Deutsche Bank Aktiengesellschaft
Ladies and Gentlemen:
We are writing to provide the Securities and Exchange Commission (the "Commission") with our views on its proposed rules (the "Proposed Rules") pursuant to Section 13(k) of the Securities Exchange Act of 1934 (the "Exchange Act"), which were published in SEC Release No. 34-48481 (September 11, 2003) (the "Proposing Release").
Deutsche Bank Aktiengesellschaft is a full-service banking company with limited liability incorporated under the laws of the Federal Republic of Germany and having its head office in Frankfurt, Germany. Its ordinary shares are listed on a number of stock exchanges around the world, including on the New York Stock Exchange. It is obligated to file periodic reports with the Commission under Section 13 of the Exchange Act.
Section 13(k) of the Exchange Act (which was added by Section 402 of the Sarbanes-Oxley Act of 2002) prohibits an Exchange Act filer issuer from making personal loans or extensions of credit to "any director or executive" officer of it. Paragraph (3) thereof exempts any loan made or maintained by an "insured depository institution" if the loan is subject to the insider lending restrictions of Section 22(h) of the Federal Reserve Act (the regulations for which are contained in the Federal Reserve's Regulation O). Since almost no foreign banks are "insured depository institutions" as defined in Section 3 of the Federal Deposit Insurance Act, this exemption is generally unavailable to them (though most of them have deposit insurance under their home country laws).
As discussed in the Proposing Release, it has long been a goal of U.S. federal banking laws and regulations to permit foreign banks operating in the United States to do so without disadvantage compared with U.S. financial institutions. We concur with the Commission's view that there is no evidence that, in formulating Section 402, there was any intention on behalf of the U.S. Congress to discriminate against foreign banks. We applaud the Commission's efforts in formulating the Proposed Rules to achieve parity of treatment in this area. Subject to the comments set forth below, we support proposed Rule 13k-1. As described further below, however, we oppose the proposed addition to Item 7.B.2 of Form 20-F.
Home Jurisdiction Insider Lending Restriction Condition. Paragraph (b)(2) of proposed Rule 13k-1 requires that, for a loan to be exempt, it must be made: (i) on market terms, (ii) as part of a widely available employee benefit or compensation program or (iii) following express approval by the foreign bank's home jurisdiction supervisor. The Commission noted in the Proposing Release that the first two of these alternatives are among the core underlying principles of Regulation O. The introductory text of Paragraph (b)(2), however, could be read to require not only that any exempted loan actually be on such terms, but that foreign law or regulations permit director or executive officer loans only on such terms. The Proposing Release refers to such requirement as the "home jurisdiction insider lending restriction condition" (the "Condition").
We believe that, so long as a loan is in fact made pursuant to the core principles of Regulation O that the Commission has identified, it should not be relevant whether home jurisdiction insider lending laws would permit a broader range of insider loans. (Of course, any loan made in compliance with such core principles would also need to be in compliance with applicable foreign law requirements.) As drafted, the Condition could lead to circumstances in which even minor deviations of the text of foreign law from the core principles (for example, de minimis exceptions or exceptions for housing or educational purpose loans) could be interpreted as leading to inapplicability of the exemption, even where no loans are made pursuant to such deviations. Accordingly, we would request that the Condition be removed from the introductory text of Paragraph (b)(2), which we suggest be amended to read simply:
Proposed Amendment to Item 7.B.2 of Form 20-F. Existing Item 7.B.2 to Form 20-F requires disclosure of the principal terms of "problematic" and other non-market-terms related party loans, but, out of consideration of differing international standards and attitudes toward the disclosure of customer information, does not require that the identity of the related party borrower be disclosed. The Proposed Rules would add a sentence to Item 7.B.2 of Form 20-F to require foreign banks to identify the borrowing "director, executive officer or other related party" with respect to such loans.
1. We believe that the proposed addition is inappropriate, as it is mandated neither by Section 13(k) nor by Regulation O. It is also inconsistent with prior Commission accommodations to differing international norms in Form 20-F. Accordingly, we would request that no additional disclosure requirements be imposed in the final rule.
Section 13(k) itself does not mandate any disclosure of director or executive officer loans for the several classes of loans permitted pursuant to its existing exceptions (for pre-existing loans, home improvement and manufactured home loans, consumer loans, loans under an open-end credit plan, margin loans and Regulation O loans). Neither does Regulation O require individualized public disclosure of the type contemplated by the addition to Item 7.B.2. While Section 215.10 of Regulation O requires disclosure to U.S. banking regulators of the number, total dollar amount and range of interest on loans to executive officers in the reporting period covered by each report of condition, it does not require disclosure of the names of such executive officers. While Paragraph (b)(1) of Section 215.11 of Regulation O requires disclosure, upon written request from the public, of the names of executive officers (and principal shareholders) who have received non-de minimis extensions of credit (generally, $500,000), Paragraph (b)(2) thereof explicitly provides that disclosure of the specific amounts of individual extensions of credit is not required (Section 215.23(a) of Regulation O contains analogous provisions for loans to insiders by correspondent banks). Additionally, we do not believe that the public disclosure that is required by Regulation O represents a sufficiently fundamental principle thereof that it should be imported into the Rule 13k-1 context.
As the Commission may be aware, some foreign jurisdictions have customer confidentiality principles and data protection laws that restrict financial institutions from providing information with respect to identified customers (which would include employees, directors and officers), and issuers from such jurisdictions have historically sought to comply with both Item 7.B and such principles by replacing customer identifications with letter codes or similar devices. Consideration by the Commission of such differing international norms is also reflected in Item 6.B.1 of Form 20-F, which requires individual disclosure of executive compensation information only if such information is required to be disclosed in the home country or otherwise publicly disclosed. The proposal would disrupt these well-considered differences from the requirements to which U.S. domestic issuers are subject.
2. Furthermore, as drafted, the proposed addition to Item 7.B.2 is overly broad. It would require additional disclosure for problematic loans to not only directors and executive officers, but also to any "other related party", which would appear to be unrelated to Section 13(k) concerns. It would also apply to foreign banks that did not seek, or were not eligible, to take advantage of new Rule 13k-1 with respect to loans made pursuant to Section 13(k)'s other exemptions. It could also require disclosure of loans that are not "problematic loans" if such loans did not meet the ordinary course / same terms / normal risk requirements of clauses (A), (B) and (C) of Instruction 2 of Item 7.B, as for example a Section 13(k)-exempt pre-existing or employee program loan might not.
Accordingly, we request that the proposed addition to Item 7.B.2 not be adopted.
We would be happy to discuss these comments further with the Commission.
Deutsche Bank Aktiengesellschaft