Cross-border distribution of funds has been a prominent topic in 2021 and 2022. On 15 June 2021, a new Commission implementing regulation (Regulation (EU) 2021/955) concerning Regulation (EU) 2019/1156 of the European Parliament and of the Council on facilitating cross-border distribution of collective investment undertakings was published in the Official Journal of the EU. It entered into force with direct effect on 5 July 2021 and applies in line with the new marketing rules provided for in Directive (EU) 2019/1160 with regard to cross-border distribution of collective investment undertaking since 2 August 2021.
This implementing regulation addresses the forms, templates, procedures and technical arrangements for the publications and notifications of marketing rules, as well as fees and charges. It also specifies the information to be communicated for the creation and maintenance of the central database on cross-border marketing of AIFs and UCITS.
In Luxembourg, the law of 21 July 2021 transposing Directive (UE) 2019/1160 with regard to cross-border distribution of collective investment undertakings (“CBDF Directive”) and implementing subsequent changes to the UCITS Directive and AIFMD was published in the national gazette on 26 July 2021. The new rules cover topics such as new facilities for retail investors to process investor subscriptions, payments, repurchase and redemption orders relating to the units or shares of the UCITS/AIF, the content of the notification letter or the possibility to de-notify funds from cross-border distribution. The conditions for pre-marketing of alternative investments funds have also been implemented into national law. In addition, CSSF Circular 21/778 (amending Circular 11/509 on notification procedures) was published on 28 July 2021, and integrated technical modifications related to the Directive, giving details in particular as to the file to be submitted with the supervisory authority in case of de-notification of a Luxembourg UCITS.
It is to be noted that regarding the pre-marketing notifications of AIFMs, a new dedicated web page is also available on the CSSF website.
Furthermore, on 30 July 2021 the CSSF also issued FAQs highlighting the changes relating to the receipt of the notifications (UCITS, AIFM) in the context of the CBDF regulation.
Finally, ESMA published on 2 August 2021 the final version of its guidelines on marketing communications under the abovementioned regulation on cross-border distribution of collective investment undertakings. The guidelines have applied since 2 February 2022 to all marketing communications addressed to investors or potential investors for UCITS and AIFs, including when they are set up as EuVECAs, EuSEFs, ELTIFs and MMFs. The CSSF has integrated these Guidelines into its administrative practices and regulatory approach via Circular 22/795.
The ALFI European Marketing Rules and the Marketing and Distribution working groups have been jointly monitoring the abovementioned developments throughout the year, exchanging views and collecting questions from ALFI members on the practical implementation of the new rules in view of discussions with authorities.
Evelyne Christiaens, Head of the Legal Department