Fund Distribution Alert 2021-23

Following the transposition of EU Directive 2019/1160 into German law (covered in our fund distribution alert of 11 August 2021), the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) issued an updated version of the Guidance notice on marketing of EU UCITS in Germany on 17 August 2021.

The main changes in the new version of the Guidance notice pertain to the following:

• In part A of the UCITS notification letter, information on the entity or entities performing the facilities tasks set out in art. 92 (1) of the directive 2019/1160 must be indicated. To this effect, the BaFin requests the name, legal form, domicile, address, e-mail and phone number as well as the relevant task of which the entity is in charge.
• The notification letter should also indicate the name, address, e-mail and phone number of one contact person for the receipt of regulatory invoices.
• The previous requirement to list an information agent, and potentially also a paying agent, located in Germany, is removed.  

•  A link to the BaFin’s overview of UCITS marketing requirements is included in accordance with Article 5(1) of Regulation (EU) 2019/1156.
• The UCITS management company shall ensure that the tasks set out in the directive 2019/1160 pursuant to Art. 92 (1) are carried out satisfactorily, including the following:
  • The tasks must be carried out electronically and in German.
  • In terms of legal documents, the UCITS management company must make sure that these are made available in a durable medium or electronically on a website, as well as in paper form for free upon request.
  • Information relevant to the tasks that the facilities perform are to be provided to investors in a durable medium.
• For investor notices which must be published by means of a durable medium, it is specified that this should principally be done electronically in accordance with KAGB § 167 (1).
• An addendum to the prospectus is still required. Although it is no longer required to reflect an information (and paying) agent located in Germany in this part, it must specify how the fund shall make available the facilities to perform the tasks set out in art. 92 (1) of the directive 2019/1160. This addendum should be either in German or in a language customary in the sphere of international finance, depending on the language used for the prospectus in Germany. As previously applicable, a standalone supplement or the mere attachment of a separate document containing this additional information is not sufficient, information for investors in Germany must be included as an integral part of the prospectus (which must be reflected accordingly in the table of contents and page numbering). This addendum should now mention:
  • The entity in charge of subscription, redemptions, and payments (name and address), as well as information on how investors can redeem or exchange units and benefit from payments.
  • The entity in charge of provision of documents and other facilities services (name and address).
  • The indication that the issue and redemption prices (including conversion prices, if applicable) and other information and documents to be published in the EU UCITS home Member State (e.g., the relevant contracts and laws) is available free of charge from the applicable entity or entities in charge of performing the facilities tasks.
  • Information on procedures and arrangements relating to the exercise and safeguarding of investor rights, including regarding complaints.

The requirement to mention the sub-fund(s) not registered in Germany in legal fund documents where such sub-funds are indicated (i.e. prospectus, financial reports, articles of association/fund rules) remains applicable.

This section has been updated to reflect the requirements set out in EU Directive 2019/1160. The regulatory fees due for such a procedure continue to apply.

The updated guidance notice is available in German only here.

Please feel free to contact us should you require any additional information.

Partner
+352 22 51 51 7892
said.fihri@kpmg.lu

Director
+352 22 51 51 7271
stephanie.zedda@kpmg.lu