1. AIFMD
a) Co-Operation Agreements
On 18 February 2015, ESMA published an updated table of signed cooperation agreements under the AIFMD 2011/61/EU.
Please click here for further details.
b) Implementation Update:
Norway
All market participants governed by the Norwegian AIFM Act
which entered into force on 1 July 2014 and transposes AIFMD in
Norway, were required to comply with the new regime by 1 January
2015.
Portugal
On 25 February 2015, the Portuguese transposition of
AIFMD, Decree No. 20/2015, was published in the official journal.
Certain provisions entered into force 30 days after enactment,
while others are being phased in.
Italy
On 8 January 2015, Consob and the Bank of Italy approved
amendments to the Consob regulations for intermediaries and issuers
under Resolution No. 19094 of 8 January 2015.
On 19 January 2015, Consob and the Bank of Italy approved amendments made to the Bank of Italy and Consob Regulation of 29 October 2007 for intermediaries under Bank of Italy/Consob Measure of 19 January 2015.
The above amendments were made in agreement with Consob, the Bank of Italy and the Ministry for the Economy and Finance and were submitted for public consultation in June 2014. The amendments are necessary for the Italian transposition of AIFMD.
Please click here for further details.
Spain
On 13 February 2015, the Spanish transposition of AIFMD,
Law 22/2014 entered into force.
Lithuania
On 1 January 2015, AIFMD came into force in Lithuania
under the Law on Management Companies of Investment Undertakings
for Professional Investors.
c) ESMA AIFMD reporting Q&A
On 26 March 2015, ESMA published an updated Q&A document on the application of AIFMD.
Most notable updates are as follows:
ESMA has previously confirmed that a non-EU AIFM that markets its AIFs in several Member States is required to calculate a unique reporting frequency for all Member States in which it markets its AIFs (taking into account all the AIFs it markets in the EU) and apply the same reporting frequency to all Member States where it markets its AIFs. ESMA further confirms that the assets under management referred to in questions 33 and 34 of ESMA's consolidated reporting template ("Reporting Template") for AIFM-specific information, should be based on all the AIFs marketed in the EU by a non-EU AIFM. It should not be based on the AIFs marketed by a non-EU AIFM in any particular Member State.
ESMA confirms that AIFMs are required to report information on long and short value of exposures for all the sub-assets referred to in questions 122 to 124 of the reporting template and provide the information in the AIF's base currency. Therefore, the sum of the short and long value of exposures required under questions 129 and 130 should equal the sum of questions 122 to 124.
When reporting the results of stress tests, non-EU AIFMs marketing their AIFs in the EU under Article 42 of AIFMD should report on these as so far as required by the National Private Placement Rules of the member states where they market their AIFs or if the non-EU AIFMs have carried out such stress tests.
When calculating the exposure of an AIF in accordance with the gross method under Article 7(a) of the AIFMD Level 2 Regulation, an AIFM should exclude the value of all cash held in the base currency of the AIF.
When calculating additional own funds under Article 9(3) of AIFMD, AIFMs should exclude investments by AIFs in other AIFs which they manage. However, when calculating additional own funds to cover potential liability risks arising from professional negligence under Article 9(7) of AIFMD, AIFMs should not exclude investments by AIFs in other AIFs which they manage since investments in other AIFs managed by the same AIFM increase the operational risk.
Please click here for a copy of the updated Q&A.
2. EUROPE
Belgium and Luxembourg: Change to Annex IV reporting for
the master fund
For filings made by a non-EU AIFMs from Q1 of 2015, the FSMA and
CSSF have respectively confirmed that Annex IV reports are now
required to be made in respect of the master fund if one or more of
that master fund's feeder funds are marketed in Belgium and
Luxembourg respectively. Previously, the AIFM was required to
report to the respective regulators in respect of the feeder fund
only.
United Kingdom: FCA consults on Handbook
changes
On 6 March 2015, the FCA published Consultation Paper 15/8:
Quarterly Consultation No.8, which invites comments on proposed
amendments to changes impacting AIFMs and AIF depositaries. The FCA
is consulting, amongst other things, on changes to make non-EEA
AIFMs and small registered UK AIFMs subject to the same
administrative fee that applies to full-scope UK AIFMs and small
authorised UK AIFMs. The deadline for comments is 5 May 2015.
Please click here for further details.
Finland: Reporting obligations of AIFMs
On 16 January 2015, the Finland FSA published information
on the reporting obligations of AIFMs to the FSA under Act 162/2014
and the Ministry of Finance Decree 226/2014. The information
includes new details on the procedure for electronic AIFMD
reporting.
Please click here for further details.
Germany: Update to Guidance Notice on Annex IV reporting
obligations
On 4 February 2015, BaFin issued an update to its Guidance Notice
on Annex IV reporting obligations for AIFMs and AIFs pursuant to
section 35(1), (2), and (4) of the German Investment Code
(Kapitalanlagegesetzbuch).
Germany: Annex IV reporting date extension
On 5 March 2015, BaFin postponed the first Annex IV
reporting date for AIFs and AIFMs due to technical difficulties
with the ESMA system. The first reporting date is now expected to
be in May 2015.
Germany: New Investment Ordinance
The revised Investment Ordinance (Anlageverordnung)
entered into force on 7 March 2015, after being adopted by the
German Federal Cabinet on 25 February 2015. The Ordinance is of
particular importance to insurance companies, pension funds and
professional pension funds, which are subject to the investment
restrictions set out therein.
As part of the implementation of AIFMD since July 2013, the Ordinance updates the law on traditional and alternative fund investments. It introduces a new asset class for AIFs launched in the EU and prescribes related requirements. It also restricts the choice of management companies for certain AIFs seeking a full AIFMD licence to EU-AIFMs only. The amendments include necessary updates due to the replacement of the German Investment Act by the German Capital Investment Code.
It is expected that BaFin will update its circular 2/2011 on the provisions of the Investment Ordinance in due course.
For further details, please contact a member of the Maples Global Registration Services ("Maples GRS") team.
Luxembourg: CSSF AIFMD Annex IV reporting document
On 10 February 2015, the CSSF published a document
providing information on the first Annex IV AIFMD reporting in
Luxembourg. It describes the various feedback files that the
senders of AIFMD reporting are receiving. It also describes the
controls that the CSSF performs on reporting files.
Please click here for a copy of the document.
Malta: Guidelines on AIFMD Annex IV
reporting
On 20 January 2015, the MFSA published guidelines on the Annex IV
reporting obligations applicable to AIFMs. The guidelines clarify
the reporting obligations of AIFMs which fall within the scope of
Article 4 of AIFMD.
Please click here for further information.
Spain: CNMV Fees
On 1 January 2015, the Ministry of Economy and Finance approved the
Representation Agreement for Purposes of CNMV Fees form for the
payment of a flat regulatory fee to the CNMV under Law 16/2014 of 1
October 2014.
Please click here for a copy of the form.
Switzerland: Distribution rules deadline
As reported in a previous edition, funds which are distributed in
Switzerland to qualified and non-qualified investors were required
to organise themselves to appoint a Swiss representative and Swiss
paying agent before 1 March 2015.
Switzerland: SFAMA New model annex
On 17 March 2015, the SFAMA-Model Annex "Additional
information for investors in Switzerland" for Prospectuses of
Foreign Collective Investment schemes distributed in Switzerland
was issued. The Annex clarifies that the categorisation of a
payment as a retrocession (as referred to in the SFAMA-Guidelines
on Duties Regarding the Charging and Use of Fees and Costs dated 1
July 2014) prevails even if such payment is ultimately forwarded by
the recipient to end-investors. The Annex also provides model
wordings for certain disclosures required for the payment of
retrocessions and rebates.
Where a collective investment scheme is approved for distribution to non-qualified investors in or from Switzerland, the deadline for the implementation of the Annex into its prospectus is 31 August 2015. Where a collective investment scheme is not so approved, there is no given deadline.
Please click here for further details.
3. ASIA PACIFIC
Australia – Revised Investor Manager
Regime
On 12 March 2015, issued revised draft legislation implementing
Element 3 of the Investment Manager Regime
("IMR"). The reform removes tax
impediments to investing in Australia in order to attract foreign
investment to Australia and promote the use of Australian fund
managers. The reform extends the IMR concession to cover
investments in Australian assets (excluding real property) that are
of a portfolio nature. Foreign entities will be eligible for IMR
concession if they directly invest in Australia or invest via an
Australian fund manager.
Please click here for a copy of the draft.
Hong Kong: Supplemental Circular issued to Management
Companies of SFC authorised ETFs and Unlisted Index Funds
On 16 December 2014, the SFC issued a supplemental
circular to the 4 July 2014 circular on the disclosure requirements
of tracking difference and tracking error. These requirements are
applicable to all SFC-authorised ETFs.
Please click here for further details.
Singapore: Proposed Guidelines to use plain English in
prospectuses and response to feedback on the facilitation of better
understanding of prospectuses
On 5 February 2015, the MAS issued a consultation paper on
proposed drafting guidelines on good drafting practices for
prospectuses. The guidelines encourage the use of plain English and
the presentation of information in prospectuses in a clear, concise
and logical manner, and they include information on the Product
Highlights Sheet.
On 5 February 2015, the MAS also issued its response to feedback received during its public consultation on proposals to improve the readability of prospectus and help investors better understand key information presented therein.
Please click here for a copy of the response.
Singapore: Two factor authentication ("2FA")
access for CISNet
On 29 March 2015, the MAS implemented a 2FA system to
strengthen security for the access to CISNet. The new system
introduces additional security measures applied to a director of a
Responsible Person or his/her agent when preparing and/or accessing
a CISNet notification.
How Maples and Calder can help?
Maples GRS supports UCITS1 and AIFMs in their
multi-market distribution strategies by providing an integrated
global network of experts coordinated by a dedicated central team
supporting all legal and regulatory aspects governing the cross
border marketing of investment funds on both a private placement
and public offer basis.
Footnote
1. Domiciled in Ireland and Luxembourg
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
