The Front Page, Asset Management & Investment Funds: Irish Practice Developments
Some Approaching Deadlines
- 31 December 2016. Corporate Governance – completion of reviews of board and individual director performance. Under the Irish Funds Corporate Governance Code, the overall Board's performance and that of individual members must be reviewed annually with a formal documented review and a review of the chairperson taking place at least once every three years.
- 31 December 2016. Anti-Money Laundering/Counter Terrorist Financing (AML/CTF) - collective investment schemes and management companies should be aware of the regulatory expectation to offer training to their boards on the law relating to AML/CTF on an annual basis (and at such other times as may be appropriate). Boards should also ensure that they have considered whether to adopt a board level AML/CTF policy and where the board has adopted such a policy, that it receives appropriate confirmations from relevant persons and that it is subject to periodic review.
- 31 December 2016. Business Plan/Programme of Activity - UCITS management companies, self-managed UCITS, AIFMs and internally managed AIFs, where they have not already done so, may need to complete their annual performance review on service providers, and obtain annual confirmations from service providers and relevant persons in accordance with their business plan/programme of activity, complete onsite visits with service providers, ensure adoption of valuation policy and make disclosure in respect of connected parties transactions.
- 31 December 2016. Fitness & Probity - management companies, AIFMs, self- managed/ internally- managed UCITS/AIFs and other regulated financial service providers (RFSPs), where they have not already done so, will need to obtain their annual certification from persons performing PCFs (e.g. directors) and CFs (e.g. Money Laundering Reporting Officer (MLRO) and Company Secretary) that they are aware of the Fitness and Probity standards, agree to continue to abide by those standards and will notify the Board if they no longer comply. This forms part of ongoing performance monitoring set out in Section 22 of the Guidance on Fitness and Probity Standards. The deadlines for filing the Annual Fitness & Probity PCF Confirmation Return (for the year ending 31/12/16) for Investment Funds and Fund Service Providers (including AIFMs and UCITS management companies) has not yet been noted on the Central Bank website. This filing is submitted via the Central Bank online reporting system, usually by the system administrator.
- 1 January 2017. Remuneration guidelines ESMA published two sets of Guidelines: Guidelines on Sound Remuneration under UCITS (UCITS Remuneration Guidelines) and Guidelines on Sound Remuneration under the AIFMD (AIFMD Remuneration Guidelines). The UCITS Remuneration Guidelines provide clarity on the requirements under the UCITS Directive for UCITS management companies when establishing and applying a remuneration policy for key staff. The AIFMD Remuneration Guidelines amend the current Guidelines on sound remuneration policies under the AIFMD. The amendment relates to the section of the Guidelines dealing with the application of the remuneration rules in a group context and is intended to acknowledge the potential outreach of the Capital Requirements Directive rules in a banking group. Both sets of Guidelines apply from 1 January 2017.
- 20 February 2017. UCITS KIID - Annual update of the key investor information document (KIID) must be filed no later than this date (where required). Any update to the KIID filed with the Central Bank must be translated (as necessary) and filed in any other host jurisdictions where the UCITS is registered to market its shares and uploaded on the UCITS' website.
The above list does not cover ad hoc filings (such as regulatory reports) or filings of annual accounts (and related documents which include annual FDI Return) and semi-annual accounts or other similar returns which deadlines will vary to reflect the particular entity's year ends.
Central Bank Deadlines for Pre-Christmas/Year-End Applications
As detailed in our Front Page News Alert the Central Bank of Ireland (Central Bank) has issued details of its pre-Christmas or pre-year end approval deadlines for receipt of applications.
The European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016
The European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016 came into operation on 15 November 2016 and are discussed further in our In Focus paper. These Irish regulations form part of the Irish implementation of the 4th Anti-Money Laundering Directive (4AMLD) which is due to be transposed throughout the EU by 26 June 2017. Certain Irish corporates must now;
- take “all reasonable steps” to obtain and hold “adequate, accurate and current” information in respect of their beneficial owners,
- construct and keep a new beneficial ownership register, and
- keep the information on beneficial ownership contained in the beneficial ownership register up to date.
Article 3 (6) (a) of 4AMLD defines beneficial owners, in the case of corporate entities, as the natural person(s) who ultimately own or control the entity through direct or indirect ownership or control over a sufficient percentage of the shares or voting rights in that entity. A percentage of 25% plus one share is stated to be evidence of ownership or control through shareholding, and is stated in Article 3 (6) (a) to apply “to every level of direct and indirect ownership”.
The regulations will give rise to many challenges for corporate investment funds and their service providers, particularly the obligation to keep information up to date in the context of daily dealing funds and intra-day dealing funds. Moreover, Irish investment funds are distributed globally and while the obligation for investment funds to maintain and transmit details of beneficial owners will be understood by European investors, it may prove problematic to obtain information from third country investors who may not be familiar with equivalent requirements. In a corporate investment funds context, the obligation operates at umbrella, rather than sub-fund level.
Loan Origination Qualifying Investor AIFs
On 25 November 2016, the Central Bank published a notice of intention to amend the requirements for loan origination Qualifying AIFs set out in the AIF Rulebook. See our Front Page newsalert for more details. This change will come into effect from 3 January 2017 when the Central Bank will publish a revised AIF Rulebook.
Central Bank AIFMD Q&A
On 25 November 2016, the Central Bank published the twenty-first edition of the AIFMD Q&A. A new question ID 1111 relating to pension scheme arrangements under EMIR is included.
Central Bank Markets Update
On 25 November 2016, the Central Bank published issue 7 of 2016 of its Markets Update, which covers Central Bank and ESMA.developments.
Date published: 30 November 2016