The new Precious Metals Code

The Global Precious Metals Code (Metals Code) has been published in and is effective as of May 2017. It sets out the standards and best practices expected from participants in the global OTC-wholesale market for precious metals, meaning gold, silver, platinum and palladium (Precious Metals). It has been prepared and is backed by the London Bullion Market Association (LBMA).

Although the Metals Code is not binding law, all organisations actively involved in the global OTC-wholesale trading market for Precious Metals are expected to act according to the broad principles of the Metals Code and have procedures designed to uphold its general terms. The Global Code will need to be applied proportionally, because of the varying degrees of sophistication and the diverse nature of the participants. Non-compliance is likely to have negative consequences on business activities, because certain market participants might no longer be willing to enter into transactions with non-compliant market participants. It is also likely that courts will rely on the Metals Code when interpreting contracts entered into in the Precious Metals wholesale market.

The Metals Code applies to the following market participants (Market Participants):

  • LBMA members
  • Physical market participants (such as refiners and miners)
  • Financial institutions such as banks, asset/fund managers, high frequency trading firms, brokers, investment advisers
  • Trading houses
  • Central banks and sovereign wealth funds
  • Logistics firms and fabricators
  • Jewellery companies
  • Benchmark execution service providers and benchmark process platform operators
  • Affirmation and settlement platforms

The Metals Code does not apply to price-streaming platform providers, private banking clients and the general retail public.

The Metals Code is organised around the following four leading principles:

  • Ethics: Market Participants are expected to behave in an ethical and professional manner to promote the fairness and integrity of the Precious Metals market. This means in particular that Market Participants should:
    • Strive for the highest ethical and professional standards.
    • Identify and address conflicts of interests.
  • Governance, Compliance and Risk Management: Market Participants are expected to have a sound and effective governance framework that provides clear accountability and a compliance and risk framework that provides for robust control and a compliance environment that effectively identifies and manages the risks associated with their engagement with the market. This means that Market Participants have to:
    • Put an adequate business strategy and financial soundness in place as well as effective structures and mechanisms to provide for appropriate oversight, supervision and controls.
    • Have appropriate policies and procedures designed to handle and respond to potentially improper practices and behaviours effectively.
    • Have a framework for compliance and risk management.
    • Familiarize themselves with and abide by all applicable laws, regulatory obligations and relevant industry standards, and should have an appropriate compliance framework in place.
    • Maintain an appropriate risk management framework with systems and controls to identify and manage the Precious Metals market risks they face.
    • Have processes in place to independently review the effectiveness of and adherence to the risk management and compliance framework.
  • Information Sharing: Market Participants are expected to be clear and accurate in their communications. They are also expected to protect confidential information and to promote effective communication that supports a robust, fair, open, liquid and appropriately transparent Precious Metals market. Market Participants have thus to:
    • Clearly and effectively identify and appropriately limit access to confidential information.
    • Not disclose confidential information to external parties, except under specific circumstances.
    • Communicate in a manner that is clear, accurate, professional and not misleading.
    • Communicate market colour appropriately and without compromising confidential information.
    • Have clear guidance on approved modes and channels of communication.
  • Business Conduct: Market Participants are expected to effectively manage each stage of the transaction life cycle, i.e. pre-trade, execution, and post-trade, in order to promote a robust, fair, open and appropriately transparent Precious Metals market. Market Participants must, however:
    • Obtain sufficient information to know each client.
    • Ensure the adoption of proportionate and responsible business practices, appropriate to their business.
    • Be clear about the capacities in which they act.
    • Handle orders fairly and with transparency in line with the capacities in which they act.
    • Handle orders fairly, with transparency and in a manner consistent with the specific considerations relevant to the different order types.
    • Only pre-hedge client orders when acting as a principal and should do so fairly and with transparency.
    • Apply only a mark-up to client transactions if fair and reasonable.
    • Not request transactions, create orders or provide prices with the intent of disrupting market functioning or hinder the price discovery process.
    • Employ a last look which is transparent regarding its use and provide appropriate disclosure to clients.
    • When providing algorithmic trading or aggregation services to clients, provide adequate disclosure regarding their operation.
    • Not engage in practices that disrupt the integrity of benchmarks.
    • Confirm trades as soon as practicable, and in a secure and efficient manner.
    • Identify and resolve confirmation and settlement discrepancies as soon as practicable.
    • Perform timely account reconciliation processes.
    • Identify settlement discrepancies and submit compensation claims in a timely manner.
    • Measure and monitor their settlement risk and seek to mitigate that risk when possible.
    • Utilize standard settlement instructions.
    • Request direct payments.

Please contact our expert on this topic for a free consultation:

Martin Liebi
Director
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

PwC Deal Talk – Doing Deals in India from a Swiss Investor’s Perspective

Edition 4/2017

India has seen significant economic growth in the past two decades and has credibly positioned itself as the largest democratically driven economy in the world.

With more than 250 Swiss companies having a presence in India and with a total Swiss foreign direct investment of over USD 3.2 bn in India since the year 2000, the subcontinent is also an increasingly important trade partner for Switzerland.

In 2015, Swiss imports from India amounted to USD 1.0 bn whilst Swiss exports to India (excluding bullion) amounted to USD 0.8 bn.

M&A activity in India has gradually increased over the last 5 years. 2016 saw the highest M&A activity of this period with 1,002 deals with a total deal value of USD 61 bn, whereby USD 29.3 bn (48%) of deal value was linked to cross-border transactions.

India offers attractive opportunities for Swiss Investors, but the environment is vastly different to the Swiss market and there are unique features investors need to be aware of. With first-hand experience and local teams on the ground, PwC can help you to avoid common pitfalls when doing deals in India.

Read Attachment

Contact Us

Sascha Beer
Partner
Corporate Finance / M&A
Tel. +41 58 792 1539
sascha.beer@ch.pwc.com

Nico Psarras
Partner
Head of Transaction Services
Tel. +41 58 792 1572
nico.psarras@ch.pwc.com

Devinder Singh
Director, Transaction Services
Tel. +41 58 792 1432
devinder.singh@ch.pwc.com

What every startup should know about trademarks

As a startup, entrepreneurs spend a lot of time, energy and other resources developing a corporate name, symbols and logo. But they need to safeguard with trademarks these interlocking key elements of their business.

PwC’s dynamic IP team is highly costumer oriented and combines great technical competences together with a desire to provide quality solutions. Fostering entrepreneurship and innovation, they love to invest time in understanding new business models. Learn more about their new services entirely dedicated to startups stepping on their entrepreneurial journey by clicking the image below.

Take the first step on your entrepreneurial journey  with PwC

Before registering your company, we can assist you in conducting comprehensive trademark searches to check that you do not infringe another company’s trademark and domain name rights.

Our PwC IP team uses the availability searches as a creative tool, looking at who else is out there in your space with similar names; getting new ideas for names that are different and unique.

Together, we think more broadly, building up a consistent strategy for your company’s name, your house trademark and your web presence through a domain name.

We ensure trademark protection in Switzerland and abroad by registering your trademarks nationally, regionally and internationally.

Finally, we secure core domain names for your company name and for product/service brands that will resonate with customers and your overall branding strategy.

Are you in the phase of creating a start-up? Are you interested?
Take the first step on your entrepneurial journey with PwC and contact Natscha Tsalas for more information.

 

Natascha Tsalas, IP Legal Services Geneva
+41 58 792 98 32 / natascha.tsalas@ch.pwc.com

PwC’s guide to making your controls landscape more effective and efficient front to back

Within the financial services industry, one of the conventional wisdoms since the global financial crisis goes like this: Regulators imposed new regulations that forced financial institutions to introduce policies, controls and other risk-management-related activities to minimise risk and be compliant. Having lived through a few of these major exercises ourselves, we know first-hand how dominant this topic has been in the past. Financial institutions instantly responded to every new regulatory requirement or major industry incident by layering on yet more controls, policies, governance and other rules – without considering the impact across the business or what was already in place.

Internal controls became the critical component of risk and regulatory projects and a major investment in themselves. Budgets were allocated generously and transferred from strategy- and business-related projects.

These days, the same institutions are going through tough cost-cutting exercises touching all aspects of the bank and its business, with risk and compliance no longer exempt. Improving the efficiency and effectiveness of controls without increasing the risk profile is now one of the greatest challenges and opportunities a financial institution has to face. The key to success is to respond to escalating regulatory demands wisely by optimising the necessary controls while reducing or at least containing costs.

The first hurdle to overcome when addressing this topic is a reticence when it comes to reducing or re-engineering control activities. Despite the high pressure to reduce the cost of controls, the cost of non-compliance is still prohibitively high in many cases. A key success factor to any control streamlining exercise is to demonstrate that you’re able to do so safely and within your risk appetite. We recommend opening the narrow focus of a division or risk taxonomy and concentrating on a broader front-to-back view of controls. The goal is to establish an efficient separation of duties, determine and invest internal control resources in top priority issues, and increase reliance on automated and system-supported controls.

We encourage everyone to dive deep into the topic right now, starting by asking…

Some key questions related to controls:

  • Does your control landscape reflect your current risk appetite?
  • How can the effectiveness and efficiency of controls be measured and made transparent?
  • Have you struck the right balance between preventive, detective and reactive controls?
  • Are there too many control layers?
  • Are controls performed by the right resources, functions and locations?
  • What controls-related activities can be automated or outsourced?

The drivers for a control review vary, but typically include improving client experience by shortening lead and lag times, and streamlining the effort that goes into controls-related activities in all parts of the organisation while remaining within risk appetite. The key is to determine the right balance between the cost of controls and the cost of being non-compliant − or in other words the cost of execution, monitoring and testing, and the frequency of events and their financial impact. The following four-step approach will give you some guidance once you’re ready to start improving your controls efficiency and effectiveness:

Objectively analyse and score the current state

The first step is to identify the controls that are currently in place and understand how they map to the underlying front-to-back process selected for review. This is not always easy, as many institutions organise their controls by other dimensions such as risk taxonomy or regulatory requirement. The controls identified are then assessed and scored based on their importance, efficiency and effectiveness. On the basis of this analysis you can identify the opportunities for improvement and state the case for change.

Design the future state and work out opportunities for improvement

One key aspect has to be considered before starting with the design: As soon as the various opportunities have been identified, the respective stakeholders should be involved to recognise the opportunities as such. Only once you have a common understanding of the opportunities does it make sense to start designing the future state and analysing the cost/benefit relation by including the current baseline and the expected benefits case. As a result, every opportunity gets its own ‘mini initiative business case’, to be considered when follow up decisions are made the opportunities are finally prioritised.

Define the necessary measures and activities

When preparing descriptions of the initiatives, you need to clearly define ownership and responsibilities right at the beginning. As every control streamlining initiative is a little project in itself, the underlying goals and KPIs for measuring the initiative’s success have to be confirmed by its owner. After this step, the activities and the corresponding timeline, as well as any change-management-related activities and communication, can be planned, and the immediate next steps initiated.

Implement the changes

Implementation should follow a roadmap that considers the prioritisation of activities and divides delivery into the short and medium term. Typically, a tight timeline will be chosen to ensure that any improvements in control efficiency and effectiveness are rapidly visible. Obviously you have to differentiate between mandatory changes or quick wins and more complex, long term improvements that contain technical adjustments or the automation of manual procedures.

Last but not least, there must be enough time to lead the people involved through the improvement- related transformation phase and ensure that they start acting according to the new standards and procedures.

In this kind of exercise it’s important to make sure that interests are aligned across divisions, the people affected are involved early on, and that everything is communicated properly. This way you’ll be able to generate demand, be in a position to replicate the approach, and establish a systematic and continuous process of improving controls efficiency and effectiveness.

Contact

Dr. Milena Danielsen
Advisory Director
+41 58 792 44 47
milena.danielsen@ch.pwc.com

Alexandra Burns
Assurance Director
+41 58 792 46 28

IFRS News July 2017

Our latest IFRS News contains some information about
IFRIC 23, the leases lab, demistifying IFRS 9 for corporates, IFRIC rejections and more.

IFRIC 23 – Putting some certainty into uncertain tax positions.

Ernesto Mendez highlights the key elements of IFRIC 23, the new Interpretation on uncertain tax treatments.

IFRS News IFRS News – July 2017

The Leases Lab

IFRS 16 brings significant changes to accounting for lessees, but what about lessors? Can Professor Lee Singh help you solve the disclosure Problem? Let’s experiment!

IFRS News – July 2017

Scene 4, Take 1: Demistifying IFRS 9 for corporates: Factoring and business model

Holger Meurer, Financial Instruments expert, explains how Factoring can affect the measurement of receivables.

IFRS News – July 2017

IFRIC Rejections Supplement – IAS 37

Looking for an answer? Maybe it was already addressed by the experts. Joanna Demetriou investigates.

IFRS News – July 2017

The IFRS 15 Mole

PwC revenue specialist Ruth Preedy investigates how to account for licenses under IFRS 15 with the help of the Mole.

Suspects: A licence Arrangement establishes a customer’s rights to an entity’s intellectual property (IP) and the entity’s obligations to provide those rights. Common licenses include patents, software, motion picture and trademarks.
Incident description: Management should assess whether the contract includes a license that is distinct and therefore treated as a separate performance obligation.

IFRS News – July 2017

Cannon Street Press

  • Definition of a business
  • IAS 8 –  Accounting policy changes resulting from IC agenda decisions
  • Rate regulated

IFRS News – July 2017

Read the latest issue on IFRS News from June 2017

Read more

In brief – A look at current
financial reporting issues

  • SEC announces policy changes designed
    to facilitate capital formation:

    PwC In brief US2017-20
    Read more
  • GASB issues new lease accounting rules:
    PwC In brief US2017-19
    Read more
  • FASB proposal would amend related party consolidation guidance for VIEs:
    PwC In brief US2017-18
    Read more

 

EU Benchmarks Regulation and Market Impact as of 1 January 2018

The new EU Benchmarks Regulation (BMR) was published in June 2016 and most rules will apply as of 1 January 2018. The BMR introduces new compliance requirements for benchmark administrators, contributors, and users, with regard to interest rate, foreign exchange, security, commodity, and other benchmarks used in financial transactions. The BMR was enacted in response to public pressure resulting from the aftermath of the LIBOR scandals and follows the recommendations of the IOSCO and ESMA EBA Principles.

Executive summary

Functioning benchmarks are key to ensuring the smooth functioning of financial markets. However, they lead to conflicts of interest and other integrity issues on the part of contributors of input data and administrators. The scope of the BMR covers all published benchmarks which are used in the European Union with regard to associating financial instruments, financial contracts and/or fund managers. The BMR defines obligations and conduct requirements for both administrators and contributors to ensure market integrity. The Regulation has an extraterritorial dimension in cases where third country administrators request market access. Market access can be granted on the basis of equivalence, recognition, and endorsement by an EU supervised entity. All the legal requirements of the BMR will phase-in on 1 January 2018 and take effect on 1 January 2020 – except for the EURIBOR, which is subject to the BMR today.

What is a benchmark?

A benchmark is defined as “a reference index, to which the amount payable under a financial instrument or a financial contract, or the value of a financial instrument, is determined, or an index that is used to measure the performance of an investment fund with the purpose of tracking the return of such index or of defining the asset allocation of a portfolio or of computing the performance fees” (Article 3(1)(3) BMR).  Such an index is a figure, fulfilling one of the following criteria:

  1. Published or made publicly available;
  2. Determined at a regular interval by either:
    • partially or entirely applying a formula or any other method of calculation, or another means to assess it by; and
    • on the basis of the value of one or more underlying assets or prices, including estimates of prices, actual or estimated interest rates, quotes and committed quotes, or other values or surveys.

Derivatives as defined in Section C, Annex I, Directive 2014/65/EU do not qualify as an index where there is only a single reference value. Such is the case where a single price or value is used as a reference for a financial instrument, e.g. the reference price for a future or option, without any calculation, input data or discretion. Equally, reference or settlement prices produced by central counterparties are not considered to be benchmarks.

Who will be affected?

While the IOSCO Principles are the basis of the BMR, the Principles included the concept of “comply or explain”; this exemption with respect to proportionality and the nature of the benchmark is only included to a limited extent in the BMR. In order to comply with the new Regulation, administrators of a benchmark will either have to apply for registration or for authorisation, depending on the type of benchmark they provide. The provision of critical and significant benchmarks, as well as commodity and interest rate benchmarks, requires an application, while in all other cases registration with the designated authority will suffice.

  • Administrators: An administrator can be either a natural person or a legal entity with control over the provision of a benchmark, in particular by administering the arrangements determining the benchmark, by collecting and analysing the input data, as well as by determining the rate of the benchmark, and by publishing it. While specific functions of the administrator can be outsourced to a third party, the sole act of publishing or referring to an existing benchmark is insufficient for an individual or an entity to be considered as the benchmark administrator. Control of provision of the benchmark is a necessary regulatory requirement for the provider to become subject to the BMR.
  • (Supervised) Contributors: The two types of contributors are differentiated in that any natural person or legal entity can contribute input data as a “contributor”, but only a “supervised contributor” can contribute input data to an administrator located in the EU as a supervised entity and the contributor has to comply with more stringent requirements, in accordance with Article 16 BMR. The quality and reliability of any benchmark is based on the integrity and accuracy of the input data, which is provided by the contributor. To prevent manipulation at data contribution level, contributors are subject to stringent rules under the BMR. The administrator has to ensure contributors adhere to the code of conduct and that input data is of the required integrity and can be validated, even if the contributor is located in a third country. Any omission by a contributor providing input data to a critical benchmark can undermine the credibility and representativeness of such a benchmark, with severe impact on the underlying market and economic reality. As such, national authorities are given the power to demand mandatory contributions from supervised contributors to critical benchmarks.
  • User of a benchmark: A supervised entity may use a benchmark or a combination of benchmarks in the EU if the benchmark is provided by an administrator located in the Union and included in the register or is a benchmark which is included in the register. Where the object of a prospectus is transferable securities or other investment products that reference a benchmark, the issuer, offeror, or person asking for admission to trade on a regulated market shall ensure that the prospectus also includes clear and prominent information stating whether the benchmark is provided by an administrator included in the register.

Which benchmarks will be affected?

The BMR subdivides the benchmarks into various subcategories, based on the type of market they reproduce. The Regulation contains specific additional requirements for both commodity and interest rate benchmarks. The following provides an overview of the various subcategories of benchmarks:

Type of Benchmark Description
Regulated Data Benchmark Data input for the benchmark is provided directly from regulated venues. Certain provisions of the BMR do not apply to regulated data benchmarks, and they cannot be classified as critical.
Interest Rate Benchmark An IR Benchmark is determined on the basis of the rate at which banks may lend or borrow from other banks or agents in the money markets. They are subject to the requirements set out in Annex I BMR. Provisions of the BMR relating to significant and non-significant benchmarks do not apply.
Commodities Benchmark The basis for the benchmark is a commodity as defined by MiFID II. Commodity Benchmarks are subject to the requirements of Annex II BMR, unless the benchmark also qualifies a regulated data benchmark, or is based on submissions from mainly supervised entities. Provisions of the BMR relating to significant and non-significant benchmarks do not apply.
Critical Benchmark To qualify as a critical benchmark, the value of the underlying contracts needs to be at least EUR 500 bn, or it has to have been recognised as critical in a member state. Critical benchmarks are subject to more stringent and specific requirements than other types of benchmarks.

A framework has been developed by ESMA to determine Interbank Offered Rates benchmarks (IBORs) and the Euro Over Night Index Average (EONIA) as critical benchmarks. To date, only EURIBOR has been qualified as such by the EC.

Significant Benchmark Requires the value of underlying contracts to be at least EUR 50 bn, or there to be none or very few market-led substitutes, leading to significant impact on financial stability, if the benchmark ceases to be produced.
Non-Significant Benchmark All other benchmarks where the benchmark is neither a commodity nor an interest rate benchmark and the value of underlying contracts of the benchmark is less than EUR 50 bn.

How will a Switzerland-based benchmark provider be affected?

Non-EU administrators are subject to BMR rules where they intend to obtain EU market access; non-compliance will likely lead to these non-EU benchmarks being denied EU market access. There are three ways for third country administrators to become compliant: equivalence, recognition, and endorsement. Firstly, an equivalence decision with regard to foreign jurisdictions can be made by the European Commission if the requirements of Article 30(1) BMR are met and this results in benchmarks from relevant third country jurisdictions being eligible for use by supervised entities in the EU. Secondly, where an administrator located in a third country provides proof of compliance with the IOSCO Principles and said compliance is equivalent to the BMR, the administrator should be recognised as an administrator within the EU. An administrator located in a third country, such as Switzerland, must have a legal representative in the reference member state, if the entity intends to obtain recognition. The legal representative must oversee the provision of benchmarks as performed by the administrator and is accountable to the competent EU member state authority. Finally, market access as a third country administrator can be gained through an endorsement by an administrator of a supervised entity located in the EU. Endorsement will permit market access where the third country administrator adheres to the IOSCO Principles and such adherence results in equivalent compliance with the BMR.

Obligations for administrators and contributors

The BMR directly imposes a variety of obligations on persons involved in the provision, contribution, and use of benchmarks throughout the EU to prevent conflicts of interest and manipulation of benchmarks as well as to ensure maximum harmonisation in cross-border applications. If tasks are outsourced to an external service provider the provider also has to adhere to the BMR. In particular, the administrator is required to provide a code of conduct specifying the requirements and responsibilities regarding input data and to supervise adherence to the code, even if the contributor is located in a third country.

The obligations include the following provisions for administrators:

  • Robust governance arrangements, including a clearly organisational structure with well-defined, transparent and consistent roles and responsibilities for all involved, preventing conflicts of interest (Article 4 BMR).
  • Develop and maintain robust procedures to ensure oversight of all aspects of the provision of a benchmark and communication with the relevant competent authorities (Article 5 BMR).
  • Ongoing control of benchmarks to ensure they are provided, published and/or made available in accordance with the Regulation, and maintained through an accountability framework, record-keeping, auditing, and review and complaints handling process (Article 6 to Article 9 BMR). These frameworks must include any third party to which a task has been outsourced (Article 10 BMR).
  • The administrator is also responsible for overseeing the quality of input data and reporting any infringements without delay to the competent authority (Article 11 to Article 15 BMR).

The obligations include the following provisions for contributors:

  • The contributor must adhere to the code of conduct provided by the administrator and the specific requirements prescribed with respect to the contribution of input data (Article 15 BMR).
  • Supervised contributors must also ensure input data is not affected by any existing or potential conflicts of interest and that all discretion is exercised in an independent and honest way (Article 16 BMR).

Typical products in scope

Entry into force

The BMR will enter into force on 1 January 2018. There is a transition period for certain new and existing benchmarks until 1 January 2020. In accordance with the transitional provisions of Article 51(3) BMR, ESMA considers existing benchmarks as including benchmarks “existing on or before 1 January 2018”, including those provided for the first time on or before 1 January 2018. Thus, an EU index provider may provide a benchmark created between 30 June 2016 and 1 January 2018, including updates and modifications, to supervised entities in the EU until 1 January 2020, even if authorisation or registration has not yet been granted, unless authorisation or registration has been refused.

The BMR has applied to the EURIBOR since 12 August 2016, following qualification as a critical benchmark.

Impact

The BMR is a highly complex regulation with implications for all market participants. It requires considerable time to plan, structure, and implement the requirements set forth in accordance with the IOSCO Principles and EU regulations. The requirements have a direct impact on the usage of benchmarks, provision of input data, and cross-border market access.

Please contact our experts on this topic for a free consultation:

Martin Liebi
Director
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

Alexandra Balmer
Consultant
Legal FS Regulatory & Compliance Services
Tel: +41 58 792 1424
alexandra.balmer@ch.pwc.com

PwC @ Salesforce Essential Zurich | 4 July 2017

“Forge new paths and inspire clients”

     

On 4 July 2017, the Salesforce Essential event, which featured the keynote speech “Forge new paths and inspire clients”, took place in Zurich. It was a whole day of speeches, discussions and breakout sessions around the keynote speech, and offered interesting insights into the digital world of Salesforce. In the Samsung Hall foyer, a Salesforce partner exhibition took place alongside the event and our PwC stand invited those interested to learn more about our capabilities and discuss hot Salesforce trends. In one of the breakout sessions, we had the opportunity to present our E2E implementation approach at Bank Vontobel.

Our “How to eat the big white elephant” breakout session gave insights into our large Salesforce transformation project at Bank Vontobel. The key factor for success was defined as slicing the project – the big white elephant – into the right pieces, supported by the right approach. Oliver Ripplinger and our client Mark Berger presented the solutions provided for a complex CRM implementation within the highly regulated banking sector. To come back to the elephant, our team used a proven agile approach paired with our own framework.

The agile approach that we presented included PwC’s BXT framework, standing for Business, Experience and Technology. Within the Business dimension, the bank’s CRM future strategy is broken down into requirements. The Experience element allows us to assess requirements in terms of customers’ and employees’ expectations and to create prototypes for quick, visible results. The technological dimension covers integration into the existing ecosystem and ensures the realization of new user experiences.

If you have not had the chance to meet us at Salesforce Essentials, then please contact us directly. We would be happy to share our Salesforce insights and expertise with you personally.

Team

Alexander Schultz-Wirth
Partner Financial Services – Business Technology

Oliver Ripplinger
Manager Digital Strategy – Business Technology

Stefan Dobritzsch
Senior Consultant Digital Strategy – Business Technology

The New EU Prospectus Regulation and its impact on Swiss-based issuers and their KIDs under PRIIPs

The new EU Prospectus Regulation (“PR”) was adopted by the European Council on 16 May 2017 and will enter into force on 20 July 2017. The PR is the latest regulation issued by the European Capital Markets Union (“CMU”) and should become reality by 2019. The PR is based on and further clarifies the existing EU Prospectus Directive. It contains provisions that are directly applicable in all EU member states without discretion, but that also apply in particular to Swiss-based issuers and their agents offering securities in the EU or admitting transferable securities to trading on regulated markets located in the EU such as EUREX. One of the main goals of the PR is to reduce the length of prospectuses by providing clear and detailed guidelines of how to create a prospectus. This newsletter gives a short overview of the key content of the PR and explains in particular how it will be applicable to Swiss-based issuers and their agents.

1. Executive Summary

The PR particularly affects Swiss-based issuers and their agents publicly offering transferable securities in the EU and admitting transferable securities to EU regulated markets such as EUREX.

Most financial instruments, such as shares, bonds, warrants and structured products come under its scope, except for units in collective investment schemes which are not close-ended. There are detailed new requirements related to the content, scope, length, formalities and other requirements of a prospectus.

The summary of a prospectus can be used instead of a KID created under PRIIPs. Issuers should therefore investigate operational and legal synergies between the PR and the KID. Consequently, the PR should be addressed now despite the fact that most provisions will not enter into force until 21 July 2019.

2. When a prospectus is required

A prospectus must be published when transferable securities are offered to the public in the EU or admitted to trading on regulated markets located in the EU by means of a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe to the securities in question.

The prospectus obligation applies to both equity and non-equity securities entitling the holder either to acquire transferable securities or to receive a cash amount through a cash settlement determined by reference to other instruments, notably transferable securities, currencies, interest rates or yields, commodities or other indices or measures. It covers in particular warrants, covered warrants, certificates, structured products, and securities convertible at the option of the investor, but not units in collective investment schemes other than the closed-end types.

No public offer of transferable securities is deemed an offer to qualified investors in the sense of MiFID II (safe harbour). Any resale to the public of transferable securities first placed with qualified investors or admitted to trading on a regulated market will however require the publication of a prospectus. Offers to fewer than 150 natural or legal persons per EU Member State are not deemed to be public, nor are offers of securities with denominations per unit amounting to at least EUR 100,000 or offers of securities addressed to investors who acquire securities for a total consideration of at least EUR 100,000 per investor. There are also multiple exemptions applicable to securities traded on a regulated market.

Resales of transferable securities in the scope of the PR are generally treated as separate offers and are subject to a prospectus, unless an exemption applies. No additional prospectus is required as long as a valid prospectus is available. A prospectus is valid for 12 months from the date of approval of the offer or the admission to trading and the date on which the issuer or the person responsible for drawing up the prospectus consents to its use in written form.

It is possible to voluntarily draw up a prospectus in accordance with the provisions of the PR even if the offer would be outside the scope of application of the PR. Such prospectuses are subject to all the rights and obligations of a prospectus created according to the PR.

3. The issuer of a prospectus

The issuer who issues or proposes to issue securities, the offeror who offers securities to the public, or a mandated third party such as a bank, is responsible for ensuring that the prospectus provides sufficient information to enable investors to make informed investment decisions.

The liability for the information given in the prospectus, and any supplement thereto, lies at the very least with the issuer, or its administrative, management or supervisory bodies, the offeror, the person asking for the admission to trading on a regulated market, or the guarantor. The persons responsible for the prospectus must be clearly identified in the prospectus. Civil liability remains with the individual EU member states.

4. When do Swiss-based issuers have to issue a prospectus?

Any non-EU domiciled issuer, such as a Swiss issuer, bank or intermediary, can offer transferable securities in the EU or seek admission to trading of securities on a regulated market established in the EU, such as EUREX, if a prospectus is drawn up and approved by the competent authorities according to the PR. It is to be expected that the corresponding Swiss prospectus requirements will be equivalent to the prospectus requirements under the PR. The Swiss requirements are currently undergoing a revision in the context of the debate on the Swiss Financial Services Act (FinSA) in the Swiss parliament. As a result, competent authorities may in future even approve prospectuses issued under Swiss law if certain additional requirements are met.

5. The Key Types of Prospectuses

6. The prospectus approval process

Any prospectus and all its constituent parts must be approved by the competent authority prior to publication. Any of the constituent parts can be approved separately. The competent authority is generally the EU member state where the issuer has its registered office or, in the case of a third-country issuer such as a Swiss bank, the member state where the securities are intended to be offered to the public for the first time or where the first application for admission to trading on a regulated market is made.

The prospectus has to be made available to the public by the issuer, offeror or person asking for admission to trading on a regulated market in advance of, and at the latest at the beginning of the offer to the public or the admission to trading of the securities concerned. The prospectus is regarded as public if it is published in electronic format or on certain web pages.

The approving authority will then notify the competent authorities of the EU member states in which the securities will be distributed.

7. The rules for advertisements

Any advertisement regarding either an offer of securities to the public or an admission to trading on a regulated market must be clearly recognisable as such. All information disclosed in the context of an advertisement must be consistent with the information contained in the prospectus.

8. When are updates required?

Every significant new factor, material mistake or material inaccuracy relating to information included in the prospectus which may affect the assessment of securities and which arises between the time of the approval of the prospectus and the closing of the offer period or when trading on the regulated market begins, must be mentioned in a supplement to the prospectus and must be approved by the competent authority. In such cases, investors who have already agreed to purchase or subscribe to the securities have two days in which to withdraw their acceptance.

9. When will the PR enter into force?

The PR will enter into force on 20 July 2017. There will be a transitional period until 21 July 2019 for most requirements under the PR. Certain provisions will already apply as of 21 July 2018 and 20 July 2017 respectively, such as the exemption from publishing a prospectus for shares which represent less than 20% of the number of shares of the same class admitted to trading on the same regulated market over a period of 12 months.

Please contact us for your free consultation:

Martin Liebi
Director
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

Michael Taschner
Senior Manager
Legal FS Regulatory & Compliance Services
+41 58 792 23 25
michael.taschner@ch.pwc.com

Anne Batliner
Manager
Legal FS Regulatory & Compliance Service
+41 58 792 2955
anne.batliner@ch.pwc.com

Successful Transactions with PwC

14/07/2017

PwC Corporate Finance advises Giroflex on the sale of the Group and its subsidiaries to Flokk A.S., a portfolio company of Triton

Zurich | A team of PwC Switzerland led by Sascha Beer, Partner Corporate Finance/ M&A, acted as lead advisor to Giroflex Holding AG, a manufacturer of award-winning office chairs generating c. EUR 42 million of revenues with c. 200 employees in Switzerland, Belgium, Germany, France and the Netherlands.

Flokk is one of the leading office chair manufacturers in Europe with sales of c. EUR 140 million and 550 employees. Acquired by Triton, a private equity fund, in 2014, the company has since then made several add-on acquisitions.

According to Flokk’s managing director, Lars Roiri, the acquisition allows Flokk to expand outside of Scandinavia with Giroflex complementing Flokk’s existing activities and geographic footprint. The acquisition is part of Flokk’s goal to double its turnover within three to five years via both organic growth and further acquisitions.

The team

Sascha Beer
Partner, Corporate Finance/ M&A

Marc C. Buser
Senior Manager, Corporate Finance/ M&A

Lasse Stünitz
Senior Consultant, Corporate Finance/ M&A

Nikola Gozze
Consultant, Corporate Finance/ M&A

“Royalty Restrictions“ in Germany

11 July 2017

Germany has recently introduced new rules that will restrict the tax deductibility of related-party cross-border royalty payments if these payments are benefiting from a low taxation triggered by a harmful preferential tax regime in the country of the recipient.

Based on these new rules, such royalty expenses incurred after 31 December 2017 will no longer be fully deductible in Germany if the relevant income is subject to an effective tax rate of less than 25%:

In detail

For example, if the royalty income is subject to a preferential 10% effective tax rate, 60% of the royalty payments would not be deductible at the German taxpayer level.

However, if a recipient of cross-border royalty payments is subject to the regular tax rate (i.e. no preferential tax regime applies), the royalty restriction rule is not applicable, even if the effective tax rate is less than 25%.

Furthermore, patent box regimes which comply with the OECD “nexus” approach (i.e. under foreign law the preferential tax rate is only granted following an OECD-compliant “nexus” approach) are exempt from the new rule. A patent box of this kind is likely to be introduced in Switzerland in the context of tax package 17 (former corporate tax reform III).

It should however be noted that tax package 17 and therefore an
OECD-compliant Swiss patent box will probably not be introduced before 2020. Consequently, German royalty payments incurred between 1 January 2018 and the introduction of such a patent box in Switzerland could be subject to the new German royalty restriction rule if such royalties benefit from a Swiss preferential tax regime. The following regimes in Switzerland should be investigated in particular to establish whether or not they qualify as harmful preferential tax regimes:

  • Nidwalden IP Box
  • Mixed companies
  • Holding companies
  • Principal companies

An investigation into the impact of the new German limitation rules is recommended in order to determine their impact and to decide whether restructuring should be conducted before 1 January 2018.

In summary, there is still some uncertainty about how the new rules will be interpreted and applied. However, for now it can be assumed that all Swiss preferential regimes may potentially cause issues under the German royalty restriction rule.

There are, however, certain planning ideas which can help mitigate and/or reduce such issues. These solutions may depend on the very specific circumstances of your group and we advise you to have them analysed by your PwC tax consultant on a case-by-case basis.

For a more detailed discussion of how this might affect your business, please contact:

Armin Marti
Partner, Leader Corporate Tax
Tel. +41 58 792 43 43
armin.marti@ch.pwc.com

Stefan Schmid
Partner, Tax & Legal
+41 58 792 44 82
stefan.schmid@ch.pwc.com

Roman Brunner
Partner, Tax & Legal
+41 58 792 72 66
roman.brunner@ch.pwc.com

Urs Brügger
Partner, Tax & Legal
+41 58 792 45 10
urs.bruegger@ch.pwc.com

Reto Inauen
Senior Manager, Tax & Legal
+41 58 792 42 16
reto.inauen@ch.pwc.com