In March 2018, the Central Bank issued Consultation Paper 119 ("CP 119") on amendments to and consolidation of the Central Bank (Supervision and Enforcement) Act 2013 (Section 48(1)) (Undertakings for Collective Investment in Transferrable Securities) Regulations 2015 ("Central Bank UCITS Regulations"). In CP119, the Central Bank consulted on proposed amendments to the Central Bank UCITS Regulations 2015 under the following four headings:
- general amendments arising from a review of the existing regulations;
- amendments to reflect ESMA's opinion on share classes;
- amendments regarding UCITS performance fees; and
- amendments resulting from the implementation of the Money Market Funds Regulation.
On 6 June 2019, the Central Bank noted the publication of the updated and consolidated Central Bank UCITS Regulations 2019 (the "Updated Regulations") and issued its feedback statement on CP119, together with an updated version of its UCITS Q&A.
Key points for consideration include the following:
The Central Bank's existing guidance on performance fees has been codified in the Updated Regulations, which also introduce a requirement for a minimum crystallisation frequency. Performance fees may now only crystallise and be paid once per annum. However, there is an 18 month grandfathering period for funds in existence as at 27 May 2019 (the date the Updated Regulations took effect) to comply with this requirement. The Central Bank has also clarified that the crystallisation and payment of a performance fee by a UCITS upon redemption is not considered an annual calculation for the purposes this requirement (new UCITS Q&A #1091).
The updated UCITS Q&A also provides that it is permissible to charge performance fees at (i) an individual investor level, or (ii) at a share class/fund level, as adjusted for subscriptions and redemptions (new Q&A #1090).
The Updated Regulations also place the Central Bank's existing guidance on share classes on a statutory footing. Following stakeholder feedback and noting that the wording of its provision on under-hedged positions was not consistent with the ESMA opinion on share classes, the Central Bank has redrafted the provision to provide that under-hedged positions should not fall below 95% of the portion of the NAV of the share class. (As originally proposed, the reference was to 95% of the NAV of the share class). A UCITS' annual and semi-annual reports must now include a list of all share classes (that are in issue during the relevant period) together with an indication as to whether or not they are hedged.
The updated Regulations clarify that a UCITS' first annual audited accounts, (to be prepared within 18 months of incorporation), must include all sub-funds launched as at that date. The second set of accounts for UCITS Management Companies and Depositaries should cover the full 12 months of the financial year and these accounts must be filed with the Central Bank within 1 month of the year-end.
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This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.