (c) very small and non-interconnected (class 3). In order to ensure appropriate categorisation of investment firms, it is very important to have strict criteria to differentiate between the three different categories of investment firms, based on the relative risk of the activities they undertake.

The guidelines on the criteria to determine the conditions of application of Article 131(3) of CRD in relation to the assessment of other systemically important institutions (O-SIIs) – EBA/GL/2014/10 of 16 December 2014 were created to identify systemically important institutions. The key drivers for a systemically important institution are balance sheet exposure and business models which give rise to systemic risk, credit risk and market risk. Investment firms which are not engaging in bank like activities should not meet the criteria of the guidelines.

Asset managers do not engage in activities that would expose them to systemic risks and therefore should not be categorised in the same way as G-SIIs and O-SIIs. Asset managers do not trade against their own balance sheet and do not engage in bank like activities. In previous examples where an asset manager’s business has no longer been viable, there was no significant impact on the European financial system.

Asset managers act as agents to their clients and are subject to fiduciary duties to act in the best interests of investors. Asset managers also have well established procedures to allow them to be wound down in an orderly manner without any external adverse effects. A separate prudential regime for investment firms other than G-SIIs and O-SIIs is therefore appropriate to allow firms (such as asset managers) to apply the rules in a proportionate manner depending on the activities they carry out.

Question 2: What are your views on the principles for the proposed prudential regime for investment firms?

We believe that the current regime under CRD/CRR is not appropriate for asset managers and we support the proposal to redesign the regime for investment firms that are not deemed to be systemic and bank-like. We support the EBA’s proposal to have a separate prudential regime based on the inherent risks in the business of investment firms and not to apply an adapted version of a capital requirements regime designed for large international banks.

Asset managers do not present the same risks as systemic and bank-like firms (see for example the findings of the Financial Stability Board as to the mitigants to systemic risk presented by asset managers and investment funds in its Policy Recommendations to Address Structural Vulnerabilities from Asset Management Activities of January 2017) and therefore should not come under the same capital requirements as credit institutions. A new prudential regime, however, will need to appropriately consider the wide distinctions between the range of investment firms and we believe this regime should be applied on a proportionate basis. Indeed, asset managers’ activities are completely different from those of banks and insurance companies, but also other investment firms, such as proprietary trading firms. Asset Managers act as agents on behalf of their clients and do not use their balance sheets in transactions between their clients and the market. In addition an asset manager will not ‘fail’ in a way that may require regulatory intervention or that causes a systemic risk to European financial stability. These differences require a separate regime to assess and address risk within the investment firm universe.

While we fully support the proposal for a separate set of harmonized rules for investment firms and understand the principle that firms that pose more risk should attract higher capital requirements, we do have some concerns with a number of the proposals set out in the EBA’s discussion paper.

We object to the example of “an extremely large portfolio manager” as possibly coming within the definition of systemically important and therefore subject to more onerous capital requirements, particularly where premised on size of assets under management. Size is not an accurate indicator of risk and therefore should only be relevant after an indicator of systemic risk, such as excessive leverage, has been identified. It does not follow that the larger the firm the greater the risk and therefore the greater the need for capital. Indeed, one could argue that larger asset managers are likely to have more comprehensive and sophisticated systems and controls in place to ensure that idiosyncratic risks do not spread to the wider financial markets. In these circumstances it would be inappropriate to apply a higher capital requirement to large asset managers in comparison to other Class 2 investment firms.

Comprehensively regulated asset managers do not engage in the types of activities that give rise to systemic risk and we disagree with the suggestion that the failure of asset managers may have the level of impact on customers and markets as is proposed in the discussion paper. As mentioned above, asset managers act as agents on behalf of their clients and are subject to fiduciary duties to act in the best interest of investors. In addition to this, asset managers are subject to comprehensive conduct of business rules pursuant to the likes of MiFID, the Market Abuse Regulation, the UCITS Directive and the Alternative Investment Fund Managers Directive (“AIFMD”). They are also subject to oversight from numerous entities such as regulators, auditors etc. We do not believe that if an asset manager fails that there is a risk to the market or the European financial system nor do they pose a significant risk to customers. As a result, we do not consider that the revised prudential regime for asset managers should include capital requirements to ensure that these firms can absorb losses arising from correcting harm caused to customers and markets. Rather, we consider that a prudential regime appropriate for asset managers would be one that requires firms to hold sufficient capital to allow them to wind down in an orderly manner when necessary.

Disproportionate capital requirements furthermore may disincentivise asset managers from participating in the Commission’s Capital Markets Union initiative to the detriment of efforts to reduce EU dependency on bank financing and the wider EU economy as a whole.

The EBA opines that prudential requirements for investment firms have to take into account the additional risk associated with holding client money and securities. We note that handling or holding client money and securities can give rise to additional risk and that it is appropriate for a capital requirements regime to reflect these risks. However, asset managers holding client money and/or client assets require regulatory permissions to do so, which in turn gives rise to the need to comply with onerous conduct of business rules regarding how such client assets/money are held. In addition, the assets of clients are typically segregated and held by a third party for the benefit of the clients, as in the case of UCITS and alternative investment funds under the AIFMD. As a result, the failure of the asset manager should not impact client assets.

Question 3: What are your views on the identification and prudential treatment of very small and non-interconnected investment firms (‘Class 3’)? If, for example, such class was subject to fixed overheads requirements only, what advantages and drawbacks would have introducing such a Class 3? Conversely, what advantages and drawbacks could merging Class 3 with other investment firms under one single prudential regime with ‘built-in’ proportionality have?


Question 4: What are your views on the criteria discussed above for identifying ‘Class 3’ investment firms?


Question 5: Do you have any comments on the approach focusing on risk to customers (RtC), risk to markets (RtM) and risk to firm (RtF)?


While we agree that customers of investment firms need to be protected, we have some concerns about the K-factors that are proposed in this section. As mentioned in response to question 2 above, we do not believe that the size of an investment firm is an indication of the level of systemic risk. There may be a number of large firms that are not of systemic importance that would be captured by this factor, while other smaller firms that may be riskier to the customer on the basis of the activities they pursue are not. These firms may create a higher risk with other more diversified firms being less risky.

We do not agree with the scalars that are applied to the specific K-factor whereby the amount of any capital requirement should increase in proportion to the scale of the business undertaken. The existing activities of a particular firm should be taken into account rather than just the AUM of the firm. We consider that systemic risk emanates from the combination of leverage and interconnectedness. Comprehensively regulated investment funds do not employ significant leverage and are not inextricably interconnected with other systemically important institutions such that risk emanating from asset managers is automatically transmitted throughout the financial system.

The other K factors of assets safeguarded and administered (ASA) and client money held (CMH) do not take into account how asset managers safeguard client assets. Existing regulation pursuant to MiFID, the UCITS Directive and AIFMD already helps to mitigate operational risk. Asset managers are subject to regulation that controls risk by requiring managers to have appropriate policies and procedures to identify and monitor operational risk. In addition, asset managers do not typically hold client assets themselves. Rather the assets are segregated and held by a third party and are therefore recoverable by clients in the event of insolvency of the asset manager.

We do not agree that the failure of an asset manager would result in a RtM. Recent examples of failing or stressed asset managers have revealed little to no impact on market access or market liquidity. Asset managers tend to have small balance sheets, employ little to no leverage, and the forced liquidation of their own assets does not create market disruption.

It is also worth noting that asset managers should rarely be dealing on own account. As a result the proposed K-factor of “proprietary trading activities” is therefore not relevant for asset managers.


We do not believe that RtF is particularly relevant for asset managers that are operating an agency model. We understand the rationale to treat a firm that is leveraged significantly as different to a firm which is not. However, we think it is important to distinguish between the leverage of an investment firm and of an investment fund. Asset managers do not take any balance sheet risk with respect to an investment fund and have no ability to use their clients’ assets for their own purposes due to the segregation of assets. In any case, comprehensively regulated investment funds (such as UCITS) are typically not highly leveraged.

Question 6: What are your views on the initial K-factors identified? For example, should there be separate K-factors for client money and financial instruments belonging to clients? And should there be an RtM for securitisation risk-retentions? Do you have any suggestions for additional K-factors that can be both easily observable and risk sensitive?


As discussed above, we do not believe that an AUM figure is a suitable and comparable metric. The risk profile of different managers will depend on a multitude of factors and is not dependent on the size of the asset manager. Using AUM to set capital could lead to unnecessarily high capital requirement for larger managers. In reality, these managers are also more likely to have more robust controls for operational risk.


Our concerns regarding size mentioned above are equally applicable in respect of AUA. If AUA is to be used as a metric for operational risk, this K-factor should be adjusted to the specific situation of the firm and the type of customers involved.

As mentioned above, the client assets and monies managed by asset managers are typically segregated/held by third parties (such as custodian/depositary institutions) in accordance with strict conduct of business rules. As a result, we do not consider that the amount of assets safeguarded and administered or client money held by asset managers to be appropriate K-factors, unless account is taken of the significant protections afforded to end investors.

Question 7: Is the proposed risk to firm ‘up-lift’ measure an appropriate way to address the indirect impact of the exposure risk a firm poses to customers and markets? If not, what alternative approach to addressing risk to firm (RtF) would you suggest?

We do not think that an uplift factor is necessary for firms which are not leveraged significantly. This would only make sense for investment firms which are dealing on their own account and which have significant balance sheet exposures (i.e. not asset managers).

We would also suggest the option of down scaling factors which would incentivise firms to be well capitalised and to improve their risk management.

Question 8: What are your views on the ‘built-in’ approach to delivering simpler, proportionate capital requirements for Class 3 investment firms, (compared to having a separate regime for such firms)?


Question 9: Should a fixed overhead requirement (FOR) remain part of the capital regime? If so, how could it be improved?

We believe that the FOR should remain part of the capital regime. That said there would be merit in considering whether the current FOR remains sufficient to cover typical wind down costs of an investment firm. We also believe that further clarity around the deductions would be helpful as there are various interpretations in the market on how deductions are made.

Question 10: What are your views on the appropriate capital requirements required for larger firms that trade financial instruments (including derivatives)?

We do not believe that being a larger firm or trading financial instruments, including derivatives makes a firm bank-like.

We do not agree that the size of the firm should be a determinate for setting capital requirements. Being a large asset manager does not necessarily mean that it is subject to more risk and large asset managers often have robust controls and procedures in place to ensure operational risk is at a minimum.

Unless investment firms are trading financial instruments (such as derivatives) for their proprietary accounts, an investment firm typically does not have an obligation for the trade. Moreover, often an asset manager will use derivatives to reduce risk through hedging or to gain exposure to an investment index it is tracking on behalf of a fund. The use of derivatives by regulated funds is a fundamental component of prudent portfolio management that provides significant benefits to investors in terms of risk mitigation, lower costs and greater liquidity. Leverage that could raise the potential for systemic risk is not related to the volume of derivatives usage, but rather by the purpose for which a particular derivative product is used and how the purpose relates to specific assets and the overall portfolio. The activities of the asset manager should be taken into account and the risk involved in those activities rather than the size of the firm itself.

Question 11: Do you think the K-factor approach is appropriate for any investment firms that may be systemic but are not ‘bank-like’?

We would support a new prudential regime for investment firms which is tailored to the risks investment firms might pose and which is flexible enough to be suitable for the whole range of investment firms.

We think that a K-factor approach (subject to our comments on this approach in general) could be considered appropriate for such firms. In this instance, the proposal must take into account the risks inherent in the business carried out by the investment firm. Similar to the CRD regime, there could be a disapplication of a number of onerous requirements where appropriate in accordance with the risk of the business involved. As mentioned above, we do not think that the size of a firm should be taken into account in the categorisation of a firm as ‘systemic’. In addition, for the reasons set out in our previous responses we do not believe that asset managers would be ‘systemic’.

Question 12: Does the definition of capital in the CRR appropriately cater for all the cases of investment firms that are not joint stock companies (such as partnerships, LLPs and sole-traders)?


Question 13: Are the cases described above a real concern for the investment firms? How can those aspects be addressed while properly safeguarding applicable objectives of the permanence principle?


Question 14: What are your views on whether or not simplification in the range of items that qualify as regulatory capital and how the different ‘tiers’ of capital operate for investment firms would be appropriate? If so, how could this be achieved?


Question 15: In the context of deductions and prudential filters, in which areas is it possible to simplify the current CRR approach, whilst maintaining the same level of quality in the capital definition?


Question 16: What are your views overall on the options for the best way forward for the definition and quality of capital for investment firms?


Question 17: What are your views on the definition of initial capital and the potential for simplification? To what extent should the definition of initial capital be aligned with that of regulatory capital used for meeting capital requirements?


Question 18: What aspects should be taken into account when requiring different levels of initial capital for different firms? Is there any undesirable consequence or incentive that should be considered?


Question 19: What are your views on whether there is a need to have a separate concept of eligible capital, or whether there is potential for simplification through aligning this concept with the definition of regulatory capital used for meeting capital requirements?


Question 20: Do you see any common stress scenario for liquidity as necessary for investment firms? If so, how could that stress be defined?


Question 21: What is your view on whether holding an amount of liquid assets set by reference to a percentage of the amount of obligations reflected in regulatory capital requirements such as the FOR would provide an appropriate basis and floor for liquidity requirements for ‘non-systemic’ investment firms? More specifically, could you provide any evidence or counter-examples where holding an amount of liquid assets equivalent to a percentage of the FOR may not provide an appropriate basis for a liquidity regime for very small and ‘non-interconnected’ investment firms?

We believe that referencing liquidity requirements to the FOR is appropriate. This would ensure that in a stressed scenario, there would be sufficient cash to appropriately wind down the business in an orderly manner.

Question 22: What types of items do you think should count as liquid assets to meet any regulatory liquidity requirements, and why? (Please refer to Annex 4 for some considerations in determining what may be a liquid asset).

We believe that this should be kept to the existing definition.

Question 23: Could you provide your views on the need to support a minimum liquidity standard for investment firms with the ability for competent authorities to apply “supplementary” qualitative requirements to individual firms, where justified by the risk of the firm’s business?

We think that it makes sense to link capital, wind down requirements and liquidity requirements. It should be made clear that the guidance on liquidity relates only to the firm and does not extend to liquidity management of the firm’ assets.

Question 24: Do you have any comment on the need for additional operational requirements for liquidity risk management, which would be applied according to the individual nature, scale and complexity of the investment firm’s business?


Question 25: What are your views on the relevance of large exposures risk to investment firms? Do you consider that a basic reporting scheme for identifying concentration risk would be appropriate for some investment firms, including Class 3 firms?


Question 26: What are your views on the proposed approach to addressing group risk within investment firm-only groups? Do you have any other suggested treatments that could be applied, and if so, why?

We generally agree with the proposed approach to addressing group risk within investment firm-only groups. Consideration will need to be given to all relevant entities within the group to get an accurate sense of the capital and risk exposures involved. Nevertheless, it is also important that the revised prudential regime proportionately takes account of geographical and regulatory boundaries so as to ensure that global multinational groups do not inappropriately find EU group entities having to allocate capital resources in respect of the activities of non-EU affiliate companies, subject to separate and distinct prudential regimes. Disproportionate consolidation requirements could impact the competitiveness of EU domiciled investment firm groups.

Question 27: In the case of an investment firm which is a subsidiary of a banking consolidation group, do you see any difficulty in the implementation of the proposed capital requirements on an individual firm basis? If so, do you have any suggestion on how to address any such difficulties?


Question 28: What other aspects should the competent authorities take into account when addressing the additional prudential measures on an individual firm basis under the prudential regime for investment firms?


Question 29: What examples do you have of any excessive burden for investment firms arising from the current regulatory reporting regime?


Question 30: What are your views on the need for any other prudential tools as part of the new prudential regime for investment firms? And if required, how could they be made more appropriate? In particular, is there a need for requirements on public disclosure of prudential information? And what about recovery and resolution?


Question 31: What are your views on the relevance of CRD governance requirements to investment firms, and what evidence do you have to support this?


Question 32: As regards ‘systemic and bank-like’ investment firms, do you envisage any challenges arising from the full application of the CRD/CRR remuneration requirements, and if so, what evidence do you have to support this? For all other investment firms, what are your views on the type of remuneration requirements that should be applied to them, given their risk profiles, business models and pay structures?


Question 33: What is your view on a prudential remuneration framework for other than ‘systemic and bank-like’ investment firms that should mainly aim to counteract against conduct related operational risks and would aim at the protection of consumers?

We believe that applying CRD-remuneration style requirements would not be optimal and a separate regime would be more suited and proportionate. There are a number of separate remuneration requirements under the UCITS/AIFM rules that now apply to fund managers, which could be applied to asset managers qualifying as Class 2 firms.

Applying CRD style remuneration requirements would fail to account for the distinction between the agency nature of the asset management business as against balance sheet risk of the banking industry. CRD remuneration rules are designed to avoid excessive risk taking by credit institutions that could lead to systemic risk and impact wider financial stability. Any future remuneration rules applied to investment firms should take into account the differences between banking and asset management business models.

Question 34: What are your views on having a separate prudential regime for investment firms? Alternatively, should the CRR be amended instead to take into account a higher degree of proportionality? Which type of investment firms, if any, apart from systemic and bank-like investment firms, would be better suited under a simplified CRR regime?

As set out in our responses to questions 1 and 2 above, we believe that there should be separate regime for investment firms that are not systemic and bank-like (e.g. asset managers) and it would not be appropriate to amend the CRR to take account of firms that are not systemic and bank like. The activities of asset managers are fundamentally different to firms that are systemic and bank like, and there are a completely different set of risk factors. Accordingly, a separate set of harmonised rules with a clearly defined degree of proportionality (depending on the risk associated with the activities of a particular firm) set out in primary EU legislation would be the best approach and would allow for greater oversight and better regulation. It should also avoid the current situation where the differing National Competent Authorities’ implementation of the EBA’s Remuneration Guidelines suggests a lack of uniform understanding of existing proportionality under Article 94 of CRD.

Question 35: What are the main problems from an investment firm perspective with the current regime? Please list the main problems with the current regime.

The current regime is not appropriate for the majority of investment firms as it is aimed at banks and credit institutions that have a much larger exposure to credit risk and market risk. There is a large operational burden on the calculation of credit and market risk exposures for investment firms that do not have a particularly high risk profile in this regard. Unlike banks, asset managers are not principal investors, do not provide guarantees and have little to no leverage. The profit and loss experienced by investors have no direct impact on the asset manager’s financial stability. A separate regime that takes into account the wide range of investment firms would be a more appropriate approach.

Name of organisation

Vanguard Asset Management, Limited