The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019

PART 5 Amendment of EU Regulations and Decisions

Commission Regulation (EU) 2010/583

59.—(1) Commission Regulation (EU) 2010/583 of 1 July 2010 implementing Directive 2009/65/EC of the European Parliament and of the Council as regards key investor information and conditions to be met when providing key investor information or the prospectus in a durable medium other than paper or by means of a website is amended as follows.

(2) For “UCITS”, in each place where it appears, except in Articles 19(1)(b), 28, 31, 32, 33, 34 and 35, substitute “UK UCITS”.

(3) In Article 1, for “for the implementation of Articles 75(2), 78(2) to (5) and 81(1) of Directive 2009/65/EC” substitute “as regards key investor information and conditions to be met when providing key investor information or the prospectus in a durable medium other than paper or by means of a website”.

(4) After Article 1 insert—

“Article 1A Definitions

For the purposes of this Regulation, the following definitions shall apply:

(a) ‘Collective Investment Schemes sourcebook’ means the Collective Investment Schemes sourcebook made under the Financial Services and Markets Act 2000 by the Financial Conduct Authority, as it has effect on exit day;

(b) ‘feeder UCITS’ has the meaning given in section 237(3) of the Financial Services and Markets Act 2000(1);

(c) ‘management company’ has the meaning given in section 237(2) of the Financial Services and Markets Act 2000(2);

(d) ‘master UCITS’ has the meaning given in section 237(3) of the Financial Services and Markets Act 2000(3);

(e) ‘UCITS’ has the meaning given in section 236A of the Financial Services and Markets Act 2000(4);

(f) ‘UK UCITS’ has the meaning given in section 237(3) of the Financial Services and Markets Act 2000.”.

(5) In Article 2, in paragraph 2, for “authorised pursuant to Directive 2009/65/EC” substitute “that has permission under Part 4A of the Financial Services and Markets Act 2000 to carry on the regulated activity specified in article 51ZA of the Regulated Activities Order 2001(5)”.

(6) In Article 4, in paragraph 12—

(a) for “[name of Member State] and regulated by [identity of competent authority]” substitute “the United Kingdom and regulated by the Financial Conduct Authority”;

(b) for “exercising rights under Article 16 of Directive 2009/65/EC” substitute “that is a qualifying EEA firm for the purposes of regulation 73 of the Collective Investment Schemes (EU Exit) (Amendment etc.) Regulations 2019”.

(7) In Article 8(5)(e), for “Article 50(1)(g) of Directive 2009/65/EC” substitute “rule 5.2.19 of the Collective Investment Schemes sourcebook”.

(8) In Article 9, for “Directive 2010/43/EU” substitute “section 6.12 of the Collective Investment Schemes sourcebook”.

(9) In Article 19—

(a) in paragraph 3—

(i) omit “but remaining established in the same Member State”;

(ii) for “competent authority of the Member State” substitute “Financial Conduct Authority”;

(b) in paragraph 4, for “mergers referred to in Article 2(1)(p)(i) and (iii) of Directive 2009/65/EC” substitute “a merger, as defined in regulation 7 of the Undertakings for Collective Investment in Transferable Securities Regulations 2011”.

(10) In Article 20, in paragraph 1—

(a) in the opening words, for “every Member State in which the UCITS is marketed” substitute “the United Kingdom”;

(b) in point (d)—

(i) for “UCITS’ home Member State” substitute “United Kingdom”;

(11) In Article 27, in the second paragraph, for “their own Member State” substitute “the United Kingdom”.

(12) In Article 28—

(a) after “Where the” insert “UK”;

(b) for “Article 50(1)(e) of Directive 2009/65/EC” substitute “rule 5.2.13 of the Collective Investment Schemes sourcebook”;

(13) In Article 31(1), omit “, as defined in Article 58 of Directive 2009/65/EC,”.

(14) In Article 34, in paragraph 2(b), for “Article 63(5) of Directive 2009/65/EC” substitute “rules 4.2.3A and 4.5.15 of the Collective Investment Schemes sourcebook”.

(15) In Article 38(1) omit “, for the purposes of Directive 2009/65/EC,”.

(16) After Article 39 omit “This Regulation shall be binding in its entirety and directly applicable in all Member States.”.

Commission Delegated Regulation (EU) 2016/438

60.—(1) Commission Delegated Regulation (EU) 2016/438 of 17 December 2015 supplementing Directive 2009/65/EC of the European Parliament and of the Council with regard to obligations of depositaries is amended as follows.

(2) For “UCITS” in each place where it appears, substitute “UK UCITS”.

(3) Before Article 1, omit “(Article 22(2) of Directive 2009/65/EC)”.

(4) In Article 1, after point (b) insert—

“(c) ‘Collective Investment Schemes sourcebook’ means the Collective Investment Schemes sourcebook made under the Financial Services and Markets Act 2000 by the competent authority, as it has effect on exit day;

(d) ‘competent authority’ means the Financial Conduct Authority;

(e) ‘CRR firm’ has the meaning given in Article 4(1)(2A) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26th June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012(6);

(f) ‘management company’ has the meaning given in section 237(2) of the Financial Services and Markets Act 2000;

(g) ‘third country’ means any country other than the United Kingdom;

(h) ‘UK UCITS’ has the meaning given in section 237(3) of the Financial Services and Markets Act 2000.”.

(5) In Article 2—

(a) in paragraph 1, for “Article 22(2) of Directive 2009/65/EC” substitute “rules 6.6A.11 and 6.6B.13 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2—

(i) in point (d), for “competent authorities” substitute “the competent authority”;

(ii) in point (n), for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”.

(6) Before Article 3, omit “(Article 22(3), (4) and (5) and Article 22a(2)(c) and (d) of Directive 2009/65/EC)”.

(7) In Article 3—

(a) in paragraph 2, for “Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 3—

(i) for “authorities” substitute “authority”;

(ii) omit “of the management company or the investment company”;

(c) in paragraph 4, for “Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16 of the Collective Investment Schemes sourcebook”.

(8) In Article 4, in paragraph 1, for “point (a) of Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16(1) of the Collective Investment Schemes sourcebook”.

(9) In Article 5—

(a) in paragraph 1—

(i) in the opening words, for “point (b) of Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16(2) of the Collective Investment Schemes sourcebook”;

(ii) in point (a), for “the applicable national law as laid down in Article 85 of Directive 2009/65/EC” substitute “section 6.3 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2, for “as defined in the national law adopted in accordance with Article 85 of Directive 2009/65/EC” substitute “in accordance with section 6.3 of the Collective Investment Schemes sourcebook”.

(10) In Article 6 in the opening words, for “point (c) of Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16(3) of the Collective Investment Schemes sourcebook”.

(11) In Article 7, in paragraph 1, for “point (d) of Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16(4) of the Collective Investment Schemes sourcebook”.

(12) In Article 8, in paragraph 1, in the opening words, for “point (e) of Article 22(3) of Directive 2009/65/EC” substitute “rule 6.6B.16(5) of the Collective Investment Schemes sourcebook”.

(13) In Article 9, for paragraph 1 substitute—

“1.   Where a cash account is maintained or opened at an institution falling within paragraph 1A in the name of the investment company or of the management company acting on behalf of the UCITS, the management company or the investment company shall ensure that the depositary is provided, upon commencement of its duties and on an ongoing basis, with all relevant information necessary for having a clear overview of all UCITS’ cash flows so that the depositary is able to comply with its obligations.

1A.   The following institutions fall within this paragraph:

(a) a central bank;

(b) a CRR firm which is not an investment firm;

(c) a credit institution which has a registered office, or if it has no registered office its head office, in an EEA state, and which would be a CRR firm if:

(i) its registered office, or if it has no registered office, its head office, were in the United Kingdom; and

(ii) it had permission under Part 4A of the Financial Services and Markets Act 2000 to carry on the regulated activity of accepting deposits; or

(d) a bank authorised in a third country.”.

(14) In Article 10, in paragraph 1—

(a) in the opening words, for “Article 22(4) of Directive 2009/65/EC” substitute “rule 6.6B.17 of the Collective Investment Schemes sourcebook”;

(b) for point (a) substitute—

“(a) ensures that all cash of the UK UCITS is booked in accounts opened with:

(i) a central bank;

(ii) a CRR firm (but not a CRR firm which is also an investment firm);

(iii) a credit institution authorised in accordance with Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC(7); or

(iv) a credit institution authorised in a country outside both the United Kingdom and the EU, where cash accounts are required for the purposes of the UK UCITS’ operations, provided that the prudential supervisory and regulatory requirements applied to credit institutions in the country in which the credit institution is authorised are considered by the competent authority as at least equivalent to those applied in the United Kingdom;”

(c) in point (e) for “authorities” substitute “authority”;

(d) in the second subparagraph—

(i) for “competent authorities” substitute “the competent authority”;

(ii) for “the implementing acts adopted by the Commission pursuant to” substitute “Commission Implementing Decision 2014/908/EU of 12 December 2014 on the equivalence of the supervisory and regulatory requirements of certain third countries and territories for the purposes of the treatment of exposures according to Regulation (EU) No 575/2013 of the European Parliament and of the Council, and regulations made by the Treasury under”.

(15) In Article 11, for “Article 22(4) of Directive 2009/65/EC” substitute “rule 6.6B.17 of the Collective Investment Schemes sourcebook”.

(16) In Article 12, in paragraph 1, in point (a)—

(i) for “points (a) to (e) and (h) of Article 50(1) of Directive 2009/65/EC” substitute “rules 5.2.6A(1) to (3), 5.2.8, 5.2.10A(1), 5.2.10E, 5.2.13 and other relevant rules in section 5.2 of the Collective Investment Schemes sourcebook”;

(ii) omit the words from “as referred to” to the end.

(17) In Article 13—

(a) in paragraph 1—

(i) in the opening words, for “point (a) of Article 22(5) of Directive 2009/65/EC” substitute “rule 6.6B.18 of the Collective Investment Schemes sourcebook”;

(ii) in point (a), for “Article 22(5)(a)(ii) of Directive 2009/65/EC” substitute “rule 6.6B.18(2) of the Collective Investment Schemes sourcebook”;

(iii) in point (c), for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2, for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”.

(18) In Article 14—

(a) in paragraph 1, and in paragraph 2, in the first subparagraph, for “point (b) of Article 22(5) of Directive 2009/65/EC” substitute “rule 6.6B.19 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2, in the second subparagraph, for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”;

(c) in paragraph 4, for “authorities” substitute “authority”.

(19) In Article 15—

(a) in paragraph 1—

(i) for “point (c) of Article 22a(2) of Directive 2009/65/EC” substitute “rule 6.6B.25(3) of the Collective Investment Schemes sourcebook”;

(ii) for “Article 22a of that Directive” substitute “rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2, for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(c) in paragraph 3—

(i) in the opening words, for “points (a) to (e) of paragraph 3 of Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.25(4) and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(ii) in point (d), for “paragraph 7 of Article 22 of Directive 2009/65/EC” substitute “rule 6.6B.21 of the Collective Investment Schemes sourcebook”;

(iii) in point (e), for “prohibition laid down in Article 25 of the Directive 2009/65/EC” substitute “obligations laid down in sections 242(2), 261D(4)(8), 261D(5) and 261D(8)(9) of the Financial Services and Markets Act 2000, regulation 15(8) of the Open Ended Investment Companies Regulations 2001(10) and rules 6.6B.2 and 6.6B.3 of the Collective Investment Schemes sourcebook”;

(d) in paragraph 4—

(i) for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(ii) for “the third subparagraph of Article 22a(3) of Directive 2009/65/EC” substitute “rule 6.6B.27 of the Collective Investment Schemes sourcebook”;

(e) in paragraphs 5 to 8, for “Article 22a of Directive 2009/65/EC”, in each place where it appears, substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”;

(f) in paragraph 9, for “its competent authority” substitute “the competent authority”.

(20) In Article 16—

(a) in paragraph 1—

(i) in the opening words—

(aa) for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(bb) for “point (c) of Article 22a(3) of Directive 2009/65/EC” substitute “rule 6.6B.25(4)(c) of the Collective Investment Schemes sourcebook”;

(ii) in point (c), for “the third subparagraph of Article 22a(3) of Directive 2009/65/EC” substitute “rule 6.6B.27 of the Collective Investment Schemes sourcebook”;

(iii) in point (e)—

(aa) for “authorities of the UCITS home Member States” substitute “authority”;

(bb) for “Union” substitute “United Kingdom”;

(cc) for “point (c) of Article 22(4) of Directive 2009/65/EC” substitute “rule 6.6B.17(2)(c) of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2—

(i) for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(ii) for “the third subparagraph of Article 22a(3) of Directive 2009/65/EC” substitute “rule 6.6B.27 of the Collective Investment Schemes sourcebook”.

(21) In Article 17—

(a) in paragraphs 1 and 2(a), for “Article 22a of Directive 2009/65/EC” substitute “rule 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 3—

(i) for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22 and 6.6B.25 of the Collective Investment Schemes sourcebook”;

(ii) for “Union” substitute “United Kingdom”;

(c) in paragraph 4—

(i) for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook”;

(ii) for “the third subparagraph of Article 22a(3) of Directive 2009/65/EC” substitute “rule 6.6B.27 of the Collective Investment Schemes sourcebook”.

(22) Before Article 18, omit “(Article 24(1) of Directive 2009/65/EC)”.

(23) In Article 18—

(a) in paragraph 1—

(i) for “the second subparagraph of Article 24(1) of Directive 2009/65/EC” substitute “regulation 15C of the Undertakings for Collective Investment in Transferable Securities Regulations 2011”;

(ii) for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”;

(b) in paragraph 2, for “authorities” substitute “authority”;

(c) in paragraph 3, for “the second subparagraph of Article 24(1) of Directive 2009/65/EC” substitute “regulation 15C of the Undertakings for Collective Investment in Transferable Securities Regulations 2011”;

(d) in paragraph 4, for “Article 22a of Directive 2009/65/EC” in both places where it appears substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”.

(24) In Article 19—

(a) in paragraph 1, in the opening words, for “the second subparagraph of Article 24(1) of Directive 2009/65/EC” substitute “regulation 15C(2) of the Undertakings for Collective Investment in Transferable Securities Regulations 2011”;

(b) in paragraph 1(a) and paragraph 3, for “point (a) of Article 22(5) of Directive 2009/65/EC” substitute “rule 6.6B.18 of the Collective Investment Schemes sourcebook”.

(25) Before Article 20, omit “(Article 25 of Directive 2009/65/EC)”.

(26) In Article 22—

(a) in paragraph 3, omit “of the UCITS home Member State” in both places where it appears;

(b) in paragraph 5 for “Article 22a of Directive 2009/65/EC” substitute “rules 6.6B.22, 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook”.

(27) After Article 25 omit “This Regulation shall be binding in its entirety and directly applicable in all Member States.”

(1)

The definition of ‘feeder UCITS’ in section 237(3) of the Financial Services and Markets Act 2000 is substituted by regulation 7(3)(b) of these regulations.

(2)

The definition of ‘management company’ in section 237(2) of the Financial Services and Markets Act 2000 is substituted by regulation 7(2)(a) of these regulations.

(3)

The definition of ‘master UCITS’ in section 237(3) of the Financial Services and Markets Act 2000 is substituted by regulation 7(3)(b) of these regulations.

(4)

The definition of ‘UCITS’ is inserted at section 236A of the Financial Services and Markets Act 2000 by regulation 6 of these regulations.

(5)

S.I. 2001/544. Article 51ZA is substituted for Article 51 as originally enacted by S.I. 2013/1773.

(6)

Article 4(1)(2A) of Regulation (EU) No 575/2013 was inserted by the Capital Requirements (Amendment) (EU Exit) Regulations 2018.

(7)

OJ L 176, 27.6.2013, p. 338.

(8)

Section 261D was inserted by S.I. 2013/1388.

(9)

Section 261D(8) was amended by S.I. 2013/1773.

(10)

Regulation 15(8) was amended by S.I. 2013/472 and S.I. 2013/1773.