prop · GD03153 · 1989-12-31 00:00:00 — providedthat the borrowing is lo make possible the acquestion of immov- Prop.1989/90: 153 able property essential for the direct pursuil ofits business; inthis case the Bilaga 6 borrowing and that referred to in subparagraph (a)may not in any case in total exceed ofthe borrower's assets. A UCITS must re-purchase orredeem its units al the request of any unit-holder. By way of dérogation fromparagraph I: (a) a UCITS may, in the cases andaccording to the procedures provided for by law, the fund rules or theinvestment company's instruments of incorporation, temporarily suspend there-purchase or redemption ofits units. Suspension may be provided for only inexceptional cases where circumstances so require, and suspension is juslifiedhaving regard lo the interests ofthe unit-holders; (b) the Member States may allow thecompetent authorities to require the suspension ofthe re-purchase or redemptionof units in the interest of the unit-holders or ofthe public. Inthe cases mentioned in paragraph 2 (a), a UCITS must without delay communicate its decision to the competent authorities and to the authorities ofall Member States in which it märkets its units. Therules for the valuation of assets and the rules for calculating the sale orissue price and the re-purchase or redemption price of the units of a UCITSmust be laid down in the law, in the fund rules or in the investment company'sinstruments of incorporation. Thedistribution or reinvestmenl ofthe income of a unit trust or of an investmentcompany shall be etlected in accordance with the law and with the fund rules orthe investment company's instruments of incorporation. AUCITS unit may not be issued unless the equivalent ofthe net issue price ispaid into the assets of the UCITS within the usual lime limits. This provisionshall not predude the distribution of bonus units. 1.Without préjudice to the application of Artides 19 and 21, neither: aninvestment company, nor amanagement company or depositary acting on behalf of a unit trust maygrant loans or act as a guaranlor on behalf of third parties. Paragraph 1 shall notprevent such undertakings from acquiring Prop. 1989/90:153 transferable securities which are not fully paid. aninvestment company, nor amanagement company or depository acting on behalf of a unit tmsl may carry outuncovered sales of transferable securities. Thelaw or the fund mles must prescribe the remuneration and the expendilure whicha management company is empowered to charge to a unit trust and the method ofcalculation of such remuneration. Thelaw or an investment company's instruments of incorporation must prescribe the natureofthe cost to be borne by the company. Specialprovisions applicable to UCITS which märket their units in Member States other thanthose in which they are situated A UCITS which märkets ils unitsin another must comply with the laws, regulations andadministrative provisions in force in that State which do not fall within the fieldgovemed by this Directive. may advertise its unitsin the in which they are marketed, it must comply the provisions governingadvertising in that State. The provisions referred to in paragraphsI and 2 must be applied without discrimination. lnthe case referred to in Article 44, the UCITS must, inter alia, in accordance withthe laws, regulations and administrative provisions in force in the MemberState of marketing, take the measures necessary to ensure that facilities are availablein that State for making payments to unit-holders, re-purchasing or redeeming unitsand making available the information which UCITS are obliged to provide. Ifa UCITS proposes to märket its units in a other than that in which it is situated, it must first inform the competent authorities and the authorities of that other accordingly. It must simultaneously send the latter authorities: 168 an allestalionby the competent authorities lo the effect that il fulfils the Prop.1989/90:153 conditions imposed by this Directive, Bilaga 6 its fund rulesor ils instruments of incorporation, where appropriate,its latesl annual report and any subsequent half-yearly report and details of the arrangementsmade for the marketing of its units in that other . A UCITS may begin to märket ils units in that other MemberState two months after such communication unless the authorities of the MemberState concerned establish, in a reasoned decision taken before the expiry of thatperiod of two months, that the arrangements made for the marketing of units donot comply with the provisions referred to in Artides 44 (1) and 45. If a UCITS its units in a other than thatin which it is situated, it must distribute in that other , in at leastone of that other Member State's official languages, the documents and informationwhich must be published in the in which it is situated, in accordancewith the same procedures as those provided for in the latter State. For the purpose of carying on its activities, a UCITS may usethe same generic name (such as investment company or unit trust) in the Communityas it uses in the in which it is situated. In the event of any dangerof confusion, the höst may, for the purpose of clarification, requirethat the name be accompanied by certain explanatory particulars. Provisions concerning the authorities responsible for authorizationand supervision The Member States shall designate the authorities whichare to carry out the duties provided for in this Direclive. They shall inform the Com mission thereof, indicating any division of duties. The authoritiesreferred to in paragraph 1 must be public athorilies or bodies appointed by publicahtorities. The auhoritiesof the State in which a UCITS is situated shall be competent to supervise that UCITS.However, the authorities ofthe State in which a UCITS märkets its units in accordancewith Article 44 shall be competentto supervise compliance with Section VIII. 4.The authorities concerned must be granted all the powers necessary Prop.1989/90: 153 to carry out their task. The authorites ofthe MemberStates referred to in Article 49 shall collaborate closely in order to carry outtheir task and must for that purpose alone communicate to each other allinformation required. The Member States shall providethat all persons employed or for-merly employed by the authorities referred toi Article 49 shall be bound by professional secrecy. This means that any confidentialinformation received in the course of their duties may not be divulged lo anyperson or authority except by virtue of provisions laid down by law. Paragraph 2 shall not. however,predude Communications between the authorities ofthe various Member slates referredto in Artide 49, as provided for in this Directive. Information thus exchanged shallbe covered by the obligation of professional secrecy on persons employed or formerlyemployed by the authorities receiving the information. Without préjudice to cases coveredby criminal law, an authority of the type referred to in Article 49 receving suchinformation may use it only for the performance of its duties or in the contextof administrative appeals or legal proceedings relating to such performance. The authorities referred to in Article49 must give reasons for any decision to refuse authorization, and any negativedecision taken in implementation of the general measures adopted in applicationof this Directive, and communication them to applicants. The Member States shall providethat décisions taken in respect of a UCITS pursuant to laws, regulations andadministrative provisions adopted in accordance with this Directive are subjectlo the right to apply to the courts; the same shall apply if no decision istaken within six months of its submission on an authorization application madeby a UCITS which includes all the information required under the provisions inforce. Onlythe authorities ofthe in which a UCITS is situated shall have the power to take action against il if il infringes any law, regulation or administrative provision or any regulation laid down in the fund rules or in the investment company's instruments of incorporation. Nevertheless, the authorities oftheMember State in which the units of a UCITS are markeled may take action againstit if il infringes the provisions referred to in Section VIII. decision to withdraw authorization,or any olher serious measure laken against a UCITS, or any suspension of re-purchaseor redemption imposed upon it, must be communicated without delay by the aulhor- 170 itiesofthe in which the UCITS in question is situated to the Prop.1989/90: 153 authorities ofthe Member States in which its units are marketed. , hereinafter referred to as 'the Committee', shall be set up alongside the Commission. Its function shall be: (a) to facilitate, without préjudiceto Artides 169 and 170 ofthe Treaty, the harmonized implementation of this Directivethrough regular consultations on any practical problems arising from its applicationand on which exchanges of views are deemed useful; (b) to facilitate consuUation betweenMember States either on more rigorous or additional requirements which they mayadopt in accordance with Article 1 (7), or on the provisions which they may adoptin accordance with Artides 44 and 45; (c) to advise the Commission, if necessary,on additions or amendments to be made to this Directive. It shall not be the function oftheCommittee to appraise the merits of décisions taken in induvidual cases by the authoritiesreferred to in Article 49. shall be composedof persons appointed by the Member States and of representatives ofthe Commission.The Chairman shall be a representative ofthe Commission. Secretarial services shallbe provided by the Commission. Meetings ofthe Committee shallbe convened by ils chairman, either on his own initiative or at the request ofa delegation. shall draw up its rules of procedure. SECTIONXI Transitional provisions, derogations and finalprovisions Solelyfor the purpose of Danish UCITS, panlebreve issued in be treatedas equivalent to the transfe. ''able securities referred to in Article 19(1)(b). Byway of dérogation from Artides 7(1) and 14 (1), the competent authorities may aulhorize those UCITS which, on the date of adoption of this Directive, had two or more depositaries in accordance with their national law to maintain that number of depositaries if those authorities have guarantees that the functions lo be performed under Artides 7 (3) and 14 (3) will be performed in praclice. Byway ofderogation from Article 6, the Member States may aulhorize cJHäga o management companies to issue bearer certificates representing the regi- strered securities of olhercompanies. TheMember Slates may aulhorize those management companies which, on the date of adoption of this Directive, also carry on activities other than those provided for in artide 6 to ci ntinue those olher activities for five years after that date. TheMember Slates shall bring into force no låter than I October 1989 the measures necessary for them to comply with this Directive. They shall forlhwilh inform the Commission thereof The Member States may grant UCITSexisting on the date of implementation of this Directive a period of nol more than12 months from that date in order to comply with the new national legislation. The Hellenic Republic and the PortugueseRepublic shall be authorized lo postpone the implementation of this Directive untilI at the latest. Oneyear before that date the Commission shall report to inimplementing the Directive which the Hellenic Republic or the Portuguese Republicmay encounter in implementing the Direclive by the date referred lo in the firstsubparagraph. TheCommission shall, if necessary, propose that the Council extend the postponementby up to four years. TheMember States shall ensure that the Commissions is informed ofthe texts ofthe mainlaws, regulations and administrative provisions which they adopt in the field coveredby this Directive. Artide59 This Directive is addressed to the Member States. Prop.1989/90:153 Bilaga 6 Information concerning Ihe unit trust Informationconcerning the management company Informationconcerning the investment company 1.2 Date of of the unit trust. Indication ofdu-ration, if limited. 1.1 Name or style, form in law,registered office and head office if different from the registered office. 1.2 Date of incorporation of the company.Indication of du-ration if limited. If the company manages other unit trusts, indication of thoseother trusts. 1.1 Name or style. form in law.registered office and head office if different from the registered ofTice. 1.2 Date of the incorporation of the company.Indication of duration, if limited. 1.1 Stati'i ofthe place where the fund rules.if they are not an.w .cd. and periodic reports may be obtained. 1.2 Bricf indications relevant to unit-holdersof the tax system applicable to the unit trust. Details of whether de-ductionsare made at source from the income and capital gains paid by the trust to unit-holders. 1.3 Accounting and distribution dalcs. 1.4 Names of the persons responsiblefor auditing the accounting information referred to in Article 31. Names and positions in the company of the members of theadministrative, management and supervisory bodies. Details of their main activitiesoutside the company where these are of sig-nificance with respect to that company. Amount of the subscribed capital with an indication of thecapital paid-up. 1.4 Statement ofthe place where theinstrument of incorporation, if they are not annexed, and periodical reports maybe obtained. 1.5 Brief indications relevant to unit-holdersof the tax system applicable to the company. Details of whether de-ductionsare made at source from the income and capital gains paid by the company to unit-holders. 1.6 Accounting and distribution dates. 1.7 Names of the persons responsiblefor auditing the accounting information referred to in Article 31. 1.8 Names and positions in the company ofthemembers of the administrative, management and supervisory bodies. Details of theirmain activities outside the company where these are of sig-nificance with respectto that company. 1.10 Details of the types and main characteristics of the unitsand in particular: - Ihe nature of the right (real personal or other) representedby the unit. 1.10 Details of the types and main characteristics of the unitsand in particular: Prop.1989/90:153 Bilaga 6 Informationconcerning the I. unit trust (coiuinued) Informationconcerning the I. management company (con-tiniied) Informationconcerning the investment company (con-tinued) original securitiesor certificates providing evidence of title: entry in a register or in an account, characteristicsof the units: registered or bearer. Indication of any de-nominations which maybe provided for, indication of unit-holders'voting rights if these exist. circumstancesin which winding-up of the unit trust can be decided on and winding-up procedure,in particular as regards the rights of unit-holders. 1.11 Where applicable. indication ofstock exchanges or märkets where the units are listed ordealt in. 1.12 Procedures and conditions of issueand sale of units. 1.13 Procedures and conditions for re-purchaseor redemption of units. and circumstances in which re-purchase or redemption maybe suspended. 1.14 Description of rules for de-terminingand applying income. 1.15 Description of the unit trust"sinvestment objectives, including its financial objectives (e.g. capital growthor income). irivest-ment policy (e.g. specializa-tion in geographical or in-dustrialsectors), any limita-tions on that investment policy and an indication of any techniquesand instruments or borrowing powers which may be used in the management of theunit trust. 1.16 Rules for the valuation of assets. original securitiesor certificates providing evidence of title; entry in a register or in an account, characteristicsof the units: registered or bearer. Indication of any de-nominations which maybe provided for, indication of unit-holders'voting rights, circumstancesin which winding-up ofthe investment company can be decided on and winding-up procedure,in particular as regards the rights of unit-holders. 1.11 Where applicable, indication ofstock exchanges or märkets where the units are listed or dealt in. 1.12 Procedures and conditions of issueand sale of units. 1.13 Procedures and conditions for re-purchaseor redemption of units, and circumstances in which re-purchase or redemption maybe suspended. 1.14 Description of rules for deterrniningand applying income. 1.15 Description of the com-pany"s investmentobjectives, including its financial objectives (e.g. capital growth or income),investment policy (e.g. specializa-tion in geographical or in-uustnal sectors),any limita-tions on that investment policy and an indication of any techniquesand instruments or borrowing powers which may be used in the management of thecompany. 1.16 Rules for the valuation of assets. Prop.1989/90:153 Bilaga 6 Informationconcerning the unit trust (contimied) Informationconcerning the management company (con-tinued) Informationconcerning the investment company (con-linued) 1.17 Determination of the sale or issue price and the re-pur chase or redemption price of units. the method and frequencyof the calculation of those prices. information concerningthe charges relating to the sale or issue and the re-purchase or redemption ofunits, placésand frequency ofthe publication of those prices. 1.18 Information concerning the , amount and calcu lation of remuneration pay- able by the unit trust to the management company, the depositary or third parties, and reimbursement of costs by the unit trust to the man agement company, to the de positary or to third parties. 1.17 Determination of the sale or issue price and the re-pur chase or redemption price of units, in particular: the method and frequencyof the calculation of those prices, information concerningthe charges relating to the sale or issue and the re-purchase or redemption ofunits. placésand frequency ofthe publication of those prices ('). 1.18 Information concerning the , amount and calcu lation of remuneration paid by the company to its direc- tors. and members ofthe ad ministrative, management and supervisory bodies, to the depositary, or third par ties, and reimbursement of costs by the company to its direclors, to the depositary or to third parties. C) Investment companies within the meaning of Article 14(5) ofthe Directive shall also indicate; the method and frequencyof calculation ofthe net asset value of units, placeand frequency ofthe publication of that value, the stock exchangein the country of marketing the price on which determines the price of transaclionseflfected outwith stock exchanges in that country. nformation concerning the depositary; 2.1 Name or style. form in law, registeredofTice and head ofTice if different from the registered office; Information concerning the advisory firms or externalinvestment advisers who give advice under contract which is paid for out of the assets of the UCITS; 3.1 Name or style ofthe firm or name oftheadviser; 3.2 Material provisions ofthe contract withthe management company or the investment company which may be relevant to the unit-holders,exduding those relating to remuneration; 3.3 Other significanl activities. Information concerning the arrangements for making paymentsto unit-holders, re-purchasing or redeeming units and making available information concerning the UCITS. Such informationmust in any case be given in the in which the UCITS is situated. In addition, where units are marketedin another , such information shall be given in respect of that in the prospecluspublished there. 1989/90:153 Bilaga 6 Information to be included in the periodic reports I. Statement of assets and Habilt ttes - transferable securities, - debtinstruments ofthe type referred to in Article 19 (2) (b), - bank balances, - other assets. - total assets. - net asset value. Number of units in circulation Net as.set value per unit (a) transferable securities admitted to official stock exchangelisting; (b) transferable securities dealt in on another regulatedmärket; (c) recently issued transferable securities ofthe type referredto in Article 19(1) (d): (d) other transferable securities ot the type referred toin Article 19 (2) (a); (e) debt instruments treated as equivalent in accordance withArticle 19 (2) (b); and analyzcd in accordance with the most appropriate criteriain the light ofthe investment policy ofthe UCITS (e. g. in accordance with economic,geographical or currency criteria) as a percentage of net assets; for each of theabove inveslments the proportion it represents of the total assets of UCITS shouldbe stated. Statement of changes in the composition ofthe portfolio duringthe reference period. V. Statement ofthe developments concerning the assets oftheUCITS during the reference period including the Jöllowing: - income tVom investment, - other income. - management charges. - depositary", - other chargesand taxes. - net income. - distributionsand income reinvested, - changes in capitalaccount. - appreciation ordepreciation of inveslments. - any other changesaffecting the assets and liabililies ofthe UCITS. .4 comparative lable covering thelast three financial years and including. for each financial year. at the end of the financial year: - the total netasset value. - the net asset valueper unit. by categoiy of traitsaclion within the meaningof .Artide 21 carried out by the UCITS during the reference period, ofthe resultingamount ofcommitments. of 22 1988 amending, as regards the investment policiesof certain UCITS, Directive 85/611/EEC on the coordination of laws, regulationsand administrative provisions relating to undertakings for collective investmentsin tranferable securities (UCITS) (88/220/EEC) THECOUNCIL OF THE EUROPEAN COMMUNITIES, Havingregard to the Treaty establishing Economic Community, and in particularthe third senlence of Article 57 (2) thereof, Havingregard to the proposal from the Commission('), Incooperation with Partiament(), Havingregard to the opinion ofthe Economic and Social CommitteeC), WhereasArticle 22 (1) and (2) of Diredive 85/61 l/EECC) Hmits the investment of UCITSassets in transferable securities from the same issuer to , a limit which may,if required, be increased to : Wherasthat limit poses special problems for UCITS established in in cases wherethey wish lo invesi an appreciable proportion of their assets on the domestic bondmärket, since that märket is dominated by mortage credit bonds and the numberof institutions issuing such bonds is very small; Whereasthose mortage credit bonds are subject in to special rules andsupvision designed lo protect holders and are treated under Danish legislationas equivalent lo bonds issued or guaranteed by the State; WhereasArticle 22 (3) of Direclive 85/611/EEC derogales from paragraphs 1 and 2 of thatArticle in the case ofbonds issued or guaranteed by a and authorizesUCITS to invest in particular up to of their assets in such bonds; Whereasa similar dérogation, but of a more limited extent is juslified with regard loprivate sector bonds which, even in the absence of a State guarantee, neverthelessoffer special guarantees to the investor under the specific rules applicable thereto;whereas it is necessary iherefore lo extend such a dérogation lo the tolalityof such bonds which fulfil jointly fixed criteria, while leaving it lo the MemberStates to draw up the list ofbonds to which they intend, where appropriate, togrant a dérogation, and providing for a procedure for informing the olher MemberSlates identical lo that provided for in Article 20 of Direclive 85/611/EEC, OOJNoC155, 21.6.1986, p. C) Opinion published in OJNo C 125, p. 162 and Decision of 10 February 1988(not get published in the ). C) OJ No C 333,29.12.1986, p. ()OJNoC375, 31.12.1985, p.3. HASADOPTED THIS DIRECTIVE: Prop.