Di Barbara Bandiera
19 marzo 2009
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.