Marketing of foreign UCITS in the UK recognised under section 264 of the Financial Services and Markets Act 2000
1 September 2006
UCITS are collective investment schemes. They must comply with 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, as amended (the UCITS Directive).
UCITS constituted in a European Economic Area (EEA) State (other than the UK) may become recognised in the UK under section 264 of the Financial Services and Markets Act 2000 (FSMA). Under this provision a UCITS that complies with the requirements of the section will be recognised in the UK. This is unless within two months of receiving written notice of the intention to market in the UK, we notify the applicant and its Home State regulator that the manner in which the invitation is to be made (to the public) does not comply with UK law.
Introduction
Here, we provide an overview of the provisions in the UK for marketing and other specific regulations for UCITS recognised under FSMA that are not harmonised by the UCITS Directive. For a definition of marketing see the FSA Glossary to the Handbook.
The information on this page is based on the Committee of European Securities Regulators (CESR) June 2006 guidelines on simplifying the notification procedure for UCITS. These guidelines are available on the CESR website. The guidelines present a common approach to the administration, by host authorities, of the notification process (as set out in Article 46 of the UCITS Directive).
The relevant requirements in the UK that have been prescribed for the purposes of section 264(1)(a) are contained in the Financial Services and Markets Act 2000 (Collective Investment Schemes Constituted in Other EEA States) Regulations (SI 2001/2383). In addition rules and guidance can be found in Chapter 9 of the Collective Investment Schemes sourcebook (COLL). Background information to the rules is also contained within the Collective Investment Schemes Information Guide (COLLG).
Supporting documents
If you wish to notify us that your firm intends to market UCITS in the UK, you should send us a completed Form 264 and the following documents:
- a valid original attestation granted by the competent home Member State;
- latest up-to-date scheme rules or the instrument constituting the UCITS;
- latest up-to-date full prospectus (in line with COLL 9.4.2R this prospectus should include the address where the UK facilities will be maintained and details of those facilities);
- latest up-to-date simplified prospectus; and
- latest annual and any subsequent half-yearly report (if available).
Form 264 [DOC]
Fee
All notifications under section 264 must be accompanied by the relevant fee as set out in the Fees Manual (FEES). The current fee is £600 or £1,200 for an umbrella UCITS which has sub-funds. Details of the payment methods, date of payment, who made the payment and any reference number should be included on the Form 264. UCITS are also subject to a periodic fee as set out in FEES.
Information on the various payment methods can be found on our fees web pages.
Electronic submission
You can submit notifications as a hard copy or electronically to us at:
CIS Authorisations Team
The Financial Services Authority
25 The North Colonnade
Canary Wharf
London
E14 5HS
Fax +44 (0)20 7066 9797
Email: CIS@fsa.gov.uk
Two month period
You must give us at least two months' notice of your intention to market units of a UCITS in the UK. There is currently no provision to shorten this two-month period.
Receipt of notification
We aim to acknowledge receipt of notifications within five working days. In our acknowledgment we will specify whether your notification is complete or incomplete and where applicable, will tell you which document(s) or what information is missing.
Missing documents
If your notification is incomplete, we will give you up to six months to submit missing documents or information. If you do not get back to us within this period, you must submit a new complete notification.
Language for translations
In line with COLL 9.2.1G(2) all documents submitted as part of the notification must be in English or accompanied by a translation in English. The Operator must certify that all translations are true copies of the original document.
General commitment and transitional period
We are committed to:
- fully implementing the CESR guidelines and acting in line with them to simplify the notification procedure of UCITS; and
- adopting working procedures that will speed up the notification process.
A transitional period will apply in relation to guideline five (shortening the two-month period) because FSMA will need to be amended (see the CESR website).
Ending recognition of UCITS
An Operator of a UCITS may give us notice that they wish the UCITS to cease to be recognised under FSMA (section 264(6) FSMA). If this is the case, please contact us in writing using one of the methods outlined above. We will email you to confirm that the UCITS is no longer a recognised scheme.
If you stop marketing the sub-funds of an umbrella UCITS in the UK, please complete Form 264CH. You can submit such notifications to us using one of the methods outlined above. We aim to deal with your notification within ten working days of receiving it and will email you to acknowledge we have updated our records accordingly.
Form 264CH [DOC]
Changes to UCITS
In line with our rules and guidance (COLLG 3.1.8G(3)) please notify us of changes to the information supplied to us under COLL 9.2.1G. Please also send us revised documents when you change your scheme documentation. Form 264CH should be used to notify us of such changes and submitted to us at CIS@fsa.gov.uk.
If you are planning to market new sub-funds in the UK, please also notify us using Form 264CH. We aim to deal with such notifications within ten working days of receipt and will send an email acknowledgment confirming that we have updated our records accordingly. There is no two month notification period in place when new sub-funds are to be marketed in the UK.
Form 264CH [DOC]
UK facilities
The Operator of a UCITS recognised under FSMA must maintain certain facilities in the UK as set out in our rules (COLL 9.4), so for example any member of the public may inspect the constituting documents of the UCITS, including the prospectus, simplified prospectus and latest annual and half-yearly report of the UCITS. The prospectus of a recognised UCITS must contain the address where these facilities will be maintained and details of the facilities. It would help us if, when submitting your notification, you highlighted where this information is in the prospectus.
Marketing
A UCITS will not be treated as recognised until we are satisfied that the person (if different from the Operator) who will be undertaking the marketing of the units has the necessary Part IV permission under FSMA (see Chapter 2 of the Perimeter Guidance Manual). If the Operator proposes to do its own marketing of the UCITS, under Schedule 5 FSMA, it automatically has the necessary permission under FSMA to carry out the marketing and no Part IV permission is necessary. Even so, the marketing does have to be carried out in line with UK law.
Please ensure that when making this notification the person who you propose should market the UCITS has the necessary permission under FSMA. We can change Part IV permissions, but this can take up to six months to process, so we urge firms to plan well in advance to avoid delay
Details of a firm's Part IV permission are listed in its Scope of Permission Notice and on the FSA's Register. If a firm needs to vary their permission, please see Applying for a variation of permission.