The Front Page, Asset Management & Investment Funds: Irish Practice Developments
Some Approaching Deadlines
- 25 August 2016. CP86 – Third consultation paper. CP86 – Third consultation paper closes on 25 August 2016. Please see our InFocus document for more detail.
- 25 August 2016. CP105- Consultation on amendments to the Central Bank UCITS Regulations. CP105- Consultation on amendments to the Central Bank UCITS Regulations closes on 25 August.
- 1 September 2016. Companies Act 2014. The majority of the Companies Act 2014’s provisions commenced on 1 June 2015 (Commencement Date). If a UCITS management company (UCITS ManCo) or AIFM (or s.110 subsidiary) is converting to a company limited by shares (CLS), the shareholder(s) of the UCITS ManCo or AIFM (or s. 110 subsidiary) must pass a special resolution to adopt a new constitution, which must be filed with the Irish Companies Registration Office (CRO) by 30 November 2016. If the UCITS ManCo or AIFM (or s. 110 subsidiary) is converting to a designated activity company (DAC), the shareholder(s) of the UCITS ManCo or AIFM (or s. 110 subsidiary) must pass an ordinary resolution resolving that the company be registered as a DAC by 1 September 2016. Variable Capital Companies may choose to update their Memorandum and Articles of Association to reflect the provisions of the Companies Act 2014 and other regulatory changes when planning their Annual General Meetings. Please see our In Focus document for more detail.
- 1 September 2016. FSB consultation on recommendations to address structural vulnerabilities arising from asset management activities. The FSB consultation on recommendations to address structural vulnerabilities arising from asset management activities closes on 1 September 2016.
- 23 September 2016. ESMA Call for Evidence on Asset Segregation and Custody Services under the AIFMD and the UCITS Directive. The ESMA Call for Evidence on Asset Segregation and Custody Services under the AIFMD and the UCITS Directive closes on 23 September 2016 (as detailed below).
- 2 October 2016. EU consultation on cross-border distribution of investment funds. European Commission consultation on the capital markets union action on cross-border distribution of investment funds (UCITS, AIFs, ELTIFs, EuVECAs, EuSEFs) across the EU closes on 2 October 2016.
- 1 November 2016. Redemption Gates. Deadline for existing UCITS to remove provisions whereby redemption requests carried over from a prior dealing day as a result of the application of a gate receive priority. Many UCITS provide for priority rights of redemption for investors on subsequent dealing days in respect of the balance of redemption requests that had been subject to a gate. The Central Bank believes that applying priority to redemption requests which have been subject to a gate may materially prejudice investors, particularly small investors. This is notwithstanding the fact that the original gate would have had to have been applied pro rata to all investors, large and small, who had submitted redemption requests. This change (which will likely require a change to the UCITS' constitution) should be completed by all UCITS by 1 November 2016.
This 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 because these dates will vary to reflect the particular year ends.
Central Bank Markets Update
The Central Bank of Ireland (Central Bank) published Issue 4 of 2016 of the Central Bank of Ireland's Markets Update.
- Market Abuse Regulation: The Central Bank has published its Rules and Guidance on the new Market Abuse Legislative Framework.
- ESMA Guidelines on Alternative Performance Measures.
- CP100: Consultation on Risk Assessment and Capital Planning for Fund Administrators.
- CP101: Consultation on a Capital Requirement Framework for Market Operators.
ESMA (European Securities and Markets Authority)
- ESMA appoints new Securities and Markets Stakeholder Group.
- ESMA publishes responses received to its consultation on Guidelines on CSDR.
- European Supervisory Authorities plan to issue Q&As on PRIIPS.
- ESMA – peer review on securities regulators' approval of prospectuses.
- ESMA issues opinions on Danish pension scheme to be exempt from central clearing under EMIR.
- ESMA identifies scope for greater EU harmonisation in prospectuses approval.
- ESMA publishes the responses to its Discussion Paper on UCITS share classes.
- ESMA issues Opinion on inside information disclosure under the Market Abuse Regulation.
- ESMA updates list of recognised third-country CCPs.
- ESMA issues Technical Standards for European Long-Term Investment Funds.
- ESMA and CFTC to cooperate on CCPs.
- ESMA updates its EMIR Q&A.
- ESMA publishes updated AIFMD Q&A.
IOSCO (International Organisation of Securities Commission)
- IOSCO outlines its priorities regarding data gaps in the asset management industry.
- Implementation monitoring of the PFMI: Third update to level 1 assessment report.
- CPMI-IOSCO release guidance on cyber resilience for financial market infrastructures.
As anticipated in last month's Front Page, the new Market Abuse Regime, which consists of the Market Abuse Regulation (MAR) and the Market Abuse Directive on criminal sanctions for market abuse (CSMAD or MAD II) became applicable in Ireland and across the European Union on 3 July 2016. The new regime replaces the previous Market Abuse Directive (2003/6/EC). In Ireland, the European Union (Market Abuse) Regulations 2016 (2016 Regulations) is the Irish statutory instrument transposing CSMAD (and elements of MAR including the delegated acts) into Irish law. It replaces the previous Market Abuse (Directive 2003/6/EC) Regulations 2005 (S.I. 342 of 2005).
The Central Bank of Ireland is the single administrative competent authority for the purposes of Irish market abuse law, as provided under the 2016 Regulations. The Securities and Markets Supervision Division of the Central Bank of Ireland is responsible for the competent authority functions arising from MAR, CSMAD and the 2016 Regulations. The Central Bank of Ireland has issued revised Market Abuse Rules and Guidance on "Market Abuse Regulatory Framework", updated to align with MAR and the implementation of the new Market Abuse Regime.
This new Market Abuse Regime has a number of implications for investment funds listed on the Main Securities Market (MSM) and the Global Exchange Market (GEM) of the Irish Stock Exchange. The new regime makes changes to provisions including:
- More detailed "insider list" requirements, including new format rules (note that insider lists must now be maintained in electronic format). Template insider lists are provided for in Implementing Regulation EU 2016/347. In this context, the Central Bank has confirmed that the requirement in the templates for a "National Identity Number" of a person having access to inside information is not necessary for Irish issuers.
- A new notification obligation in cases where the listed investment fund decides to delay the public announcement of inside information, together with comprehensive record keeping requirements.
- Amended notification requirements in respect of Persons Discharging Managerial Responsibility (PDMRs), including a new "closed period" definition, new timescales for notifications, new disclosure thresholds and new format requirements for disclosure.
- An obligation to keep publicly disclosed information on the listed investment fund's website for at least 5 years.
- A new "market soundings" regime, together with comprehensive record keeping requirements.
- More comprehensive definitions of inside information, insider dealing and market manipulation.
- Minimum rules for criminal sanctions for market abuse and a wider range of activities which constitute an offence, including, for example, inciting, aiding and abetting the commission of certain market abuse offences.
Listed investment funds will need to review and update their existing internal policies and procedures, insider list templates and PDMR disclosure templates etc. to reflect these and other changes. For more information please email your usual contact on the A&L Goodbody Asset Management & Investment Funds Team.
Date published: 02 August 2016