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

Commission Delegated Regulation (EU) 2016/438 U.K.

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 [F1 IP completion 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 M1 ;

(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 M2 ; 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) M3 , 261D(5) and 261D(8) M4 of the Financial Services and Markets Act 2000, regulation 15(8) of the Open Ended Investment Companies Regulations 2001 M5 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.”

Textual Amendments

F1 Words in reg. 60(4) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 18(f)

Commencement Information

I1 Reg. 60 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(2)

Marginal Citations

M1 Article 4(1)(2A) of Regulation (EU) No 575/2013 was inserted by the Capital Requirements (Amendment) (EU Exit) Regulations 2018.

M2 OJ L 176, 27.6.2013, p. 338.

M3 Section 261D was inserted by S.I. 2013/1388.

M4 Section 261D(8) was amended by S.I. 2013/1773.

M5 Regulation 15(8) was amended by S.I. 2013/472 and S.I. 2013/1773.