Regulations, 2021

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 20,698, 10 ta’ Settembru, 2021

L.N. 361 of 2021

INVESTMENT SERVICES ACT

(CAP. 370)

Investment Services Act (Marketing of UCITS) (Amendment)

Regulations, 2021

IN EXERCISE of the powers conferred by article 12 of the

Investment Services Act, the Minister responsible for the regulation of

Financial Services, acting on the advice of the Malta Financial

Services Authority, has made the following regulations

(1) The title of these regulations is the Investment Citation and

Services Act (Marketing of UCITS) (Amendment) Regulations, 2021, scope.

and these regulations shall be read and construed as one with the S.L. 370.18.

Investment Services Act (Marketing of UCITS) Regulations,

hereinafter referred to as "the principal regulations".

(2) The scope of these regulations is to transpose, in part,

Article 1 of Directive (EU) 2019/1160 of the European Parliament and

of the Council of 20 June 2019 amending Directives 2009/65/EC and

2011/61/EU with regard to cross-border distribution of collective

investment undertakings.

In sub-regulation (3) of regulation 1 of the principal Amends

regulations, for the words, "Articles 1, 2(1)(b) and (e), 3, 91(1) and (3), regulation

the principal

92, 93, 94, 96 and 108 of Directive 2009/65/EC of the UCITS regulations.

Directive,", there shall be substituted the words "Articles 1, 2(1)(b)

and (e), 3, 91(1), 92, 93, 93a, 94, 96 and 108 of Directive 2009/65/EC

of the UCITS Directive,".

Regulation 4 of the principal regulations shall be amended Amends

regulation 4 of

as follows

the principal

regulations.

(a) in paragraph (a) of sub-regulation (2) thereof, for

the words, "including where relevant in respect of share

classes; and", there shall be substituted the words "including

where relevant in respect of share classes;";

(b) in paragraph (b) of sub-regulation (2) thereof, for the

words, "marketed by the management company that manages the

Maltese UCITS.", there shall be substituted the words "marketed

by the management company that manages the Maltese

UCITS;";

(c) immediately after paragraph (b) of sub-regulation (2)

thereof, there shall be added the following new paragraphs

"(c) the details necessary for the invoicing or for

the communication of any applicable regulatory fees or

charges by the European regulatory authority of the host

Member State or EEA State, including the address; and

(d) information on the facilities for the

performance of tasks referred to in regulation 5(7) of

these regulations.";

(d) in sub-regulation (11) thereof, for the words, "the

Maltese UCITS shall give written notice thereof to the European

regulatory authority of the Member State or EEA State in which

it is currently marketing its units prior to implementing the

change", there shall be substituted the words, "the Maltese

UCITS shall give written notice thereof to both the competent

authority and the European regulatory authority of the UCITS

host Member State or EEA State at least one (1) month before

implementing that change."; and

(e) immediately after sub-regulation (11) thereof, there

shall be added the following new sub-regulations

"(12) Where, pursuant to a change as referred to in

sub-regulation (11), the Maltese UCITS would no longer

comply with the UCITS Directive, the competent

authority shall inform the Maltese UCITS within fifteen

(15) working days of receipt of all the information

referred to in sub-regulation (11) that it is not to

implement that change. In that case, the competent

authority accordingly shall notify the European

regulatory authority of the Member State or EEA State in

which Maltese UCITS is currently marketing its units.

(13) Where a change referred to in sub-regulation

(11) is implemented after information has been transmitted

by the competent authority in accordance with sub-

regulation (12) and pursuant to that change the Maltese

UCITS no longer complies with the UCITS Directive, the

competent authority shall take all appropriate measures in

accordance with the Act, including, where necessary, the

express prohibition of marketing of the Maltese UCITS and

shall notify the European regulatory authority of the

Member State or EEA State in which Maltese UCITS is

currently marketing its units without undue delay of the

measures taken.

(14) If a Maltese UCITS wishes to terminate

arrangements made for marketing of its units, including,

where relevant, the share classes thereof in the Member

State or EEA State in which Maltese UCITS is currently

marketing its units, in respect of which it has made a

notification in accordance with sub-regulation 4(1), it shall

be allowed to de-notify such marketing arrangements after

fulfilling the following conditions

(a) a blanket offer shall be made to

repurchase or redeem, free of any charges or

deductions, all such units held by investors in that

Member State or EEA State, and shall be publicly

available for at least 30 working days, addressed,

directly or through financial intermediaries,

individually to all investors in that Member State or

EEA State whose identity is known;

(b) the intention to terminate arrangements

made for marketing such units in that Member State

or EEA State is made public by means of a publicly

available medium, including by electronic means,

which is customary for marketing UCITS and

suitable for a typical UCITS investor; and

(c) any contractual arrangements with

financial intermediaries or delegates are modified or

terminated with effect from the date of de-notification

in order to prevent any new or further, direct or

indirect, offering or placement of the units identified

in the notification referred to in sub-regulation 4(16).

(15) The information referred to in sub-regulations

4(14)(a) and (b) shall clearly describe the consequences for

investors if they do not accept the offer to redeem or

repurchase their units. Such information shall be provided

in the official language or one of the official languages of

the Member State or EEA State in respect of which the

Maltese UCITS has made a notification in accordance with

sub-regulation 4(1), or in a language approved by the

competent authorities of that Member State EEA State.

With effect from the date referred to in sub-regulation

4(14)(c), the Maltese UCITS shall cease any new or further,

direct or indirect, offering or placement of its units which

were the subject of de-notification in that Member State or

EEA State.

(16) The Maltese UCITS shall submit to the

competent authority a notification containing the

information referred to in sub-regulations 4(14)(a), (b) and

(c).

(17) The Maltese UCITS shall provide investors

who remain invested in it as well as the competent

authority with the information required under Articles 68 to

82 and under Article 94 of the UCITS Directive. The

Maltese UCITS shall provide such information using any

electronic or other distance communication means.

Provided

that

the

information

and

communication means are available for investors in the

official language or one of the official languages of the

Member State or EEA State where the investor is located

or in a language approved by the competent authorities of

that Member State or EEA State.".

Regulation 5 of the principal regulations shall be amended

as follows

(a) in sub-regulation (1) thereof, for the words, "key

investor information document translated in the official

language, or one of the official languages of the Member State or

EEA State in which it is marketing its units or into a language

approved by the European regulatory authority of such Member

State or EEA State, together with the following information and

documents prescribed hereunder free of charge and upon

request:", there shall be substituted the words, "documents

referred to under sub-regulation (1)(a) to (d) free of charge and

upon request for the purposes of inspection and obtaining copies

thereof:";

(b) in paragraph (b) of sub-regulation (1) thereof, for the

words, "an annual report for each financial year; and", there shall

be substituted the words "an annual report for each financial

year;";

(c) in paragraph (c) of sub-regulation (1) thereof, for the

words, "a half-yearly report covering the first six months of the

financial year.", there shall be substituted the words "a half-

yearly report covering the first six months of the financial year;

and";

(d)

immediately after paragraph (c) of sub-regulation

(1) thereof, there shall be added the following new paragraph

"(d) key investor information document.";

(e) in sub-regulation (3) thereof, for the words, "The

Maltese UCITS shall, at its discretion, translate the

documents", there shall be substituted the words "The Maltese

UCITS shall translate the key investor information document

referred to in sub-regulation 1(d) into the official language, or

one of the official languages, of the UCITS host Member State

or EEA State or into a language approved by the European

regulatory authority of that Member State or EEA State. The

Maltese UCITS shall, at its discretion, translate the

documents";

(f) in sub-regulation (7) thereof, for the words "take the

measures necessary to ensure that facilities are available therein

for making payments to unit holders, re-purchasing or redeeming

units and making available the information which the Maltese

UCITS is obliged to provide", there shall be substituted the

words, "take the measures necessary to ensure that facilities are

available therein to:", and immediately thereafter, there shall be

added the following new paragraphs

"(a) process

subscription,

repurchase

and

redemption orders and make other payments to unit-

holders relating to the units of the UCITS, in accordance

with the conditions set out in the documents required

pursuant to sub-regulation 1(a) to (c);

(b) provide investors with information on how

orders referred to in point (a) above can be made and how

repurchase and redemption proceeds are paid;

(c) facilitate the handling of information and access

to procedures and arrangements relating to the investors'

exercise of their rights arising from their investment in the

UCITS in the Member State or EEA State where the UCITS

is marketed;

(d) provide investors with information relevant to

the tasks that the facilities perform in a durable medium;

and

(e) act as a contact point for communicating with

the European regulatory authority of that Member State or

EEA State."; and

(g) immediately after sub-regulation (7) thereof,

there shall be added the following new sub-regulations

"(7A)The Maltese UCITS shall ensure that the

facilities to perform the tasks referred to in sub-

regulation (7), including electronically, are

provided

(a) in the official language or one of the

official languages of the Member State or EEA

State where the UCITS is marketed or in a

language approved by the European regulatory

authority of that Member State or EEA State;

and

(b) by the UCITS itself, by a third party

which is subject to regulation and supervision

governing the tasks to be performed, or by both.

(7B) For the purposes of sub-regulation

(7A)(b), where the tasks are to be performed by a

third party, the appointment of the said third party

shall be evidenced by a written contract, which

specifies which of the tasks referred to in sub-

regulation (7) are not to be performed by the UCITS

and that such third party will receive all the relevant

information and documents from the UCITS.".

Regulation 8 of the principal regulations shall be amended

(a) in paragraph (a) of sub-regulation (1) thereof, for the

words, "European UCITS of its units in Malta, including where

relevant in respect of share classes; and", there shall be

substituted the words "European UCITS of its units in Malta,

including where relevant in respect of share classes;";

(b) in paragraph (b) of sub-regulation (1) thereof, for the

words "by the management company that manages the European

UCITS.", there shall be substituted the words "by the

management company that manages the European UCITS;";

(c) immediately after paragraph (b) of sub-regulation (1)

thereof, there shall be added the following new paragraphs

"(c) the details necessary for the invoicing or

for the communication of any applicable regulatory

fees or charges by the competent authority,

including the address; and

(d) information on the facilities for the

performance of tasks referred to in regulation 9(5)

of this Act.";

(d)

sub-regulation (7) thereof shall be deleted;

(f) in sub-regulation (10) thereof, for the words, "to the

competent authority prior to implementation of the change.",

there shall be substituted the words, "to both the competent

authority and European regulatory authority of the UCITS home

Member State or EEA State at least one month before

implementing that change."; and

(g) immediately after sub-regulation (10) thereof, there

shall be added the following new sub-regulations

"(11) Where, pursuant to a change as referred to in

sub-regulation (10), the European UCITS would no

longer comply with the UCITS Directive, the European

regulatory authority of the UCITS home Member State or

EEA State shall inform the European UCITS within

fifteen (15) working days of receipt of all the information

referred to in sub-regulation (10) that it is not to

implement that change.

(12) Where a change referred to in sub-regulation

(10) is implemented after information has been transmitted

in accordance with sub-regulation (11) and pursuant to that

change the European UCITS no longer complies with the

UCITS Directive, the European regulatory authority of the

UCITS home Member State or EEA State shall take all

appropriate measures, including, where necessary, the

express prohibition of marketing of the European UCITS,

and shall notify the competent authority without undue

delay of the measures taken.

(13) If a European UCITS wishes to terminate

arrangements made for marketing of its units, including,

where relevant, the share classes thereof in Malta, it shall

be allowed to de-notify such marketing arrangements after

fulfilling the following conditions

(a)

a blanket offer shall be made to

repurchase or redeem, free of any charges or

deductions, all such units held by investors in Malta,

and shall be publicly available for at least thirty (30)

working days, addressed, directly or through financial

intermediaries, individually to all investors in Malta,

whose identity is known;

(b) the intention to terminate arrangements

made for marketing such units in Malta is made

public by means of a publicly available medium,

including by electronic means, which is customary

for marketing UCITS and suitable for a typical

UCITS investor; and

(c) any contractual arrangements with

financial intermediaries or delegates are modified or

terminated with effect from the date of de-notification

in order to prevent any new or further, direct or

indirect, offering or placement of the units identified

in the notification referred to in sub-regulation 8(15).

(14) The information referred to in sub-regulations

8(13)(a) and (b) shall clearly describe the consequences for

investors if they do not accept the offer to redeem or

repurchase their units. Such information shall be provided

in the official language or one of the official languages of

Malta, or in a language approved by the competent

authority. As of the date referred to in sub-regulation

8(13)(c), the European UCITS shall cease any new or

further, direct or indirect, offering or placement of its units

which were the subject of de-notification in Malta.

(15) The European UCITS shall submit to the

European regulatory authority of the UCITS home Member

State or EEA State a notification containing the information

referred to in sub-regulations 8(13)(a), (b) and (c).

(16) The European UCITS shall provide investors

who remain invested in it as well as the competent

authority with the information required under Articles 68

to 82 and under Article 94 of the UCITS Directive. The

European UCITS may provide such information using

any electronic or other distance communication means,

provided that the information and communication means

are available for investors in the official language or one

of the official languages of Malta, or in a language

approved by the competent authority.".

Regulation 9 of the principal regulations shall be amended Amends

regulation 9 of

as follows

the principal

regulations.

(a) in sub-regulation (1) thereof, for the words, "key

investor information document in English or in Maltese and with

the following information and documents prescribed hereunder

free of charge and upon request:", there shall be substituted the

words, "documents referred to under sub-regulation (1)(a) to (d)

free of charge and upon request for the purposes of inspection

and obtaining copies thereof:";

(b) in paragraph (b) of sub-regulation (1) thereof, for

the words, "an annual report for each financial year; and",

there shall be substituted the words "an annual report for each

financial year;";

(c) in paragraph (c) of sub-regulation (1) thereof, for the

words, "a half-yearly report covering the first six months of the

financial year.", there shall be substituted the words "a half-

yearly report covering the first six months of the financial year;

and";

(d) immediately after paragraph (c) of sub-regulation (1)

thereof, there shall be added the following new paragraph

"(d) key investor information document.";

(e) in sub-regulation (2) thereof, immediately before the

words, "The information and documents prescribed in sub-

regulation (1)(a) to (c) shall be provided to investors in the

manner prescribed by the Investment Services Rules.", there

shall be inserted the words, "The European UCITS shall translate

the key investor information document referred to in sub-

regulation 1(d) into the official language, or one of the official

languages of Malta or into a language approved by the competent

authority.";

(f) in sub-regulation (5) thereof, the words, "take the

measures necessary to ensure that facilities are available in

Malta for making payments to unit holders, re-purchasing or

redeeming units and making available the information which the

European UCITS is obliged to provide", there shall be

substituted the words, "take the measures necessary to ensure

that facilities are available in Malta to:", and immediately

thereafter, there shall be added the following new paragraphs

"(a) process

subscription,

repurchase

and

redemption orders and make other payments to unit-holders

relating to the units of the European UCITS, in accordance

with the conditions set out in the documents required

pursuant to sub-regulation 1(b) to (d);

(b) provide investors with information on how

orders referred to in point (a) above can be made and how

repurchase and redemption proceeds are paid;

(c) facilitate the handling of information and

access to procedures and arrangements relating to the

investors' exercise of their rights arising from their

investment in the European UCITS in Malta;

(d) make the information and documents required

pursuant to Chapter IX available to investors under the

conditions laid down in Article 94, for the purposes of

inspection and obtaining copies thereof;

(e) provide investors with information relevant to

the tasks that the facilities perform in a durable medium;

and

(f) act as a contact point for communicating with

the competent authority."; and

(g) immediately after sub-regulation (5) thereof, there

shall be added the following new sub-regulations

"(5A)The European UCITS shall not be required to

have a physical presence in Malta or to appoint a third party

for the purposes of sub-regulation (5).

(5B) The European UCITS shall ensure that the

facilities to perform the tasks referred to in sub-regulation

(5), including electronically, are provided

(a) in the official language, or one of the

official languages of Malta or in a language approved

by the competent authority by the European UCITS

itself; and

(b) by a third party which is subject to

regulation and supervision governing the tasks to be

performed, or by both.

(5C) For the purposes of sub-regulation (5B),

where the tasks are to be performed by a third party, the

appointment of the said third party shall be evidenced by

a written contract, which specifies which of the tasks

referred to in sub-regulation (5) are not to be performed

by the European UCITS and that the third party will

receive all the relevant information and documents from

the European UCITS.".

Schedule A of the principal regulations shall be deleted.

Amends

Schedule A of

the principal

regulations.

€0.54