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ESMA proposes changes to notification letters for cross-border UCITS and AIFs

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

19-05-2022

On 17 May 2022, ESMA published a consultation paper seeking views on draft Implementing Technical Standards (ITS) and Regulatory Technical Standards (RTS) in relation to the cross-border marketing and management of AIFs and UCITS within the EU.

Background

The UCITS Directive and the AIFMD give ESMA the power to develop ITS and RTS specifying the information to be provided and notification letters to be submitted by UCITS, management companies and alternative investment fund managers (AIFMs) to their home state national competent authorities (NCAs) prior to undertaking cross-border marketing or cross-border management activities in other Member States. The ITS and RTS will include procedures for home NCAs to notify host NCAs in the Member States where the cross border activities will take place.

The consultation paper (CP) is the first stage in the development of the draft ITS and RTS, setting out proposals on which ESMA is seeking the view of stakeholders.

Updated notification letters

The draft ITS and RTS include five template forms for firms to provide, and use, when they inform regulators of their cross-border marketing and management activities under the UCITS Directive and AIFMD, including by:

  • UCITS to their home NCA to propose to market their units in a host member state
  • AIFMs to their home NCA to notify their intention to market the units or shares of the AIFs they manage in the home member state or a member state other than the home member state of such AIFMs
  • management companies and AIFMs to their home NCA to manage UCITS and AIFs established in other member states.

Key changes

Although the content of the forms is mostly similar to the information to be provided at present, some key changes have been introduced, for example, in respect of:

  • information to be notified in relation to the provisions of activities in a host member state by a management company or AIFM
  • a management company or AIFM’s envisaged marketing strategy in the host member state in relation to each fund or AIF the marketing of which is intended
  • the envisaged marketing targets in the home and host member state, in particular as regards the minimum and maximum capital raising target, the expected duration of the marketing and the revenues treatment
  • information on the envisaged marketing of AIFs in the home and host member state of the AIFM.

Next steps

Stakeholders are encouraged to review the draft ITS and RTS, including the template forms and respond to ESMA by 9 September 2022. All contributions should be submitted online using the “Respond” button on the ESMA webpage for the consultation. We are intending to respond to the consultation so do please let us know if you have particular concerns or suggestions.

 ESMA is expected to publish a final report on the consultation by the beginning of 2023. Once the draft RTS and ITS are finalised, ESMA will submit them to the European Commission.

How Eversheds Sutherland can help

Since June 2016, our International Funds Net (FundsNet) team, lawyers and consultants have advised various institutions on passporting UCITS and AIFs across the EU27. We would be happy to navigate the proposed changes with you and help with your passporting needs. View our FundsNet guide here for more information.