Traditional and Digital Limits of Collective Investment Schemes

IF 1.3 Q1 LAW

European Company and Financial Law Review Pub Date : 2024-09-18 DOI:10.1515/ecfr-2024-0007

Julia Sinnig, Dirk A Zetzsche

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Abstract

157 This article discusses the regulatory definition of collective investment undertakings (CIUs) as provided for by Article 4 (1) (a) AIFMD and Article 1 (1) UCITSD in the context of traditional family offices, holding companies, and joint ventures, and distinguishes them from more recently observed digital asset pools such as digitally managed accounts, crypto lending, crypto staking, and decentralized autonomous organizations.Testing the legal definition of CIUs in the context of traditional and digital pooled investments allows not only for the delineation of the scope of AIFMD (and to a lesser extent, UCITSD), but also provides insights on the desirable content of Level 2 regulation under MiCA. While ESMA guidance based on many years of supervisory experience sets the limits on traditional use cases, the digital boundaries of collective investment schemes are largely untested and to some extent uncertain, resulting in high costs for legal advice, as demonstrated by our brief look into MiCA set out in this article. To address these matters, we argue in favor of broad default rules on pooled finance, paired with exemptive powers from individual or all rules where a disparity exists between the purpose of regulation and the regulated activities. If paired with carve-outs for applications below EUR 5 million (where retail investors are present) and EUR 100 million (sophisticated clients only), these default rules would assist supervisory authorities in setting adequate boundaries for investment fund regulation of innovative financial products. After the introduction (Pt. I), Pt. II outlines the legal definition(s) of CIUs; Pt. III discusses the regulatory limits in the context of traditional use cases; Pt. IV analyzes the limits for digitally managed accounts, decentralized autonomous organizations (DAOs), and decentralized finance as a whole (referred to collectively as “digital limits”); Pt. V presents our policy considerations; and Pt. VI concludes.

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集体投资计划的传统和数字限制

157 本文讨论了 AIFMD 第 4 (1) (a) 条和 UCITSD 第 1 (1) 条在传统家族办公室、控股公司和合资企业背景下规定的集体投资企业（CIU）的监管定义，并将其与最近出现的数字资产池（如数字管理账户、加密借贷、加密押注和去中心化自治组织）区分开来。在传统和数字集合投资的背景下测试 CIU 的法律定义，不仅可以划定 AIFMD（其次是 UCITSD）的范围，还可以深入了解 MiCA 下二级监管的理想内容。ESMA 的指导意见基于多年的监管经验，设定了传统用例的限制，但集体投资计划的数字边界在很大程度上未经检验，在某种程度上也不确定，导致法律咨询成本高昂，我们在本文中对 MiCA 的简要介绍就证明了这一点。为解决这些问题，我们主张对集合融资制定广泛的默认规则，并在监管目的与受监管活动之间存在差异时，对个别或所有规则给予豁免权。如果对低于 500 万欧元（散户投资者）和 1 亿欧元（仅限于成熟客户）的申请配以例外规定，这些默认规则将有助于监管机构为创新金融产品的投资基金监管设定适当的界限。在引言（第 I 部分）之后，第 II 部分概述了 CIU 的法律定义；第 III 部分讨论了传统用例背景下的监管限制；第 IV 部分分析了数字管理账户、去中心化自治组织（DAO）和整个去中心化金融的限制（统称为 "数字限制"）；第 V 部分介绍了我们的政策考虑；第 VI 部分得出结论。第六部分为结论。

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来源期刊

European Company and Financial Law Review LAW-

CiteScore

1.00

自引率

16.70%

发文量

期刊介绍： In legislation and in case law, European law has become a steadily more dominant factor in determining national European company laws. The “European Company”, the forthcoming “European Private Company” as well as the Regulation on the Application of International Financial Reporting Standards (“IFRS Regulation”) have accelerated this development even more. The discussion, however, is still mired in individual nations. This is true for the academic field and – even still – for many practitioners. The journal intends to overcome this handicap by sparking a debate across Europe on drafting and application of European company law. It integrates the European company law component previously published as part of the Zeitschrift für Unternehmens- und Gesellschaftsrecht (ZGR), on of the leading German law reviews specialized in the field of company and capital market law. It aims at universities, law makers on both the European and national levels, courts, lawyers, banks and other financial service institutions, in house counsels, accountants and notaries who draft or work with European company law. The journal focuses on all areas of European company law and the financing of companies and business entities. This includes the law of capital markets as well as the law of accounting and auditing and company law related issues of insolvency law. Finally it serves as a platform for the discussion of theoretical questions such as the economic analysis of company law. It consists of articles and case notes on both decisions of the European courts as well as of national courts insofar as they have implications on European company law.