Område: Finansielle tjenester
Red. anm.: Høringsfrist 31. januar 2009
BAKGRUNN (fra Kommisjonens høringsnotat, engelsk utgave)
The financial crisis has exposed a series of vulnerabilities in the global financial system. It has also underscored the powerful interdependencies that exist between financial market actors and has demonstrated how rapidly risks crystallising in one sector can be transmitted around the financial system. In order to draw meaningful lessons, it is therefore necessary to take full account of the actions and interactions of all major financial market actors in triggering the crisis and amplifying its effects.
The European Commission is currently conducting a comprehensive review of the regulatory and supervisory framework for all financial market actors in the European Union, in line with the G-20 objective to 'ensure that all financial market products and participants are regulated or subject to oversight, as appropriate to their circumstance'.
In areas where market failures have been clearly identified, targeted work is already underway. These measures will help to rebuild confidence in the financial system. In other areas, there is as yet no clear consensus on whether regulatory change is needed or whether other avenues could be considered. The hedge fund sector is one area where the need for further work – starting with an analysis of self-regulatory actions – will be needed. 
In global terms, hedge funds have grown fifty-fold in terms of assets under management since 1990 – although they still account for only 5-10% of assets managed by the global fund industry. In recent years, trading by hedge funds has accounted for over 50% of the daily trading volume in equities markets. Hedge funds have also been amongst the leading buyers and sellers of many of the credit derivative and other structured products that have been at the heart of the recent financial crisis. Hedge funds have evolved from being a fringe player to a crucial provider of liquidity and driver of price formation in global financial markets. Hedge fund investment techniques have recently been borrowed by mainstream asset management (130/30 funds or funds of hedge funds). Hedge funds have become increasingly accessible to mass affluent and retail investors in diluted form.
While the benefits of hedge fund activity to the functioning of financial markets have been recognised, questions have been raised about the comparatively limited extent to which hedge fund managers and funds are subject to regulation or direct macro-prudential oversight. Many of these concerns were raised in the recent reports by the European Parliament.  Concerns expressed relate in particular to the impact of the activities of highly-leveraged investment vehicles on the stability of the financial system; and to a perceived lack of transparency of hedge funds vis-à-vis regulators and other financial market actors.
Some of these concerns have come into sharper focus as hedge funds have, like many other financial actors, been heavily affected by the recent financial crisis. Hedge funds have been affected in the following ways:
– They have been directly exposed to the convulsions in some financial markets. This has led to a sudden marked deterioration in their performance compared to recent track-record, significant losses for their investors, and a few fund failures.
– Hedge funds, which have traditionally relied on relatively high levels of leverage/borrowed funds, are – like many other borrowers – finding it more difficult to obtain leverage to finance their investment policies as their traditional sources of leverage (prime brokers/investment banks) have scaled back lending.
– Hedge funds have also found themselves confronted with the difficulty of managing largescale withdrawals by investors. This has in many cases forced them to divest assets, further fuelling declining asset prices.
This public consultation will play an important role in identifying and shaping the European response to vulnerabilities emanating from the hedge fund sector. The focus of this consultation exercise is on hedge funds, although some of the issues raised in this paper are not specific to hedge funds. The responses to and conclusions from this consultation will serve as the basis for an appropriate regulatory initiative which the Commission will present before the next European Parliament elections, thus forming part of a wider review of the adjustments needed to the European or international regulatory framework in the aftermath of the crisis. An open dialogue between regulators and all interested parties, including investors and the hedge fund industry, is indispensable if the appropriate conclusions are to be drawn.
This consultation paper sets out five areas on which further information and evidence is sought from all interested parties. The issues are wide-ranging and have implications for all financial market actors, including the financial industry, investors, regulators and the firms in which hedge funds invest.
 The G20 action plan foresees the following approach for hedge funds and other private pools of capital (e.g. private equity funds). 'Private sector bodies that have already developed best practices for private pools of capital and/or hedge funds should bring forward proposals for a set of unified best practices. Finance Ministers should assess the adequacy of these proposals, drawing upon the analysis of regulators, the expanded FSF, and other relevant bodies.'
 Report of the European Parliament with recommendations to the Commission on hedge funds and private equity (A6-0338/2008) ['Rasmussen' report] and European Parliament report with recommendations to the Commission on transparency of institutional investors (A6-0296-2008) ['Lehne' report].