On 17 February 2009, the Committee of European Securities
Regulators-CESR (an independent committee which brings together
the securities commissions of 26 countries of the European
Economic Area and, in summary, improves co-ordination among
securities regulators, acts as an advisory group to assist the
EU Commission and works to ensure more consistent and timely
day-to-day implementation of community legislation in the Member
States) launches a call for evidence on possible implementing
measures of the future UCITS directive, document consultable on
the following Internet site:
www.cesr.eu.
On 13 January 2009, the European Parliament adopted in plenary
session a proposal for a Directive containing amendments to the
UCITS Directive (85/611/EEC). This followed approval by the
Council of an identical compromise text at a COREPER (Comité des
représentants permanents) meeting of 17 December 2008. It must
be stated that the Council’s final approval is expected in April/May.
On the basis of the compromise text, the Commission has
requested CESR’s assistance on the content of the implementing
measures to be taken pursuant to the revised Directive.
As the future Directive imposes on the Commission a very strict
timetable (1 July 2010) for adopting certain level 2 measures,
in particular in the area of the management company passport,
the Commission feels it is of outmost importance for CESR to
start working on these measures as soon as possible.
The request for assistance is split into three parts.
Part I (Request for technical advice on the level 2 measures
related to the management company passport) is related to the
management company passport and includes provisions on: (i)
organisational requirements and conflicts of interest for
management companies; (ii) rules of conduct and conflicts of
interest for management companies, (iii) risk management; (iv)
measures to be taken by a depositary of a UCITS managed by a
management company on an investment company situated in another
Member State; (v) on-the-spot verification and investigation;
(vi) exchange of information between competent authorities.
Part II (Request for technical advice on the level 2 measures
related to key investor information – supplement to the
Commission’s April 2007 “request for assistance on key investor
disclosures for UCITS”) covers the implementing measures
foreseen by the Directive in relation to key investor
information-KII disclosures. The Commission is under a legal
obligation to adopt implementing measures on the detailed and
exhaustive content of KII pursuant to Article 78(7). The
Commission also has the option of complementing them by adopting
provisions pursuant to Article 81(2) (specific conditions to be
met when providing KII in a durable medium other than paper).
Regarding the detailed and exhaustive content of KII, CESR has
been working on the basis of the initial request for assistance
on KII sent by the Commission in April 2007; this resulted in
the delivery of a set of advice to the Commission on the content
and form of Key Information Document disclosures for UCITS on 18
February 2008. A consultation is planned on the full package of
advice on KII disclosures in summer 2009; it will be important
in that consultation to identify any additional issues raised by
the final text of the Directive that CESR should consider before
delivering its final advice.
Part III (Request for technical advice on the level 2 measures
related to fund mergers, master-feeder structures and the
notification procedure ) covers: (i) the areas of mergers of
UCITS; (ii) master-feeder structures; (iii) the notification
procedure. Although the Commission is not under a legal
obligation to adopt implementing measures under these topics, it
considers them as an important complement to the level 1
provisions.
It must be underlined that the CESR’s advice will be discussed
and developed by the Investment Management Expert Group, chaired
by Lamberto Cardia, Chairman of the Commissione Nazionale per le
Società e la Borsa-CONSOB, that is the public authority
responsible for regulating the Italian securities market.
CESR invites all interested parties to submit, online via CESR’s
website (www.cesr.eu) under the heading “Consultations”, by 31
March 2009 (CESR is invited by the Commission to provide its
technical advice by 30 October 2009 at the latest), their views
on what CESR should consider in its advice to the Commission.
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