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A N N U a L R E P O R T 2 0 0 8 Annual Repor T 2008 2008 ANNUAL REPORT ANNUAL REPORT ANNUAL REPORT 2008 110, route d’Arlon L-2991 LUXEMBOURG CSSF ANNUAL REPORT 2008 Commission de Surveillance du Secteur Financier 110, route d’Arlon L-2991 LUXEMBOURG Tel.: (+352) 26 251-1 Fax: (+352) 26 251-601 E-mail: [email protected] Website: http://www.cssf.lu Cut-off date: 1 March 2009. The reproduction of the annual report is authorised, provided the source is acknowledged. Design: metaph Printed by: Imprimerie Centrale PREFACE We live in times where everything moves at high speed and changes can be unpredictable and sudden. Whereas the 2007 results for the financial sector were entirely satisfying, the situation deteriorated considerably in 2008 following the turmoil in the financial markets. In the preface to the Annual Report of 2006, I advised that one should not “indulge in naive over-confidence”, given the exceptional results in the Luxembourg financial sector. Two years later, the crisis has rattled our financial sector which, given its international dimension, certainly suffered from the setbacks of other financial markets, but it was not shaken in its foundations. We therefore need to equip ourselves with patience and give ourselves the tools to prepare for the aftermath of the crisis. In 2008, several banks in the financial centre were suddenly confronted with problems due to inappropriate decisions which had been taken by their parent company or provoked by the total collapse of the economy in their home country. As for investment funds, they suffered from the catastrophic situation reigning in the markets generally and several funds were victims, in particular, of a financial swindle of enormous dimensions originating from the United States. The profound change in the world of finance suddenly crystallised the need to spell out in more detail the legal provisions required to ensure an optimal protection of the investor, even though the regulation will become more rigid and will loose the advantage of flexibility which, in the past, has been highly valued by financial professionals. Generally speaking, a new consciousness of risk is now required. The basic principle, that perspectives of high earnings are intimately linked to high risk, has to be re-absorbed by all players and a shrewd understanding by bankers of risk is indispensable. It is also desirable that clients be better informed about the functioning of the financial sector so as to be able to improve their own judgment of whether certain financial products are really appropriate to their personal needs. While remaining prudently optimistic about the future situation in Luxembourg, one should nevertheless not close one’s eyes to what is going on in the world. The Luxembourg financial centre is in essence international and decisions on prudential supervision are intimately linked to decisions taken abroad. In conclusion, I would like to stress that I believe in the future of the centre provided professionals do not repeat their errors from the past, often due to negligence in carrying out the necessary research, but rather continue to demonstrate the same capacity for innovation which they have been so successful at to date. On a personal note, I observe that this is the last Annual Report of the CSSF which I have the honour to preface. I would therefore like to seize the opportunity to thank all the colleagues and members of staff I have encountered during my 40-year professional life and who contributed in making the Luxembourg financial centre one of the most important financial centres in the world. Jean-Nicolas SCHAUS Director General 5 TABLE OF CONTENTS Corporate governing bodies of the Commission de Surveillance du Secteur Financier 8 I SUPERVISION OF THE BANKING SECTOR 9 1. Developments in the banking sector in 2008 2. Prudential supervisory practice II Supervision OF UNDertakings FOR COLLECTIVE INVESTMENT 47 1. Developments in the UCI sector in 2008 2. Developments of UCI entities in 2008 3. Specialised investment funds (SIFs) 4. UCIs investing principally in real estate assets 5. Performance analysis of the major Luxembourg UCI categories in 2008 6. Management companies and self-managed investment companies 7. Developments in the regulatory framework 8. Prudential supervisory practice III Supervision OF PENSION FUNDS 97 1. Developments in the pension funds sector in 2008 2. International co-operation IV PRUDENTIAL supervision OF SICARS 101 1. Developments in the SICAR sector in 2008 2. Regulatory framework 3. Prudential practice V SUPERVISION OF SECURITISATION UNDERTAKINGS 109 1. Developments in the sector of authorised securitisation undertakings 2. Prudential supervisory practice VI Supervision OF THE OTHER PROFESSIONALS OF THE FINANCIAL SECTOR 113 1. Developments in 2008 of the other professionals of the financial sector (PFS) 2. Prudential supervisory practice 3. Support PFS VII SUPERVISION OF SECURITIES MARKETS 135 1. Reporting of transactions in financial instruments 2. Supervisory practice 3. Developments in the regulatory framework 6 TABLE OF CONTENTS VIII SUPERVISION OF INFORMATION SYSTEMS 155 1. Activities in 2008 2. Supervisory practice IX Means OF SANCTION avaiLABLE TO THE CSSF 159 1. Means of intervention available to the CSSF 2. Sanctions imposed in 2008 X GENERAL Secretariat 163 1. Activities in 2008 2. Customer complaints 3. Fight against money laundering and terrorist financing XI GENERAL Supervision AND CSSF INVOLVEMENT IN internationaL GROUPS 175 1. General Supervision 2. Co-operation within European institutions 3. Multilateral co-operation XII BANKING AND FINANCIAL LEGISLation AND REGULations 209 1. Directives under discussion at Council level 2. Directives adopted by the Council and the European Parliament but not yet implemented under national law 3. Laws passed in 2008 XIII INTERNAL organisation OF THE CSSF 217 1. Functioning of the CSSF 2. Human resources 3. IT systems 4. Staff members 5. Internal committees APPENDICES 229 1. The CSSF in figures 2. The financial centre in figures 3. Contact telephone numbers 7 Corporate GOVernING boDIes Corporate governing boDies of the COMMISSION DE SurveiLLANCE DU SECTEUR FINANCIER BOARD OF DIRECTORS Chairman Jean GUILL Treasury director, Ministry of Finance Vice-chairman Gaston REINESCH General administrator, Ministry of Finance Members Rafik FISCHER Member of the Board of Directors of the Association Luxembourgeoise des Fonds d’Investissement Jean FUCHS Chairman of the Association Luxembourgeoise des Professionnels du Patrimoine Jean MEYER Chairman of the Association des Banques et Banquiers, Luxembourg Etienne REUTER Premier Conseiller de Gouvernement, Ministry of Finance Claude WIRION Member of the Executive Committee of the Commissariat aux Assurances Secretary Danielle MANDER EXECUTIVE BOARD Director General Jean-Nicolas SCHAUS Directors Arthur PHILIPPE, Simone Delcourt 8 I CHAPTER SUPERVISION OF THE BANKING SECTOR 1. Developments in the banking sector in 2008 2. Prudential supervisory practice SUPERVISION OF THE banKING sector 1. DeVELOPMENTS IN THE banKING sector IN 2008 1.1. Major events in 2008 1.1.1. A difficult year The year 2008 will be remembered as annus horribilis in the financial sector. The collapse of Lehman Brothers on 15 September 2008 marks the end of the “ancient world” in international finance, whereas the outline of the “new world”, which will rise from the ashes of the “ancient world”, only appears slowly. The completely unforeseeable and unexpected change of paradigm which followed the bankruptcy of Lehman Brothers swept deep-rooted certainties and entrenched ideas away. The sudden disappearance of the interbank market and the drops in the financial assets weakened many European banks. Almost all European states, or at least the ones which had the means, had to greatly support their banking systems. In Luxembourg, the subsidiaries of the three Icelandic banks Kaupthing, Landsbanki and Glitnir were placed under the regime of suspension of payments following the failure of the parent companies. The Luxembourg government had to participate in the stabilisation action for Dexia and Fortis groups, due to their systemic importance for the financial system. 1.1.2. Suspension of payments of Icelandic banks Considering the crisis in the financial markets, the Icelandic parliament adopted a special law on 6 October 2008 conferring to the Icelandic supervisory authority special powers over the banks with difficulties, including among others the power to exercise the prerogatives of the general meeting of shareholders, to suspend the board of directors and to appoint a liquidation committee. These powers were exercised on 7 October 2008 for Landsbanki Islands hf and Glitnir bank hf, and on 9 October 2008 for Kaupthing bank hf, thus placing these banks under the regime of suspension of payments. Given that the liquidity reserves of the Luxembourg subsidiaries were kept at the respective parent companies, the failure of the latter generated the immediate shortage of liquidity of the Luxembourg subsidiaries as well as the suspension of payments. • Landsbanki Luxembourg S.A. On 8 October 2008 Landsbanki Luxembourg S.A. applied for the suspension of payments following the freezing of liquid assets due to the failure of the parent company. The public limited company Deloitte S.A., represented by Mr Franz Prost, was appointed administrator with the main mission of setting up a recovery plan. In his report of 25 November 2008, quoted in the judgment ordering the judicial winding-up, the administrator concluded that due to the parent company’s reluctance to fulfil its commitment to convert the debt into capital and to the refusal of BCL to subordinate its claims, together with an increase in debt towards BCL due to the decrease in value and the technique of realisation of the pledge used by BCL, a recovery of the bank seems unconceivable and the current assets will not, in his opinion, satisfy the clients. Following this report, the State Prosecutor applied for an order for the dissolution and the winding-up of Landsbanki Luxembourg S.A., judgment which was declared on 12 December 2008. Me Yvette Hamilius, attorney-at-law, and Mr Franz Prost, accountant, external auditor and partner at Deloitte S.A., have been appointed liquidators.
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