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Global Registration Services - Market Update, Q1 2014

14 April 2014

AIFMD

Co-Operation Agreements

On 20 February 2014, ESMA published an updated table regarding signed cooperation agreements under the AIFMD 2011/61/EU.

Please click here for further details.

Bulgaria – AIFMD MoU Guidelines

On 29 January 2014, the FSC of Bulgaria decided to comply with the ESMA guidelines on the model Memoranda of Understanding ("MoU") concerning consultation, cooperation and the exchange of information related to the supervision of AIFMD entities.  The ESMA guidelines set out the type of MoU that should be agreed between the EU and non-EU supervisory authorities so that the appropriate supervisory cooperation arrangements are in place as required by AIFMD.

Please see the FSC announcement (only available in Bulgarian) here.

Germany – Guidance Notice on Cooperation Agreements

On 10 February 2014, BaFin issued a Guidance Note regarding its cooperation with supervisory authorities of third countries (non-member countries of the EU or the EEA) who shall be subject to bilateral MoUs upon entry into force of the German Investment Code (Kapitalanlagegesetzbuch – KAGB), which transposes AIFMD into German law.

Please click here for further details.

Europe – ESMA Q&A on application of AIFMD

On 17 February 2014, ESMA published questions and answers ("Q&As") on the application of the AIFMD to promote common supervisory approaches and practices in the application of the AIFMD and its implementing measures.  Maples have reviewed them.  Please click here for the key highlights from the Q&A.

On 25 March 2014, ESMA further updated its Q&A on the application of AIFMD (2014/ESMA/296). Questions 2 to 18, which concern reporting to national competent authorities pursuant to Articles 3, 24 and 42 of AIFMD were added.

France – Completion of AIFMD Transposition – Books II and IV of General Regulation modified

On 26 February 2014, as part of the completion of the transposition of the AIFMD, the AMF modified the books of its General Regulation regarding services providers and collective investment schemes. The Minister of Finance approved the new measures by a ministerial approval order dated 11 December 2013 and published in the Official Journal of the French Republic on 20 December 2013 and by a ministerial approval order dated 11 February 2014 published in the Official Journal of the French Republic Official Journal on 20 February 2014.  The main changes to the General Regulation are in relation to Book IV in respect of collective investment products. Some key provisions are as follows:

  • Creation of Title II for AIF and, in particular, notification of requests to market these funds in France, evaluation of assets, and informing investors and the AMF;
  • Enforcement of certain marketing rules currently applicable to UCITS to all AIFs marketed in France;

In addition, the AMF has brought its entire General Regulation, including Book III, into compliance concerning references to the provisions of the Monetary and Financial Code relating to AIFs and their management companies; new designations for AIFs; and the concept of collective investment.

Germany – AIFM Tax Act Passed

The Act on the adaption of the German Investment Tax Act (Investmentsteuergesetz) and other acts to the AIFM Implementation Act (AIFM-StAnpG, AIFM Tax Act) have been adopted in Germany. The AIFM Tax Act provides for an adaption of the terminology and the scope of application of the German Investment Tax Act (InvStG) to the new German Capital Investment Act (KAGB), which replaced the previous German Investment Act (InvG) with effect from 22 July 2013.

The new AIFM Tax Act (Investmentsteuergesetz) entered into force on 24 December 2014.

Please click here for further details.

Ireland – AIFMD – Q&A

On 4 February 2014, the Central Bank published a seventh edition of its AIFMD Q&A.  Questions ID1019 ID1025 and ID1026 were amended.

Subsequently on 7 March 2014, the Central Bank published an eighth edition. Amendments were made to questions ID1041 (AIFS in liquidation); ID1046 (relating to a non-EU AIFM marketing both EU and non-EU AIF to professional investors in Ireland); and ID 1058 (professional investor funds, when will the NU series of notices cease to apply and what rules will apply instead).  New questions ID1069 (regarding MiFID authorisations) and ID1070 (regarding delegation of an investment manager and this entity is not subject to regulation – what process will apply?) were added.

Please click here for a copy of the AIFMD Q&A.

Luxembourg – Updates AIFMD FAQs

Between 10 January 2014 and 17 March 2014, the CSSF published three updates to their FAQ document concerning AIFMD.  The current sixth version was published on 17 March 2014, details the various reporting start periods for AIFMs to report to the CSSF.

Please click here for further details.

The Netherlands – AIFMD Newsletter

The AFM published a newsletter designed to clarify certain issues surrounding the AIFMD.
The newsletter contains details on application procedures, notification forms for non-EU managers, timely preparation, an email address for queries, Q&A on reporting obligations and details of memoranda of understanding signed with third countries.

Please click here for further details.

Implementation Update

Italy

The Legislative Decree dated 4 March 2014, (No. 44), implementing AIFMD in Italy was published in the Italian Official Gazette (No. 70) on 25 March 2014 and the AIFMD entered into force on 9 April 2014.  However, according to the transitional provisions in the Decree, certain provisions will only become effective upon issuance of the relevant implementing regulations by the competent authorities (Bank of Italy, Consob etc.) which have yet to be made available.

Finland

The Act on Alternative Investment Fund Managers has been approved and entered into force on 15 March 2014. The new act is based on the AIFMD.  The regulations required by the AIFMD are also partially being implemented through 11 decrees of the Ministry of Finance and one government decree. The decrees entered into force on 29 March 2014.

Norway

The Norwegian implementation has been further delayed. The Ministry of Finance is currently drafting an Act, which is expected to be proposed before mid-April 2014.  Subject to this, implementation of the AIFMD in Norway is anticipated to take place on or around 1 July 2014.

Greece

On 21 January 2014, the HCMC published AIFMD implementing legislation. It is dated 21 November 2013 and is only currently available in Greek.

Please click here for a copy of the legislation.

Europe

Belgium – FSMA Consultation on Marketing of Financial Products to Retail Customers

The FSMA recently launched a consultation on a draft Royal Decree imposing certain obligations in respect of information on the marketing of financial products to retail customers.

The Royal Decree aims to strengthen the protection of retail customers in the marketing of financial products. The aim is to have the same rules for all types of financial products (securities, insurance, bank accounts, etc.).

The proposal involves the delivery of an information sheet to retail customers when marketing financial products.  It will also regulate the advertising of financial products (principles, minimum information, rule for the presentation of historical returns, simulated and future examples, comparisons between products, etc.).

The consultation closed on 17 February 2014.

Please click here for further details.

France – Instruction on approvals and documentation requirements for UCITS

On 21 February 2014, the AMF issued an instruction outlining the approval procedures, the establishment of a Key Investor Information Document and prospectus, and periodic reporting of domestic and foreign UCITS marketed in France.

A number of forms are attached to the instruction, including the provision of a letter of commitment from the management company at the time of the request for approval of a UCITS under French law, statistical and financial information to be transmitted to the AMF, and the notification letter for passporting.

Please click here for further details (only available in French).

France – Tax Exempt Savings Plans

On 4 March 2013, the French Government published Decree number 2014-823 regarding tax-exempt share savings plan ("PEA") and introducing in particular a new share savings plan ("PEA-PME") for investment in small and medium sized businesses.

The investments eligible for a PEA-PME may be made directly or indirectly through investment funds – such as UCITS vehicles, French funds, and foreign funds authorised for distribution in France provided that these entities invest at least 75% of their assets in eligible assets and at least 50% of the securities issued by these entities are in the form of equities.

The companies that are eligible for this new tax regime are required to be (i) French companies; (ii) companies which are in an EU member state; or (iii) companies in an EEA jurisdiction that has entered into a tax agreement with France and which provide administrative assistance regarding tax evasion.  Such companies (other than newly established companies) must be subject to French corporate tax or an equivalent tax in their home jurisdiction.

Switzerland – Media of publication for Collective Investment Schemes

On 21 January 2014, FINMA decided that publication of information for collective investment schemes can now be either in print media or on electronic platforms which are accessible by the public and recognised by FINMA, subject to FINMA examination and approval in each individual case.

Please click here for further details (only available in German).

Switzerland – Reporting Asset Management Costs

The Federal Occupational Pensions Regulatory Commission (OAK BV) implemented a new Directive entitled Reporting Asset Management Costs. This Directive establishes the principle of transparency of asset management costs for Swiss pension institutions when investing in investment schemes.Pension institutions must state in their income statement the following cost categories: Total Expense Ratio ("TER"); Transaction and Tax Cost ("TTC") and Supplementary Cost.("SC").

In order to be considered as transparent, it is advisable to include the TTC and SC in financial reports of locally registered collective investment schemes.  If these costs are already in the TER, this should be noted under the TTC and SC heading and also include references to these under separate headings so that a pension fund can locate these references easily.

Please click here for further details.

Italy – UCITS Bids Documentation: Online procedure

On 27 January 2013, a new online procedure for Consob filings entered into force effecting collective investment schemes offered to Italian retail investors.  The new procedure requires that upon making a filing for the first time following the introduction of the new online procedure, all the offering documents of the UCITS currently in force are required to be re-filed in order to populate the system with the most up-to-date information of the UCITS retail offer in Italy.

The user instruction manual for this new procedure is available by clicking here.

Each party should use the username and password supplied directly by Consob for the remote collection system for intermediaries.

Please see click here for more details.

UK – Marketing AIFs in the UK

On 26 February 2014, the FCA provided updated information on marketing AIFs in the UK.
Full-scope UK AIFMs wishing to market a non-EEA AIF or a UK AIF or EEA AIF that is a feeder AIF, the master AIF of which is managed by a non-EEA AIFM or is a non-EEA AIF, to retail and/or professional investors in the UK need to notify the FCA using the National Private Placement Regime (NPPR).

Please click here for further details.

Asia Pacific

New Zealand – Significant overhaul for managed funds governance

New Zealand’s securities laws are in the process of being updated by the Financial Markets Conduct Act 2013. A number of changes commence on 1 April 2014 and additional changes will commence on 1 December 2014.

The main difference in the 1 December 2014 amendments is that some of the thresholds when an offer of securities to the public has occurred, or is otherwise subject to New Zealand regulation, will change (for example, the NZ$500,000 threshold will increase to NZ$750,000).

New scheme designations mean some existing scheme managers have decisions to make.  To view The Financial Markets Conduct Act 2013 please click here.

Hong Kong – Authorisation of Unit Trusts and Mutual Funds

On 26 February 2014, the Information Checklist for Application for Authorisation of Unit Trusts and Mutual Funds was updated and available for use with immediate effect.  Applicants must use the Information Checklist link available here for submissions to the SFC after 12 March 2014.

Hong Kong – Stamp Duty – ETFs

On 26 February 2014, in the Budget Speech of 2014/15, the Financial Secretary proposed to waive the stamp duty for the trading of all ETFs.  This waiver will reduce the cost of investing in ETFs. At present, stamp duty is charged at 0.1% of the price of the ETFs, payable by each of the buyer and the seller (i.e. a total of 0.2% on each transaction).

Middle East

UAE – New Investment Management Regulations

The SCA approved the Regulation for Investment Management as part of its efforts to have a comprehensive legislative system for mutual funds.  The Regulation outlines licensing conditions, requirements for internal regulation by the investment manager towards both the investment and the SCA, assuming the duties of investment manager and other requirements.

The Regulation relates to investment funds in the UAE.  A licence is required from the SCA to manage such funds.  The SCA is considering if promotion by foreign promoters in the UAE in response to reverse solicitation enquiries will be exempt from the Regulation. The SCA will not issue any waivers for UAE investors in respect of the Regulation.

Existing investment managers who are operating in the UAE will have one year to comply with the Regulation from the date of its publication.

How Maples can help

Maples Global Registration Services ("Maples GRS") supports UCITS  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.


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