UK: Financial Services Quarterly Report – March 2011

UCITS IV Directive:1 The New Notification Procedure

Background

UCITS wishing to market their shares or units to investors in another EU Member State are able to do so, provided they go through a notification process to seek approval of the relevant EU Member State in which the investors are located (otherwise known as the "UCITS Passport Procedure").

Under the current UCITS Passport Procedure, a UCITS that wishes to market its units in another EU Member State must inform its home Member State regulator and submit to the regulator of the host Member State (the "host state") its prospectus, simplified prospectus(es), latest annual report (and any subsequent semi-annual report) and constitutional documents, as well as evidence of compliance with the UCITS III Directive by the home Member State regulator. Once translated into the national language of the host state (if translations are required), the documents are filed with the host state's regulator and this triggers a review period of two months. A host state regulator should in principle not comment on the substance of a UCITS that has been authorised by another EU Member State, and therefore the UCITS should be guaranteed authorisation for marketing in the host state within a maximum period of two months.

Will the Simple Passporting of UCITS Funds in the EU Become a Reality?

The above summarises the theory but, unfortunately, the theory is far from practice. Many of the host state regulators have implemented their own regulatory and advertising requirements for UCITS. As a result, UCITS that wish to market their shares in other EU Member States are subject to differing regulatory requirements in each host state and this has resulted in the UCITS Passport Procedure being characterised by a lack of harmonisation in terms of requirements and length of

Strengths of Regulator-to-Regulator Notification

Intention to reduce barriers: There is a clear intention to significantly reduce barriers for EU cross-border registration of UCITS in order to promote a more dynamic and competitive market.

Uniform requirements and fewer translations: Only the KII will need to be translated into the official language of the host state or into a language approved by the host regulator. The other notification documents can be provided: in one of the official languages of the host state; in a language approved by the regulator of that host state; or translated into a language customary in the sphere of international finance. It is widely presumed that this means any one of English, French or German. These uniform requirements for the submission of documents should result in cost savings for translations and external counsel fees and should free up internal resources.

Certainty of time frame: The certainty of a 10 working day time frame for approval, and the knowledge that marketing will then be able to commence in all host jurisdictions, will be of great advantage in coordinating product launches across the EU. UCITS will be able to make a bigger splash with simultaneous cross-border launches of products. For a number of jurisdictions, there will be a decrease in time to market through significant reductions in approval time and this will allow fund managers more flexibility to react to market trends.

Increased regulator co-operation: This initiative has the potential to encourage greater cooperation between EU and national regulators.

Potential for increased competition amongst national regulators: It is likely that this new process, in conjunction with other UCITS IV initiatives, will prompt national regulators in the EU to compete to become the home state domicile of choice.

time taken to secure approval for the marketing of a UCITS by the host state regulator.2

Promoters, asset managers, distributors and service providers are familiar with the complexity of cross-border EU registrations and the difficulty of coordinating multiple launch dates for sales of units in several Member States.

The current system of UCITS-to-regulator notification is both cumbersome and costly, since an application must be made to the relevant regulator for each EU Member State jurisdiction in which UCITS' units are to be sold, and each regulator may have its own specific filing and translation requirements.

Although national regulators are required to make decisions regarding an application for registration in a host state within two months of the date of application, the reality is widely divergent between jurisdictions. This divergence is exacerbated by the ability of a regulator to "stop the clock" if it has a query about the product.3

t is also not uncommon for regulators to disagree on more fundamental matters regarding a UCITS that has filed an application for registration. This lack of consistency in the interpretation of the UCITS legislation, together with the variety of documentation and time periods required in the host states, has led to a de facto secondary approval process contradictory to legislative intention.

Revision of the UCITS Passport Procedure Under UCITS IV

The most significant change to the UCITS Passport Procedure is the shift from "UCITS-to-host regulator" to "home regulator-to-host regulator" communication. A UCITS applying to market its units must submit a file to the home regulator containing the latest versions of the following documents, in a format in common use that is capable of being viewed and printed:

  • Instrument of incorporation (e.g., trust deed, memorandum and articles of association or the management regulations);
  • Prospectus and key investor information document ("KII")4 (or simplified prospectus(es), if still being used); and
  • Latest annual report and any subsequent semiannual report.

The submission must also include a notification letter in a prescribed format as set out in the Level 2 implementing measures.5 The notification letter must, among other matters, specify the proposed host jurisdiction and set forth a range of information, including any additional information required by the host regulator and details of the arrangements being made to market the fund within the host state (which may include the names of each distributor to be appointed).

Once the completed file has been submitted by the UCITS, the home regulator must, within 10 working days, transmit the full notification file to the host regulator. The home regulator must enclose an attestation, in a prescribed format as set out in the Level 2 implementing measures, that the UCITS fulfils the conditions imposed by the UCITS IV Directive. It is important that the submission to the host regulator contains all the documents required, since the 10 working day time frame does not apply to an incomplete file. As there does not appear to be an ability for a regulator to "stop the clock", it is likely that each application will be carefully scrutinised to ensure strict compliance with the requirements before officially starting the 10 working day time frame.

Challenges of Regulator-to- Regulator Notification

Uncertainty regarding interaction with current UCITS Passport Procedure: This would include, for example, treatment of new sub-funds within an umbrella already registered.

Viability of co-existence of dual processes: This has the potential to create confusion and increased costs in the short term during transition.

Untested regulatory interaction: It is not clear whether regulators have the databases and infrastructure necessary for such interaction and therefore it is likely there will be teething issues regarding regulator-to-regulator communication. A key issue is whether regulators will devote sufficient resources to this procedure so that systems can be up and running by 1 July 2011.

Uncertainty in relation to approach of non-EU regulators: Issues include whether this may become a back-door way for non-EU regulators to re-examine funds currently authorised under UCITS III (such as discussions prompted by the introduction of the KII in Hong Kong and the debate around further discussion of derivatives in the Product Key Facts Statement).6

Compliance with local marketing laws: An issue is whether the need to comply with such laws may become a vehicle for host regulators to impose additional requirements.

Uncertainty regarding realisation of cost savings: Given distribution demands, it may be queried whether intended cost savings (such as resulting from fewer languages to translate) will materialise. Distributors are likely to want all documentation in local languages in order to market funds locally.

Continual updating of distributor information: If detailed marketing arrangements in the host state involve naming all distributors, then submitting this information, and potentially having to ensure such information is kept up to date, may be unduly cumbersome and achieve little. It is not clear whether the purpose of this is simply to increase transparency regarding the identity of distributors or also to increase the level of regulatory supervision in the host state. This needs to be clarified.

The home state regulator must first ensure that the transmission to the host state regulator has duly taken place and then immediately notify the UCITS of this transmission. The UCITS is free to commence marketing its units in the host state from the date of such notification. The home state regulator is obliged to ensure that the host regulator has electronic access to the notification documents. Regulators must have a designated e-mail address for the purposes of transmitting the notification documents and the attestation and must put a procedure in place where this designated e-mail address can be checked each working day. The host regulator who receives the transmitted documents must, as soon as possible (but no later than five working days), confirm receipt of the documents in the prescribed form to the home regulator. Confirmation of receipt must be sent using the designated e-mail addresses unless a more sophisticated method is agreed upon. Regulators may agree to replace this e-mail method with a more sophisticated procedure of electronic communication or establish additional procedures to enhance the security of e-mails transmitted, provided always that the notification time limits are adhered to.

Each home state regulator will be required to make available by remote and electronic means—presumably a website—full, up-to-date, details of the laws and regulations relating to marketing in that jurisdiction. This is where a UCITS will find the information necessary to complete the notification letter in respect of additional information required by host states.

Implementing This New Procedure: Has the Transition been Carefully Worked Through?

This simplified regulator-to-regulator process appears only to apply to the application for the marketing of new UCITS products. It does not appear to apply to prospectus updates, for which the existing procedure of filing the required documents directly with the host regulator arguably would continue. Clarity is needed regarding the treatment of general prospectus updates filed in conjunction with the registration of a new subfund. Usually, when a prospectus is updated to refer to a new sub-fund, the opportunity to update other sections of the prospectus will be taken. In this instance, would the transmission of the approved document from the home regulator to the host regulator in relation to the new sub-fund suffice or would the UCITS be required to make separate filings in respect of the general updates with each host regulator? It is hoped that the Level 3 guidance expected from the European Securities and Markets Authority ("ESMA") and national regulators will provide clarification on this point.7

The requirement to comply with local marketing laws may well complicate this issue.

How Will This Affect the Distribution Model?

The changes create an interesting situation for national regulators. Many regulators will not be in favour of relinquishing their powers of approval and their specific requirements for documentation.

However, now that the new notification system has been devised, the onus will be on the home state regulators to assume a far more central role in the context of the distribution of UCITS in other EU Member States. Promoters and asset managers are likely to place more emphasis on forum shopping, with a bias towards jurisdictions with favourable approval records and whose interpretation of the UCITS IV Directive (including issues such as eligible investments) coincides with desired interpretation. This will, in turn, increase the pressure on regulators to be competitors. The new UCITS IV provisions facilitating cross-border mergers may, combined with the simplified notification procedure, increase the competition amongst regulators to be the home jurisdiction of choice.

The requirement to comply with each host state's marketing laws remains a limitation to achieving the objectives of the UCITS IV Directive and perhaps one of the biggest obstacles to a truly homogenous market. How much of a limitation this requirement will prove to be with the implementation of UCITS IV remains to be seen. It seems inevitable that, in the immediate term, the changes to the notification procedure will result in increased attention by host states on compliance with local marketing laws, as this area of regulation is outside the scope of the UCITS IV Directive. It is possible that host states will revise marketing laws to make them more stringent. They have every ability to do this for, whilst the UCITS IV Directive clearly sets out the requirements for the notification procedure, Article 94 (1) provides that information to be provided to investors must be provided "in the way prescribed by the laws, regulations or administrative provisions of the UCITS host Member State".

If a Member State, for example Italy, were to legislate that all documentation provided by a UCITS to retail clients must be translated into Italian, would this defeat the aim of the UCITS IV Directive or would a UCITS be entitled to rely on compliance with the UCITS IV Directive? There seems scope for a conflict of laws and the potential for host regulators to generate a secondary approval process through onerous local marketing laws. There needs to be more guidance on this and the Level 3 measures will need to address the position where there is a potential for conflict. With the creation of ESMA, it is expected that the implementation of UCITS IV will be heavily monitored by this new European regulator – this is likely to include not only the technical aspects but also the spirit of the legislation. The prospect of national regulators using the marketing law caveat to circumvent the aim of a key piece of UCITS IV legislation is likely to be taken very seriously, with questions asked and actions taken.

However, for many fund promoters and distributors, this conflict may be academic. If the investor base is largely retail then, in any event, translations of all the marketing documents may need to be made available.

In Germany, for instance, the main portion of UCITS is distributed through banks and investment firms that have to comply with the distribution rules stipulated in the German Securities Trading Act (which is based on the MiFID Directive).8 According to these provisions, retail investors must be provided with all of the information that is necessary for the investment decision. In addition, the explanatory memorandum to the proposed German law implementing UCITS IV states that banks and investment firms must highlight the fact that the KII may contain gaps in such information required by retail investors, and must provide the retail investors with any information that is missing from the KII in order to avoid liability.9 As such banks and investment firms can not assume that a retail investor is able to obtain such information by reading the full prospectus written in a language other than German, they would have to provide such information by means of another document (which could raise further liability issues). Hence, it is expected that German banks and investment firms will still demand a translated prospectus to avoid such liability risks.

The template notification letter, set out in European Commission Regulation 584/2010, to be completed by the UCITS may, if required by the host state, need to contain specific identification of each distributor in the host jurisdiction. In practice, there is a possibility that this will require frequent, and in some cases, almost constant, updates of the notification letter as the distribution channels change and new distributors are appointed. This requirement has met with strong criticism from the market. It would create a significant and unnecessary workload for both the UCITS and host regulators. As a UCITS already includes, in its prospectus and simplified prospectus, the name of the global distributor that has supervisory responsibilities in respect of sub-distributors, it is difficult to understand the basis for this additional requirement. It remains to be seen whether each host state will insist on this level of detail.

Implementation of New Notification Procedure by Regulators in Key Fund Jurisdictions of Europe and Asia

Ireland

The Central Bank of Ireland has published a consultation and draft guidance on the provisions for the new notification procedure for both UCITS authorised in Ireland and those authorised in another EU Member State intending to market their units in Ireland.10 The provisions do not provide clarification on many of the practical issues that are likely to arise, such as how to transition to the new procedure when funds are currently operating under the UCITS Passport Procedure. The consultation closed mid-March 2011 and the industry is of the view that further work and clarification will be needed as a matter of urgency in this area.

Luxembourg

The Luxembourg law of 17 December 2010 on undertakings for collective investment (the "2010 Law") was adopted by the Luxembourg Parliament on 16 December 2010 and entered into force on 1 January 2011. The 2010 Law implements, amongst other items, the UCITS IV Directive. Articles 53 to 64 of the 2010 Law implement provisions regarding cross-border registration of UCITS, including the simplified notification procedure.11 The Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier ("CSSF"), has issued Circular 11/498 (the "Circular") regarding the entry into force of the 2010 Law, which also addresses the simplified notification procedure, but which does not contain any specific details regarding the practical aspects of such procedure. The new notification procedure will be applied from 1 July 2011. It is not yet clear whether the electronic regulator-to-regulator procedure will also apply to the registration of new sub-funds of an existing UCITS that has already been registered in Luxembourg, since the Circular only refers to the electronic procedure as being applied to the "initial notification" of UCITS.

Hong Kong and Singapore

In Asia, the new notification requirements and procedures under UCITS IV will have almost no impact on the distribution process and procedures applicable in the leading fund distribution centres of Hong Kong and Singapore. In both jurisdictions, funds must undergo a full registration/authorisation process in order to be distributed to retail investors. This involves a full review of all pertinent fund documentation and material contracts by, respectively, the Securities and Futures Commission in Hong Kong, or the Monetary Authority of Singapore. For the purposes of retail distribution in Hong Kong, there is the added requirement that all fund offering documents be translated into Chinese.

Given that the lingua franca of Hong Kong is Cantonese, all marketing material targeted at the retail investor in Hong Kong will usually also be translated into Chinese. Both jurisdictions have also already introduced their equivalent of the KII: the Product Key Facts Statement in Hong Kong (in Q3 2010) and the Product Highlights Sheet in Singapore (on 1 March 2011). The challenge for fund issuers will be how to streamline or merge (where possible/permissible) the increasing number of "summary offering documents" that a UCITS registered in multiple jurisdictions, and its target retail investors in these jurisdictions, will have to contend with, once the KII becomes compulsory for UCITS funds.

Conclusion

The new simplified notification procedure presents ambitious reform to the current process and its goals of simplicity and certainty must be applauded. However, the UCITS IV Directive does contain some loopholes and inconsistencies and, in certain areas, does not achieve these goals with the precision that may have been achievable. There is a potential for the notification procedure to become more onerous, particularly with the prospect of two passport procedures and in light of the requirement to specify the distribution channels in detail.

For the UCITS IV Directive to genuinely achieve its goals in respect of the notification procedure, further support is necessary and the Level 3 and 4 measures must look to provide clarity around the operation of the provisions relating to translations and the impact of local marketing rules in the host states.

As things stand, such clarity has not been provided and, with just over three months to implementation, it is hoped that many of the issues highlighted will be resolved by ESMA and national regulators.

Footnotes

1 EU Directive 2009/65/EC (the "UCITS IV Directive" or "UCITS IV") was adopted by the European Parliament and the European Council on 13 July 2009 and entered into force on 7 December 2009. EU Member States must implement the UCITS IV Directive into their national legislation by 1 July 2011. The UCITS IV Directive replaces the previous Directive 85/611/EEC (the "UCITS III Directive").

2 For example, the Finnish Financial Supervisory Authority only requires the simplified prospectus to be translated into Finnish, but all other documents may be filed in English. In Spain, however, the Comisión Nacional del Mercado de Valores requires sworn translations of the prospectus, simplified prospectus, memorandum and articles of association/trust deed and the latest annual and interim financial statements. In Luxembourg, all required documents may be filed in English, French or German.

3 For example, in Belgium, the process regularly takes longer than the supposed two months because the regulator frequently stops the clock to ask questions about the registration.

4 For further information regarding the KII, please refer to "Key Investor Information Document: Friend or Foe?" available at http://www.dechert.com/library/Financial_Services_Report_12-10-2.pdf .

5 Commission Regulation (EU) No 584/2010 of 1 July 2010. The European Commission ("EC") adopts a four-level regulatory approach to legislation. Level 1 refers to Directives and Regulations adopted by the EC following a full consultation process with European Parliament and the European Council. Level 2 refers to the measures used to implement these Directives and Regulations, which are adopted by the EC after consulting with the European Securities Committee and ESMA, with oversight from the European Parliament. Level 3 refers to guidance issued by ESMA following joint work on interpretation, recommendations, consistent guidelines, common standards and peer review, etc. Level 4 refers to guidance/legislation issued by an EU Member State that the EC checks for compliance with EU legislation.

6 For further information regarding the introduction of the KII in Hong Kong, and the Product Key Facts Statement, please refer to "Retail Fund Authorization in Hong Kong: The Moving Goal Posts" available at http://www.dechert.com/library/Financial_Services_Report_09-10.pdf .

7 ESMA has been consulted for technical advice.

8 For further information regarding the Securities Trading Act, please refer to "Proposed Changes to the German Securities Trading Act and the German Investment Act" in this Report.

9 For further information regarding the implementation of the KII in Germany, please refer to "Germany: Ahead of the Game on the KII" available at http://www.dechert.com/library/Financial_Services_Report_12-10-2.pdf .

10 For further information regarding these developments, please refer to "The Irish Central Bank Consults on Legislation to Implement UCITS IV, a New Definition of Money Market Funds and Changes to Other Provisions Governing Irish Funds" available at http://www.dechert.com/library/FS_1-Ireland-02-11-The_Irish_Central_Bank_Consults_on_Legislation.pdf .

11 The 2010 Law is more fully discussed in "Changes to the Luxembourg Rules Governing Delegation of Investment Management by Non-UCITS Funds and Non-UCITS Management Companies" in this Report.

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