AIFMD has been implemented in 24 of the 31 EEA member states namely Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Ireland, Lithuania, Luxembourg, Malta, the Netherlands, Norway1, Portugal, Slovakia, Slovenia, Spain, Sweden, and the UK.
Notwithstanding the above, a number of member states have yet to fully transpose national private placement regimes ("NPPRs"), particularly, Greece, Latvia, Liechtenstein and Romania.
There has been no implementation of AIFMD in Poland, and Iceland.
ESMA Q&A on the Application of AIFMD
On 5 April 2016, ESMA published an updated Q&A document on the application of AIFMD and its implementing measures. The document clarifies the content of certain AIFMD rules and subscribes common approaches and practices to be undertaken by supervisory authorities. In particular, it provides clarification on the notification requirements relating to additional investment in existing AIFs.
Please click here for a copy of the Q&A.
On 24 March 2016, the Central Bank of Ireland (the "CBI") published the 18th edition of the AIFMD Q&A document which revises an existing question (ID 1100) and adds new questions (IDs 1101 and 1102) to provide for the publication of the Guidance Note entitled "Umbrella Funds – Cash Accounts Holding Subscription, Redemption and Dividend Monies" on 24 March 2016. A new question (ID 1103) covers the Securities Financing Transactions Regulation.
On 18 January 2016, Draft Law No 6936 was released, which amends, amongst other things, the law of 12 July 2013 on AIFMs (the "AIFM Law") and updates certain cross-references included in paragraphs 5, 10, 15, 32 and 44 of the AIFM Law. It still has to be approved by the Luxembourg Parliament.
Please click here for a copy of the Draft Law in French. There is no English version available to date.
On 11 February 2016, the MFSA announced the launch of a new investment fund structure, namely the Notified AIF. The new notification framework is available to AIFs marketing towards qualified or professional investors that are managed by a full scope AIFM. The framework is available to collective investment schemes which do not hold a license issued by the MFSA under the Investment Services Act.
Under the new framework, a Notified AIF may be established as any structure permitted under Maltese law. The Notified AIF will not be authorised or approved by the MFSA and will not be subject to any ongoing supervision. The MFSA will maintain a list of Notified AIFs on its website and EU/EEA AIFMs may submit a notification to the MFSA for an AIF to be included on the list. Non-EU AIFMs will be permitted to submit such requests once the country of incorporation of the AIFM is granted AIFMD passporting rights.
The MFSA intends to publish guidelines on the above notification process shortly and the MFSA expects to start receiving notification requests from May 2016.
Please click here for a copy of the MFSA's statement.
On 2 February 2016, DeNederlandscheBank (the "DNB") and the AFM issued a Statement that non-EU AIFMs notified pursuant to Article 1:13b Section 1 and 2 or Article 2:66 of the Dutch Act on Financial Supervision of 28 September 2006 (i.e. NPPR) will not be required to report on data in respect of the 2015 reporting period. When reporting requirements are introduced, the DNB will notify non-EU AIFMs of the reporting profile and the first reporting deadline by letter.
Please click here for a copy of the Statement.
On 28 January 2016, Finanstilsynet published a Statement on AIFMD reporting, providing clarification based on reports received from AIFMs to date.
In the Statement, Finanstilsynet specifies that AIFMs are required to complete Forms KRT-1161 (for the AIFM) and KRT-1160 (for the AIFs). It emphasises that only AIFMs that have been granted a licence or that registered with the FSA between 1 October 2015 and 31 December 2015 are exempt from AIFMD reporting. AIFs that have been established within this period and have no data to report are still required to report by entering a "zero" reporting in Field 23.
Finanstilsynet also points out an error in the Forms, which state "2016" as the respective reporting period in Field 9 instead of "2015." AIFMs are required to correct the reporting period in the Forms and, once corrected, Fields 6 and 7 will update automatically. AIFMs that have already submitted Forms are required to make a resubmission.
Finanstilsynet also provides guidance on the sections of the Forms that are mandatory to complete.
Finanstilsynet indicate that new versions of both Forms will be released for the next reporting period i.e. for the reporting period commencing 1 April 2016.
Please click here for a copy of the Finanstilsynet Statement in Norwegian. There is no English version available to date.
France: Catalogue of Statutory and Regulatory Measures for the Marketing of Foreign UCITS
On 18 February 2016, the AMF published a Catalogue of the French statutory and regulatory measures that are applicable to the marketing of shares or units in foreign UCITS in France.
Please click here for a copy of the Catalogue.
Norway: New Tax Rules on Collective Investment Funds
On 1 January 2016, the Amendment to the Law of 26 March 1999 no.14 relating to Tax on Income and Wealth (Taxation) came into force. It prescribes new rules on the tax treatment of both collective investment funds and tax resident investors in Norway. Under the Amendment, the proportion of a fund's equity investment is used to classify the investors' type of income and tax liability, and the total equity portion in a fund is required to be reported to the Norwegian Tax Authority annually. As a result, Norwegian funds are now required to report this information for their investors' tax assessment. While it is not mandatory for non-Norwegian funds to report same, such funds are expected to either do so on a voluntary basis or provide the relevant information to Norwegian investors to enable them to achieve a correct tax assessment.
If the required information is not reported by the Norwegian fund or investor (as appropriate), all distributions and gains/losses will be treated as capital/interest income for the unit holders and taxed at 25%.
Please click here for a copy of the Amendment. There is no English version available to date.
UK and Belgium: Annual Regulatory Fees
The annual regulatory fees payable to the UK FCA by foreign UCITS marketing towards UK investors for the period 1 April 2015 to 31 March 2016 have been decreased as follows:
Please click here for a copy of the relevant section of the FCA Handbook.
The 2016 annual regulatory fee payable to the Belgian FSMA has been increased to €2,580 (from €2,055).
Please click here for the relevant section of the FSMA website.
China: Amended Measures for Investment in Domestic Securities by Qualified Foreign Institutional Investors
On 3 February 2016, the Amended Measures for Investment in Domestic Securities by Qualified Foreign Institutional Investors ("QFIIs") (the "Amended Measures") came into force. The Amended Measures are the primary manner in which QFIIs can invest in domestic securities in China. The Amended Measures reduce the amount that each QFII is required to invest and it effectively removes the original US$1 billion upper limit and decreases the lower limit of US$50 million to US$20 million. The Amended Measures introduce a new two-layer quota system for (i) base quota ranging from US$20 million to US$5 billion; and (ii) investment exceeding US$5 billion. It also introduces a new filing procedure for quota applications, which are to be submitted to the State Administration for Foreign Exchange via local custodians.
Please click here for a copy of the Amended Measures in Chinese. There is no English version available to date.
India: Amendment to Income-tax Act
On 15 March 2016, the Central Board of Direct Taxes ("CBDT") published a new Section 9A to the Income-tax Act 1961 together with Rules on its application. The new section governs the taxation of offshore funds in India and provides a safe harbour rule for the local tax treatment of foreign funds subject to the fund and fund manager satisfying certain conditions. Section 9A and its accompanying Rules entered into force on 1 April 2015.
Japan: Amendments on the Financial Instruments and Exchange Act
On 3 February 2016, the FSA published the final Amendments to the Financial Instruments and Exchange Act (the "Amendments") together with its Responses to public comments on the changes to the QII-targeted Business Exemption (the "Responses"), which came into force on 1 March 2016. The Amendments limit the application of the QII-targeted Business Exemption available to the General Partner of a Limited Partnership. Under the Amendments, Article 63 Exemption Operators that have made notifications prior to 1 March 2016 will be required to supplement existing notifications with additional information by 31 August 2016.
In the Responses, the FSA particularly emphasised that foreign Article 63 Exemption Operators are now required to appoint a Japan based representative to facilitate communications with the FSA. Appropriate professional service provides (e.g. lawyers, certified public accountants, affiliated companies with presence in Japan, business operators, independent advisers and translators) may be appointed as a Japan representative.
Please see our Q4 2015 Market Update for additional information on the new requirements introduced by the Amendments.
Please click here for a copy of the Amendments and Responses.
Israel: New Regulations on the Distribution of Foreign Funds
On 10 February 2016, the Joint Investment Trust Regulations (Foreign Fund Unit Offerings) – 2016 (the "Regulations") was approved by the Finance Committee of the Israeli Parliament. The Regulations are the final implementing step of the Joint Investment Trust Law – 1994 and are due to come into force six months after publication.
The Regulations prescribe the circumstances under which EU UCITS and US CIS may obtain approval from the ISA to make public offerings to investors in Israel. In summary, the main requirements under the Regulations are as follows:
- The total AUM of the foreign fund manager is at least US$20 billion;
- The foreign fund manager manages at least five funds with units that have been offered to the public for at least five years, and the total value of assets held in each fund for the preceding two years is at least US$500 million;
- The NAV of the foreign fund is at least US$50 million and its units have been offered for purchase in one of the European countries or in the US at lease during the preceding year;
- A guarantee of 1 million LIS is provided to the ISA together with a deposit of 250,000 to 12 million LIS (as specified in the Regulations) in a local bank.
Please click here for a copy of the Regulations in Hebrew. There is no English version available to date.
How Maples can help
Maples Global Registration Services ("Maples GRS") supports UCITS2 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.
Should you require any further information or assistance in this regard, please do not hesitate to contact a member of the Maples GRS team.
1AIFMD implementation in Norway is subject to the conclusion of an EEA cooperation agreement.
2Domiciled 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.