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Nordea to be supervised by the European Central Bank together with the Finnish Financial Supervisory Authority
Nordea, the largest financial services group in the Nordic region and one of the largest banks in Europe, has resolved to move its headquarters from Sweden to Finland. A large majority of 96.6 % of the shareholders at Nordea Bank AB’s annual meeting on 15 March 2018 voted in favor of relocating the headquarters to Helsinki, readily surpassing the required two-thirds majority vote. The target date for the relocation is 1 October 2018.
Of the four domestic markets of Nordea, Finland’s membership in the European Banking Union was the decisive factor for the relocation. Following the relocation Nordea will be supervised by the European Central Bank together with the Finnish Financial Supervisory Authority. Nordea will also be subject to the same banking supervision and single resolution mechanisms as the great majority of other European banks. The move contributes considerably to the stability in the Eurozone and helps to create a levelled playing field when major actors within the banking sector are covered by common supervision and the jurisdiction of the Single Resolution Board. As a result of the relocation the size of the Finnish banking sector will be triple the size of Finland’s GDP. As a response to the relocation, the Finnish Financial Supervisory Authority will adjust its organizational structure with respect to banking supervision and make preparations for the use of macroprudential tools and supervisory cooperation with the European Central Bank and the Swedish regulator Finansinspektionen.
Nordea’s decision to relocate follows the Swedish Government’s intention to increase the amount of the so called resolution fee, a banking tax collected from Swedish financial institutions. Also, the stricter Swedish bank legislation and tighter capital requirements compared with the EU were of relevance when the decision to relocate was made.
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Waselius & Wist is sponsoring the upcoming Helsinki International Arbitration Day 2018, organized by The Arbitration Institute of the Finland Chamber of Commerce. The event will take place on 24th May 2018 at Restaurant Pörssi, Fabianinkatu 14, Helsinki, Finland . We look forward to meeting you there!
The deductibility of interest expenses has been limited since 2014, but only in relation to related party debt. Currently, interest expense is always deductible up the amount of interest income. Further, interest expense exceeding interest income (“net interest expense”) is deductible provided that the amount does not exceed EUR 500,000. If the said EUR 500,000 threshold is exceeded, Finland applies a fixed ratio rule limiting a Finnish company’s tax deductions for net interest expenses on related party debt to 25% of its EBITDA (as adjusted for tax purposes). For calculation purposes, however, both related party and third party debt are taken into account and to the extent that the interest expenses exceed EUR 500,000, the entire amount is subject to the fixed ratio rule. The rules apply on a company-by-company basis, although, for example, amounts of group contributions are added back or deducted, as applicable, from the EBITDA figure. Further, the restrictions on interest deductibility are not applied if the borrower company’s equity ratio (equity vs total balance) is equal to or higher than the same ratio calculated on the basis of a consolidated group balance sheet of the ultimate parent (the “balance sheet test”). In addition, certain industry sectors, such as banking, insurance and most real estate businesses, are currently also excluded from the application of the rules.
In response to the Anti-Tax Avoidance Directive (ATAD I) compiling the BEPS issues identified in the BEPS project, the Finnish government issued last Friday a draft government bill introducing new restrictions on the tax deductibility of interest expenses that are more consistent with the OECD recommendations. Under the proposed new rules, the fixed ratio rule of 25% will remain, but the limitations will be extended to cover also third party debt. Similarly, the EUR 500,000 de minimis rule on related party debt will remain, but companies will, additionally, be faced with a net interest expense threshold of EUR 3,000,000 on third party debt. However, for calculations purposes, interest expenses on third party debt are always deducted first and interest expenses on related party debt may be deducted only to the extent that they are within the 25% fixed ratio rule, assuming that the total amount of net interest expenses exceed the EUR 500,000 threshold. It is additionally proposed that both the balance sheet test and the exclusion of banking, insurance and real estate businesses from the scope of the rules is abolished. Accordingly, all businesses are effectively proposed to come within the scope of the new rules, although purely independent companies (non-group companies) will still be left out.
Clearly, the EUR 3,000,000 de minimis rule on third party debt will target at large businesses where the greatest BEPS risks lie, which, accordingly, to some extent will minimise the impact on smaller companies. The new rules are generally not expected to impact on banking and insurance companies due to the significant net interest income arising from their main operating entities. However, it also means that the effectiveness of the fixed ratio rule could be reduced for groups (through the Finnish group contribution regime) that have, for example, banking type of activities alongside their other businesses. Nonetheless, also banking companies could temporarily find themselves in a net interest expense position as a result of, for example, impairment losses. The position is less clear for investment banking companies which may have leveraged balance sheets but at the same time generate significant non-interest income from advisory, underwriting, and equity or commodity trading businesses.
For real estate companies, the proposed new rules may have a particular impact on the cost of capital as they tend to be more highly leveraged in Finland compared with many other businesses. This could potentially affect their investment decisions and make some marginal investments uneconomic. In the real estate business, EBITDA is sometimes also an ineffective way to measure debt leverage as a number of Finnish real estate companies, due to their structure, have a fairly low EBITDA. Also, as real estate companies are currently not in a position to use the Finnish group contribution regime, and unless these rules are changed, the impact on real estate companies could be more severe compared to others. However, if for example a real estate portfolio is split in a greater number of single real estate companies, each financed based on the target’s particular needs, the net interest expense per each single real estate company could be reduced to have the interest expense match the relevant threshold.
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Finnish FSA issues guidelines on national language and filing requirements for KIDs under the PRIIPs Regulation
The PRIIPs Regulation (EU Regulation 1286/2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs)) entered into force on 1 January 2018. The objective of the PRIIPs Regulation and the corresponding delegated regulation is to provide retail investors with clear and summarised information on packaged retail and insurance-based investment products, presented in a uniform and harmonised manner in a Key Information Document (KID). The KID provides information on the key characteristics and complexity of the investment product as well as the related risks and costs. The purpose of the KID is to enable retail investors to compare and choose financial products based on clear, reliable and comparable information.
The Finnish FSA has in its PRIIPs newsletter and supervisory releases highlighted that KIDs presented to Finnish retail investors must in accordance with Article 7 of the PRIIPs Regulation be prepared in either Finnish or Swedish in order to ensure that the investor has sufficient understanding of the product. Furthermore, KIDs must be filed by either the manufacturer or the distributor with the Finnish FSA at the latest when the offering period commences in Finland. The filing is made for information purposes only and the Finnish FSA will not comment on or approve the KID. The language and filing requirements are applicable whenever KIDs are offered to investors other than professional clients, irrespective of whether the offer is made by way of public offer or private placement.
There are currently no available general exemptions with respect to the translation and filing requirements in Finland. The Finnish FSA will, however, collect information from market participants and reconsider the above language and filing requirements in connection with an upcoming review and recast of the FSA regulations and guidelines on marketing of financial products to investors in Finland.
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A Q&A guide to structured finance and securitisation law published by Thomson Reuters Practical Law, December 2017.
This Q&A provides an overview of the markets and legal regimes, issues relating to the SPV and the securities issued, transferring the receivables, dealing with security and risk, cash flow, ratings, tax issues, variations to the securitisation structure and reform proposals.
A Q&A guide to Banking & Finance law in Finland. Published by Leagelease Ltd, February 2018.
The country-specific Q&A provides an overview of the legal framework and key issues surrounding banking and finance law in Finland including national authorities, regulation, licenses, organisational requirements, supervision and assets. The Q&A is part of the global guide to Banking & Finance.
Waselius & Wist won the ”Impact case of 2018” award yesterday at the Managing IP Awards gala in London. The award is for work well done in the trademark case Abloy v Hardware Group that IP partner Bernt Juthström successfully litigated all the way to the Finnish Supreme Court. Waselius & Wist represented Hardware Group.
Congratulations to the whole team!
Our partner Tarja Wist has been inducted to The Legal 500 Hall of Fame based on her continued excellence and her recognition as an elite leading lawyer in the field of Capital Markets in Finland.
The Legal 500 Hall of Fame highlights individuals who have received constant praise by their clients for continued excellence. The Hall of Fame highlights, to clients, the law firm partners who are at the pinnacle of the profession. The criteria for entry is to have been recognised by The Legal 500 as one of the elite leading lawyers for seven consecutive years.
For further information, please visit http://www.legal500.com/hall-of-fame