1985L0611 — EN — 20.04.1988 — 001.001 — 1
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►B COUNCIL DIRECTIVE
of 20December 1985
on the coordination of laws, regulations and administrative provisions relating to undertakings for
collective investment in transferable securities (UCITS)
(85/611/EEC)
(OJ L 375, 31.12.1985, p. 3)
Amended by:
OfficialJournal
No page date
►M1 CouncilDirective 88/220/EEC of 22 March 1988 L 100 31 19.4.1988
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COUNCIL DIRECTIVE
of 20December 1985
on the coordination of laws, regulations and administrative provi-
sions relating to undertakings for collective investment in transfer-
able securities (UCITS)
(85/611/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 57 (2) thereof,
Having regard to the proposalfrom the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and SocialCommittee (3),
Whereas the laws of the Member States relating to collective investment
undertakings differ appreciably from one state to another, particularly asregards the obligations and controls which are imposed on those under-takings; whereas those differences distort the conditions of competitionbetween those undertakings and do not ensure equivalent protection forunit-holders;
Whereas national laws governing collective investment undertakings
should be coordinated with a view to approximating the conditions ofcompetition between those undertakings at Community level, while atthe same time ensuring more effective and more uniform protection forunit-holders; whereas such coordination will make it easier for a collec-tive investment undertaking situated in one Member State to market itsunits in other Member States;
Whereas the attainment of these objectives will facilitate the removal of
the restrictions on the free circulation of the units of collective invest-ment undertakings in the Community, and such coordination will helpto bring about a European capitalmarket;
Whereas, having regard to these objectives, it is desirable that common
basic rules be established for the authorization, supervision, structureand activities of collective investment undertakings situated in theMember States and the information they must publish;
Whereas the application of these common rules is a sufficient guarantee
to permit collective investment undertakings situated in Member States,subject to the applicable provisions relating to capital movements, tomarket their units in other Member States without those Member States’being able to subject those undertakings or their units to any provisionwhatsoever other than provisions which, in those states, do not fallwithin the field covered by this Directive; whereas, nevertheless, if acollective investment undertaking situated in one Member State marketsits units in a different Member State it must take all necessary steps toensure that unit-holders in that other Member State can exercise theirfinancialrights there with ease and are provided with the necessaryinformation,
Whereas the coordination of the laws of the Member States should be
confined initially to collective investment undertakings other than of theclosed-ended type which promote the sale of their units to the public inthe Community and the sole object of which is investment in transfer-able securities (which are essentially transferable securities officiallylisted on stock exchanges or similar regulated markets); whereas regula-tion of the collective investment undertakings not covered by theDirective poses a variety of problems which must be dealt with bymeans of other provisions, and such undertakings will accordingly be
(1) OJ No C 171, 26. 7. 1976, p. 1.
(2) OJ No C 57, 7. 3. 1977, p. 31.
(3) OJ No C 75, 26. 3. 1977, p. 10.
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the subject of coordination at a later stage; whereas pending such
coordination any Member State may, inter alia, prescribe those catego-
ries of undertakings for collective investment in transferable securities(UCITS) excluded from this Directive’s scope on account of theirinvestment and borrowing policies and lay down those specific rules towhich such UCITS are subject in carrying on their business within itsterritory;
Whereas the free marketing of the units issued by UCITS authorized to
invest up to 100 % of their assets in transferable securities issued by thesame body (State, local authority, etc.) may not have the direct orindirect effect of disturbing the functioning of the capitalmarket or thefinancing of the Member States or of creating economic situationssimilar to those which Article 68 (3) of the Treaty seeks to prevent;
Whereas account should be taken of the special situations of the
Hellenic Republic’s and Portuguese Republic’s financial markets byallowing those countries and additional period in which to implementthis Directive,
HAS ADOPTED THIS DIRECTIVE:
Section I
General provisions and scope
Article 1
1. The Member States shall apply this Directive to undertakings for
collective investment in transferable securities (hereinafter referred to asUCITS) situated within their territories.
2. For the purposes of this Directive, and subject to Article 2, UCITS
shall be undertakings:
— the sole object of which is the collective investment in transferable
securities of capitalraised from the publ ic and which operate on theprinciple of risk-spreading,
and
— the units of which are, at the request of holders, re-purchased or
redeemed, directly or indirectly, out of those undertakings’ assets.Action taken by a UCITS to ensure that the stock exchange value ofits units does not significantly vary from their net asset value shallbe regarded as equivalent to such re-purchase or redemption.
3. Such undertakings may be constituted according to law, either
under the law of contract (as common funds managed by managementcompanies) or trust law (as unit trusts) or under statute (as investmentcompanies).
For the purposes of this Directive ‘common funds' shall also include
unit trusts.
4. Investment companies the assets of which are invested through the
intermediary of subsidiary companies mainly otherwise than in transfer-able securities shall not, however, be subject to this Directive.
5. The Member States shall prohibit UCITS which are subject to this
Directive from transforming themselves into collective investmentundertakings which are not covered by this Directive.
6. Subject to the provisions governing capitalmovements and to
Articles 44, 45 and 52 (2) no Member State may apply any otherprovisions whatsoever in the field covered by this Directive to UCITSsituated in another Member State or to the units issued by such UCITS,where they market their units within its territory.
7. Without prejudice to paragraph 6, a Member State may apply to
UCITS situated within its territory requirements which are stricter thanor additional to those laid down in Article 4 et seq . of this Directive,
provided that they are of general application and do not conflict withthe provisions of this Directive.
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Article 2
1. The following shall not be UCITS subject to this Directive:
— UCITS of the closed-ended type;— UCITS which raise capitalwithout promoting the sal e of their units
to the public within the Community or any part of it;
— UCITS the units of which, under the fund rules or the investment
company’s instruments of incorporation, may be sold only to thepublic in non-member countries;
— categories of UCITS prescribed by the regulations of the Member
States in which such UCITS are situated, for which the rules laiddown in Section V and Article 36 are inappropriate in view of theirinvestment and borrowing policies.
2. Five years after the implementation of this Directive the Commis-
sion shal lsubmit to the Councila report on the impl ementation ofparagraph 1 and, in particular, of its fourth indent. If necessary, it shallpropose suitable measures to extend the scope.
Article 3
For the purposes of this Directive, a UCITS shall be deemed to be
situated in the Member State in which the investment company or themanagement company of the unit trust has its registered office; theMember States must require that the head office be situated in the sameMember State as the registered office.
SECTION II
Authorization of UCITS
Article 4
1. No UCITS shall carry on activities as such unless it has been
authorized by the competent authorities of the Member State in which itis situated, hereinafter referred to as ‘the competent authorities'.
Such authorization shall be valid for all Member States.2. A unit trust shall be authorized only if the competent authorities
have approved the management company, the fund rules and the choiceof depositary. An investment company shall be authorized only if thecompetent authorities have approved both its instruments of incorpora-tion and the choice of depositary.
3. The competent authorities may not authorize a UCITS if the
directors of the management company, of the investment company or ofthe depositary are not of sufficiently good repute or lack the experiencerequired for the performance of their duties. To that end, the names ofthe directors of the management company, of the investment companyand of the depositary and of every person succeeding them in officemust be communicated forthwith to the competent authorities.
‘Directors' shall mean those persons who, under the law or the instru-
ments of incorporation, represent the management company, the invest-ment company or the depositary, or who effectively determine thepolicy of the management company, the investment company or thedepositary.
4. Neither the management company nor the depositary may be
replaced, nor may the fund rules or the investment company’s instru-ments of incorporation be amended, without the approvalof thecompetent authorities.
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SECTION III
Obligations regarding the structure of unit trusts
Article 5
A management company must have sufficient financialresources at its
disposal to enable it to conduct its business effectively and meet itsliabilities.
Article 6
No management company may engage in activities other than the
management of unit trusts and of investment companies.
Article 7
1. A unit trust’s assets must be entrusted to a depositary for safe-
keeping.
2. A depositary’s liability as referred to in Article 9 shall not be
affected by the fact that it has entrusted to a third party all or some ofthe assets in its safe-keeping.
3. A depositary must, moreover:
(a) ensure that the sale, issue, re-purchase, redemption and cancellation
of units effected on behalf of a unit trust or by a managementcompany are carried out in accordance with the law and the fundrules;
(b) ensure that the value of units is calculated in accordance with the
law and the fund rules;
(c) carry out the instructions of the management company, unless they
conflict with the law or the fund rules;
(d) ensure that in transactions involving a unit trust’s assets any consid-
eration is remitted to it within the usualtime l imits;
(e) ensure that a unit trust’s income is applied in accordance with the
law and the fund rules.
Article 8
1. A depositary must either have its registered office in the same
Member State as that of the management company or be established inthat Member State if its registered office is in another Member State.
2. A depositary must be an institution which is subject to public
control. It must also furnish sufficient financial and professional guaran-tees to be able effectively to pursue its business as depositary and meetthe commitments inherent in that function.
3. The Member States shall determine which of the categories of
institutions referred to in paragraph 2 shall be eligible to be depositaries.
Article 9
A depositary shall, in accordance with the national law of the State in
which the management company’s registered office is situated, be liableto the management company and the unit-holders for any loss sufferedby them as a result of its unjustifiable failure to perform its obligationsor its improper performance of them. Liability to unit-holders may beinvoked either directly or indirectly through the management company,depending on the legal nature of the relationship between the deposi-tary, the management company and the unit-holders.
Article 10
1. No single company shall act as both management company and
depositary.
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2. In the context of their respective roles the management companyand the depositary must act independently and solely in the interest ofthe unit-holders.
Article 11
The law or the fund rules shall lay down the conditions for the replace-
ment of the management company and the depositary and rules toensure the protection of unit-holders in the event of such replacement.
SECTION IV
Obligations regarding the structure of investment companies and
their depositaries
Article 12
The Member States shall determine the legal form which an investment
company must take. It must have sufficient paid-up capitalto enabl e itto conduct its business effectively and meet its liabilities.
Article 13
No investment company may engage in activities other than those
referred to in Article 1 (2).
Article 14
1. An investment company’s assets must be entrusted to a depositary
for safe-keeping.
2. A depositary’s liability as referred to in Article 16 shall not be
affected by the fact that it has entrusted to a third party all or some ofthe assets in its safe-keeping.
3. A depositary must, moreover:
(a) ensure that the sale, issue, re-purchase, redemption and cancellation
of untis effected by or on behalf of a company are carried out inaccordance with the law and with the company’s instruments ofincorporation;
(b) ensure that in transactions involving a company’s assets any consid-
eration is remitted to it within the usualtime l imits;
(c) ensure that a company’s income is applied in accordance with the
law and its instruments of incorporation.
4. A Member State may decide that investment companies situated
within its territory which market their units exclusively through one ormore stock exchanges on which their units are admitted to officiallisting shall not be required to have depositaries within the meaning ofthis Directive.
Articles 34, 37 and 38 shall not apply to such companies. However, the
rules for the valuation of such companies’ assets must be stated in lawor in their instruments of incorporation.
5. A Member State may decide that investment companies situated
within its territory which market at least 80 % of their-units through oneor more stock exchanges designated in their instruments of incorpora-tion shall not be required to have depositaries within the meaning of thisDirective provided that their units are admitted to officiall isting on thestock exchanges of those Member States within the territories of whichthe units are marketed, and that any transactions which such a companymay effect outwith stock exchanges are effected at stock exchangeprices only. A company’s instruments of incorporation must specify thestock exchange in the country of marketing the prices on which shalldetermine the prices at which that company will effect any transactionsoutwith stock exchanges in that country.
A Member State shal lavailitsel f of the option provided for in the
preceding subparagraph only if it considers that unit-holders have
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protection equivalent to that of unit-holders in UCITS which have
depositaries within the meaning of this Directive.
In particular, such companies and the companies referred to in para-
graph 4, must:
(a) in the absence of provision in law, state in their instruments of
incorporation the methods of calculation of the net asset values oftheir units;
(b) intervene on the market to prevent the stock exchange values of
their units from deviating by more tha n 5 % from their net asset
values;
(c) establish the net asset values of their units, communicate them to
the competent authorities at least twice a week and publish themtwice a month.
At least twice a month, an independent auditor must ensure that the
calculation of the value of units is effected in accordance with the lawand the company’s instruments of incorporation. On such occasions, theauditor must make sure that the company’s assets are invested inaccordance with the rules laid down by law and the company’s instru-ments of incorporation.
6. The Member States shall inform the Commission of the identities
of the companies benefiting from the derogations provided for in para-graphs 4 and 5.
The Commission shall report to the Contact Committee on the applica-
tion of paragraphs 4 and 5 within five years of the implementation ofthis Directive. After obtaining the Contact Committee’s opinion, theCommission shall, if need be, propose appropriate measures.
Article 15
1. A depositary must either have its registered office in the same
Member State as that of the investment company or be established inthat Member State if its registered office is in another Member State.
2. A depositary must be an institution which is subject to public
control. It must also furnish sufficient financial and professional guaran-tees to be able effectively to pursue its business as depositary and meetthe commitments inherent in that function.
3. The Member States shall determine which of the categories of
institutions referred to in paragraph 2 shall be eligible to be depositaries.
Article 16
A depositary shall, in accordance with the national law of the State in
which the investment company’s registered office is situated, be liableto the investment company and the unit-holders for any loss suffered bythem as a result of its unjustifiable failure to perform its obligations, orits improper performance of them.
Article 17
1. No single company shall act as both investment company and
depositary.
2. In carrying out its role as depositary, the depositary must act
solely in the interests of the unit-holders.
Article 18
The law or the investment company’s instruments of incorporation shall
lay down the conditions for the replacement of the depositary and rulesto ensure the protection of unit-holders in the event of such replace-ment.
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SECTION V
Obligations concerning the investment policies of UCITS
Article 19
1. The investments of a unit trust or of an investment company must
consist solely of:
(a) transferable securities admitted to official listing on a stock
exchange in a Member State and/or;
(b) transferable securities dealt in on another regulated market in a
Member State which operates regularly and is recognized and opento the public and/or;
(c) transferable securities admitted to official listing on a stock
exchange in a non-member State or dealt in on another regulatedmarket in a non-member State which operates regularly and isrecognized and open to the public provided that the choice of stockexchange or market has been approved by the competent authoritiesor is provided for in law or the fund rules or the investmentcompany’s instruments of incorporation and/or;
(d) recently issued transferable securities, provided that:
— the terms of issue include an undertaking that application will
be made for admission to officiall isting on a stock exchange orto another regulated market which operates regularly and isrecognized and open to the public, provided that the choice ofstock exchange or market has been approved by the competentauthorities or is provided for in law or the fund rules or theinvestment company’s instruments of incorporation;
— such admission is secured within a year of issue.
2. However:
(a) a UCITS may invest no more than 10 % of its assets in transferable
securities other than those referred to in paragraph 1;
(b) a Member State may provide that a UCITS may invest no more
than 10 % of its assets in debt instruments which, for purposes ofthis Directive, shall be treated, because of their characteristics, asequivalent to transferable securities and which are, inter alia, trans-
ferable, liquid and have a value which can be accurately determinedat any time or at least with the frequency stipulated in Article 34;
(c) an investment company may acquire movable and immovable prop-
erty which is essentialfor the direct pursuit of its business;
(d) a UCITS may not acquire either precious metals or certificates
representing them.
3. The totalof the investments referred to in paragraph 2 (a) and (b)
may not under any circumstances amount to more than 10 % of theassets of a UCITS.
4. Unit trusts and investment companies may hold ancillary liquid
assets.
Article 20
1. The Member States shall send to the Commission:
(a) no later than date of implementation of this Directive, lists of the
debt instruments which, in accordance with Article 19 (2) (b), theyplan to treat as equivalent to transferable securities, stating thecharacteristics of those instruments and the reasons for so doing;
(b) details of any amendments which they contemplate making to the
lists of instruments referred to in (a) or any further instrumentswhich they contemplate treating as equivalent to transferable securi-ties, together with their reasons for so doing.
2. The Commission shall immediately forward that information to
the other Member States together with any comments which it considersappropriate. Such communications may be the subject of exchanges of
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views within the Contact Committee in accordance with the procedure
laid down in Article 53 (4).
Article 21
1. The Member States may authorize UCITS to employ techniques
and instruments relating to transferable securities under the conditionsand within the limits which they lay down provided that such tech-niques and instruments are used for the purpose of efficient portfoliomanagement.
2. The Member States may also authorize UCITS to employ tech-
niques and instruments intended to provide protection against exchangerisks in the context of the management of their assets and liabilities.
Article 22
1. A UCITS may invest no more tha n5%o fi t s assets in transferable
securities issued by the same body.
2. The Member States may raise the limit laid down in paragraph 1
to a maximum of 10 %. However, the total value of the transferablesecurities held by a UCITS in the issuing bodies in each of which itinvests more tha n5%o fi t s assets must not then exceed 40 % of the
value of its assets.
3. The Member States may raise the limit laid down in paragraph 1
to a maximum of 35 % if the transferable securities are issued orguaranteed by a Member State, by its local authorities, by a non-member State or by public international bodies of which one or moreMember States are members.
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4. Member States may raise the limit laid down in paragraph 1 to amaximum of 25 % in the case of certain bonds when these are issuedby a credit institution which has its registered office in a Member Stateand is subject by law to special public supervision designed to protectbond-holders. In particular, sums deriving from the issue of these bondsmust be invested in conformity with the law in assets which, during thewhole period of validity of the bonds, are capable of covering claimsattaching to the bonds and which, in the event of failure of the issuer,would be used on a priority basis for the reimbursement of the principaland payment of the accrued interest.
When a UCITS invests more than 5 % of its assets in the bonds
referred to in the first subparagraph and issued by one issuer, the totalvalue of these investments may not exceed 80 % of the value of theasserts of the UCITS.
As laid down in Article 20 (1), Member States shall send the Commis-
sion a list of the aforementioned categories of bonds together with thecategories of issuers authorized, in accordance with the laws and super-visory arrangements mentioned in the first subparagraph, to issue bondscomplying with the criteria set out above. A notice specifying the statusof the guarantees offered shall be attached to these lists. The procedurelaid down in Article 20 (2) shall apply.
5. The transferable securities referred to in paragraphs 3 and 4 shall
not be taken into account for the purpose of applying the limit of 40 %referred to in paragraph 2.
The limits provided for in paragraphs 1, 2, 3 and 4 may not be
combined, and thus investments in transferable securities issued by thesame body carried out in accordance with paragraphs 1, 2, 3 and 4 shallunder no circumstances exceed in total35 % of the assets of an UCITS.
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Article 23
1. By way of derogation from Article 22 and without prejudice to
Article 68 (3) of the Treaty, the Member States may authorize UCITS toinvest in accordance with the principle of risk-spreading up to 100 % oftheir assets in different transferable securities issued or guaranteed by
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any Member State, its local authorities, a non-member State or publicinternationalbodies of which one or more Member States are members.
The competent authorities shall grant such a derogation only if they
consider that unit-holders in the UCITS have protection equivalent tothat of unit-holders in UCITS complying with the limits laid down inArticle 22.
Such a UCITS must hold securities from at least six different issues, but
securities from any one issue may not account for more than 30 % of itstotalassets.
2. The UCITS referred to in paragraph 1 must make express mention
in the fund rules or in the investment company’s instruments of incor-poration of the States, local authorities or public international bodiesissuing or guaranteeing securities in which they intend to invest morethan 35 % of their assets; such fund rules or instruments of incorpora-tion must be approved by the competent authorities.
3. In addition each such UCITS referred to in paragraph 1 must
include a prominent statement in its prospectus and any promotionalliterature drawing attention to such authorization and indicating theStates, local authorities and/or public international bodies in the securi-ties of which it intends to invest or has invested more than 35 % of itsassets.
Article 24
1. A UCITS may not acquire the units of other collective investment
undertakings of the open-ended type unless they are collective invest-ment undertakings within the meaning of the first and second indents ofArticle 1 (2).
2. A UCITS may invest no more than 5 % of its assets in the units
of such collective investment undertakings.
3. Investment in the units of a unit trust managed by the same
management company or by any other company with which themanagement company is linked by common management or control, orby a substantial direct or indirect holding, shall be permitted only in thecase of a trust which, in accordance with its rules, has specialized ininvestment in a specific geographicalarea or economic sector, andprovided that such investment is authorized by the competent authori-ties. Authorization shall be granted only if the trust has announced itsintention of making use of that option and that option has beenexpressly stated in its rules.
A management company may not charge any fees or costs on account
of transactions relating to a unit trust’s units where some of a unittrust’s assets are invested in the units of another unit trust managed bythe same management company or by any other company with whichthe management company is linked by common management or control,or by a substantialdirect or indirect hol ding.
4. Paragraph 3 shall also apply where an investment company
acquires units in another investment company to which it is linkedwithin the meaning of paragraph 3.
Paragraph 3 shall also apply where an investment company acquires
units of a unit trust to which it is linked, or where a unit trust acquiresunits of an investment company to which it is linked.
Article 25
1. An investment company or a management company acting in
connection with all of the unit trusts which it manages and which fallwithin the scope of this Directive may not acquire any shares carryingvoting rights which would enable it to exercise significant influenceover the management of an issuing body.
Pending further coordination, the Member States shall take account of
existing rules defining the principle stated in the first subparagraphunder other Member States’ legislation.
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2. Moreover, an investment company or unit trust may acquire nomore than:
— 10 % of the non-voting shares of any single issuing body;— 10 % of the debt securities of any single issuing body;— 10 % of the units of any single collective investment undertaking
within the meaning of the first and second indents of Article 1 (2).
The limits laid down in the second and third indents may be disregarded
at the time of acquisition if at that time the gross amount of the debtsecurities or the net amount of the securities in issue cannot be calcu-lated.
3. A Member State may waive application of paragraphs 1 and 2 as
regards:
(a) transferable securities issued or guaranteed by a Member State or its
local authorities;
(b) transferable securities issued or guaranteed by a non-member State;
(c) transferable securities issued by public international bodies of
which one or more Member States are members;
(d) shares held by a UCITS in the capital of a company incorporated in
a non-member State investing its assets mainly in the securities ofissuing bodies having their registered offices in that State, whereunder the legislation of that State such a holding represents the onlyway in which the UCITS can invest in the securities of issuingbodies of that State. This derogation, however, shall apply only if inits investment policy the company from the non-member Statecomplies with the limits laid down in Articles 22, 24 and 25 (1) and(2). Where the limits set in Articles 22 and 24 are exceeded. Article26 shall apply mutatis mutandis;
(e) shares held by an investment company in the capital of subsidiary
companies carrying on the business of management, advice ormarketing exclusively on its behalf.
Article 26
1. UCITS need not comply with the limits laid down in this Section
when exercising subscription rights attaching to transferable securitieswhich form part of their assets.
While ensuring observance of the principle of risk-spreading, the
Member States may allow recently authorized UCITS to derogate fromArticles 22 and 23 for six months following the date of their authoriza-tion.
2. If the limits referred to in paragraph 1 are exceeded for reasons
beyond the controlof a UCITS or as a resul t of the exercise ofsubscription rights, that UCITS must adopt as a priority objective for itssales transactions the remedying of that situation, taking due account ofthe interests of its unit-holders.
SECTION VI
Obligations concerning information to be supplied to unitholders
A. Publication of a prospectus and periodical reports
Article 27
1. An investment company and, for each of the trusts it manages, a
management company must publish:
— a prospectus,— an annualreport for each financialyear, and— a half-yearly report covering the first six months of the financial
year.
2. The annual and half-yearly reports must be published within the
following time limits, with effect from the ends of the periods to whichthey relate:
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— four months in the case of the annualreport,
— two months in the case of the half-yearly report.
Article 28
1. A prospectus must include the information necessary for investors
to be able to make an informed judgement of the investment proposedto them. It shall contain at least the information provided for inSchedule A annexed to this Directive, insofar as that information doesnot already appear in the documents annexed to the prospectus inaccordance with Article 29 (1).
2. The annual report must include a balance-sheet or a statement of
assets and liabilities, a detailed income and expenditure account for thefinancialyear, a report on the activities of the financialyear and theother information provided for in Schedule B annexed to this Directive,as well as any significant information which will enable investors tomake an informed judgement on the development of the activities of theUCITS and its results.
3. The half-yearly report must include at least the information
provided for in Chapters I to IV of Schedule B annexed to thisDirective; where a UCITS has paid or proposes to pay an interimdividend, the figures must indicate the results after tax for the half-yearconcerned and the interim dividend paid or proposed.
Article 29
1. The fund rules or an investment company’s instruments of incor-
poration shal lform an integralpart of the prospectus and must beannexed thereto.
2. The documents referred to in paragraph 1 need not, however, be
annexed to the prospectus provided that the unit-holder is informed thaton request he or she will be sent those documents or be apprised of theplace where, in each Member State in which the units are placed on themarket, he or she may consult them.
Article 30
The essentialel ements of the prospectus must be kept up to date.
Article 31
The accounting information given in the annualreport must be audited
by one or more persons empowered by law to audit accounts in accord-ance with CouncilDirective 84/253/EEC of 10 April1984 based onArticle 54 (3) (g) of the EEC Treaty on the approval of personsresponsible for carrying out the statutory audits of accounting docu-ments (
1). The auditor’s report, including any qualifications, shall be
reproduced in ful lin the annualreport.
Article 32
A UCITS must send its prospectus and any amendments thereto, as well
as its annual and half-yearly reports, to the competent authorities.
Article 33
1. The prospectus, the latest annual report and any subsequent half-
yearly report published must be offered to subscribers free of chargebefore the conclusion of a contract.
2. In addition, the annual and half-yearly reports must be available to
the public at the places specified in the prospectus.
(1) OJ No L 126, 12. 5. 1984, p. 20.
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3. The annual and half-yearly reports shall be supplied to unit-
holders free of charge on request.
B. Publication of other information
Article 34
A UCITS must make public in an appropriate manner the issue, sale,
re-purchase or redemption price of its units each time it issues, sells,re-purchases or redeems them, and at least twice a month. Thecompetent authorities may, however, permit a UCITS to reduce thefrequency to once a month on condition that such a derogation does notprejudice the interests of the unit-holders.
Article 35
All publicity comprising an invitation to purchase the units of a UCITS
must indicate that a prospectus exists and the places where it may beobtained by the public.
SECTION VII
The general obligations of UCITS
Article 36
1. Neither:
— an investment company, nor— a management company or depositary acting on behalf of a unit
trust,
may borrow.
However, a UCTIS may acquire foreign currency by means of a
‘back-to-back' loan.
2. By way of derogation from paragraph 1, a Member State may
authorize a UCITS to borrow:
(a) up to 10 %
— of its assets, in the case of an investment company, or— of the value of the fund, in the case of a unit trust,
provided that the borrowing is on a temporary basis;
(b) up to 10 % of its assets, in the case of an investment company,
provided that the borrowing is to make possible the acquisition ofimmovable property essential for the direct pursuit of its business;in this case the borrowing and that referred to in subparagraph (a)may not in any case in totalexceed 15 % of the borrower’s assets.
Article 37
1. A UCITS must re-purchase or redeem its units at the request of
any unit-holder.
2. By way of derogation from paragraph 1:
(a) a UCITS may, in the cases and according to the procedures
provided for by law, the fund rules or the investment company’sinstruments of incorporation, temporarily suspend the re-purchaseor redemption of its units. Suspension may be provided for only inexceptionalcases where circumstances so require, and suspension isjustified having regard to the interests of the unit-holders;
(b) the Member States may allow the competent authorities to require
the suspension of the re-purchase or redemption of units in theinterest of the unit-holders or of the public.
3. In the cases mentioned in paragraph 2 (a), a UCITS must without
delay communicate its decision to the competent authorities and to theauthorities of all Member States in which it markets its units.
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Article 38
The rules for the valuation of assets and the rules for calculating the
sale or issue price and the re-purchase or redemption price of the unitsof a UCITS must be laid down in the law, in the fund rules or in theinvestment company’s instruments of incorporation.
Article 39
The distribution or reinvestment of the income of a unit trust or of an
investment company shall be effected in accordance with the law andwith the fund rules or the investment company’s instruments of incor-poration.
Article 40
A UCITS unit may not be issued unless the equivalent of the net issue
price is paid into the assets of the UCITS within the usualtime l imits.This provision shall not preclude the distribution of bonus units.
Article 41
1. Without prejudice to the application of Articles 19 and 21, neither:
— an investment company, nor— a management company or depositary acting on behalf of a unit
trust
may grant loans or act as a guarantor on behalf of third parties.
2. Paragraph 1 shall not prevent such undertakings from acquiring
transferable securities which are not fully paid.
Article 42
Neither:
— an investment company, nor— a management company or depository acting on behalf of a unit
trust
may carry out uncovered sales of transferable securities.
Article 43
The law or the fund rules must prescribe the remuneration and the
expenditure which a management company is empowered to charge to aunit trust and the method of calculation of such remuneration.
The law or an investment company’s instruments of incorporation must
prescribe the nature of the cost to be borne by the company.
SECTION VIII
Special provisions applicable to UCITS which market their units in
Member States other than those in which they are situated
Article 44
1. A UCITS which markets its units in another Member State must
comply with the laws, regulations and administrative provisions in forcein that State which do not fall within the field governed by thisDirective.
2. Any UCITS may advertise its units in the Member State in which
they are marketed. it must comply the provisions governing advertisingin that State.
3. The provisions referred to in paragraphs 1 and 2 must be applied
without discrimination.
Article 45
In the case referred to in Article 44, the UCITS must, inter alia, in
accordance with the laws, regulations and administrative provisions inforce in the Member State of marketing, take the measures necessary to
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ensure that facilities are available in that State for making payments to
unit-holders, re-purchasing or redeeming units and making available theinformation which UCITS are obliged to provide.
Article 46
If a UCITS proposes to market its units in a Member State other than
that in which it is situated, it must first inform the competent authoritiesand the authorities of that other Member State accordingly. It mustsimultaneously send the latter authorities:
— an attestation by the competent authorities to the effect that it fulfils
the conditions imposed by this Directive,
— its fund rules or its instruments of incorporation,— its prospectus,— where appropriate, its latest annual report and any subsequent half-
yearly report and
— details of the arrangements made for the marketing of its units in
that other Member State.
A UCITS may begin to market its units in that other Member State two
months after such communication unless the authorities of the MemberState concerned establish, in a reasoned decision taken before the expiryof that period of two months, that the arrangements made for themarketing of units do not comply with the provisions referred to inArticles 44 (1) and 45.
Article 47
If a UCITS markets its units in a Member State other than that in which
it is situated, it must distribute in that other Member State, in at leastone of that other Member State’s officiall anguages, the documents andinformation which must be published in the Member State in which it issituated, in accordance with the same procedures as those provided forin the latter State.
Article 48
For the purpose of carrying on its activities, a UCITS may use the same
generic name (such as investment company or unit trust) in theCommunity as it uses in the Member State in which it is situated. In theevent of any danger of confusion, the host Member State may, for thepurpose of clarification, require that the name be accompanied bycertain explanatory particulars.
SECTION IX
Provisions concerning the authorities responsible for authorization
and supervision
Article 49
1. The Member States shall designate the authorities which are to
carry out the duties provided for in this Directive. They shall inform theCommission thereof, indicating any division of duties.
2. The authorities referred to in paragraph 1 must be public authori-
ties or bodies appointed by public authorities.
3. The authorities of the State in which a UCITS is situated shall be
competent to supervise that UCITS. However, the authorities of theState in which a UCITS markets its units in accordance with Article 44shall be competent to supervise compliance with Section VIII.
4. The authorities concerned must be granted all the powers neces-
sary to carry out their task.
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Article 50
1. The authorities of the Member States referred to in Article 49 shall
collaborate closely in order to carry out their task and must for thatpurpose alone communicate to each other all information required.
2. The Member States shall provide that all persons employed or
formerly employed by the authorities referred to in Article 49 shall bebound by professionalsecrecy. This means that any confidentialinfor-mation received in the course of their duties may not be divulged to anyperson or authority except by virtue of provisions laid down by law.
3. Paragraph 2 shall not, however, preclude communications between
the authorities of the various Member States referred to in Article 49, asprovided for in this Directive. Information thus exchanged shall becovered by the obligation of professional secrecy on persons employedor formerly employed by the authorities receiving the information.
4. Without prejudice to cases covered by criminall aw, an authority
of the type referred to in Article 49 receiving such information may useit only for the performance of its duties or in the context of adminis-trative appeals or legal proceedings relating to such performance.
Article 51
1. The authorities referred to in Article 49 must give reasons for any
decision to refuse authorization, and any negative decision taken inimplementation of the general measures adopted in application of thisDirective, and communicate them to applicants.
2. The Member States shall provide that decisions taken in respect of
a UCITS pursuant to laws, regulations and administrative provisionsadopted in accordance with this Directive are subject to the right toapply to the courts; the same shall apply if no decision is taken withinsix months of its submission on an authorization application made by aUCITS which includes all the information required under the provisionsin force.
Article 52
1. Only the authorities of the Member State in which a UCITS is
situated shall have the power to take action against it if it infringes anylaw, regulation or administrative provision or any regulation laid downin the fund rules or in the investment company’s instruments of incor-poration.
2. Nevertheless, the authorities of the Member State in which the
units of a UCITS are marketed may take action against it if it infringesthe provisions referred to in Section VIII.
3. Any decision to withdraw authorization, or any other serious
measure taken against a UCITS, or any suspension of re-purchase orredemption imposed upon it, must be communicated without delay bythe authorities of the Member State in which the UCITS in question issituated to the authorities of the other Member States in which its unitsare marketed.
SECTION X
Contact Committee
Article 53
1. A Contact Committee, hereinafter referred to as ‘the Committee',
shall be set up alongside the Commission. Its function shall be:
(a) to facilitate, without prejudice to Articles 169 and 170 of the
Treaty, the harmonized implementation of this Directive throughregular consultations on any practical problems arising from itsapplication and on which exchanges of views are deemed useful;
(b) to facilitate consultation between Member States either on more
rigorous or additionalrequirements which they may adopt in
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accordance with Article 1 (7), or on the provisions which they mayadopt in accordance with Articles 44 and 45;
(c) to advise the Commission, if necessary, on additions or amend-
ments to be made to this Directive.
2. It shall not be the function of the Committee to appraise the merits
of decisions taken in individualcases by the authorities referred to inArticle 49.
3. The Committee shall be composed of persons appointed by the
Member States and of representatives of the Commission. TheChairman shall be a representative of the Commission. Secretarialservices shall be provided by the Commission.
4. Meetings of the Committee shall be convened by its chairman,
either on his own initiative or at the request of a Member State delega-tion. The Committee shall draw up its rules of procedure.
SECTION XI
Transitional provisions, derogations and final provisions
Article 54
Solely for the purpose of Danish UCITS, pantebreve issued in Denmark
shall be treated as equivalent to the transferable securities referred to inArticle 19 (1) (b).
Article 55
By way of derogation from Articles 7 (1) and 14 (1), the competent
authorities may authorize those UCITS which, on the date of adoptionof this Directive, had two or more depositaries in accordance with theirnationall aw to maintain that number of depositaries if those authoritieshave guarantees that the functions to be performed under Articles 7 (3)and 14 (3) will be performed in practice.
Article 56
1. By way of derogation from Article 6, the Member States may
authorize management companies to issue bearer certificates repre-senting the registered securities of other companies.
2. The Member States may authorize those management companies
which, on the date of adoption of this Directive, also carry on activitiesother than those provided for in Article 6 to continue those otheractivities for five years after that date.
Article 57
1. The Member States shall bring into force no later than 1 October
1989 the measures necessary for them to comply with this Directive.They shall forthwith inform the Commission thereof.
2. The Member States may grant UCITS existing on the date of
implementation of this Directive a period of not more than 12 monthsfrom that date in order to comply with the new national legislation.
3. The Hellenic Republic and the Portuguese Republic shall be
authorized to postpone the implementation of this Directive until 1April1992 at the l atest.
One year before that date the Commission shall report to the Council on
progress in implementing the Directive and on any difficulties whichthe Hellenic Republic or the Portuguese Republic may encounter inimplementing the Directive by the date referred to in the first subpara-graph.
The Commission shall, if necessary, propose that the Council extend the
postponement by up to four years.
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Article 58
The Member States shall ensure that the Commission is informed of the
texts of the main laws, regulations and administrative provisons whichthey adopt in the field covered by this Directive.
Article 59
This Directive is addressed to the Member States.
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1.Information concerning
the unit trust1.Information concerning
the managementcompany1.Information concerning
the investment companyANNEX
SCHEDULE A
1.1. Name 1.1. Name or style, form in
law, registered office andhead office if differentfrom the registered office.1.1. Name or style, form in
law, registered office andhead office if differentfrom the registered office.
1.2. Date of establishment of
the unit trust. Indication ofduration, if limited.1.2. Date of incorporation of
the company. Indicationof duration, if limited.1.2. Date of the incorporation
of the company. Indicationof duration, if limited.
1.3. If the company manages
other unit trusts, indica-tion of those other trusts.
1.4. Statement of the place
where the fund rules, ifthey are not annexed, andperiodic reports may beobtained.1.4. Statement of the place
where the instruments ofincorporation, if they arenot annexed, and period-icalreports may beobtained.
1.5. Brief indications relevant
to unit-holders of the taxsystem applicable to theunit trust. Details ofwhether deductions aremade at source from theincome and capitalgainspaid by the trust to unit-holders.1.5. Brief indications relevant
to unit-holders of the taxsystem applicable to thecompany. Details ofwhether deductions aremade at source from theincome and capitalgainspaid by the company tounit-holders.
1.6. Accounting and distribu-
tion dates1.6. Accounting and distribu-
tion dates.
1.7. Names of the persons
responsible for auditingthe accounting informa-tion referred to in Article31.1.7. Names of the persons
responsible for auditingthe accounting informa-tion referred to in Article31.
1.8. Names and positions in
the company of themembers of the adminis-trative, management andsupervisory bodies.Details of their mainactivities outside thecompany where these areof significance withrespect to that company.1.8. Names and positions in
the company of themembers of the adminis-trative, management andsupervisory bodies.Details of their mainactivities outside thecompany where these areof significance withrespect to that company.
1.9. Amount of the subscribed
capitalwith an indicationof the capitalpaid-up1.9. Capital
1.10. Details of the types and
main characteristics of theunits and in particular:
— the nature of the right
(real, personal orother) represented bythe unit,
— originalsecurities or
certificates providingevidence of title; entry1.10. Details of the types and
main characteristics of theunits and in particular:
— originalsecurities or
certificates providingevidence of title; entryin a register or in anaccount,
— characteristics of the
units: registered or
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1.Information concerning
the unit trust1.Information concerning
the managementcompany1.Information concerning
the investment company
in a register or in anaccount,
— characteristics of the
units: registered orbearer. Indication ofany denominationswhich may beprovided for,
— indication of unit-
holders’ voting rightsif these exist,
— circumstances in
which winding-up ofthe unit trust can bedecided on andwinding-up procedure,in particular as regardsthe rights of unit-holders.bearer. Indication ofany denominationswhich may beprovided for,
— indication of unit-
holders’ voting rights,
— circumstances in
which winding-up ofthe investmentcompany can bedecided on andwinding-up procedure,in particular as regardsthe rights of unit-holders.
1.11. Where applicable, indica-
tion of stock exchanges ormarkets where the unitsare listed or dealt in.1.11. Where applicable, indica-
tion of stock exchanges ormarkets where the unitsare listed or dealt in.
1.12. Procedures and conditions
of issue and sale of units.1.12. Procedures and conditions
of issue and sale of units.
1.13. Procedures and conditions
for re-purchase or redemp-tion of units, and circum-stances in which re-purchase or redemptionmay be suspended.1.13. Procedures and conditions
for re-purchase or redemp-tion of units, and circum-stances in which re-purchase or redemptionmay be suspended
1.14. Description of rules for
determining and applyingincome.1.14. Description of rules for
determining and applyingincome.
1.15. Description of the unit
trust’s investment objec-tives, including its finan-cialobjectives (e.g. capitalgrowth or income), invest-ment policy (e.g. speciali-zation in geographicalorindustrialsectors), anylimitations on that invest-ment policy and an indica-tion of any techniques andinstruments or borrowingpowers which may beused in the managementof the unit trust.1.15. Description of the compa-
ny’s investment objec-tives, including its finan-cialobjectives (e.g. capitalgrowth or income), invest-ment policy (e.g. speciali-zation in geographicalorindustrialsectors), anylimitations on that invest-ment policy and an indica-tion of any techniques andinstruments or borrowingpowers which may beused in the managementof the company.
1.16. Rules for the valuation of
assets.1.16. Rules for the valuation of
assets.
1.17. Determination of the sale
or issue price and the re-purchase or redemptionprice of units, in partic-ular:
— the method and
frequency of thecalculation of thoseprices,
— information
concerning the chargesrelating to the sale or1.17. Determination of the sale
or issue price and the re-purchase or redemptionprice of units, in partic-ular:
— the method and
frequency of thecalculation of thoseprices,
— information
concerning the chargesrelating to the sale or
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1.Information concerning
the unit trust1.Information concerning
the managementcompany1.Information concerning
the investment company
issue and the re-purchase or redemp-tion of units,
— the means, places and
frequency of the publi-cation of those prices.issue and the re-purchase or redemp-tion of units,
— the means, places and
frequency of the publi-cation of thoseprices (
1)
1.18. Information concerning
the manner, amount andcalculation of remu-neration payable by theunit trust to the manage-ment company, thedepositary or third parties,and reimbursement ofcosts by the unit trust tothe management company,to the depositary or tothird parties.1.18. Information concerning
the manner, amount andcalculation of remu-neration paid by thecompany to its directors,and members of theadministrative, manage-ment and supervisorybodies, to the depositary,or to third parties, andreimbursement of costs bythe company to its direc-tors, to the depositary orto third parties.
(
1) Investment companies within the meaning of Article 14 (5) of the Directive shall also indicate:
— the method and frequency of calculation of the net asset value of units,— the means, place and frequency of the publication of that value,— the stock exchange in the country of marketing the price on which determines the price of
transactions effected outwith stock exchanges in that country.
2. Information concerning the depositary:
2.1. Name or style, form in law, registered office and head office if different from the registered
office;
2.2. Main activity.
3. 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 of the firm or name of the adviser;3.2. Materialprovisions of the contract with the management company or the investment company
which may be relevant to the unit-holders, excluding those relating to remuneration;
3.3. Other significant activities.
4. Information concerning the arrangements for making payments to unit-holders, re-purchasing or
redeeming units and making available information concerning the UCITS. Such information must inany case be given in the Member State in which the UCITS is situated. In addition, where units aremarketed in another Member State, such information shall be given in respect of that Member Statein the prospectus published there.
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SCHEDULE B
Information to be included in the periodic reports
I.Statement of assets and liabilities
— transferable securities,
— debt instruments of the type referred to in Article 19 (2) (b),— bank balances,— other assets,— totalassets,— liabilities,— net asset value.
II.Number of units in circulation
III.Net asset value per unit
IV.Portfolio, distinguishing between:
(a) transferable securities admitted to official stock exchange listing;
(b) transferable securities dealt in on another regulated market;
(c) recently issued transferable securities of the type referred to in Article
19 (1) (d);
(d) other transferable securities of the type referred to in Article 19 (2) (a);
(e) debt instruments treated as equivalent in accordance with Article 19
(2) (b);
and analyzed in accordance with the most appropriate criteria in the light
of the investment policy of the UCITS (e. g. in accordance with economic,geographicalor currency criteria) as a percentage of net assets; for each ofthe above investments the proportion it represents of the totalassets of theUCITS should be stated.
Statement of changes in the composition of the portfolio during the refer-
ence period.
V.Statement of the developments concerning the assets of the UCITS during
the reference period including the following:
— income from investments,
— other income,— management charges,— depositary’s charges,— other charges and taxes,— net income,— distributions and income reinvested,— changes in capitalaccount,— appreciation or depreciation of investments,— any other changes affecting the assets and liabilities of the UCITS.
VI.A comparative table covering the last three financial years and including,
for each financial year, at the end of the financial year:
— the totalnet asset val ue,
— the net asset value per unit.
VII.Details, by category of transaction within the meaning of Article 21
carried out by the UCITS during the reference period, of the resultingamount of commitments.