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PRIIPs and the PRIIPs KID

Welcome to our PRIIPs page which sets out current information on PRIIPs legislation and surrounding issues. For the very latest information and advice on PRIIPs, please feel free to contact one of our team.

About PRIIPs and the PRIIPs KID

Packaged Retail Investment and Insurance Products, or ‘PRIIPs’, is a term which covers a number of financial products which may be sold to retail investors. The PRIIPs KID Regulation (the Regulation) introduced a new, EU-wide disclosure standard, the Key Investor Document (KID). The KID must be provided to retail investors from 31 December 2016, although there are industry efforts to seek a delay to implementation. In broad terms PRIIPs include investment funds, insurance-based investment products and structured term deposits – i.e. products sold to retail investors which “wrap” an underlying investment. The Regulation requires manufacturers and financial intermediaries selling PRIIPs to retail investors to prepare and distribute standardised disclosure documents similar to the UCITS KIID.

Read more about PRIIPs and the PRIIPs KID

The PRIIPs Key Information Document (‘PRIIPs KID’) will be an EU-wide disclosure standard, effective from 31 December 2016, designed to give retail investors essential information about a PRIIP.

The legislation behind the PRIIPs KID, which we consider in greater detail in our PRIIPs briefing (available here), is a standalone regulation which will affect the asset management, banking and insurance sectors and will interact with other developing EU initiatives such as MiFID II and IDD. Investor protection in the sale of PRIIPs has been a concern for the EU regulators since 2007 and demonstrates a focus on minimising regulatory arbitrage and standardising investor protection across the EU.

The regime is implemented by way of the Regulation and Regulatory Technical Standards (which have been drafted and published by the European Supervisory Agencies (ESAs) and are to be finalised and adopted by the European Commission) (the “Final RTS”) that directly address and bind EU citizens, businesses and member states. This reduces the risk of regulatory arbitrage and should ensure a high level of uniformity in implementation.

The Regulation was published in December 2014, setting out the scope, framework and timetable for the regime, and the high-level form and contents of the KID. The Final RTS, which look at the KID in greater detail, were published on 7 April 2016.

We would expect the Final RTS to be adopted 3 months after publication (ie early July 2016). In addition, the ESAs have stated that they will be producing Q&As and other guidance. Within the funds world we hope that the European Securities and Markets Authority (ESMA) will also be proactive in providing practical guidance to firms as they build their solutions. There are clearly a number of areas where more detail will be needed, and quickly, if manufacturers are to achieve the deadline for implementation.

Whilst the similarities with the UCITS KIID regime indicate that broadly analogous drafting and distribution considerations will apply in the PRIIPs KID, the scope of the PRIIPs KID brings product providers and distributors who previously had no such obligations within the disclosure regime. It will be necessary for providers and distributors to closely review the products within their business to determine which will be within the scope of the PRIIPs KID and on whom the obligation to comply will fall.

Click here for a summary of the prescribed KID content.

The adopted Regulation introduces new regulatory powers which extend beyond the ambit of pre-investor disclosure (particularly in relation to the sanctions and supervision regime for insurance-based products) and will no doubt seem burdensome to some product manufacturers particularly those who have not had exposure to the UCITS KIID

Scope

Scope

‘PRIIP’ is actually a two-in-one definition incorporating (1) packaged retail investment products and (2) insurance-based investment products. Its two components are themselves separately defined in the adopted Regulation.

There are a number of products explicitly excluded from the scope of the Regulation. In summary these include:

  • non-life insurance products;
  • pure protection products (with no surrender value);
  • (non-structured) deposits;
  • vanilla shares;
  • government bonds; and
  • pensions products recognised by Member States as retirement vehicles.

The following products will, however, fall within the definition of a ‘PRIIP’:

  • investment funds;
  • insurance-based investment products (including market-exposed life-insurance products);
  • retail structured securities (including instruments issued by securitisation institutions and certain corporate bonds);
  • structured term deposits;
  • derivatives;
  • convertible bonds and other structured securities embedding a derivative; and
  • pension products and annuities not recognised in national law.

However, although a product may fall within the definition of a PRIIP it is only within the scope of the Regulation if it is sold to retail investors.

UCITS funds, although falling within the definition of a PRIIP, are specifically excluded for a period of five years from the date the Regulation enters into force, after which they will fall under the PRIIP regime, unless this exclusion period is extended.

UK NURS will also benefit from this exclusion provided the FCA continues to allow the modification by consent for the KIID-equivalent ‘NURS KIIs’.

In light of the above, and coupled with the restrictions on promotion of qualified investor schemes (QIS) to retail investors in the UK, it may be that no FCA-authorised funds are required to prepare PRIIPs KIDs within the initial five years of the PRIIPs KID’s life.

Distribution

Distribution

The PRIIPs KID is designed to be a pre-contractual document and the default position is that all investors must be provided with a KID in good time before they enter into the contract although in the case of distance contracts, KIDs can be provided post-sale in certain circumstances.

How Eversheds Sutherland can help with the PRIIPs KID

A lesson well learned from the UCITS KIID experience is that translation of existing content into readily-digestible, condensed paragraphs is a time consuming process.

  • Planning and scoping. We can assist with initial scoping exercises to determine which products will be affected by the PRIIPs regime and the interaction with UCITS KIID and NURS-KII disclosures.
  • Documentation. We can design, prepare and comment on draft PRIIPs KIDs and assist you with preparing the required content.
  • Ongoing regulatory and compliance management. We can advise on the updates and changes which may be required to keep PRIIPs KIDs in line with regulatory requirements and assist with management of PRIIPs, UCITS and NURS disclosure documents.

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