Ireland: Proposed Changes To EU Cross- Border Fund Distribution Rules

Introduction

While cross-border distribution of EU funds has grown, the EU funds' market is still predominantly organised along national lines with 70% of all assets under management held by funds registered for sale only in their domestic market1 and only 37% of UCITS and about 3% of AIFs registered for sale in more than three EU member states.

The European Commission has identified regulatory barriers as a significant disincentive to EU cross-border distribution. These barriers concern national marketing requirements, regulatory fees, administrative requirements and notification requirements and were identified by the Commission as a result of an in-depth evaluation of the relevant provisions of Directive 2009/65/EC (the "UCITS Directive") and Directive 2011/61/EU (the "AIFM Directive"), the additional requirements imposed by EU member states and the responses to consultations such as the Green Paper on Capital Markets Union,2 the Call for Evidence on the EU Regulatory Framework for Financial Services3 and the public consultation on barriers to the cross-border distribution of investment funds.4

European Commission Initiatives

In order to address these regulatory barriers, the European Commission published on 12 March 2018:-

(i)a Proposal for a Directive amending the UCITS Directive and the AIFM Directive with regard to cross-border distribution of collective investment funds ("Directive Proposal");5 and

(ii)a Proposal for a Regulation on facilitating cross-border distribution of collective investment funds and amending the EU Regulation on European venture capital funds and the EU Regulation on European social entrepreneurship funds ("Regulation Proposal").6

The European Commission aims via the Proposals to reduce regulatory barriers by removing unnecessary complexity and burdensome requirements and improving transparency of national requirements while safeguarding investor protection. Removing inefficiencies should reduce costs which in turn should accelerate the growth of cross-border distribution in the EU, increase competition and provide more investment opportunities for EU investors.

The Directive Proposal amends the UCITS Directive and AIFM Directive in order to eliminate identified regulatory barriers and introduces new procedures on pre-marketing and denotification in order to harmonise divergent practices introduced in some EU members states.

The Regulation Proposal aims to increase transparency on the rules and procedures applicable to cross border marketing of funds and regulatory fees and charges levied by national competent authorities ("NCAs"). According to the European Commission, a directly applicable regulation, providing full harmonisation, is necessary to achieve these policy objectives. The Regulation Proposal also imposes obligations on ESMA to develop and maintain databases on national marketing communication rules, applicable fees and charges as well as storing notifications.

Directive Proposal

Harmonised Rules relating to Facilities

The provisions of the UCITS Directive which require UCITS to provide facilities as implemented by certain national member states have proven to be burdensome. Consequently the Directive Proposal introduces rules which modernise and specify the requirements for providing facilities to retail investors. In particular the Directive Proposal allows fund managers to use electronic or other means of distance communication with investors and clarifies that physical presence is not a requirement and cannot be imposed as a requirement by any member state.

Similar provisions are introduced for AIFMs who intend to market units of an AIF to retail investors.

Harmonised Rules relating to Change(s) to Information Notified to Member States

In the event of a change to information notified to a member state or a change regarding share classes to be marketed, the Directive Proposal provides that written notice must be given to the NCA of the home member state of the UCITS (as opposed to the current requirement that notice be given to the NCA of the host member state) with a requirement to notify the UCITS within 10 working days that it is not to implement the change if the NCA of the UCITS' home member state is of the view that as a result of the change the UCITS would no longer comply with the UCITS Directive. Otherwise the NCA of the UCITS' home member state is under an obligation to inform without undue delay the NCA of the UCITS' host member state of the changes.

Similar changes are made to Article 32 of the AIFM Directive with an obligation imposed on the NCA of the AIFM's home member state to inform the AIFM within 20 working days if the proposed changes(s) should not be implemented or otherwise to inform the NCA of the AIFM's host member state of the changes within one month.

Discontinuation of Marketing

Conditions for the discontinuation of the marketing of UCITS and AIFs where they exist vary across member states.

The Directive Proposal provides for a more harmonized approach in order to create more economic and legal certainty for managers. In this regard, the Directive Proposal provides that the NCA of a UCITS home member state shall ensure that the UCITS may discontinue marketing in a member state where certain prescribed conditions are met including inter alia where no more than ten investors which are domiciled or have their registered office in that member state hold units of the UCITS representing less than one per cent of the assets under management of that UCITS. The UCITS must submit a notification to its NCA comprising the information prescribed who in turn is obliged no later than 20 working days from the date of receipt of that notification to transmit it to the NCA of the member state where marketing is to be discontinued. Once the NCA of the UCITS notifies the UCITS of the transmission, the UCITS must cease all marketing activities in the relevant member state. However in the interests of investor protection, the UCITS must continue providing investors who remain invested in the UCITS with information required under Articles 68 to 82 and Article 94 of the UCITS Directive (which can be provided by electronic or other distance communication means).

Similar provisions are introduced relating to an EU authorised AIFM which wishes to discontinue marketing an EU AIF it manages in another member state under Article 32 of the AIFM Directive.

Pre-Marketing

Some member states permit pre-marketing by an AIFM but as to what constitutes pre-marketing and the conditions applicable to such pre-marketing vary considerably in those member states. The Directive Proposal addresses these divergences by adding a harmonised definition of pre-marketing to the AIFM Directive and inserting a new Article 30a setting out conditions under which an EU AIFM can engage in pre-marketing activities.

Pre-marketing is defined as "a direct or indirect provision of information on investment strategies or investment ideas by an AIFM or on its behalf to professional investors domiciled or registered in the Union in order to test their interest in an AIF which is not yet established."

An authorised EU AIFM engaging in pre-marketing may not present any information to potential investors relating or containing reference to an established AIF, enabling investors to commit to acquiring units of an AIF or amounting to a prospectus, constitutional document, subscription form or similar document whether in draft or final form allowing investors to make an investment decision.

When a professional investor reverts to an AIFM following its pre-marketing activities, a subscription by that investor to an AIF that is established by the AIFM must be considered the result of marketing and consequently the AIFM will not be able to invoke reverse solicitation.

Similar rules are introduced in the Regulation Proposal for European venture capital funds and European social entrepreneurship funds.

Regulation Proposal

Marketing Communication Requirements

The Regulation Proposal introduces equal standards for marketing communications for both UCITS and AIFs. All marketing communications must be identifiable as such and must present the risks and rewards of purchasing units of an AIF or UCITS in an equally prominent manner. In addition, all information included in marketing communications must be presented in a manner that is fair, clear and not misleading. ESMA is tasked with introducing guidelines on the application of these requirements taking into account the on-line aspects of marketing communications within twenty four months of the date of entry into force of the Regulation Proposal.

The Regulation Proposal also introduces a transparency framework for national provisions on marketing requirements. NCAs must publish and maintain on their websites central databases containing all applicable national laws, regulations and administrative provisions governing marketing requirements for AIFs and UCITS and the summaries thereof in at least a language customary in the sphere of international finance. NCAs must notify ESMA of these laws etc. (including any subsequent changes) and the hyperlinks to the websites where such information is published which will facilitate ESMA complying with its obligation to publish and maintain on its website a central database of such information. ESMA is tasked with drafting implementing technical standards to determine the standard forms, templates and procedures for applicable notifications required and to submit to the European Commission within eighteen months of the date of entry into force of the Regulation Proposal.

NCAs may require systematic notification of marketing communications but may do so only for the purpose of verifying compliance with the Regulation Proposal and with national provisions concerning marketing requirements. Where a NCA does require notification of marketing communications, it must within 10 working days inform the UCITS management company of any request by it to amend the marketing communications. In addition NCAs that require systematic notification of marketing communications must establish, apply and publish on their websites procedures for systematic notification of marketing communications.

Similar provisions must be applied by member states who allow AIFMs to market to retail investors in their territories.

National Provisions concerning Regulatory Fees and Charges

Where a NCA levies fees or charges, such fees or charges must be proportionate to supervisory tasks carried out and relevant invoices must be sent to the registered office of the AIFMs or UCITS management companies.

NCAs must publish and maintain on their websites central databases on the fees and charges levied or where applicable the relevant calculation methodologies for those fees or charges and such information must be disclosed in at least a language customary in the sphere of international finance. The NCAs must notify such information (including any subsequent changes) to ESMA which will facilitate ESMA complying with its obligation to publish and maintain on its website an interactive database, publicly accessible in at least a language customary in the sphere of international finance, listing the fees or charges levied by each NCA or where applicable the calculation methodologies for those fees or charges. ESMA is tasked with drafting:-

(i)regulatory technical standards to specify the information to be notified to ESMA by the NCAs: and

(ii)implementing technical standards to determine the standard forms, templates and procedures for applicable notifications required.

ESMA must submit the regulatory and implementing technical standards to the European Commission within eighteen months of the date of entry into force of the Regulation Proposal.

ESMA Central Database

The Regulation Proposal obliges ESMA to publish and maintain on its website a central database, publicly accessible in at least a language customary in the sphere of international finance, listing all AIFMs, UCITS management companies, AIFs and UCITS which those AIFMs and UCITS management companies manage and market as well as the member states in which those funds are marketed.

Standardisation of Notifications

The Regulation Proposal obliges the NCAs to transmit to ESMA any notification, notification letter, any written notice or any information referred to in certain provisions of the UCITS Directive and AIFM Directive relating to notifications. In order to standardise and streamline the information flows between funds/ AIFMs or UCITS management companies and the NCAs on the one hand and the NCAs and ESMA on the other hand, ESMA is tasked with drafting:-

(i)regulatory technical standards to specify the information to be notified: and

(ii)implementing technical standards to determine the standard forms, templates and procedures for the transmission of the information required.

ESMA must submit the regulatory and implementing technical standards to the European Commission within eighteen months of the date of entry into force of the Regulation Proposal.

Timeframe

Subject to agreement between the European Commission, the European Parliament and the Council on the text of the Directive Proposal and the Regulation Proposal, each legislative act will enter into force on the twentieth day following its publication in the official Journal of the European Union. Member states will have twenty-four months from the date of entry into force of the Directive Proposal to transpose the provisions thereof into national law.

The Regulation Proposal will apply from the date of entry into force except for certain provisions which will apply twenty four months after the date of entry into force i.e.

(i)paragraph 1 and 4 of Article 2 relating to marketing communications;

(ii)paragraph 1 and 2 of Article 3 relating to the publication of national provisions concerning marketing requirements;

(iii)Article 12 relating to amendments to Regulation (EU) No 345/2013 on European venture capital funds; and

(iv) Article 13 relating to amendments to Regulation (EU) No 346/2013 on European social entrepreneurial funds.

Footnotes

1 This includes so called "round trip funds" where a manager domiciles a fund in another EU

member state and then distributes it only back into the market where it is based.

2 Green Paper: Building a Capital Markets Union, COM(2015) 63 final.

3 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Call for Evidence - EU regulatory framework for financial services, COM(2016) 855 final.

4 http://ec.europa.eu/finance/consultations/2016/cross-borders-investment-funds/docs/consultation-document_en.pdf

5 https://ec.europa.eu/info/law/better-regulation/initiatives/com-2018-92_en

6 http://ec.europa.eu/info/law/better-regulation/initiatives/com-2018-110_en

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