Non-UCITS that are not subject to a specific product law (like the SIF and SICAR law) are considered Undertakings for Collective Investment (UCIs) established under Part II of the Law of 2010.
UCIs can be sold to all types of investors.
UCIs other than UCITS are governed by Part II of the Luxembourg law of 17 December 2010 (Law of 2010, click here), unless they are governed by a specific product law. They qualify as alternative investment funds (AIFs) in the meaning of the Luxembourg law of 12 July 2013 on alternative investment fund managers (AIFM law). Whereas the latter focuses on the fund’s manager, the fund itself is governed by the relevant product laws.
Circulars and regulations issued by the CSSF complement the regulatory framework by clarifying the implementation of different legal provisions governing the supervised entities.
Eligible assets and risk diversification requirements
There is no restriction in terms of eligible assets of a UCI. However, the investment objective and strategy is subject to prior approval by the CSSF.
Risk diversification requirements are defined by IML Circular n° 91/75 and are less stringent than the ones in application for Part I funds (UCITS). Specific restrictions concerning funds adopting an alternative investment strategy are contained in CSSF Circular n° 02/80.
A UCI may take the legal form of a common fund (FCP – fonds commun de placement) or may be constituted as an open-ended investment company (SICAV – Société d’investissement à capital variable) or a closed-ended investment company (SICAF – Société d’investissement à capital fixe).
The FCP has no legal personality and thus must be managed by a management company.
A SICAV/SICAF may take one of five possible legal forms:
These different entities may be set up as a single fund or as an umbrella fund consisting of multiple compartments, each with a different investment policy. The fund and compartments may have an unlimited number of share classes, depending on the needs of the investors to whom the fund is distributed.
The structures may be open-ended or closed-ended.
Capital requirements and other aspects
The net assets of an FCP may not be less than EUR 1,250,000. This minimum must be reached within a period of six months following its authorisation.
The minimum capital of a self-managed SICAV/SICAF may not be less than EUR 300,000 at the date of authorisation. The capital of any SICAV/SICAF must reach EUR 1,250,000 within a period of six months following its authorisation.
The risk management function is one of the two core functions (next to portfolio management) an AIFM has to perform. It is further described in the AIFM law.
Authorisation and supervision
A UCI fund must be authorised by the CSSF before it can start its activities. To this end, the fund has to submit the following documents and information to the Luxembourg supervisory authority:
- constitutive documents or management regulations, prospectus and main agreements with service providers;
- directors of the fund and/or managers of the management company;
- choice of depositary and auditor.
UCI are supervised by the CSSF and must fulfil detailed reporting requirements.
Appointment of an AIFM
UCIs are required to appoint an AIFM, unless they benefit from the limited exemptions provided by the AIFM law. The AIFM can be established in Luxembourg, in another EU Member State or in a third country. They may either appoint an external AIFM or choose being internally managed. In the latter case, the UCI will itself be considered as the AIFM. As a consequence, all of the AIFM Law’s obligations applying to the AIFM will have to be complied with by the UCI.
UCIs managed by an EU authorised AIFM benefit from a passport allowing AIFMs to market the UCI’s shares, units or partnership interests to professional investors within the EU through a regulator-to-regulator notification regime.
For more details, please click here to access our brochure on the AIFMD.
Investment funds established under the Law of 2010 generally pay an annual subscription tax (taxe d’abonnement) of 0.05% of their net asset value on the last day of every calendar quarter. This rate is reduced to 0.01% in case of money market cash funds and institutional funds.
Investments in special institutional money market cash funds, special pension funds (including pension pooling vehicles) and funds investing in other funds which are already subject to subscription tax are exempt from subscription tax. The same applies to microfinance investment vehicles and exchange traded funds.
- Management company:
A common fund has no legal personality and thus must be managed by a management company.
The individuals who effectively conduct the business of a management company must be of good repute and be sufficiently experienced in relation to the type of UCI to be managed. The management company must have an initial capital of at least EUR 125,000.
Luxembourg UCIs must appoint a depositary which is responsible for both the safekeeping of assets and the supervision of the fund and its management company.
The individuals who represent the depositary bank must be of good repute and have sufficient experience in relation to the type of UCI concerned.
The administration of a UCI can be performed by a third party. This concerns the accounting, NAV calculation, keeping of the register of shareholders/unit holders, handling of subscriptions and redemptions, communication with investors and preparation of financial statements.
The fund (SICAV/SICAF) or its management company (FCP) prepares an annual and semi-annual report. The annual report is audited by an authorised external auditor with appropriate professional experience.
Specific aspects: EuVECA and EuSEF
UCIs which qualify as European Venture Capital (EuVECA) or European Social Entrepreneurship (EuSEF) Funds have the possibility to be subject to the EuVECA and EuSEF regulation respectively. Both regulations introduce a passport for the marketing of AIFs to EU-based eligible investors.