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The final AIFMD cross-border fund distribution package: mapping the changes

The final AIFMD cross-border fund distribution package: mapping the changes

  • United Kingdom
  • Financial services and markets regulation
  • Financial institutions

22-07-2019

Directive (EU) 2019/1160 and Regulation (EU) 2019/1156 on facilitating cross-border distribution of collective investment undertakings were published in the Official Journal of the EU (OJ) on 12 July 2019.

To read the Directive, click here.

To read the Regulation, click here.

Following on from our recent briefing “The final AIFMD cross-border fund distribution package: delivering freedom?”, 30 May 2019, we have prepared a table showing the changes introduced by the amending Directive and Regulation, including annotated text where relevant, which is available on request from the contacts at the end of this briefing or your usual Eversheds Sutherland contact.

To read our briefing “The final AIFMD cross-border fund distribution package: delivering freedom?”, click here.

Main changes

Directive (EU) 2019/1160 amends both the UCITS and AIFM Directives. EU Member States have until 2 August 2021 to enact the Directive into national law. The main changes are:

• uniform definition of and conditions for ‘pre-marketing’ of AIFs to professional investors;

• a requirement to appoint a local entity fulfilling the paying and/or information agent function for UCITS and for AIFs distributed to retail investors abolished; and

• uniform rules for the de-notification process, in the event of cessation of marketing of UCITS or AIFs in a particular Member State.

Regulation (EU) 2019/1156 amends the EuSEF, EuVECA PRIIPs regulations and is effective from 1 August 2019. The main new requirements are as follows:

• extension of the deadline for UCITS and AIFs to produce PRIIPs style KIDs (under the same exemption to provide PRIIPs-KIDs) from 31 December 2019 to 31 December 2021;

• host Member State regulators must send invoices or any other individual payment instruction relating to regulatory fees to the relevant UCITS or AIFM’s at the address given in the notification letter, thus abolishing any local requirement to calculate and pay regulatory fees without prior notification by host regulators;

• implementation of a 10-business-day review period and deadline for reviews of marketing material by host regulators;

• host regulators must publish summaries of local requirements (laws, regulations, administrative provisions, regulatory fees) in English on their websites; and

• ESMA to create and maintain databases of Member State’s local requirements.

Key dates to note

2 August 2021:

• UCITS and AIFs marketing material must:

o describe potential risks and rewards arising from the investment in an equally prominent manner

o be fair, clear and not misleading

o contain references to available fund documentation and investor rights as well as information on the possibility to terminate marketing in a member state

• EuSEF and EuVECA regulations amended to include the description and requirements for ‘pre-marketing’ (these are the same requirements as under the AIFMD)

2 February 2022:

• ESMA will publish databases providing:

o overviews of Member States local regulatory fees and requirements

o a central UCITS and AIF register, listing all cross-border distributed funds and the EEA countries where they are marketed

• These databases will be based on regular reports regulators must file with ESMA

Brexit impact

The changes to the Regulation that come into force on 1 August 2019 will, as directly effective EU law, form part of UK law prior to Brexit. If, as is currently expected, there is a no deal Brexit on 31 October 2019 without any transitional period, then those parts of the Regulation that are already in force in the UK will be automatically transposed into UK law by the EU (Withdrawal) Act 2018 (“EUWA”), subject to any amendment of those provisions by statutory instruments created under the EUWA.

The balance of the Regulation and the whole of the Directive will not come into force in respect of the UK unless HMG legislates for it to do so. What HMG, Her Majesty’s Treasury and the FCA will do in that circumstance is as yet uncertain.

How Eversheds Sutherland can help

Since June 2016, our lawyers and consultants have advised various institutions passporting into the UK from EU27 Member States and passporting from the UK into the EU27 on Brexit planning and Brexit related issues.

We would be happy to discuss how we can help you with your Brexit planning and execution of those plans.

For more information contact

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