Global Registration Services - Market Update, Q4 2015
ESMA Q&A on the Application of AIFMD
On 1 October 2015, 2 December 2015 and 15 December 2015, ESMA published updated Q&A documents on the application of AIFMD and its implementing measures. The documents clarify the content of certain AIFMD rules and subscribe common approaches and practices to be undertaken by supervisory authorities. In particular, the 1 October 2015 and 15 December 2015 Q&As provide clarification on the depositary liability regime, and the 2 December 2015 Q&A clarifies the obligations to report to supervisory authorities under AIFMD.
ESMA Assessment of Extension of AIFMD Passport
As reported in our Q3 Market Update, on 13 October 2015, ESMA announced that it will undertake a second waive assessment of the following non-EU countries for the extension of the AIFMD passport: Australia, Canada, Japan, the Cayman Islands, the Isle of Man and Bermuda. ESMA has been given a deadline of 30 June 2016 for its next opinion and advice based on this assessment. ESMA has also been given the same deadline for its assessment on whether to extend the AIFMD passport to Hong Kong, Singapore and the US. We note that in its previous advices of 30 July 2015, ESMA gave no definitive conclusion on Hong Kong, the US and Singapore while concluding positively on Jersey, Guernsey and Switzerland.
In a letter from the European Commission to ESMA dated 17 December 2015, ESMA was invited to provide a more detailed assessment of the capacity of supervisory authorities and their track record in ensuring effective enforcement as well as a preliminary assessment of the expected inflows of funds by type and size into the EU from relevant third countries.
Ireland: AIFMD Q&A
On 4 November 2015, the Central Bank of Ireland (the "CBI") published the 17th edition of the AIFMD Q&A document which revises an existing question (ID 1030) that considers whether a professional investor fund or QIAIF can be managed by a non-EU AIFM. A new question (ID1100) considers whether subscription and redemption monies of individual sub-funds can be held within a single account as fund assets in the name of the umbrella fund.
Please click here for a copy of the Q&A.
Ireland: Changes to Annex IV Reporting Obligations
As reported in our 4 December 2015 client update, on 30 November 2015, the CBI published an updated version of the Reporting Guidance for AIFMs, which prescribes new reporting requirements applicable to non-EU master AIFs not being marketed in the EU that have either EU or non-EU feeder AIFs marketed in the EU under Article 42 of AIFMD.
Please click here for a copy of our 4 December 2015 client update.
Luxembourg: Regulation on Marketing Foreign AIF to Retail Investors
On 27 November 2015, the CSSF published Regulation No. 15-03, which prescribes detailed rules on the application of Article 46 of the Law of 12 July 2013 on AIFMs regarding the marketing of foreign AIFs to retail investors in Luxembourg. Foreign AIFs under the Regulation include foreign EU-AIFs as well as foreign third country AIFs. The Regulation prescribes the procedure by which foreign AIFs are required to obtain CSSF authorisation prior to commencing marketing to retail investors in Luxembourg.
Please click here for a copy of the Regulation in French. There is no English version available to date.
Luxembourg: Financial Reporting Obligations of Foreign AIFMs
On 29 December 2015, the CSSF issued Circular 15/633 on the obligation of investment fund managers and their branch offices to provide quarterly financial reports to the CSSF. The Circular extends the scope of "investment fund managers" to include authorised foreign AIFMs subject to the Law of 12 July 2013 with immediate effect. Authorised foreign AIFMs are required to submit financial information as at 31 December 2015 to the CSSF by 29 February 2016. Previously, only management companies subject to Chapter 15 of the Law of 17 December 2010 on undertakings for collective investment schemes were subject to this requirement.
Please click here for a copy of the Circular. There is no English version available to date.
Norway: AIFMD Annex IV Transparency Reporting
On 15 December 2015, Finanstilsynet published a Statement that all non-EEA AIFMs having been granted authorisation to market AIFs to professional investors in Norway in terms of section 6-5 of the Norwegian Act on the Management of Alternative Investment Funds, are required to report periodic information on the AIFM and the respective AIFs to Finanstilsynet.
AIFMs are required to commence reporting from the first day of the following quarter after they have information to report until the end of the first reporting period. Reports are required to be submitted by no later than one month after the end of the relevant reporting period (where the AIF is a fund of funds, this is subject to a 15 day extension).
Finanstilsynet has invited Annex IV reports as from 1 January 2016 and has requested AIFMs to not submit reports for preceding reporting periods.
Please click here for the Statement.
Belgium: Circular on the Offering of Financial Products to Belgian Retail Customers
On 27 October 2015, the FSMA published a Circular providing guidance on the recently amended rules governing marketing materials used in connection with the offering of financial products to Belgian retail customers, namely Royal Decree dated 25 April 2014 as amended by Royal Decree dated 2 June 2015 (the "Transversal Royal Decree"). The circular clarifies certain provisions of the Transversal Royal Decree and provides answers to practical questions that have been raised in connection with the implementation thereof.
Please click here for a copy of the Circular in French. There is no English version available to date.
France: AMF Public Consultation on Social Media Communication
From 5 October 2015 to 13 November 2015, the AMF conducted a public consultation on the communication of promotional literature in social media by asset management companies and debt securities issuers. The consultation document included proposals for the clarification of rules that apply to communicating promotional literature, archiving policy, treatment of third-party publications, opinion-posting and the internal organisation of the entities in question.
Please click here for a copy of the consultation document.
Germany: Updated Draft German Investment Tax Act
On 16 December 2015, the German Federal Ministry of Finance published an updated draft of the German Investment Tax Act. It incorporates comments received from industry associations. Under the updated draft the statutory seat, principal place of management or permanent establishment will no longer be relevant to the distinction between German and non-German investment funds. This purports to ease the cross-border management of investment funds. Industry and associations were invited to submit further comments on the updated draft by mid-January 2016.
The updates introduce considerable change to the German tax system, particularly for domestic and foreign mutual funds. They effectively remove the principle of tax transparency and introduce a lump sum taxation as from 1 January 2018.
Please click here for a copy of the updated draft in German. There is no English version available to date.
Lithuania: Removal of Obligation to Pay Regulatory Fees
On 2 December 2015, the Bank of Lithuania updated its local requirements for the initial and subsequent notification to market a foreign UCITS in Lithuania. As a result, the obligation to pay regulatory notification fees has been removed.
Please click here for the updated section of the Bank of Lithuania's website.
Hong Kong: New Authorisation Periods for Fund Authorisation Process
As reported in our Q3 Market Update, on 9 October 2015, the SFC launched a revised process for the inward marketing of foreign UCITS effective from 9 November 2015. The new process is subject to a six month pilot period ending 8 May 2016 (which period may be extended). The new process introduces new authorisation periods for applications where a prospective fund to be marketed is a sub-fund under an existing SFC-authorised umbrella fund and applications where an umbrella fund makes an initial application for SFC authorisation. Under the revised process, the former category would be regarded as a "Standard Application" taking an average of one to two months to process, whereas the latter category would comprise a "Non-Standard Application" taking an average of two to three months to process.
Please click here for a copy of the SFC's Circular to Management Companies on the Launch of the Pilot Revamped Fund Authorisation Process and here for the SFC's FAQ on the Revamped Process (questions 5A and 5B are of particular relevance).
Japan: Draft Amendments on the Financial Instruments and Exchange Act
On 20 November 2015, the FSA published Draft Amendments to the relevant cabinet order and ordinance detailing new requirements prescribed by the Bill amending the Financial Instruments and Exchange Act. The Bill was published on 27 May 2015 and it is expected to come into force in the first quarter of 2016.
The Bill limits the application of the QII-targeted Business Exemption currently available to the General Partner ("GP") of a Limited Partnership ("LP"). While GPs making use of the exemption will be entitled to rely on same until termination of the LP, certain sections of the revised Act (e.g. bookkeeping and reporting obligations, the requirement to appoint a representative in Japan) will begin to apply.
Taiwan: Amendments to Regulations Governing Offshore Funds
On 13 October 2015, the FSC published updated Regulations Governing Offshore Funds adopted under the Securities Investment Trust and Consulting Law. The Regulations update the qualification criteria of an offshore fund manager for the offering and sale of an offshore fund (Article 24) and the application procedure for same (Article 27). The Regulations also permit the FSC to prescribe the total amount of the offshore fund to be offered and sold in Taiwan as it deems necessary for management of the securities market (Article 26-1). Other updated Articles are Articles 12, 13, 28, 29, 31 and 32.
All updated Articles came into effect from 13 October 2015, save for Article 13, which will be implemented from 15 April 2016 and Article 24, which will be implemented from 15 October 2016.
Please click here for a copy of the Regulations.
IOSCO Report on Cross-Border Regulation
On 9 October 2015, the International Organization of Securities Commissions published a report on cross-border regulation which focusses on the tools used by regulators to manage overlaps in regulatory requirements for cross-border activities. The report is a key milestone in international discussions aimed at improving co-operation between regulators. Pages 31 to 37 in particular, provide an overview of the cross-border marketing passport regimes available in the EU and Canada and also set out some challenges to same.
Please click here for a copy of the report.
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.
1Domiciled in Ireland and Luxembourg