Guidance Notice (2013) on marketing of units of EU UCITS in the Federal Republic of Germany

Transcription

1 Guidance Ntice (2013) n marketing f units f EU UCITS in the Federal Republic f Germany I. Member state: Germany II. Last updated: 18 July 2013 III. Ntificatin f marketing A ntificatin letter in accrdance with the mdel set ut in Annex I t Cmmissin Regulatin (EU) N 584/2010 f 1 July 2010 must be used fr the ntificatin. The ntificatin must cntain the dcuments required pursuant t sectin 310 (1) and (2) f the Investment Cde (Kapitalanlagegesetzbuch KAGB). Fr infrmatin n the requirements pertaining t these dcuments, see sectin IV belw. The ntificatin shall be filed with the cmpetent authrities f the hme member state (the term hme member state shall refer t bth Member States f the Eurpean Unin and signatry states t the Agreement n the Eurpean Ecnmic Area), which will then frward it t BaFin by . Guidelines fr cmpleting the ntificatin letter: Language: The ntificatin letter and the attestatin certifying cmpliance with the requirements f Directive 2009/65/EC must be submitted in a language custmary in the sphere f internatinal finance. BaFin has nt made any agreement as referred t in sectin 310 (2) sentence 4 f the Investment Cde r Article 93 (4) f Directive 2009/65/EC. In Part A and Part C f the mdel ntificatin letter, n special prvisins specific t Germany are required t be bserved. Fr Part B, the fllwing shall apply: 1. Arrangements fr marketing f units f EU UCITS Infrmatin as t the manner in which units f EU UCITS are t be marketed in the Federal Republic f Germany. Infrmatin n all intended marketing channels must be prvided. The bdies respnsible fr marketing must be specified in the ntificatin letter. a) UCITS management cmpany Marketing will be carried ut by the management cmpany f the EU UCITS which is the subject f the ntificatin referred t in sectin 310 f the Investment Cde. b) any ther management cmpany authrised in accrdance with Directive 2009/65/EC, Directive 2011/61/EU r the Investment Cde Marketing in the Federal Republic f Germany will be carried ut by anther management cmpany authrised in accrdance with Directive 2009/65/EC, Directive 2011/61/EU r the Investment Cde. c) credit institutins 1

2 Marketing in the Federal Republic f Germany will be carried ut by credit institutins within the meaning f sectin 1 (1) f the Banking Act (Kreditwesengesetz KWG). d) authrised investment firms r advisers Marketing in the Federal Republic f Germany will be carried ut by authrised financial services institutins with a crrespnding authrisatin under sectin 1 (1a) f the Banking Act. e) ther bdies Marketing in the Federal Republic f Germany will be carried ut by ther bdies. Other bdies shall als include brkers nt authrised under the Banking Act. N authrisatin under the Banking Act will be required in thse cases where the requirements f any exemptin cdified in sectin 2 (6) sentence 1 n. 8 f the Banking Act are met. Such requirements are presented in BaFin Merkblatt Hinweise zur Bereichsausnahme für die Vermittlung vn Investmentanteilen (BaFin Guidance Ntice Infrmatin n the exemptin fr the brkering f investment units) f Nvember 2010 (available at: 9_ausnahme_investmentfndsvermittlung.html?nn= ; nly available in German). If an enterprise's business meets the requirements f an exemptin, a cmmercial licence under sectin 34f (1) f the Industrial Cde (Gewerberdnung GewO) shall suffice. 2. Arrangements fr unithlders under Article 92 f Directive 2009/65/EC a) Infrmatin n paying agent (if applicable): Prvide name, legal frm, registered ffice and address f all German credit institutins r German branches f freign-dmiciled credit institutins via which payments t investrs will be remitted and the redemptin and, where applicable, exchange f units by the UCITS management cmpany will be settled. In accrdance with sectin 309 (1) sentence 2 f the Investment Cde, a paying agent must nly be specified in thse cases where at least sme f the units f EU UCITS are issued as printed individual certificates. If n paying agent is specified fr this reasn, it shuld be nted at this pint that n units will be issued as printed individual certificates in rder t avid fllw-up questins. b) Infrmatin n any ther persns frm whm investrs may btain infrmatin and dcuments (infrmatin agent): Name and address f the agent(s) within the Federal Republic f Germany (infrmatin agent) frm whm investrs may btain infrmatin and dcuments. 2 In rder t avid fllw-up questins, it is requested that all infrmatin agents within the Federal Republic f Germany be listed; where the paying agent is als acting as infrmatin agent, it shuld be listed here as well.

3 c) Manner in which the issue, sale, redemptin r repurchase price f units f EU UCITS will be made public: Specificatin f an apprpriate publicatin medium t infrm investrs in Germany in which the issue, sale, redemptin r repurchase prices f the units r shares will be published. Fr mre infrmatin n apprpriate publicatin media, see sectin IV Other infrmatin t be prvided t the cmpetent authrities f the hst Member State under Article 91 (3) f Directive 2009/65/EC: a) Prf f payment f the fee: Fr prcessing the ntificatin, BaFin charges a fee in accrdance with sectin 2 (1) f the Regulatin n the Impsitin f Fees and Allcatin f Csts Pursuant t the FinDAG (Erhebung vn Gebühren und die Umlegung vn Ksten nach dem Finanzdienstleistungsaufsichtsgesetz FinDAGKstV) and n f its fee schedule amunting t (in the case f umbrella funds, each investment cmpartment is subject t the duty t pay fees). The fee is t be remitted t the fllwing accunt: Recipient: Bundeskasse Trier Deutsche Bundesbank, Filiale Saarbrücken IBAN: DE BIC: MARK DEF 1590 Reference: "BaFin,... (name f EU UCITS t which the ntificatin relates), AnzGeb." In each case, the full name f the EU UCITS is t be prvided as far as technically pssible, e.g. t the extent the number f characters prvided fr the payment reference n the transfer frm allws. When remitting payment, please ensure that the fee is paid in full and that n bank r ther charges are deducted. Prf f the transfer f the fee, e.g. a scan f the transfer frm, is t be attached t the ntificatin as prf f payment. b) Other infrmatin: N ther infrmatin need be prvided in this sectin. IV. Requirements fr marketing: 1. Statutry prvisins A nn-exhaustive list f the prvisins t be cmplied with when marketing units f EU UCITS, which are nt cvered by Directive 2009/65/EC, is cntained in the Annex. 2. Requirements fr paying and infrmatin agent 3

4 a) Paying agent: A German credit institutin r the German branch f a freigndmiciled credit institutin as paying agent must nly be specified in thse cases where at least sme f the units f EU UCITS were issued as printed individual certificates. If n such certificates were issued, a paying agent need nt be specified. In such cases, BaFin must be infrmed that n printed individual certificates were issued. Furthermre, the UCITS management cmpany must ensure that it is able t remit payments t German investrs and redeem the units in the Federal Republic f Germany. Infrmatin n this in particular details n hw investrs can request redemptin r cnversin f units and when they are entitled t receive payments must be included in the prspectus specific t Germany which is used fr marketing within Germany. b) Infrmatin agent: An infrmatin agent dmiciled in Germany must be specified. Where the specificatin f a paying agent is nt required pursuant t sectin 309 (1) f the Investment Cde, this shall nt affect the bligatin t specify an infrmatin agent dmiciled in Germany. 3. Publicatin f infrmatin t investrs: a) Pursuant t t sectin 298 (1) sentence 1 f the Investment Cde, the fllwing dcuments and infrmatin must be published in the Federal Republic f Germany in an apprpriate infrmatin medium: the key investr infrmatin in German (t be made available n the website f the UCITS management cmpany pursuant t sectin 301 f the Investment Cde); as well as the annual reprt fr the end f each financial year; the half-yearly reprt and, t the extent issued, quarterly reprts; the prspectus; the fund rules r articles f assciatin; the issue and redemptin prices f the units r shares; and ther dcuments and infrmatin which are required t be published in the hme member state f the EU UCITS, in German r in a language that is custmary in the sphere f internatinal finance. b) Apprpriate publicatin media fr ther dcuments and infrmatin are: newspapers published in Germany; a durable medium (sectin 167 f the Investment Cde); the Federal Gazette (Bundesanzeiger); ther electrnic infrmatin media aimed at investrs, such as the website f the UCITS management cmpany; fr dcuments (e.g., relevant cntracts and legislatin) available fr investrs in the hme member state slely fr inspectin at an ffice specified in the sales dcumentatin, the infrmatin agent as well. c) Apprpriate publicatin media fr the issue and redemptin prices are: 4

5 newspapers published in Germany; a durable medium (sectin 167 f the Investment Cde); the Federal Gazette; ther electrnic infrmatin media aimed at investrs, such as the website f the UCITS management cmpany r fund platfrms. d) In the fllwing cases, the infrmatin must be prvided t investrs in Germany by means f a durable medium in accrdance with sectin 167 f the Investment Cde in German r in a language that is custmary in the sphere f internatinal finance (sectin 298 (2) f the Investment Cde): aa) suspensin f the redemptin f the units r shares f an EU UCITS; bb) terminatin f an EU UCITS management r the winding-up f an EU UCITS; cc) amendments t the fund rules which are incnsistent with existing investment principles, affect material investr rights, r relate t remuneratin r the reimbursement f expenses that may be taken ut f the EU UCITS assets, including the reasns fr the amendments and the rights f investrs, the infrmatin must be cmmunicated in an easily understandable frm and manner and must indicate where and hw further infrmatin may be btained; dd) the merger f EU UCITS in the frm f infrmatin n the prpsed merger which must be drawn up in accrdance with Article 43 f Directive 2009/65/EC; ee) the cnversin f an EU UCITS int a feeder fund r any change t a master fund in the frm f infrmatin which must be drawn up in accrdance with Article 64 f Directive 2009/65/EC. The infrmatin prvided by means f a durable medium as referred t in sectin 298 (2) f the Investment Cde is required in additin t publicatin in anther medium. If the UCITS management cmpany has already selected a durable medium as its standard infrmatin medium, publicatin in anther infrmatin medium, which is t be specified in the prspectus, will als be required in additin t prviding infrmatin by means f a durable medium. 4. Requirements fr sales dcumentatin a) The key investr infrmatin must be translated int German. N translatin will be required if the key investr infrmatin has already been submitted in German fr investrs in the hme member state f the EU UCITS. b) All ther dcuments and infrmatin must, t the extent they are nt already in German, be translated int German r published in a language that is custmary in the sphere f internatinal finance. If the dcuments and infrmatin are published bth in German and in a language that is custmary in the sphere f internatinal finance, the German text shall be cntrlling in accrdance with sectin 303 (2) f the Investment Cde. Any changes in the language f the sales dcumentatin shall cnstitute an amendment subject t ntificatin referred t in sectin 310 (4) f the Investment Cde (see sectin V.). 5

6 c) The prspectus intended fr marketing in the Federal Republic f Germany must cntain a page-numbered infrmatin sectin fr investrs in Germany that is an integral part f the prspectus and is listed in the table f cntents. Adding a lse insert r merely attaching a separate sheet cntaining such additinal infrmatin is nt sufficient. Such infrmatin must be included in the same language as that f the prspectus intended fr marketing in the Federal Republic f Germany, i.e., in German, if the prspectus was translated int German r was riginally written in German, therwise in the language that is custmary in the sphere f internatinal finance in which it was written. d) The prspectus must cntain the fllwing infrmatin fr investrs in the Federal Republic f Germany (sectin 309 (3) f the Investment Cde): - Where a paying agent is t be specified (see sectin 309 (1) f the Investment Cde): name and address f the paying agent(s) in the Federal Republic f Germany; in such case infrmatin t the effect that applicatins fr the redemptin and, in the case f an umbrella fund, als the exchange f units (which may be marketed in the Federal Republic f Germany) may be submitted t the German paying agent(s); and infrmatin t the effect that all payments t investrs (redemptin prceeds and disbursements r ther payments) may be remitted via the German paying agent(s) is als required. If n paying agent is specified, the infrmatin required under IV. 2 a) is t be included here. - Name and address f the infrmatin agent(s) in the Federal Republic f Germany indicating that the dcuments t be specified in the fllwing are available at such infrmatin agent(s) free f charge and hw they may be btained: the prspectus; the key investr infrmatin; the investment cmpany's articles f assciatin r the fund rules f the EU UCITS; the annual and half-yearly reprts, as well as quarterly reprts if applicable; and a reference t the effect that the fllwing infrmatin is available fr inspectin at r may be btained free f charge frm the infrmatin agent: the issue and redemptin prices (and if applicable the exchange prices); 6

7 ther infrmatin and dcuments which are required t be published in the hme member state f the EU UCITS (e.g. the relevant cntracts and legislatin). The sales dcumentatin, ther dcuments and ther infrmatin in the prspectus must be listed individually. Any additinal infrmatin (e.g. regarding fees fr the paying agent) that is nt cntained in the riginal prspectus shuld nt be included here. e) The fund rules r the articles f assciatin must be annexed t the prspectus unless the prspectus cntains a ntice as t where these may be btained free f charge within the jurisdictin f the Investment Cde (see sectin 297 (3) f the Investment Cde). f) Specificatin f an apprpriate publicatin medium t infrm investrs in Germany in which the issue and redemptin prices (and where applicable the exchange prices as well) f the units as well as ther dcuments and infrmatin which are required t be published in the hme cuntry f the EU UCITS are published. See sectin IV 3 as t what is cnsidered t be apprpriate publicatin media and the special requirements fr publicatin under sectin 298 (2) f the Investment Cde. g) Any (ther) special prvisins in the case f umbrella schemes (see sectin IV. 5). 5. Special prvisins in the case f umbrella schemes: In the case f umbrella schemes having at least ne investment cmpartment whse units may be marketed within the jurisdictin f the Investment Cde and ther investment cmpartments under the same umbrella fr which n ntificatin pursuant t sectin 310 f the Investment Cde has been filed, the sales dcumentatin shall include a prminent statement in prminent print indicating that n ntificatin has been filed fr the ther investment cmpartments and that the units in such ther investment cmpartments may nt be marketed t investrs within the jurisdictin f the Investment Cde (sectin 293 (1) n. 3 and sectin 309 (3) f the Investment Cde); such ther investment cmpartments are t be identified by name. Fr the specific sales dcumentatin, this means: a) prspectus: the statements referred t in sectin 293 (1) n. 3 f the Investment Cde must be included in the infrmatin specific t Germany and emphasised in bldface print; b) key investr infrmatin: n changes. The statements referred t in sectin 293 (1) n. 3 f the Investment Cde are nt t be included in the key investr infrmatin; c) articles f assciatin/fund rules: the statements referred t in sectin 293 (1) n. 3 f the Investment Cde are required t be included in the articles f assciatin r the fund rules nly where these are nt part f the prspectus and where they cntain references t investment cmpartments nt authrised fr marketing beynd merely mentining their names; 7

8 d) annual and half-yearly reprts: the statements referred t in sectin 293 (1) n. 3 f the Investment Cde are required t be included in the annual and half-yearly reprts nly where they cntain references t investment cmpartments nt authrised fr marketing beynd merely mentining their names. If an investment cmpartment becmes ineligible fr marketing after the annual and/r half-yearly reprt has been filed, the reprts already filed need nt be updated t include the statements referred t in sectin 293 (1) n. 3 f the Investment Cde. The statements must be included in the dcuments intended fr investrs in Germany regardless f whether these are used in German translatin r in anther language that is custmary in the sphere f internatinal finance. V. Updating dcuments and amendment ntices 8 BaFin must be infrmed f any amendments t the sales dcumentatin withut undue (i.e., culpable) delay. Amendments t certain infrmatin in the ntificatin letter must be ntified t BaFin prir t their implementatin. When submitting amended dcuments, the type f amendment must be indicated. This applies, in particular, t changes in addresses and names, a change in a cmpany's name and/r legal frm as well as mergers and liquidatins. Amendment ntices may be submitted in German r in a language that is custmary in the sphere f internatinal finance. 1. Updating dcuments in accrdance with sectin 310 (4) f the Investment Cde Ntificatins f amendments t the sales dcumentatin are t be sent t the fllwing address: UCITS-Update@bafin.de Please bserve the instructins fr filing by (sectin V. 3) as well as the fllwing pints: a) The ntificatin must indicate where electrnic versins f the amended dcuments are available. The amended dcuments must be included r the amendments made must be explained. b) The ntificatin must cntain a statement t the effect that the amendments being ntified have been apprved r acknwledged by r ntified t the cmpetent authrities f the hme member state f the EU UCITS in accrdance with applicable rules and regulatins in that jurisdictin. Such statement may in the alternative als be included directly n the enclsed sales dcumentatin. In such case, the name and psitin f the party issuing the statement must be clearly visible. c) If the amendment t the sales dcumentatin is based n a change in the infrmatin regarding the arrangements made fr marketing cmmunicated in the ntificatin letter r a change regarding unit classes t be marketed (see sectin V. 2 belw), the ntificatin referred t in sectin 310 (4) f the

9 Investment Cde must make reference t the preceding ntificatin referred t in sectin 310 (5) f the Investment Cde. 2. Changes in the infrmatin regarding the arrangements made fr marketing cmmunicated in the ntificatin letter r a change regarding unit classes t be marketed in accrdance with sectin 310 (5) f the Investment Cde The ntificatin referred t in sectin 310 (5) f the Investment Cde must be filed befre the changes are implemented. If the changes ntified in accrdance with sectin 310 (5) f the Investment Cde require that the sales dcumentatin be amended, BaFin must be infrmed f any such amendment t the sales dcumentatin in accrdance with sectin 310 (4) f the Investment Cde (see sectin V. 1 abve). The ntificatin referred t in sectin 310 (5) f the Investment Cde must be submitted in writing, including by r regular mail, pursuant t sectin 126b f the Civil Cde (Bürgerliches Gesetzbuch BGB). Ntificatins filed by shuld als be sent t the fllwing address: UCITS-Update@bafin.de Please bserve the instructins fr filing by (sectin V. 3). 3. Instructins fr filing by a) The size f the may nt exceed 30 MB; attachments may be included in a ZIP file. If necessary, the infrmatin shuld be brken dwn and sent in several separate s, in which case this shuld be nted in the subject line (see c)). b) The fllwing file types may be used fr attachments: pdf, dc and dcx. c) The subject line shuld include - the 8-digit BaFin ID number 1 (70XXXXXX), - the name f the UCITS management cmpany, as well as - a serial number in thse cases where the ntificatin is sent using several separate s (see a) abve). d) The full name f the sender and his r her psitin at the UCITS management cmpany must be clearly indicated in the ntificatin letter. e) If the ntificatin is filed by an authrised representative, the infrmatin in d) shall apply mutatis mutandis. The ntificatin shall include a pwer f attrney unless reference is being made t a prir submitted pwer f attrney. In particular, the pwer f attrney must state whether and, if applicable, t what extent the authrised representative, whse name and functin must be indicated, is empwered t make declaratins n behalf f the EU UCITS. The pwer f attrney is t be signed by the UCITS management cmpany s 1 The cmpanies will be infrmed f the EU UCITS BaFin ID number in the curse f the ntificatin prcess. The BaFin ID number, including fr EU UCITS authrised fr marketing prir t 1 July 2011, will be included in the list f EU UCITS authrised fr marketing in Germany published n BaFin's website ( 9

10 directrs authrised fr marketing, indicating the names and functins f the signatries. In the case f cllective submissin f several key investr infrmatin sheets, srting in alphabetical rder by investment cmpartment/unit class is requested fr the sake f clarity. VI. Discntinuatin f marketing in Germany The discntinuatin f marketing fr EU UCITS which are nt investment cmpartments f any EU UCITS is gverned by sectin 311 (5) f the Investment Cde. The arrangements fr discntinuing marketing in the case f investment cmpartments will depend n whether, after marketing has been discntinued, any investment cmpartments f the EU UCITS are still authrised fr marketing in Germany (sectin 311 (6) f the Investment Cde) r nt (sectin 311 (5) f the Investment Cde). 1. Discntinuatin f marketing fr an individual EU UCITS r all investment cmpartments f an EU UCITS, sectin 311 (5) f the Investment Cde Prf f publicatin f the discntinuatin f marketing pursuant t sectin 311 (5) f the Investment Cde must be sent t the fllwing address: UCITS-Update@bafin.de Please bserve the instructins fr filing by (sectin V. 3). 2. Discntinuatin f marketing fr individual investment cmpartments f an EU UCITS, sectin 311 (6) f the Investment Cde (deregistratin) Discntinuatin f marketing f individual investment cmpartments f an EU UCITS which are authrised fr marketing is permitted subject t the requirements set ut in sectin 311 (6) f the Investment Cde. The sales dcumentatin (nt including the key investr infrmatin) must include statements as referred t in sectin 293 (1) n. 3 and sectin 309 (3) f the Investment Cde t the effect that the relevant investment cmpartment is nt authrised fr marketing (see sectin IV. 5 abve) and BaFin must be ntified in accrdance with sectin 310 (4) sentence 1 f the Investment Cde. Prf f publicatin f the discntinuatin f marketing pursuant t sectin 311 (6) sentence 4 f the Investment Cde must als be submitted t BaFin. BaFin will nly effect deregistratin after the required dcuments, prf f publicatin in the Federal Gazette and prf f payment f the deregistratin fee pursuant t sectin 2 (1) f the Regulatin n the Impsitin f Fees and Allcatin f Csts Pursuant t the FinDAG and n f its schedule f fees amunting t per investment cmpartment have been submitted. The fee is t be remitted t the fllwing accunt (each investment cmpartment is subject t the duty t pay fees): Recipient: Bundeskasse Trier Deutsche Bundesbank, Filiale Saarbrücken 10

11 Reference: IBAN: DE BIC: MARK DEF 1590 "BaFin,... (name f umbrella fund t which the deregistratin relates), DeRegGeb." In each case, the full name f the undertaking is t be prvided as far as technically pssible, e.g. t the extent the number f characters prvided fr the payment reference n the transfer frm allws. When remitting payment, please ensure that the fee is paid in full and that n bank r ther charges are deducted. Prf f the transfer f the fee, e.g. a scan f the transfer frm, is t be attached t the ntificatin as prf f payment. The amended dcuments r the descriptin f the amendments, the prf f publicatin f the discntinuatin f marketing and prf f payment f the deregistratin fee shuld be sent t the fllwing address: UCITS-Update@bafin.de Please bserve the instructins fr filing by (sectin V. 3). VII. Transitinal prvisins (sectin 355 (4) f the Investment Cde) UCITS management cmpanies which upn entry int frce f the Investment Cde (Kapitalanlagegesetzbuch) n 22 July 2013 have already submitted, via the cmpetent authrities in the hme member state f the EU UCITS, a ntificatin under sectin 132 f the Investment Act (Investmentgesetz) in the versin applicable up t 21 July 2013 r under sectin 15c (1) f the Freign Investment Act (Auslandsinvestmentgesetz) in the versin applicable up t 31 December 2003 and are authrised fr marketing t the public are nt required t submit any new ntificatin pursuant t sectin 310 f the Investment Cde; any marketing authrisatin already btained shall cntinue in frce. UCITS management cmpanies which, after 21 July 2013, perfrm activities r arrange fr such activities t be perfrmed in relatin t their EU UCITS that did nt qualify as public marketing under the Investment Act in the versin applicable up t 21 July 2013 but qualify as marketing under the Investment Cde are required t submit, via the cmpetent authrities in the hme member state f the EU UCITS, a ntificatin pursuant t sectin 310 f the Investment Cde by 21 July