CONSULTATION DOCUMENT

Transcription

1 CONSULTATION DOCUMENT CONSULTATION ON THE PROPOSED REVISED RULEBOOKS APPLICABLE TO COLLECTIVE INVESTMENT SCHEMES [MFSA REF.: ] 23 Nvember 2016 Clsing Date: 5 January 2017 Page 1 f 10

2 1. Intrductin On 1 April 2016, the Authrity annunced the intentin t cnslidate and reduce the number f fund framewrks which were available t fund prmters in terms f the Investment Services Act and the applicable Investment Services Rules. This annuncement was further fllwed by a Circular t the industry utlining the manner in which the fund framewrks will be cnslidated and reduced. The table belw utlines the manner in which the Authrity has cnslidated the fund framewrks: Current Fund Regimes Cllective Investment Retail CISs Prfessinal CISs Nn- UCITS Retail UCITS Overseas- Based Nn- UCITS Retail Retail Expierienced PIFs PIFS Qualifying PIFs Extrardinary PIFs Experienced Qualifying Extrardinary Prfessinal Revised Fund Regimes Cllective Investment Retail CISs Qualifying PIFs N UCITS Retail 2. Purpse f this cnsultatin exercise The purpse f the cnsultatin exercise is t prvide the industry with the revised versins f the rulebks and frms and t slicit any feedback which it may have in this regard. These Rulebks are als being reviewed internally and at the end f the whle prcess all feedback will be cllated. This cnsultatin exercise will run till 5 January The new Rulebks will cme int frce n the date f publicatin theref. Page 2 f 10

3 The fllwing sectins will prvide an utline f the new prpsed Rulebks. In particular, the fllwing have been revised/intrduced in the Rulebks: The term SLC is being replaced with Rule ; The term custdian is being replaced with depsitary ; Parts A f all Rulebks has been restructured and is bradly standard in all three Rulebks. In particular, the sectin dealing with the applicatin prcess has been revised and nw incrprates a three-mnth perid during which the in principle apprval granted by the Authrity will be valid. Schedule A (Applicatin Frm) has been revised cnsiderably taking int accunt all the develpments relating t EUVECAs, EUSEFs and ELTIFs where applicable. The cntent f the new Applicatin Frms will be utlined during the sessin which the Authrity will be hlding fr the industry n 2 December The Authrity is prpsing t revise the Cmpetence Frm and the PQ and t merge the frmer in the PQ. The revised PQ is nt being issued fr cnsultatin since this dcument is still currently being finalised; Schedule B f the Investment Services Rules fr Retail Cllective Investment which prvided the frm relating t the applicatin fr a licence t perate as an verseas based retail cllective investment scheme has been deleted; A chapter n the duties f the gverning bdy f the scheme has been intrduced in all the Parts B f the Rulebks. Furthermre a requirement has been included t the effect that the gverning bdy f the scheme must at all times have ne r mre members independent frm the fund manager and the depsitary and that it shall be cmpsed f at least three members ne f whm must be resident in Malta; The definitin f Qualifying Investr has been revised as indicated in the circular dated 26 May 2016; The requirements included in the MFSA Circular dated 19 August 2016 utlining the dcumentatin which must accmpany crrespndence t the Authrity in specific instances such as inter alia resignatins and requests fr dergatins have been included in the Parts B f all the Rules. The dcuments which are being issued fr cnsultatin bear track changes and cmments t evidence any changes frm the Rulebks which are currently applicable t the new Rulebk. Page 3 f 10

4 Licence hlders are t nte that cllective investment schemes which had been granted a licence prir t the publicatin f the new Rulebks will cntinue t be regulated by the Rulebks which are currently in frce. Nnetheless, these Rulebks are als being reviewed and any changes will be subject t a secnd cnsultatin exercise which will be launched shrtly. 3. Part A f the Rulebks The table belw indicates the manner in which Part A f the Rulebks is being structured: - Regulatin f cllective investment schemes in terms f the Investment Services Act This sectin gives a brief verview f the prvisins f the Act and the licencing requirement pursuant t the prvisins f the Act; - Criteria which the MFSA will apply in cnsidering an applicatin fr a licence and nging regulatry requirements This sectin deals with the requirements f fitness and prbity which the Authrity applies at applicatin stage and n an nging basis; - Service Prviders This sectin utlines the service prviders which must be appinted t service the scheme. - Applicatins fr a Cllective Investment Scheme Licence This sectin prvides an verview f the applicatin prcess and the applicatin dcuments required. It als deals with licencing f additinal sub-funds f an existing scheme and applicatins fr the apprval f additinal classes f shares/units f an existing scheme; - Cessatin f a cllective investment scheme licence This sectin prvides fr the prcedure applicable where a scheme intends surrendering its cllective investment scheme licence; - Fees - This sectin prvides fr the fees payable in terms f the Investment Services Act (Fees) Regulatins. In this regard, reference is made t the Legal Ntice 371 f 2016 which has intrduced the cncept f Retail and the applicatin/supervisry fees applicable theret. 4. Investment Services Rules fr Retail Cllective Investment During the 1 April 2016 sessin with the industry, the Authrity infrmed the industry that the regime relating t the authrisatin f Nn-UCITS retail schemes wuld be gradually phased ut and that with effect frm 3 June 2016, it wuld nt issue any new cllective investment scheme licences under this categry. This was further cnfirmed in the circular dated 26 May Page 4 f 10

5 In a bid t prvide an alternative t this regime, the Authrity is prpsing t replace the Nn- UCITS Retail regime with Retail, whilst retaining the UCITS regime. In relatin t the regime dealing with Overseas Based Nn-UCITS Retail, the Authrity has cmmunicated with the lcal representatives f Overseas Based nn-ucits Retail fr the purpses f clarifying the regulatry status f these schemes pst- AIFMD transpsitin. The fllwing table prvides an verview f the cntents f the prpsed Investment Services Rules fr Retail Cllective Investment. Cntents PART A THE APPLICATION PROCESS Part A The applicatin prcess Schedule A Applicatin fr a licence t perate as a Malta-based retail cllective investment scheme Schedule B Ntificatin letter fr the marketing f unit r shares f EU in Member States ther than the hme Member State f the AIFM Cmments Part A has been revised t deal with the licencing prcess applicable t UCITS and Retail. Furthermre, any reference t Overseas Based Nn-UCITS Retail has been remved since this is regime has been phased ut. Schedule A has been revised t deal with UCITS and Retail. Schedule B was surced frm the Investment Services Rules fr Alternative Investment Funds. Schedule B has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Schedule C Ntificatin letter t be Schedule C featured in the riginal submitted by a Maltese UCITS Scheme wishing t market its units in a hst Member State Rulebk. Schedule C has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Schedule D Natinal rules fr Schedule D featured in the riginal marketing f Eurpean UCITS in Malta Rulebk. Schedule D has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. PART B STANDARD LICENCE CONDITIONS Part BI Rules applicable t Malta-based retail Alternative Investment Funds Part BI has been reviewed t utline the Rules applicable t Retail. It has replaced the frmer Part BI which dealt with Nn-UCITS Retail. Page 5 f 10

6 Part BII Rules applicable t Maltabased UCITS Cllective Investment Appendix I Cntents f the prspectus Annex I includes infrmatin t be included in the prspectus f a Retail AIF; Annex II includes infrmatin t be included in the prspectus f a Maltese UCITS Scheme. Part BII featured in the riginal Rulebk. There have been sme changes in relatin t the structure f this Sectin f the Rulebk. Appendix I featured in the riginal Rulebk. Hwever the sectin which was applicable t Nn-UCITS Retail has been replaced with the cntent f Appendix 4 f the AIF Rulebk. Appendix 4 which utlined the cntents f the prspectus was applicable exclusively t Retail. Appendix II: Cntents f the financial Appendix II featured in the riginal statements f UCITS Rulebk and is applicable exclusively t UCITS Appendix II has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Appendix III: Cntents f the cnstitutinal dcuments The Rules included in Appendix III featured in the riginal Rulebk as well as in the Investment Services Rules fr Alternative Investment Funds. This Appendix has been retained and has been made applicable t bth UCITS and Retail. Appendix III has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Appendix IV: Distributin f incme The Rules included in Appendix IV featured in bth the riginal Rulebk as well as in the Investment Services Rules fr Alternative Investment Funds. This Appendix has been retained and has been made applicable t bth UCITS and Retail. Appendix IV has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Appendix V: Rules applicable t Retail and UCITS adpting different structures The infrmatin which is included in Appendix V featured in the riginal Part BII in Sectins 14, 15, 17 and 18. The Investment Services Rules fr Alternative Investment Funds als made prvisin fr these Rules in Appendix I theref. Appendix VI: Additinal rules n risk management, cunterparty risk expsure and issuer cncentratin applicable t Maltese UCITS Appendix V incrprates all these Rules and it has been made applicable t bth UCITS and Retail. This Appendix featured in the riginal Rulebk and has been retained. Page 6 f 10

7 Appendix VI has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Appendix VII: Additinal Rules This Appendix featured in the riginal applicable t schemes set up as mney market funds Rulebk as well as in the Investment Services Rules fr Alternative Investment Funds. It has been retained and made applicable t bth UCITS and Appendix VIII: Additinal Rules applicable t self-managed UCITS Appendix IX: Additinal rules applicable t self-managed retail Appendix X: Cmplaints handling Retail. This Appendix featured in the riginal Rulebk. It has been reviewed t include the Rules which were included in Part BII and which applicable t self-managed UCITS. The Rules included in this Appendix were riginally included in Part B f the Investment Services Rules fr Alternative Investment Funds. The Rules have been reviewed and have been included in this Appendix. Appendix IX is further supplemented by the templates applicable in relatin t the reprting bligatins in terms f the AIFMD. The Rules included in this Appendix featured in the riginal Rulebk and is applicable t bth UCITS and Retail. 5. Investment Services Rules fr Prfessinal Investr Funds Currently, the Prfessinal Investr Fund regime (PIFs) cunts three categries f PIFs namely: [i] PIFs targeting Experienced Investrs; [ii] PIFs targeting Qualifying Investrs and [iii] PIFs targeting Extrardinary Investrs. In the circular dated 26 May 2016, the Authrity annunced that with effect frm 3 June 2016 it wuld nt issue any cllective investment scheme licence fr PIFs targeting Experienced and Extrardinary investrs. The fllwing table prvides an verview f the cntents f the prpsed Investment Services Rules fr Prfessinal Investr Funds. Cntents PART A THE APPLICATION PROCESS Part A The applicatin prcess Cmments Part A has been revised t deal slely with PIFs targeting qualifying investrs. Part A f this Rulebk als refers t Eurpean Venture Capital Funds and Eurpean Scial Entrepreneurship Funds. Page 7 f 10

8 Schedule A Applicatin fr a cllective investment scheme licence fr Prfessinal Investr Funds PART B STANDARD LICENCE CONDITIONS Part B Rules applicable t Prfessinal Investr Funds targeting Qualifying Investrs Appendix I Rules applicable t Qualifying Investr PIFs adpting different structures Annex I includes AIFM-specific infrmatin t be reprted (Article 3(3) AIFMD) Annex II includes AIF-specific infrmatin t be reprted (Article 3(3) AIFMD) Appendix II: Cntents f the ffering dcument Appendix III: Qualifying Investr Declaratin Frm Appendix IV: Additinal rules applicable t PIFs established as mney market funds Appendix V: Guidance fr AIFMs managing PIFs Schedule A has been revised as indicated abve. Part B has carried frward the previus requirements which were applicable t Qualifying PIFs. There have als been changes t the definitin f Qualifying Investr and these have been reflected in Part B. Appendix I featured in the riginal Rulebk. It als includes the requirements applicable t self-managed PIFs and hence incrprates the AIFMD reprting templates. Appendix II featured in the riginal Rulebk. Any parts dealing with Experienced r Extrardinary PIFs have been remved. Appendix III has been reviewed t retain the Qualifying Investr Declaratin Frm Appendix IV featured in the riginal Rulebk and has been retained. This Appendix featured in the riginal Rulebk. 6. Investment Services Rules fr Alternative Investment Funds Currently, apart frm the retail (discussed in Sectin 3 f this Cnsultatin Dcument), the AIF regime als makes prvisin fr the fllwing categries f : [i] targeting Experienced Investrs; [ii] targeting Qualifying Investrs; [iii] targeting Extrardinary Investrs; and [iv] targeting Prfessinal Investrs. In the circular dated 26 May 2016, the Authrity annunced that it was restricting the categries f t tw namely: [i] targeting Prfessinal Investrs as defined in MiFID; and [ii] targeting Qualifying Investrs.. The fllwing table prvides an verview f the cntents f the prpsed Investment Services Rules fr Alternative Investment Funds: Page 8 f 10

9 Cntents PART A THE APPLICATION PROCESS Part A The applicatin prcess Schedule A Applicatin fr a cllective investment scheme licence t perate as an Alternative Investment Fund Schedule C Ntificatin letter fr the marketing f units r shares f EU in Member States r EEA States ther than Cmments Part A has been revised in view f the different categries f nw available. Reference is als made t Eurpean Venture Capital Funds, Eurpean Scial Entrepreneurship Funds and Eurpean Lng Term Investment Funds Schedule A has been revised cnsiderably. Schedule C featured in the riginal Rulebk the hme Member State f the AIFM Schedule C has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. PART B STANDARD LICENCE CONDITIONS Part B Rules applicable t Alternative Investment Funds Appendix I Additinal rules applicable t adpting different structures. Appendix II: Additinal rules applicable t schemes established as mney market funds Appendix III: Cntents f the Offering Dcument Part B has been revised in view f the different categries f nw available. In particular all the Rules applicable t Retail have been deleted. The Rules included in Appendix I already featured in the frmer Rulebk. The Rules have been reviewed. The Rules incrprated in Appendix II already featured in the frmer Rulebk. These Rules have been incrprated in an ad hc Appendix n mney market funds. This Appendix is standard in all Rulebks. Appendix III featured in the riginal Rulebk. This Appendix has undergne cnsiderable changes. Appendix IV: Remuneratin Plicy This Appendix featured in the riginal Rulebk. Appendix IV has nt undergne any changes and therefre des nt frm part f this cnsultatin prcess. Appendix V: Disclsure requirements applicable t self-managed Annex I includes AIFM-specific infrmatin t be reprted (Article 3(3) and Article 24(1) AIFMD) Annex II includes AIF-specific infrmatin t be reprted (Article 3(3) and 24(1) AIFMD) Annex III includes AIF- specific infrmatin t be reprted (Article 24(2) AIFMD) This Appendix featured in the riginal Rulebk. Page 9 f 10

10 Annex IV includes AIF-specific infrmatin t be reprted (Article 24(4) AIFMD) Appendix VI Declaratin Frms Appendix VI has been revised in view f the different categries f nw available. 7. Cntacts Interested parties are t send their cmments in writing by nt later than Thursday 5 January The Authrity will als be hlding an infrmatin sessin with the industry t utline the changes in the authrisatin prcess. This infrmatin sessin will be held n 2 December Any cmments and feedback are t be addressed t Dr. Isabelle Agius, Senir Manager, Authrisatin Unit n iagius@mfsa.cm.mt r Ms. Judy Catania, Analyst n jcatania@mfsa.cm.mt Cmmunicatins Unit Malta Financial Services Authrity MFSA Ref: Nvember 2016 Page 10 f 10