Today, the European Commission published Standard & Poor’s (“S&P”) commitments to settle the ISIN dispute pending before the Commission since 2008.
The European Fund and Asset Management Association (EFAMA) believes that the complainants primary goal is now within reach, this is that the use of ISINs issued by S&P to end users in Europe becomes free of charge. The initiation of competition law proceedings by the EU Commission against S&P is a great success from which the European financial services industry and ultimately investors will benefit from through better and cheaper services.
EFAMA and its four co-complainants, AFG, BVI, IPUG and SIPUG are now confident that the complaint will succeed and that S&P will be required by the European Commission to stop the illegal ISIN licensing practice in Europe, thereby ending this long-standing dispute in favour of the European financial services industry.
However, EFAMA finds Standard & Poor’s commitments, published today, are not of sufficient substance to settle the case, and calls on the EU Commission to continue to protect European data users. EFAMA also calls on S&P to take this last chance and offer a fair solution to the market place which would not need to result in severe fines against S&P.
The complainants could look favourably to a settlement between S&P and the EC Commission only if the following additional minimum requirements are met:
– Acknowledgement that S&P will allow the free usage of US-ISINs in all internal and external databases and applications without any contractual commitment to the end user, independent of the dissemination channel of the data and without any reference to the US CUSIP identification code. The main stumbling block to a fair settlement is that S&P is not willing to give up on passing on a CUSIP usage agreement to ISIN users.
– Assurance that S&P will not pursue end users based on any proclaimed IP, copyrights and data basing rights, in order to establish legal certainty on free ISIN usage in the entire financial market;
– The free use of US ISIN needs to be a global solution and must also cover all European financial services companies activities outside the EEA territory in order to deal with “follow the trade around the clock situations”; and
– Limitations on the definition of Information Service Providers in order to insure that financial services firms’ reporting activities, in the normal course of their business, are not considered licensable “ISP” activity.
EFAMA applauds that EC Commissioner Almunia has already confirmed, in a speech before the European Parliament in Brussels on March 22, the complainants’ point of view that there are no intellectual property rights on these numbers and that users pay too much in license fees for ISIN numbers.
EFAMA recalls the European Commission’s “statement of objections” (13 Nov. 2009) against Standard & Poor’s (S&P) with respect to its behaviour towards end users of ISINs. The Commission at the time took the preliminary view that S&P is abusing its dominant position by requiring, as the sole-appointed National Numbering Agency (NNA) for US securities, financial institutions and information service providers (ISPs) to pay licensing fees for the use of International Securities Identification Numbers (ISINs) in their own databases. The Commission also took the preliminary view that this behaviour amounts to unfair pricing and constitutes an infringement of Article 82 EC Treaty.
The European Commission (EC) launched formal proceedings against S&P on January 12, 2009, investigating whether the fees being charged by S&P for data basing ISINs based on Cusip numbers were in breach of EU competition law, after receiving a complaint from five European trade associations – the European Fund and Asset Management Association (EFAMA), the French Association Francaise de la Gestion Financiere (AFG), the German BVI Bundesverband Investment und Asset Management e.V., the UK based Information Provider User Group (IPUG) and the Swiss Information Providers User Group, in 2008 (case number 39.592).