Report Penalties and measures imposed under the UCITS Directive in 2016 and 2017

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1 Report Penalties and measures imposed under the Directive in 206 and April 209 ESMA

2 4 April 209 ESMA Table of Contents Executive Summary Background and relevant regulatory framework for reporting on sanctions Information on the aggregated penalties and measures imposed Annexes Annex I: Overview of the notifications for the 206 reporting period Annex II: Overview on number and amount of penalties imposed during 206 by NCAs Member States (split by Chapter) Annex III: Overview on number of measures imposed during 206 by NCAs Member States (split by Chapter) Annex IV: Overview of the notifications for the 207 reporting period Annex V: Overview on number and amount of penalties imposed during 207 by NCAs Member States (split by Chapter) Annex VI: Overview on number of measures imposed during 207 by NCAs Member States (split by Chapter)...4 ESMA CS rue de Grenelle Paris Cedex 07 France Tel. +33 (0)

3 Executive Summary Reasons for publication This report is drafted pursuant to Article 99e() of Directive 2009/65/EC ( Directive), which requires ESMA to publish an annual report regarding aggregated information on all penalties and measures imposed by national competent authorities (NCAs) in a given year. Contents This report contains an overview of the applicable legal framework and information on the penalties and measures imposed by NCAs in accordance with Article 99e of the Directive from January 206 to 3 December 206 and from January 207 to 3 December 207. Next Steps Separate reports will be issued for the subsequent reporting periods. 3

4 2 Background and relevant regulatory framework for reporting on sanctions. This report is drafted pursuant to Article 99e() of the Directive. According to this article, NCAs shall provide ESMA annually with aggregated information regarding all penalties and measures imposed in accordance with Article 99 of the Directive. 2. Article 99e of the Directive is implemented by the Commission Implementing Regulation (EU) 206/22 2, which sets out common procedures and forms for submitting the information required. 3. According to Article 2 of Commission Implementing Regulation (EU) 206/22, NCAs shall provide ESMA with the information referred to in Article 99e() of Directive 2009/65/EC by filling in the form set out in Annex I to the Regulation. That information shall refer to all the penalties and measures imposed during the previous calendar year. The form shall be completed electronically and be sent to ESMA no later than 3 March of each year. 4. Article 99e() of Directive 2009/65/EC provides that ESMA shall publish in an annual report the information regarding all penalties and measures imposed. 3 Information on the aggregated penalties and measures imposed 5. This is the first report published by ESMA concerning penalties and measures issued under Directive 2009/65/EC. 6. For the purpose of this report, only the penalties and measures issued under Directive 2009/65/EC have been considered. Any infringement of delegated or implementing acts issued under that Directive or national provisions does not fall within the remit of the report, even where notified to ESMA by a relevant NCA. 7. As further specified in Annex I to the Commission Implementing Regulation (EU) 206/202: - The penalties imposed may cover more than one legislative provision, therefore the sum of penalties disclosed in the annexes of this report may not correspond to the total number/amount of penalties imposed. - The measures imposed may cover more than one legislative provision, therefore the sum of measures disclosed in the annexes of this report may not correspond to the total number of measures imposed. - If the relevant penalties refer not only to breaches relating to one single article of the Directive, but also to another article of the Directive or other provisions (at EU and/or national level), and the relevant amounts cannot be disaggregated per article of the Directive which was infringed, the mention AGGREGATED FIGURE is added to each value in the annexes of this report. OJ L 302, , p OJ L 99, , p. 6. 4

5 8. In light of the above, ESMA deems that the data on sanctions imposed during 206 and 207 does not allow to observe clear trends or tendencies in the imposition of sanctions, nor to produce detailed statistics based on it. 9. As per Annex I to the Commission Implementing Regulation (EU) 206/22, the amount of penalties can be submitted in Euro or in the national currency, where this is different from the Euro. In the latter case, information on the equivalent value in Euro of the total amounts of penalties is also provided (calculations were made using the ECB Euro foreign exchange reference rates at year-ends 206 and 207) The aggregated information contained in this report reflects the data submitted to ESMA by the NCAs

6 4 Annexes 4. Annex I: Overview of the notifications for the 206 reporting period NCAs' Member States Total number of Type of sanctions Total amount Total number of penalties 4 of penalties measures 5 Austria 4 7,200 Belgium 20,000 Bulgaria 3 5,339 Croatia 5 Cyprus Czech Republic 4 CZK 3,050,000 6 Denmark Estonia Finland France 4 2,700,000 Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg 6,000 Malta 2 Netherlands Poland Portugal Romania 5 255, Slovenia 3 Slovakia Spain 2 90,000 Sweden UK Liechtenstein Norway Iceland No sanctions 4 As the penalties imposed may cover more than one legislative provision, the total number/amount of penalties disclosed in this Annex may not correspond to the sum of the number/amount of penalties disclosed in Annex II. 5 As the measures imposed may cover more than one legislative provision, the total number of measures disclosed in this Annex may not correspond to the sum of the number of measures disclosed in Annex III. 6 Corresponding to 2, For year 206, the amounts denominated in CZK were converted at the ECB foreign exchange reference rate on 30 December 206 (CZK/=0.0370). 7 Corresponding to 56, For year 206, the amounts denominated in were converted at the ECB foreign exchange reference rate on 30 December 206 (/=0.2203). 6

7 4.2 Annex II: Overview on number and amount of penalties imposed during 206 by NCAs Member States (split by Chapter) Directive Chapter I Subject matter, scope and definition Chapter III regarding management companies Article 2 6 7()(b) 0 2 2()(a) 3 3()(a) 4 4() Penalties Austria Bulgaria France Romania Spain Number 0,000* 8 Number 9 90,000* 9,200* Number Number 2 950,000* 90,000 Number 200,000*,200* 5,3 Number 3 5 2,500,000* 60,000 0 Number Number 5 50,000* 9(6) 6,000* Number 2 950,000* * AGGREGATED VALUE: the relevant penalties refer not only to breaches relating to the relevant article of Directive 2009/65/EC, but also to other provisions. 8 Corresponding to 2,203. For the foreign exchange rate used in the calculation please see footnote 7. 9 Corresponding to 9,827. For the foreign exchange rate used in the calculation please see footnote 7. 0 Corresponding to 3,28. For the foreign exchange rate used in the calculation please see footnote 7. 7

8 Directive Chapter IV regarding the depositary Chapter V regarding investment companies Chapter VII concerning the investment policies of Chapter I concerning information to be provided to investors Chapter General obligations of Chapter II Provisions concerning the authorities responsible for authorization Article (2)(a) 5 52(2) 56(2)(b) 57(2) Art 98(2)(b) 99() Penalties Belgium Bulgaria Czech Republic France Luxembourg Romania Number 200,000* Number 2,000* Number 2,000* 2 Number 8,324* 3 Number 5 45,000 4 Number 8,324* 5 Number 0,226 Number 2 20,000,550,000* 8,324* 6 Number Number 0,000* 7 Number 200,000* Number 6,000 Number 4 and supervision 3,050,000 8 * AGGREGATED VALUE: the relevant penalties refer not only to breaches relating to the relevant article of Directive 2009/65/EC, but also to other provisions. CZK Corresponding to For the foreign exchange rate used in the calculation please see footnote 7. 2 Corresponding to For the foreign exchange rate used in the calculation please see footnote 7. 3 Corresponding to 4, For the foreign exchange rate used in the calculation please see footnote 7. 4 Corresponding to 9,93.5. For the foreign exchange rate used in the calculation please see footnote 7. 5 Corresponding to 4, For the foreign exchange rate used in the calculation please see footnote 7. 6 Corresponding to 4, For the foreign exchange rate used in the calculation please see footnote 7. 7 Corresponding to 2,203. For the foreign exchange rate used in the calculation please see footnote 7. 8 Corresponding to 2, For the foreign exchange rate used in the calculation please see footnote 6. 8

9 4.3 Annex III: Overview on number of measures imposed during 206 by NCAs Member States (split by Chapter) Directive Article Croatia France Lithuania Malta Romania Slovenia Chapter III regarding management companies Chapter V regarding investment companies Chapter VII concerning the investment policies of Chapter I concerning information to be provided to investors Chapter II Provisions concerning the authorities responsible for authorization and supervision 6 7()(a) 2 7()(b) 2 0() and (2) 2 2() 43 2()(a) 2 3()(a) 4 4() (8) ()(g) ()(a) and (2) 52()(b) 55() and (2) ()(a) () 82() 98(2)(b) 99 2 Total number of measures As the measures imposed may cover more than one legislative provision, the total number of measures may not correspond to the sum of the number of measures disclosed in this Annex for each chapter. 9

10 4.4 Annex IV: Overview of the notifications for the 207 reporting period Type of sanctions NCAs Member States Total number of Total amount penalties 20 of penalties Austria,500 Belgium 50,000 Bulgaria Total number of measures 2 Croatia HRK 53, Cyprus Czech Republic 7 CZK 2,700, Denmark Estonia Finland France 3 35,230,000 4 Germany Greece Hungary 2 HUF 40,000, Ireland Italy 2 29,000 Latvia Lithuania Luxembourg 9 6,000 Malta 62, Netherlands 2 Poland 2 PLN 535, Portugal Romania 2 4, Slovenia 3 97,00 Slovakia Spain 3 60,000 Sweden UK Liechtenstein Norway Iceland No sanctions 20 As the penalties imposed may cover more than one legislative provision, the total number/amount of penalties disclosed in this Annex may not correspond to the sum of the number/amount of penalties disclosed in Annex V. 2 As the measures imposed may cover more than one legislative provision, the total number of measures disclosed in this Annex may not correspond to the sum of the number of measures disclosed in Annex VI. 22 Corresponding to 20, For year 207, the amounts denominated in HRK were converted at the ECB foreign exchange reference rate on 29 December 207 (HRK/=0.344). 23 Corresponding to 05,732. For year 207, the amounts denominated in CZK were converted at the ECB foreign exchange reference rate on 29 December 207 (CZK/=0.0396). 24 Corresponding to 28,880. For year 207, the amounts denominated in HUF were converted at the ECB foreign exchange reference rate on 29 December 207 (HUF/= ). 25 Corresponding to 28,079. For year 207, the amounts denominated in PLN were converted at the ECB foreign exchange reference rate on 29 December 207 (PLN/=0.2394). 26 Corresponding to 3,6.59. For year 207, the amounts denominated in were converted at the ECB foreign exchange reference rate on 29 December 207 (/=0.247). 0

11 4.5 Annex V: Overview on number and amount of penalties imposed during 207 by NCAs Member States (split by Chapter) Directive Article 7()(a) Penalties France Hungary Italy Malta Romania Slovenia Spain Number 26,600 Chapter III regarding management companies () 2 2()(a) 4 4() 4() (d) 9(4) 2 Number 27,000 Number 80,000* Number 6 HUF 40,000,000* 27 Number 3 35,230,000* HUF 40,000,000* 27 29,000 Number HUF 40,000,000* 27 Number HUF 40,000,000* 27 Number 80,000* 2 Number (3)(4)(5) (7)(8) 62,473.85* * AGGREGATED VALUE: the relevant penalties refer not only to breaches relating to the relevant article of Directive 2009/65/EC, but also to other provisions See footnote 24.

12 Directive Chapter IV regarding the depositary Chapter V regarding investment companies Chapter VII concerning the investment policies of Chapter I concerning information to be provided to investors Article 25 25(2) 3 50(2) 5 52()(a) 52(2)(a) 52(5) 56() 56(2)(b)(d) 69 69() (4) Penalties Belgium France Hungary Poland Romania Slovenia Spain 35,050,000* Number 43,500 HUF 40,000,000* 28 Number 4,56* 29 Number 80,000* Number PLN 450,000* 30 Number 4,56* 3 Number PLN 450,000* 32 Number PLN 85, Number PLN 450,000* 34 Number 35,000,000* Number 60,000 Number 2 50,000 35,050,000* Number 50,000* Number HUF 40,000,000* 28 * AGGREGATED VALUE: the relevant penalties refer not only to breaches relating to the relevant article of Directive 2009/65/EC, but also to other provisions. 28 See footnote Corresponding to 3,6.59. For the foreign exchange rate used in the calculation please see footnote Corresponding to 07,730. For the foreign exchange rate used in the calculation please see footnote Corresponding to 3,6.59. For the foreign exchange rate used in the calculation please see footnote Corresponding to 07,730. For the foreign exchange rate used in the calculation please see footnote Corresponding to 20,349. For the foreign exchange rate used in the calculation please see footnote Corresponding to 07,730. For the foreign exchange rate used in the calculation please see footnote 25. 2

13 Directive Chapter General obligations of Article 83(2) 90 Penalties Austria Croatia Number,500 Number Czech Republic France Greece Luxembourg Malta 50,000 Chapter I Special provisions applicable to which market their units in Member States other than those in which they are established Chapter II Provisions concerning the authorities responsible for authorization and supervision 9() 93() 98(2)(b) 99 99() 99a(j)(m) 99a(n) Number 40,000* 2 40,000* Number 6 34,000 Number 62,473.85* Number 7 CZK 2,700, Number 6,000 76,000* Number 99a(p) HRK 53, * AGGREGATED VALUE: the relevant penalties refer not only to breaches relating to the relevant article of Directive 2009/65/EC, but also to other provisions 35 Corresponding to 05,732. For the foreign exchange rate used in the calculation please see footnote Corresponding to 20, For the foreign exchange rate used in the calculation please see footnote 22. 3

14 4.6 Annex VI: Overview on number of measures imposed during 207 by NCAs Member States (split by Chapter) Directive Chapter III regarding management companies Chapter IV regarding the depositary Chapter VII concerning the investment policies of Chapter I concerning information to be provided to investors Article 6 Croatia France Hungary Italy Malta Netherlands Romania Slovenia Iceland 2 7()(a) 0() 2 2 2() 2(a) 2() 4 3 9(4) (3)(4)(5) (7)(8) 22(3) 25 32(3) 50() 5 55 ()(2) 55(3) 56 (2)(b) 77 4

15 Directive Chapter General obligations of Chapter I Special provisions applicable to which market their units in Member States other than those in which they are established Chapter II Provisions concerning the authorities responsible for authorization and supervision Article 90 2 Croatia France Hungary Italy Malta Netherlands Romania Slovenia Iceland 94 98(2)(e) 99 Total number of measures As the measures imposed may cover more than one legislative provision, the total number of measures may not correspond to the sum of the number of measures disclosed in this Annex for each chapter. 5