The UCITS Directive 85/611/EEC (entered into force in 1988 as amended by UCITS III in 2001) has been the key driver contributing to the significant development and success of the European investment fund industry over the last two decades. The aim of UCITS is to allow collective investment schemes to operate freely throughout the EU on the basis of a single authorisation from one member state.
The UCITS III amendments in 2001 presented a major advance for the Funds industry, not least by substantially enlarging the investment powers available to UCITS. Nevertheless, UCITS III fell short in tackling industry consolidation and efficiency constraints, including the lack of a fully functioning Management Company Passport. As a result, Legislation implementing UCITS IV in Ireland came into force on 1 July 2011.
UCITS IV, introduced an "Efficiency Package" of six major amendments that aim to improve the effectiveness of the UCITS regime and provide the funds industry with billions of euros worth of efficiency gains. This package consists of:
- A full Management Company Passport (MCP).
- Introduction of a framework for master-feeder structures.
- A new framework for fund mergers.
- A Key Investor Information (KII) document in place of the Simplified Prospectus.
- Speedier regulator-to-regulator notification procedures.
- Improved supervisory cooperation mechanisms.
As an established investment fund centre and major UCITS domicile with global reach, Ireland has an unrivalled UCITS IV offering in terms of regulatory, tax, depositary and client servicing considerations.
On 3 July 2012 the European Commission issued a proposal for a Directive amending the UCITS Directive as regards depositary functions, remuneration policies and sanctions, known as the "UCITS V" proposal.
The Madoff fraud and the Lehman Brothers default have drawn the EC’s attention to the UCITS depositary whose duties had been governed by a set of generic principles that led to diverging national interpretations across the EU, specifically in relation to liability. The challenge is to clarify the role and responsibilities and ensure consistency between Member State rules, thus enhancing investor protection. The EC also intends to align the UCITS framework with the Alternative Investment Fund Managers Directive (AIFMD) regime, which will enter into force in July 2013.
The financial crisis has also brought attention to remuneration policies and incentive schemes across the financial sector. UCITS V intends to apply new rules on remuneration of UCITS managers consistent with those under the AIFMD and the Capital Requirements Directive.
Finally, another feature of UCITS V is a new harmonised sanctions regime for breaches of UCITS rules. This followed an ESMA study in May 2011 revealing wide divergence across EU member states in relation to the criteria and sanctions applicable for breaches of UCITS rules
UCITS5 was adopted (March 2013) in the European Parliament Econ Committee (including the recently debated rule that bonuses should not exceed fixed remuneration and the strict regulation on performance fees). This however is not final, as there now will be so-called “trialogues” with the Commission and the Council, once the latter has finalized its proposal.
For further information on UCITS V please click here.
As part of continuing efforts to improve the UCITS framework and maintain investor confidence in the UCITS product the European Commission issued a new wide-ranging UCITS consultation entitled “Product Rules, Liquidity Management, Depositary, Money Market Funds, Long Term Investments" in July 2012, with response date 18 October 2012.
This Consultation has to a degree been triggered by international regulatory focus on securities lending and repos, OTC derivatives and liquidity and systemic issues regarding ETFs and Money Market Funds and is complementary to the Commission’s work on Shadow Banking. However the Commission also includes targeted improvements to the UCITS framework and also consults on wider conceptual areas such as long-term investments and a Depositary Passport.
The Commission aims to deepen their understanding on key topics and seeks stakeholder views on the following issues and possible policy orientations. To stay up to date with the on-going regulatory discussions, please click here for a summary of the key areas under review for UCITS VI
The Central Bank of Ireland (the "Central Bank") is designated in the Regulations as the competent authority with responsibility for the authorisation and supervision of UCITS.
The Central Bank has produced a series of UCITS Notices (PDF, 1.6MB) in order to:
- explain and clarify various aspects of the Regulation
- set down conditions not contained in the Regulations with which UCITS must conform.