A key term used throughout the Regulation is “investment product” and this is defined in article 4 of the Regulation as:
“an investment where regardless of the legal form of the investment the amount repayable to the investor is exposed to fluctuations in reference values or in the performance of one or more assets which are not directly purchased by the investor.”
An important point to note about the “investment product” definition is that it does not include any reference to a product being intended for retail use. This is on the basis that the Commission believes that the retail element may only be determined at the point of sale, when the distributor sells a certain investment product to a retail investor, or provides advice on it. Also the mechanisms by which payouts are made are also not relevant.
Another important point to note concerning the definition of “investment product” is the second limb which focuses on packaging through a reference to the indirectness of holdings of assets. Such a definition would include products with capital guarantees, and those where, in addition to capital, a proportion of the return is also guaranteed; investment funds, whether closed-ended or open-ended; all structured products, whatever their form (for example packaged as insurance policies, funds, securities or banking products) and insurance products whose surrender values are determined indirectly by returns on the insurance companies own investments.
Article 2 of the Regulation sets out certain products that are outside scope and these include:
- products where the precise rate of return is set in advance for the entire life of the product;
- plain shares and bonds, insofar as these do not contain a mechanism other than a direct holding of the relevant assets;
- deposits with a rate of return that is determined in relation to an interest rate;
- insurance products that only offer insurance benefits (such as pure protection insurance products or non-life products) which provide no surrender value that is exposed to fluctuations in the performance of one or more underlying assets or reference values;
- occupational pension schemes covered by Directive 2003/41/EC or Directive 2009/138/EC; and
- pension products for which a financial contribution from the employer is required by national law and where the employee has no choice as to the pension product provider.