2009L0065 — EN — 20.06.2013 — 003.001

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community , and in particular Article 47 (2) thereof,

Having regard to the proposal from the Commission,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (1) ,

Whereas:
  1. Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (2) has been substantially amended several times (3) . Since further amendments are to be made, it should be recast in the interests of clarity.
  2. Directive 85/611/EEC has largely contributed to the development and success of the European investment funds industry. However, despite the improvements introduced since its adoption, in particular in 2001, it has steadily become clear that changes need to be introduced into the UCITS legal framework in order to adapt it to the financial markets of the twenty-first century. The Commission Green Paper of 12 July 2005 on the enhancement of the EU framework for investment funds launched a public debate on the way in which Directive 85/611/EEC should be amended in order to meet those new challenges. That intense consultation process led to the largely shared conclusion that substantial amendments to that Directive are needed.
  3. National laws governing collective investment undertakings should be coordinated with a view to approximating the conditions of competition between those undertakings at Community level, while at the same time ensuring more effective and more uniform protection for unit-holders. Such coordination facilitates the removal of the restrictions on the free movement of units of UCITS in the Community.
  4. Having regard to those objectives, it is desirable to provide for common basic rules for the authorisation, supervision, structure and activities of UCITS established in the Member States and the information that they are required to publish.
  5. The coordination of the laws of the Member States should be confined to UCITS other than of the closed-ended type that promote the sale of their units to the public in the Community. It is desirable that UCITS be permitted, as part of their investment objective, to invest in financial instruments, other than transferable securities, which are sufficiently liquid. The financial instruments which are eligible to be investment assets of the portfolio of the UCITS should be listed in this Directive. The selection of investments for a portfolio by means of an index is a management technique.
  6. Where a provision of this Directive requires that UCITS take action, that provision should be understood to refer to the management company in cases where the UCITS is constituted as a common fund managed by a management company and where a common fund is not in a position to act by itself because it has no legal personality of its own.

HAVE ADOPTED THIS DIRECTIVE:





(1) Opinion of the European Parliament of 13 January 2009 (not yet published in the Official Journal) and Council Decision of 22 June 2009.

(2) OJ L 375, 31.12.1985, p. 3.

(3) See Annex III , Part A .

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

  1. This Directive applies to undertakings for collective investment in transferable securities (UCITS) established within the territories of the Member States.
  2. For the purposes of this Directive, and subject to Article 3 , UCITS means an undertaking:
    1. with the sole object of collective investment in transferable securities or in other liquid financial assets referred to in Article 50 (1) of capital raised from the public and which operate on the principle of risk-spreading; and
    2. with units which are, at the request of holders, repurchased or redeemed, directly or indirectly, out of those undertakings’ assets. Action taken by a UCITS to ensure that the stock exchange value of its units does not significantly vary from their net asset value shall be regarded as equivalent to such repurchase or redemption.

      Member States may allow UCITS to consist of several investment compartments.

  3. The undertakings referred to in paragraph 2 may be constituted in accordance with contract law (as common funds managed by management companies), trust law (as unit trusts), or statute (as investment companies).

    For the purposes of this Directive:

    1. common funds shall also include unit trusts;
    2. units of UCITS shall also include shares of UCITS.
  4. Investment companies, the assets of which are invested through the intermediary of subsidiary companies, mainly other than in transferable securities, shall not be subject to this Directive.

Article 2

  1. For the purposes of this Directive the following definitions apply:
    1. depositary means an institution entrusted with the duties set out in Articles 22 and 32 and subject to the other provisions laid down in Chapter IV and Section 3 of Chapter V ;
    2. management company means a company, the regular business of which is the management of UCITS in the form of common funds or of investment companies (collective portfolio management of UCITS);
    3. management company ’s home Member State’ means the Member State in which the management company has its registered office;
    4. management company ’s host Member State’ means a Member State, other than the home Member State, within the territory of which a management company has a branch or provides services;
    5. UCITS home Member State means the Member State in which the UCITS is authorised pursuant to Article 5 ;
    6. UCITS host Member State means a Member State, other than the UCITS home Member State , in which the units of the UCITS are marketed;
    7. branch means a place of business which is a part of the management company , which has no legal personality and which provides the services for which the management company has been authorised;
    8. competent authorities means the authorities which each Member State designates under Article 97 ;
      1. close links means a situation in which two or more natural or legal persons are linked by either:
    9. qualifying holding means a direct or indirect holding in a management company which represents 10 % or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of the management company in which that holding subsists;
    10. initial capital means the funds as referred to in Article 57 (a) and (b) of Directive 2006/48/EC ;
    11. own funds means own funds as referred to in Title V , Chapter 2 , Section 1 of Directive 2006/48/EC ;
    12. durable medium means an instrument which enables an investor to store information addressed personally to that investor in a way that is accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
    13. transferable securities means:
      1. shares in companies and other securities equivalent to shares in companies (shares);
      2. bonds and other forms of securitised debt (debt securities);
      3. any other negotiable securities which carry the right to acquire any such transferable securities by subscription or exchange;
    14. money market instruments means instruments normally dealt in on the money market which are liquid and have a value which can be accurately determined at any time;
    15. mergers means an operation whereby:
      1. one or more UCITS or investment compartments thereof, the merging UCITS , on being dissolved without going into liquidation, transfer all of their assets and liabilities to another existing UCITS or an investment compartment thereof, the receiving UCITS , in exchange for the issue to their unit-holders of units of the receiving UCITS and, if applicable, a cash payment not exceeding 10 % of the net asset value of those units ;
      2. two or more UCITS or investment compartments thereof, the merging UCITS , on being dissolved without going into liquidation, transfer all of their assets and liabilities to a UCITS which they form or an investment compartment thereof, the receiving UCITS , in exchange for the issue to their unit-holders of units of the receiving UCITS and, if applicable, a cash payment not exceeding 10 % of the net asset value of those units ;
      3. one or more UCITS or investment compartments thereof, the merging UCITS , which continue to exist until the liabilities have been discharged, transfer their net assets to another investment compartment of the same UCITS, to a UCITS which they form or to another existing UCITS or an investment compartment thereof, the ‘ receiving UCITS ’;
    16. cross-border merger means a merger of UCITS:
      1. at least two of which are established in different Member States; or
      2. established in the same Member State into a newly constituted UCITS established in another Member State;
    17. domestic merger means a merger between UCITS established in the same Member State where at least one of the involved UCITS has been notified pursuant to Article 93 .
  2. For the purposes of paragraph 1(b), the regular business of a management company shall include the functions referred to in Annex II .
  3. For the purposes of paragraph 1(g), all the places of business established in the same Member State by a management company with its head office in another Member State shall be regarded as a single branch .

Article 3

The following undertakings are not subject to this Directive:

  1. collective investment undertakings of the closed-ended type;
  2. collective investment undertakings which raise capital without promoting the sale of their units to the public within the Community or any part of it;
  3. collective investment undertakings the units of which, under the fund rules or the instruments of incorporation of the investment company, may be sold only to the public in third countries;
  4. categories of collective investment undertakings prescribed by the regulations of the Member States in which such collective investment undertakings are established, for which the rules laid down in Chapter VII and Article 83 are inappropriate in view of their investment and borrowing policies.

Article 4

For the purposes of this Directive, a UCITS shall be deemed to be established in its home Member State.



CHAPTER II

AUTHORISATION OF UCITS

Article 5

  1. No UCITS shall pursue activities as such unless it has been authorised in accordance with this Directive.

    Such authorisation shall be valid for all Member States.

  2. A common fund shall be authorised only if the competent authorities of its home Member State have approved the application of the management company to manage that common fund, the fund rules and the choice of depositary . An investment company shall be authorised only if the competent authorities of its home Member State have approved both its instruments of incorporation and the choice of depositary , and, where relevant, the application of the designated management company to manage that investment company.
  3. Without prejudice to paragraph 2, if the UCITS is not established in the management company ’s home Member State, the competent authorities of the UCITS home Member State shall decide, on the application of the management company , to manage the UCITS pursuant to Article 20 . Authorisation shall not be subject either to a requirement that the UCITS be managed by a management company having its registered office in the UCITS home Member State or that the management company pursue or delegate any activities in the UCITS home Member State .
  4. The competent authorities of the UCITS home Member State shall not authorise a UCITS if:
    1. they establish that the investment company does not comply with the preconditions laid down in Chapter V ; or
    2. the management company is not authorised for the management of UCITS in its home Member State.

      Without prejudice to Article 29 (2) , the management company or, where applicable, the investment company, shall be informed, within two months of the submission of a complete application, whether or not authorisation of the UCITS has been granted.

      The competent authorities of the UCITS home Member State shall not authorise a UCITS if the directors of the depositary are not of sufficiently good repute or are not sufficiently experienced also in relation to the type of UCITS to be managed. To that end, the names of the directors of the depositary and of every person succeeding them in office shall be communicated forthwith to the competent authorities .

      Directors shall mean those persons who, under the law or the instruments of incorporation, represent the depositary , or who effectively determine the policy of the depositary .

  5. The competent authorities of the UCITS home Member State shall not grant authorisation if the UCITS is legally prevented (for example, through a provision in the fund rules or instruments of incorporation) from marketing its units in its home Member State.

CHAPTER XIV

DEROGATIONS, TRANSITIONAL AND FINAL PROVISIONS

SECTION 1

Derogations

Article 114

  1. Investment firms, as defined in Article 4 (1) (1) of Directive 2004/39/EC , authorised to carry out only the services provided for in Section A(4) and (5) of the Annex to that Directive, may obtain authorisation under this Directive to manage UCITS as management companies. In that case, such investment firms shall give up the authorisation obtained under Directive 2004/39/EC .
  2. Management companies already authorised before 13 February 2004 in their home Member State under Directive 85/611/EEC to manage UCITS shall be deemed to be authorised for the purposes of this Article if the laws of that Member State provide that to take up such activity they must comply with conditions equivalent to those imposed in Articles 7 and 8 .



SECTION 2

Transitional and final provisions

Article 118

  1. This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union .

    Article 1 (1) , the first subparagraph of Article 1 (2) , Article 1 (3) (a) , Article 1 (4) to (7) , points (a) to (d) , (f) to (l) , (n) and (o) of Article 2 (1) , Article 2 (2) , (3) and (4) , Article 2 (6) and (7) , Article 3 , Article 5 (5) , Article 6 (2) , (3) and (4) , Articles 7 to 11 , Article 12 (2) , Article 13 (1) (b) to (h) , Article 13 (2) , Article 14 (1) , Article 16 (2) , points (a) , (c) and (d) of Article 17 (2) , the second subparagraph of Article 17 (3) , Article 17 (8) , the first subparagraph of Article 17 (9) , Article 18 (1) except the introductory phrase and point (a), the first and second subparagraphs of Article 18 (2) , Article 21 (1) and (7) , Article 22 (2) , Article 22 (3) (b) and (c) , Article 23 (3) , Article 24 , Articles 25 and 26 , the first and second paragraphs of Article 27 , Article 28 , Article 29 (1) , (3) , and (4), Articles 30 , 31 and 32 , Article 33 (1) and (3) , Articles 34 , 35 and 36 , Article 50 (1) (a) to (h) , Article 50 (2) , the first and second subparagraphs of Article 51 (1) , Article 51 (2) and (3) , Articles 52 and 53 , Article 54 (1) and (2) , Article 55 , the first subparagraph of Article 56 (2) , the second subparagraph of Article 56 (2) , Article 56 (3) , Article 57 , Article 68 (2) , Article 69 (3) and (4) , Article 70 (1) and (4) , Articles 73 and 76 , Article 83 (1) except point (b) , Article 83 (2) (a) except the second indent, Articles 84 , 85 and 87 , Article 88 (1) except point (b) , Article 88 (2) , Article 89 except point (b) , Article 102 (1) , the first subparagraph of Article 102 (2) , Article 102 (3) and (4) , Articles 103 to 106 , Article 109 (1) , Articles 111 , 112 , 113 , and 117 and Annexes II , III and IV shall apply from 1 July 2011.

  2. Member States shall ensure that UCITS replace their simplified prospectus drawn up in accordance with the provisions of Directive 85/611/EEC with key investor information drawn up in accordance with Article 78 as soon as possible and in any event no later than 12 months after the deadline for implementing, in national law, all the implementing measures referred to in Article 78 (7) has expired. During that period, the competent authorities of the UCITS host Member States shall continue to accept the simplified prospectus for UCITS marketed on the territory of those Member States.

Article 119

This Directive is addressed to the Member States.




ANNEX

ANNEX I

SCHEDULE A

1. Information concerning the common fund

1. Information concerning the management company including an indication whether the management company is established in a Member State other than the UCITS home Member State

1. Information concerning the investment company

1.1. Name

1.1. Name or style, form in law, registered office and head office if different from the registered office.

1.1. Name or style, form in law, registered office and head office if different from the registered office.

1.2. Date of establishment of the common fund. Indication of duration, if limited.

1.2. Date of incorporation of the company. Indication of duration, if limited.

1.2. Date of incorporation of the company. Indication of duration, if limited.

1.3. If the company manages other common funds , indication of those other funds.

1.3. In the case of investment companies having different investment compartments, the indication of the compartments.

1.4. Statement of the place where the fund rules, if they are not annexed, and periodic reports may be obtained.

1.4. Statement of the place where the instruments of incorporation, if they are not annexed, and periodical reports may be obtained.

1.5. Brief indications relevant to unit-holders of the tax system applicable to the common fund. Details of whether deductions are made at source from the income and capital gains paid by the common fund to unit-holders.

1.5. Brief indications relevant to unit-holders of the tax system applicable to the company. Details of whether deductions are made at source from the income and capital gains paid by the company to unit-holders.

1.6. Accounting and distribution dates

1.6. Accounting and distribution dates.

1.7. Names of the persons responsible for auditing the accounting information referred to in Article 73 .

1.7. Names of the persons responsible for auditing the accounting information referred to in Article 73 .

1.8. Names and positions in the company of the members of the administrative, management and supervisory bodies. Details of their main activities outside the company where these are of significance with respect to that company.

1.8. Names and positions in the company of the members of the administrative, management and supervisory bodies. Details of their main activities outside the company where these are of significance with respect to that company.

1.9. Amount of the subscribed capital with an indication of the capital paid-up

1.9. Capital

1.10. Details of the types and main characteristics of the units and in particular:

— the nature of the right (real, personal or other) represented by the unit,

— characteristics of the units : registered or bearer. Indication of any denominations which may be provided for,

— original securities or certificates providing evidence of title; entry in a register or in an account,

— indication of unit-holders' voting rights if these exist,

— circumstances in which winding-up of the common fund can be decided on and winding-up procedure, in particular as regards the rights of unit-holders.

1.10. Details of the types and main characteristics of the units and in particular:

— original securities or certificates providing evidence of title; entry in a register or in an account,

— characteristics of the units : registered or bearer. Indication of any denominations which may be provided for,

— indication of unit-holders' voting rights,

— circumstances in which winding-up of the investment company can be decided on and winding-up procedure, in particular as regards the rights of unit-holders.

1.11. Where applicable, indication of stock exchanges or markets where the units are listed or dealt in.

1.11. Where applicable, indication of stock exchanges or markets where the units are listed or dealt in.

1.12. Procedures and conditions of issue and sale of units .

1.12. Procedures and conditions of issue and sale of units .

1.13. Procedures and conditions for repurchase or redemption of units , and circumstances in which repurchase or redemption may be suspended.

1.13. Procedures and conditions for repurchase or redemption of units , and circumstances in which repurchase or redemption may be suspended. In the case of investment companies having different investment compartments, information on how a unit-holder may pass from one compartment into another and the charges applicable in such cases.

1.14. Description of rules for determining and applying income.

1.14. Description of rules for determining and applying income.

1.15. Description of the common fund's investment objectives, including its financial objectives (e.g. capital growth or income), investment policy (e.g. specialisation in geographical or industrial sectors), any limitations on that investment policy and an indication of any techniques and instruments or borrowing powers which may be used in the management of the common fund.

1.15. Description of the company's investment objectives, including its financial objectives (e.g. capital growth or income), investment policy (e.g. specialisation in geographical or industrial sectors), any limitations on that investment policy and an indication of any techniques and instruments or borrowing powers which may be used in the management of the company.

1.16. Rules for the valuation of assets.

1.16. Rules for the valuation of assets.

1.17. Determination of the sale or issue price and the repurchase or redemption price of units , in particular:

— the method and frequency of the calculation of those prices,

— information concerning the charges relating to the sale or issue and the repurchase or redemption of units ,

— the means, places and frequency of the publication of those prices.

1.17. Determination of the sale or issue price and the repurchase or redemption price of units , in particular:

— the method and frequency of the calculation of those prices,

— information concerning the charges relating to the sale or issue and the repurchase or redemption of units ,

— the means, places and frequency of the publication of those prices (1) .

1.18. Information concerning the manner, amount and calculation of remuneration payable by the common fund to the management company , the depositary or third parties, and reimbursement of costs by the common fund to the management company , to the depositary or to third parties.

1.18. Information concerning the manner, amount and calculation of remuneration payable by the company to its directors, and members of the administrative, management and supervisory bodies, to the depositary , or to third parties, and reimbursement of costs by the company to its directors, to the depositary or to third parties.

(1) Investment companies within the meaning of Article 32 (5) of this Directive shall also indicate:

  1. Information concerning the depositary :
    1. Name or style, form in law, registered office and head office if different from the registered office;
    1. Main activity.
  1. Information concerning the advisory firms or external investment advisers who give advice under contract which is paid for out of the assets of the UCITS:
    1. Name or style of the firm or name of the adviser;
    1. Material provisions of the contract with the management company or the investment company which may be relevant to the unit-holders, excluding those relating to remuneration;
    1. Other significant activities.

SCHEDULE B

Information to be included in the periodic reports

I. Statement of assets and liabilities:

transferable securities ,

— bank balances,

II.

Number of units in circulation

III.

Net asset value per unit

V.

Statement of the developments concerning the assets of the UCITS during the reference period including the following:

— income from investments,

— other income,

— management charges,

VI.

A comparative table covering the last three financial years and including, for each financial year, at the end of the financial year:

— the total net asset value,

— the net asset value per unit.

VII.

Details, by category of transaction within the meaning of Article 51 carried out by the UCITS during the reference period, of the resulting amount of commitments.


ANNEX II

Functions included in the activity of collective portfolio management:

— Investment management.

— Administration:

(a) legal and fund management accounting services;

(b) customer inquiries;

(c) valuation and pricing (including tax returns);

— Marketing.


ANNEX III

PART A

Repealed Directive with list of its successive amendments

(referred to in Article 117)

Council Directive 85/611/EEC

(OJ L 375, 31.12.1985, p. 3)

Council Directive 88/220/EEC

(OJ L 100, 19.4.1988, p. 31)

Directive 95/26/EC of the European Parliament and of the Council

(OJ L 168, 18.7.1995, p. 7)

Article 1 , fourth indent, Article 4 (7) and Article 5 , fifth indent only

PART B

List of time limits for transposition into national law and application

(referred to in Article 117)

Directive

Time limit for transposition

Date of application

85/611/EEC

1 October 1989

88/220/EEC

1 October 1989


ANNEX IV

Correlation table

Directive 85/611/EEC

This Directive

Article 1 (1)

Article 1 (1)

Article 1 (2) , introductory phrase

Article 1 (2) , introductory phrase

Article 1(2), first and second indent

Article 1 (2) (a) and (b)

Article 1 (2) , second subparagraph

Article 1 (3) , first subparagraph

Article 1 (3) , first subparagraph