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CSSF publishes Circular 21/778 to comply with the de-notification requirements of the Cross-Border Distribution Directive

  • Luxembourg
  • Financial services and markets regulation
  • Investment funds and asset management

04-08-2021

 

On 28 July 2021, the Luxembourg Financial Supervisory Authority (the “CSSF”) published circular 21/778 (the “Circular”) amending CSSF Circular 11/509 on notification procedures applicable to undertakings for collective investment in transferable securities (“UCITS”).

The aim of the Circular is to implement certain technical requirements for marketing notifications of UCITS put in place by Directive (EU) 2019/1160 with regard to cross-border distribution of collective investment undertakings (the “Cross-Border Distribution Directive”) implemented in Luxembourg by Law of 21 July 2021 transposing directive 2019/1160.

Background

The Cross-Border Distribution Directive facilitates cross-border distribution of investment funds and harmonises the regulatory framework for distribution of UCITS and AIFs across the EU Member States. Among others, the Cross Border Distribution Directive introduces rules on the discontinuation of marketing arrangements of UCITS. Under the new framework UCITS may de-notify fillings made for marketing, if the following conditions are fulfilled:

(i)  a blanket offer to repurchase or redeem shares or units is made to the remaining investors;

(ii)  the intention to stop arrangements for the marketing in host a Member State is made public in an official or approved language by means of a publicly available medium;

(iii)  contractual arrangements with intermediaries and delegates are modified or terminated with effect from the date of the de-notification to prevent further offerings.

The information referred to in points (i) and (ii) above should be provided in the official language of the Member State in respect of which UCITS made a notification or a language approved by its competent authorities.  It should clearly describe the consequences for investors if they do not accept the offer to redeem or repurchase their units or shares.  UCITS must cease any offering or placement of units or shares subject to the de-notification as of the date of the termination or modification of contractual amendments referred to in point (iii).

Rules introduced by the Circular

The Circular amends rules set out by Circular 11/509 for the notification procedures applicable to UCITS governed by the Luxembourg Law as well EU UCITS wishing to market their units or shares in Luxembourg.  It adds new requirements in relation to de-notification of marketing arrangements introduced by the Cross-Border Distribution Directive and described above.

UCITS governed by Luxembourg law

In relation to UCITS governed by Luxembourg law, the Circular extends the notification requirements by adding an obligation to de-register sub-funds and classes of units or shares of UCITS.  As such, each UCITS governed by Luxembourg law will be subject to three different notification procedures:

(i)  initial notification;

(ii)  notification of amendments to the existing file; and

(iii)  de-notification applicable at the level of each sub-fund and share or unit class.

De-notification will need to be submitted in the form provided in Annex VI of the Circular and published on the CSSF website.  Documents for each notification procedure must be submitted to the CSSF electronically in accordance with CSSF Circular 19/709.

UCITS established in another Member State wishing to market their units in Luxembourg

Rules applicable to EU UCITS wishing to market in Luxembourg remain unchanged. Such UCITS must ensure that the CSSF receives documents listed in articles 93(1) and 91(2) of Directive 2009/65/EC (“UCITS Directive”) and an attestation confirming that it complies with laws implementing the UCITS Directive in the country where it is domiciled.  In the event of changes impacting information submitted in the initial notification, a UCITS is still obliged to inform the CSSF prior to implementing any such changes.  As updated by the Circular, complete information about legal and administrative provisions applicable to the marketing arrangements can be now found in a dedicated section of the CSSF’s website.

Technical rules

The Annexes to the Circular provide an additional guidance on technical aspects for submission of de-notification letters, systems and file nomenclature accepted.

How Eversheds Sutherland can help 

We can assist Luxembourg and EU UCITS to comply with requirements of the Circular and filling of all types of the marketing notifications (including newly introduced de-notifications) with the CSSF. 

For more information, get in touch