This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 06 FRANKFURT 007208 
 
SIPDIS 
 
STATE FOR EUR PDAS RIES, EB, EUR/AGS, AND EUR/ERA 
STATE PASS FEDERAL RESERVE BOARD 
STATE PASS NSC 
TREASURY FOR DAS SOBEL 
TREASURY ALSO FOR ICN COX, STUART 
PARIS ALSO FOR OECD 
TREASURY FOR OCC RUTLEDGE, MCMAHON 
 
E.O. 12958: N/A 
TAGS: ECON EFIN EUN
SUBJECT: Prospectus Directive:  Final Adoption is Milestone 
- Important Details to Follow: Possible Requirement for US 
Firms to Use IAS a Huge Issue 
 
 
T-IA-F-03-0045 
 
This cable is sensitive but unclassified.  Not/not for 
Internet distribution. 
 
Ref: A) Brussels 3470; B) Frankfurt 2582 
 
1.(SBU)  Summary:  Adoption of the Prospectus Directive in 
July by the European Parliament (ref A) and Ecofin Council 
is a milestone event in the EU's Financial Services Action 
Plan. The text was much improved over the European 
Commission's initial proposal and solved the major question 
of "issuer choice" to the satisfaction of the banking and 
primary dealer community.  A host of other issues, however, 
are still to be solved in the implementation process.  The 
Committee of European Securities Regulators (CESR) has 
produced its final advice to the Commission on the minimum 
information requirements for a prospectus.  This was also 
not an easy process, as CESR's initial proposal was heavily 
criticized as too cumbersome and detailed. 
 
2.(SBU)  A major issue for non-EU issuers will be whether 
home country accounting standards, such as US GAAP, can be 
used instead of International Accounting Standards (IAS), as 
endorsed by the EU, as required for EU firms listed on stock 
exchanges.  Such a requirement, or even requiring 
reconciliation of US GAAP to IAS could be very expensive and 
could drive some US issuers out of the European markets in 
which they currently list or offer their securities for 
sale.  Now that would not be in keeping with the EU's 
objective of creating a strong European capital market, 
would it?  US officials have raised the issue with DG 
Internal Market officials who concede that such a policy 
would be like shooting themselves in the foot.  In a new 
consultation paper, CESR states that the question is still 
open, but proposes that large, wholesale debt issuers may 
not have to use IAS or reconcile their accounts. End Summary 
 
Adoption of the Prospectus Directive: A Long and Windy Road 
--------------------------------------------- -------------- 
 
3.(SBU)  Following behind the scenes negotiations among key 
officials of the European Commission, European Parliament 
and member state Finance Ministries, the European Parliament 
on July 2 adopted the proposed Prospectus Directive (ref A). 
The Council adopted the directive on July 15.  The directive 
represents the end result of a hared-fought and contentious 
effort to introduce a introduce a "single passport" for 
issuers of securities, allowing them to use a prospectus 
approved by one member state competent authority in all 
other member states.  Member States have 18 months to 
transpose the directive into national legislation. 
 
4.(SBU)  Commissioner Bolkestein hailed the agreement as 
demonstrating that the Commission, Council and Parliament 
can overcome initial differences of views "through a 
constructive spirit of compromise."  Not known for his 
mastery of the understatement, this one is a beauty.  The 
Commission's initial proposal of May 2001 was thoroughly 
trashed as a terrible example of legislative drafting. 
Rather than consulting with market experts, a senior DG 
Internal Market official plead that time was pressing and 
they needed to issue a draft quickly.  (In retrospect, he 
conceded that the document was poorly drafted and submitted 
in haste to make progress on the Financial Services Action 
Plan.) 
 
5.(SBU)  Parliament proposed over 65 amendments, essentially 
re-writing the text.  The Commission "modified" its proposal 
in August 2002, incorporating many of Parliament's changes. 
The Council also had a difficult time wrestling with issues 
of language, application to sovereign issues and whether 
authority to approve prospectuses could be delegated to 
exchanges. 
 
6.(SBU)  One major issue for investment firms and issuers of 
non-equity securities in particular was whether issuers they 
could chose the competent authority to approve their 
prospectus.  In the current euro bond market, issuers of 
debt securities can have their issue approved in London or 
Luxembourg, markets where they intend to offer the debit 
issue for sale, rather than in their home market.  Several 
member states opposed such "issuer" choice.  In the end, the 
final text will permit issuers of non-equity securities in 
denominations of at least euro 1,000, to be able to choose 
the competent authority to review and approve their 
prospectus. 
 
7.(SBU)  In a joint statement, the Banking Federation of the 
European Union (FBE) and the International Primary Market 
Association (IPMA) declared that finalization of the 
directive "marks the success of a tremendous effort by the 
financial services industry to make its voice matter in the 
political process of structuring a "passporting" system." 
They went on to state that "the financial services industry 
notes with satisfaction that issuers of more than 90% of all 
bonds will have the right to determine where to file their 
prospectus, as they do today, and that debt issuance 
programs, or Medium Term Notes (MTNs), a structure which is 
now used by 90% of international debt issues, will continue 
to operate." 
 
8.(SBU)  All is not well, however.  FBE/IMPA still has "some 
substantive concerns."  Among these is that convertible 
bonds will be categorized as equity and subject to more 
stringent requirements than at present, that the definition 
of qualified investor (e.g. professional investor) is not 
clear; and high translation costs for cross-border issues 
(the summary may have to be translated into the host 
country's language).  They note that some securitized 
derivatives will have to be discontinued.  Several 
investment bankers complained about information requirements 
imposed on non-equity issues, since a lighter information 
regime would apply only to issues in denominations of euro 
50,000 or more.  Such changes will alter the present 
operations of the euro bond market, in their opinion. 
 
9.(SBU)  The compromises, however, were hard fought. 
Indeed, up to the last day in the plenary a German Finance 
Ministry official thought that an aggressive push in 
Parliament to give all issuers investor choice could allow 
the French to re-open the entire issue rather than fixing on 
a compromise.  Commented a Parliamentary staffer: "We got 
what we could, but couldn't get everything." 
 
Important Details: Enter CESR 
------------------------------ 
 
10.(SBU)  Passage of the directive provides "framework" 
legislation that needs to be filled in with details by the 
European Commission based on advice from CESR.  This is 
tough, technical slogging.  CESR began to develop details 
already in March 2002 when the Commission gave it its first 
mandate on the prospectus directive.  The text of the 
directive has changed since then, giving CESR somewhat of a 
moving target. 
 
11.(SBU)  CESR's first a consultation document was a flop 
(ref B).  It demanded many details, many of which were 
considered inappropriate, particularly for bond issues.  The 
format for documentation was considered cumbersome and 
overly rigid for a market place in which new financial 
instruments can be engineered overnight. 
 
12.(SBU)  To its credit, CESR took these criticisms to 
heart.  It held public hearings and listened to industry 
representatives.  On July 31 CESR issued its advice to the 
European Commission on (a) disclosure obligations (e.g. for 
equity securities, retail and wholesale debt, asset-backed 
securities, etc.); (b) incorporation by reference of 
previously published information (e.g. annual reports); and 
(c) publication of a prospectus (availability, contents of a 
notice, methods of publication (e.g. email).  CESR noted 
that it had reduced information requirements, particularly 
for debt issues, and used existing IOSCO standards, which 
had been developed without much public consultation, as a 
benchmark rather than as minimal standards.  One bond expert 
who had participated in consultations with CESR reported 
that the initial sessions were highly confrontational.  By 
the time of the last consultation in June he said it was "a 
love feast."  This is not to say there has been complete 
satisfaction with all details.  But CESR work has improved 
as a result of its consultation process. 
 
13.(SBU)  Bond representatives might have won that skirmish. 
But a major potential battle looms. 
 
Accounting and Auditing Standards: Content of a Prospectus 
--------------------------------------------- ------------- 
 
14.(SBU)  An issue that arose in the first round of 
consultations with CESR was the use of accounting and 
auditing standards.  Under the EU Regulation on 
international accounting standards, all EU companies listed 
on exchanges will have to have their accounts prepared 
according to IAS, as endorsed by the European Commission, as 
of financial year 2005.  CESR's initial consultation 
document implied that accounts would have to be prepared 
using IAS and International Standards of Audit (ISA), but 
was not clear. 
 
15.(SBU)  CESR issued a new consultation document at the end 
of July that is more explicit.  It proposes including "two 
years of audited historic financial information prepared and 
presented in accordance with the accounting standards which 
will be adopted in the issuer's next annual financial 
statements."  That would mean re-stating two years of 
information according to IAS.  CESR considered and rejected 
other options: re-statement of three years of accounts; 
reconciliation between local Generally Accepted Accounting 
Principles (GAAP) and IAS, and no restatement or 
reconciliation.  CESR has invited comments on this 
consultation document by October 30 and will hold hearings 
on October 9 in Paris.  It will provide its final advice to 
the Commission by 31 December. 
 
16.(SBU)  On auditing standards CESR acknowledges that the 
absence of comprehensive rules at the EU level could result 
in differing levels of audit scrutiny of accounts.  CESR 
declared, however, that it shares the European Commission's 
objective to implement International Standards of Audit 
(ISA) as of 2005. 
 
Issuers from Third Countries:  The Meaning of Equivalence 
--------------------------------------------- ------------ 
 
17.(SBU)  Issuers from third countries were among the most 
outspoken critics of CESR's initial consultation paper.  One 
such critic was the American Financial Services Association 
(AFSA).  AFSA is a trade association that represents 400 
firms involved in the financial services industry including 
Ford Motor Credit Company, GMAC Financial Services, CIT 
Group Inc., Household International and Toyota Motor Credit. 
AFSA states that these borrowers have debt outstanding 
totaling approximately $224 billion listed in the EU.  These 
companies issued $37 billion of corporate securities listed 
on an EU exchange in 2002, and $71 billion in 2001. 
 
18.(SBU)  AFSA argues that US GAAP should be considered to 
be international accounting standards since they are 
prevalent in the international market place and require 
comparable disclosure as EU rules.  Therefore, U.S. GAAP 
accounts "should be acceptable under the Directive." 
"Requiring issuers to restate US GAAP numbers to a different 
international accounting standard on an ongoing basis would 
impose costs so prohibitively high as to drive many issuers 
out of the European debt capital market."  AFSA made the 
same case for the use of auditing standards and "invited" 
CESR and the Commission "to make clear that U.S. audit 
standards represent equivalent standards" to those in the 
EU. 
 
  19.(SBU)  In July CESR issued a new consultation paper in 
  July regarding (a) minimum information requirements for 
  sovereign government securities issues, should 
  authorities decide to issue one (non-equity issues and 
  guarantees by such governments are not required to draw 
  up a prospectus); (b) historical financial information of 
  EU and non-EU issuers to be included in a prospectus; and 
  (c) advertising.  With respect to (b) CESR proposes that 
  non-EU issuers be subject to the same minimum information 
  requirements as EU issuers.  Non-EU issuers that prepare 
  financial statements according to a GAAP "equivalent" to 
  IAS Regulation need not submit additional information. 
 
  20.(SBU)  CESR acknowledges that their proposal raises 
  the question of "equivalence."  Article 20 of the 
  Prospectus Directive specifies that a competent authority 
  in a member state may approve a prospectus from a third 
  country issuer provided that the prospectus has been 
  drawn up in accordance with international standards (e.g. 
  IOSCO Disclosure Standards) and the information 
  requirements, including information of a financial 
  nature, are "equivalent" to the requirements under this 
  Directive.  The Commission is authorized to adopt 
  implementing measures stating that a third country 
  ensures such equivalence. 
 
  21.(SBU)  CESR states in its July consultation document 
  that it is working with the European Commission in order 
  to devise the best procedure to "manage the question of 
  equivalence."  A German securities official suggests that 
  EU securities regulators tend to believe that accounts 
  prepared under U.S. GAAP should be considered equivalent 
  to IAS accounts.  This official points out that all major 
  European exchanges do so now.  The European Commission, 
  according to this official, is in a dilemma: they want 
  companies to abide by the new regulation on international 
  accounting standards rather than use US GAAP, as some 
  firms now do.  Resolution of this issue is not a 
  technical matter but a political one, in official's 
  opinion. 
 
  22.(SBU)  DG Internal Market officials have not made a 
  clear public statement on this issue.  They have declared 
  that an overall goal should be to achieve convergence 
  between U.S. GAAP and IAS.  They would like EU issuers to 
  be able to use accounts prepared using IAS for listing in 
  the United States. USG officials have raised the use of 
  accounts prepared under U.S. GAAP in the informal US-EU 
  financial market dialogue.  In response, DG Internal 
  Market officials conceded that not accepting US GAAP 
  would damage the EU capital market should US issuers 
  leave. "We would shoot ourselves in the foot," quipped 
  one.  They reportedly made the same comment to 
  representatives of AFSA. 
 
  23.(SBU)  Some members of the finance industry, however, 
  believe that the Commission is using this issue as a 
  bargaining lever to extract concessions from the US, such 
  as on implementation of Sarbanes-Oxley legislation or 
  placement of European trading screens in the United 
  States, a "tit-for-tat" approach to regulation. 
 
  The Power of an Exemption 
  ------------------------- 
 
  24.(SBU)  In its July consultation paper CESR proposes 
  some exemptions for wholesale issuers from having to meet 
  an "equivalence" standard.  CESR reasons that the 
  different nature of the investors concerned justifies 
  different treatment.  This exemption would apply to both 
  accounting and auditing standards for wholesale debt 
  issues and issuers of high denomination asset backed 
  securities or depository receipts (e.g. issues having 
  denominations of at least euro 50,000). 
 
  25.(SBU)  Specifically CESR proposes that issuers are to 
  use accounts prepared under IAS or a non-Member state 
  local GAAP equivalent to IAS, "otherwise" the following 
  information shall be included in the registration 
  document: (a) "a prominent statement that the financial 
  information included in the registration document has not 
  been prepared in accordance with IAS Regulations and that 
  there may be material differences in the financial 
  information had IAS Regulation been applied to the 
  historical financial information; (b) immediately 
  following the historical financial information a 
  narrative description of the differences between IAS 
  Regulation and the accounting principles adopted by the 
  issuer in preparing its annual financial statements. 
  Similarly, if different auditing standards were used than 
  those applicable in a member state, information shall be 
  included would be (a) a prominent statement disclosing 
  which auditing standards have been applied; and (b) an 
  explanation of any significant departures from ISA. 
 
  CESR Information Gathering 
  -------------------------- 
 
  26.(SBU)  In January the Commission gave CESR a mandate 
  to provide factual information and legislative and 
  practices of Member States regarding the treatment of 
  third county issuers with respect to drawing up and 
  approval of prospectuses.  This information is due to the 
  Commission at the same time CESR provides its advice on 
  the July consultation document, that is, 31 December.  On 
  the basis of the information gathered the Commission will 
  decide whether an additional mandate asking CESR to 
  provide technical advice on possible draft implementing 
  rules will be granted in the future. 
 
  An Observation 
  --------------- 
 
  27.(SBU)  Accounts prepared under U.S. GAAP were once 
  considered the world standard.  EU firms listed on US 
  exchanges had to use U.S. GAAP accounts or reconcile them 
  to it.  Even EU firms listed on US exchanges could use 
  their U.S. GAAP accounts to satisfy home country 
  requirements.  The EU Regulation on international 
  accounting standards is changing all that.  By forcing 
  uniformity of accounting standards for all 7,000 EU 
  listed firms, it raises the prevalence of IAS usage. 
  This has the potential to divide the world in two: IAS 
  and U.S. GAAP.  In August the Swiss Stock Exchange 
  announced that as of 2005 only IAS or U.S. GAAP accounts 
  would be accepted for Swiss listed firms on its exchange: 
  Swiss GAAP will no longer be accepted. In July the German 
  Accounting Standards Board made cooperation with the 
  International Accounting Standards Board (IASB) its 
  primary objective. 
 
  28.(SBU)  Bringing these two accounting standards worlds 
  together is noble aim of the  convergence project of the 
  U.S. Financial Accounting Standards Board and the 
  International Accounting Standards Board.  Former SEC 
  Chairman Pitt stated that if there were sufficient 
  progress in convergence and a process for consistent 
  interpretation and enforcement of IAS, then it may be 
  appropriate for the SEC to reconsider the need for 
  private issuers from the EU firms to continue to 
  reconcile from IAS to U.S. GAAP. A Commission statement 
  to the same effect would go a long way toward relieving 
  market uncertainties its current ambiguous position is 
  creating. 
 
  29.(SBU)  By keeping the issue vague of whether US firms 
  can continue to use U.S. GAAP in Europe, the Commission 
  thinks it keeps up the pressure for firms in the EU to 
  use Commission-endorsed IAS and convergence, the latter 
  seen as an ultimate objective by Commissioner Bolkestein. 
  There are other views of the Commission's objectives. 
  One is that it would like to assert the primacy of EU 
  standards world wide - a counterweight to the role of the 
  U.S. SEC.  Another is that, as noted above, the 
  Commission wants to use the acceptance of U.S. GAAP 
  accounts as leverage for other concessions. 
 
  30.(SBU)  If convergence truly were the Commission's 
  goal, it could enlist the firms represented by AFSA to 
  push for such convergence.  Such convergence would unite 
  two major capital markets.  If the other two views more 
  accurately reflect reality, then the outcome depends on 
  politics. This may or may not be at all helpful for 
  financial markets.  What is less uncertain, is that by 
  maintaining uncertainty, the Commission is needlessly 
  creating uncertainties for non-EU global firms that may 
  take their business elsewhere.  It wouldn't be the first 
  time that financial markets, provoked by policy changes, 
  created new instruments and markets were none had existed 
  before. 
 
  31.(U)  This cable coordinated with Embassies Berlin, 
  Rome, The Hague and USEU Brussels. 
 
  32.(U)  POC: James Wallar, Treasury Representative, e- 
     mail wallarjg2@state.gov; tel. 49-(69)-7535-2431, fax 
     49-(69)-7535-2238. 
 
Bodde