Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 (UCITS Directive)

Transcription

1 The Danish Financial Supervisory Authority s indicative instructions for completing the Notification Letter in order to comply with the national regulations in Denmark The Danish Financial Supervisory Authority (The Danish FSA) has created these instructions in order to ease the application process and to ensure that the application complies with the national regulation in Denmark. Please note that these instructions are only indicative, and cannot be considered as official guidelines, and they cannot replace the regulation. To ensure adequate understanding of the rules the reader should be aware of the relevant regulation. Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 (UCITS Directive) Commission Regulation (EU) no. 584/2010 of 1 July 2010 implementing Directive 2009/65/EC The Investment Associations, etc. Act no. 456 of 11 May 2011 Executive Order no. 746 of 28 June 2011 on marketing carried out by foreign investment undertakings in Denmark Contents The Danish Financial Supervisory Authority s indicative instructions for completing the Notification Letter in order to comply with the national regulations in Denmark... 1 The attached documentation... 2 List of compartments(sub-funds) and ISIN codes... 2 Translations... 2 Annual report... 3 The prospectus... 3 Supplement to the prospectus... 3 Referring to the prospectus... 4 Scope of marketing activities... 4 Marketing to retail investors... 5 Marketing to professional investors only... 6 Registration fee... 6 Notifications that are not subject to the notification procedure of Commission Regulation No 584/2010 of 1 July The attached documentation... 7 The Notification Letter... 7 List of sub-funds and ISIN codes... 9 Registration fee... 9

2 The attached documentation List of compartments(sub-funds) and ISIN codes The Danish FSA will accept a notification if the information regarding UCITS compartments(sub-funds) is attached in a separate excel file with the notification letter. The excel file must use the same columns as the notification letter to be accepted. If a separate file is used please refer to the file in the section for UCITS compartments, as in the following example: Translations As referred to in the notification letter, the following documents must be enclosed with the application: The requirements for translations are set out in section 10(2) of Executive Order no. 746 of 28 June All the documentation will be accepted in English, Swedish or Norwegian, except the key investor information (referred to above as no. (3)), which must be enclosed as an authorised translation into Danish. An authorized Danish translation must be made by an authorized translator and interpreter, who is a person with a language exam at Masters Level, which the Danish Commerce and Companies Agency has appointed, or by a foreign translator with corresponding education and corresponding public authorisation. 2

3 The translation must include a statement where the translator declares that the translation is authorised. The word "authorized translation" must be visible on the front of the Danish translation so it is clear that the requirements are met. Annual report The latest published annual report and subsequent interim report is required to be submitted if they are available. They are not required if the notification is for a new investment undertaking, which has not yet submitted an annual report in its home Member State. The prospectus According to Danish regulations, the prospectus (referred to above as no. (2)) must include the information listed in section 3(3) of Executive Order no. 746 of 28 June 2011, i.e.: 1) the Danish representative of the investment undertaking, cf. section 8, 2) the taxation regulations applicable to Danish investors of the investment undertaking, 3) the extent to which tax is withheld on any distributions, 4) the taxation regulations applying to the investment undertaking in its home country, 5) the information the investment undertaking is required to provide for its investors according to the regulations in its home country, including the information the investment undertaking is required to provide if it ceases marketing in Denmark, and 6) the measures the investment undertaking intends to implement in Denmark with a view to securing the investors rights to receive dividends and redeem units. Supplement to the prospectus The information required in section 3(3) of Executive Order no. 746 of 28 June 2011 may be submitted in a separate supplement to the prospectus. In this case there should be a reference to the supplement in the notification letter at the same place as there is a reference to the prospectus, see the following example: The supplement is made to be given to investors together with the prospectus and/or the Key Investor Information document. There is no requirement for an authorized translation of the supplement. The requirements for language are set out in section 10(2) of Executive Order no. 746 of 28 June The supplement will be accepted in Danish, English, Swedish or Norwegian. Only the Key Investor Information Document (referred to above), must always be enclosed as an authorised translation into Danish. 3

4 Referring to the prospectus If the required information is only described in the prospectus, a reference must be made to the relevant page or pages in the prospectus in the notification letter as in the following example: Scope of marketing activities According to Executive Order no. 746 of 28 June 2011, there is a distinction between marketing to investors, including retail investors, and marketing solely to professional investors. The notification letter must clearly state which type of marketing the investment undertaking is applying for. The type of marketing the investment undertaking is applying for will affect the notification letter as described below. Any investor who cannot be classified as a professional investor will be deemed to be a retail investor. If the investment undertaking only wishes to market its units to professional investors, it will not be allowed to market to retail investors, either directly or indirectly, and the investment undertaking will be liable for any breach of the regulations. It is possible to change the scope of marketing activities later to include retail investors, but only if a new notification letter has been submitted as described below. Please note, that indirect marketing through unit-linked schemes is not considered marketing to retail investors, but any other kind of resale or distribution to a retail investor, through a professional investor or otherwise, will be considered indirect marketing towards retail investors. Marketing must always be in accordance with the Executive Order on Good Business Practice for Financial Undertakings in Denmark, and marketing must comply with other legislation, including the Danish Marketing Practices Act. 4

5 Marketing to retail investors An investment undertaking must have a Danish representative in order to market its units to retail investors in Denmark. The representative must be appointed in order to comply with section 8 of Executive Order no. 746 of 28 June Details of the representative should be written as Details of the paying agent, as in following example According to section 8(2) of Executive Order no. 746 of 28 June 2011, a representative must have a licence as a securities dealer or an investment management company. The representative can alternatively be a branch which legally is not an independent part of a credit institution, investment firm, management company, or insurance company, and which carries on the type of activities for which the undertaking has a license. A list of eligible companies can be found on The Danish FSA s website. The tasks of a Danish representative are not entirely the same as a paying agent, and the tasks are stated in section 8(3) of Executive Order no. 746 of 28 June Marketing towards retail investors is considered at fund level. It is therefore not possible to register some of the sub-funds for marketing towards retail investors and other for professional investors only. If a single sub-fund or class in the investment undertaking will be indirectly marketed towards retail investors, the investment undertaking must be registered for marketing towards retail investors. Consequently, it is not possible for a Danish representative only to be appointed for a part of the investment undertaking. An agreement with a Danish representative will only comply with section 8(1) of Executive Order no. 746 of 28 June 2011, if it includes all sub-funds of the investment undertaking wich is registered for marketing in Denmark and the agreement with the representative must at all times be consistent with the registration. If the Danish representative is a Branch of a foreign company, it is a precondition that the Branch is fully registered by the Danish FSA in accordance with article 32 of The Markets in Financial Instruments Directive 2004/39/EC (MiFID) article 32. It is not sufficient to be registered as a tied agent, appointed in accordance with article 23 of The Markets in Financial Instruments Directive 2004/39/EC (MiFID). 5

6 Marketing to professional investors only If the investment undertaking only intends to market its units to professional investors, it may omit to have a representative according to section 8(5) Executive Order no. 746 of 28 June The investment undertaking must declare that it fulfils the requirements and will be liable of any breach of the regulation. The Declaration can be written in a separate document or be described in the notification letter as in following example: Please note that the declaration will only be accepted, if it is clear that the UCITS intends to comply with the regulation in practice. Registration fee According to section 229, no. 36 of the Investment Associations Act no. 456 of 11 May 2011, the following fees are payable for registration for marketing in Denmark: An investment undertaking must pay an annual basic fee of DKK 8,000 in 2004-prices (in 2010, equivalent to approx. DKK 12,000) An investment undertaking must pay a basic fee of DKK 2,500 in 2004-prices (in 2010, equivalent to approx. DKK 3,500) for any communication, notification or application for cross-border marketing of units in an investment undertaking. Communication, notification or application means any request for registration of new investment undertakings, compartments or classes, as well as changes of names, classes, addresses and notification of cessation of marketing. Fees are not charged in advance so the section on evidence of payment due does not need to be filled in. The fees for the relevant year will be charged at the beginning of December by the Danish FSA and will be payable by the end of the year. Failure to pay on time will be considered a breach of the regulations. 6

7 Notifications that are not subject to the notification procedure of Commission Regulation No 584/2010 of 1 July 2010 The following applies for notifications that are not subject to the notification procedure of Commission Regulation No 584/2010 of 1 July A notification of this kind must be sent to the Danish FSA to the address: ucits@ftnet.dk An investment undertaking is only required to send a notification directly to the Danish FSA if there are changes to the registration. By changes to the registration means: Termination of marketing of UCITS Termination of marketing of sub-fund(s) Merger or division of sub-fund(s) into sub-fund(s) registered for marketing in Denmark Registration of new classes Termination of marketing of classes New Danish representative in order to approach retail investors Changes in names/code numbers for sub-funds and/or classes registered for marketing in Denmark Change in Management Company and/or address for registered office/seat/domicile (Section 4 and/or 5) Information regarding prospectus and KIID s updates are not to be submitted to the Danish FSA, if there are no changes to the registration as mentioned above. According to section 9.-(1) Executive Order no. 746 of 28 June 2011, all changes regarding address or name changes must be submitted no later than 14 days after the changes applies. A notification will be subject to the basis fee of DKK 2,500 in 2004-prices (in 2010, equivalent to approx. DKK 3,500). The attached documentation The Notification Letter and the excel file with information on sub-funds and ISIN codes are required to be submitted. For explanatory reasons other documents can be submitted. The Notification Letter The following describes the procedure for notification, depending on which check box is selected in the notification letter. Termination of marketing of UCITS If a UCITS ceases its marketing in Denmark the notification must include information of the steps taken according to section 3(5) of Executive Order no. 746 of 28 June It can be written in the notification letter or in a separate document. Because the entire UCITS will be deleted from the register, no excel file should be submitted. 7

8 Termination of marketing of sub-fund(s) If a sub-fund is terminated an excel file must be submitted. Only the terminated sub-fund and classes must be written in this excel file. The steps taken regarding the information to shareholders, that the UCITS is required to provide if it ceases marketing in Denmark, can be explained in Other announcements concerning UCITS (specify) or in a separate document. Merger or division of sub-fund(s) into sub-fund(s) registered for marketing in Denmark A notification of a merger of a sub-fund(s) into another sub-fund(s) must include an excel file. The terminated sub-fund(s) and classes should be written, together with information about which subfunds will absorb the terminated sub-funds. If a sub-fund merger into a sub-fund that are not registered for marketing in Denmark, it will be regarded as a termination of marketing in Denmark. Registration of new classes New classes can only be registered if the related sub-fund is approved for marketing in Denmark. Only information about the new classes should be written in the excel file. If the excel file contains information about classes in a sub-fund that are not registered for marketing in Denmark, the notification will be rejected. Termination of marketing of classes Only information about the terminated classes should be written in the excel file. The steps taken regarding the information to shareholders, which the UCITS is required to provide if it ceases marketing in Denmark, can be explained in Other announcements concerning UCITS (specify) or in a separate attached document. New Danish representative in order to approach retail investors If the investment undertaking wishes to expand the scope marketing in Denmark to include retail investors, the investment undertaking must include information about the Danish representative. Contact details for the representative should be written under point 6. This also applies if the investment undertaking has appointed a new representative that replaces another, or if the representative changes its address. Changes in names/code numbers for sub-funds and/or classes registered for marketing in Denmark All changes must be clearly visible in the excel file. New names/code numbers shall be written with a clear indication on what replaces the old names/code numbers. It can be explained in Other announcements concerning UCITS (specify) or in a separate document. Change in Management Company and/or address for registered office/seat/domicile (Section 4 and/or 5) According to section 9.-(1) Executive Order no. 746 of 28 June 2011, all changes regarding addresses or name change, must be submitted no later than 14 days after the changes applies. The new contact details shall be written under section 4. or 5, depending on which change there is submitted. 8

9 List of sub-funds and ISIN codes A list of sub-funds and ISIN codes must always be attached as an excel file, or in a format readable by Microsoft Office Excel. The file should at least include three columns: It is possible to use other columns and different colours for the cells in order to explain how the changes should be implemented. The list should be made in a way so it is easy to understand. Irrelevant information should be excluded. The Danish FSA reserves the right to send the list back and request a new one, if there is doubt about how the changes should be addressed or which changes applies. Registration fee According to section 229, no. 36 of the Investment Associations Act no. 456 of 11 May 2011, the following fees are payable for registration for marketing in Denmark: An investment undertaking must pay an annual basic fee of DKK 8,000 in 2004-prices (in 2010, equivalent to approx. DKK 12,000) An investment undertaking must pay a basic fee of DKK 2,500 in 2004-prices (in 2010, equivalent to approx. DKK 3,500) for any communication, notification or application for cross-border marketing of units in an investment undertaking. Communication, notification or application means any request for registration of new investment undertakings, compartments or classes, as well as changes of names, classes, addresses and notification of cessation of marketing. Fees are not charged in advance so the section on evidence of payment due does not need to be filled in. The fees for the relevant year will be charged at the beginning of December by the Danish FSA and will be payable by the end of the year. Failure to pay on time will be considered a breach of the regulations. 9