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COLL 6.6A Duties of AFMs in relation to UCITS schemes and EEA UCITS schemes

Application

COLL 6.6A.1 R
  1. (1)

    1This section applies to:

    1. (a)

      an authorised fund manager of a UCITS scheme, a depositary, an ICVC and any other director of an ICVC which is a UCITS scheme; and

    2. (b)

      subject to (2), a UKUCITS management company providing collective portfolio management services for an EEA UCITS scheme under the freedom to provide cross border services.

  2. (2)

    COLL 6.6A.6 R (Strategies for the exercise of voting rights) also applies to a UKUCITS management company providing collective portfolio management services for an EEA UCITS scheme from a branch in another EEA State, as well as applying in accordance with (1).

  3. (3)

    This section does not apply to an EEA UCITS management company providing collective portfolio management services for a UCITS scheme under the freedom to provide cross border services.

Duties of AFMs of UCITS schemes and EEA UCITS schemes to act in the best interests of the scheme and its Unitholder

COLL 6.6A.2 R

An authorised fund manager of a UCITS scheme2 or a UK UCITS management company of an EEA UCITS scheme must:

  1. (1)

    ensure that the Unitholders of any such scheme it manages are treated fairly;

  2. (2)

    refrain from placing the interests of any group of Unitholders above the interests of any other group of Unitholders;

  3. (3)

    apply appropriate policies and procedures for preventing malpractices that might reasonably be expected to affect the stability and integrity of the market;

  4. (4)
    1. (a)

      ensure that fair, correct and transparent pricing models and valuation systems are used for each scheme it manages, in order to comply with the duty to act in the best interests of the Unitholders; and

    2. (b)

      be able to demonstrate that the investment portfolio of each such scheme it manages is accurately valued; 2

  5. (5)

    act in such a way as to prevent undue costs being charged to any such scheme it manages and its Unitholders; and2

  6. (6)

    in carrying out its functions act: 2

    1. (a)

      honestly, fairly, professionally and independently; and2

    2. (b)

      solely in the interests of the UCITS scheme and its Unitholders.2

[Note: article 22 of the UCITS Implementing Directive and article 25(2) first paragraph of the UCITS Directive2]

COLL 6.6A.3 G
  1. (1)

    Examples of malpractices for the purposes of COLL 6.6A.2R (3) would include market timing and late trading, which may have detrimental effects on Unitholders and may undermine the functioning of the market.

  2. (2)

    Examples of undue costs for the purposes of COLL 6.6A.2R (5) would include unreasonable charges and excessive trading, taking into account the scheme's investment objectives and policy.

[Note: recital (18) of the UCITS implementing Directive]

Due diligence requirements of AFMs of UCITS schemes and EEA UCITS schemes

COLL 6.6A.4 R

An authorised fund manager of a UCITS scheme or a UK UCITS management company of an EEA UCITS scheme must:

  1. (1)

    ensure a high level of diligence in the selection and ongoing monitoring of scheme property, in the best interests of the scheme and the integrity of the market;

  2. (2)

    ensure it has adequate knowledge and understanding of the assets in which any scheme it manages is invested;

  3. (3)

    establish written policies and procedures on due diligence and implement effective arrangements for ensuring that investment decisions on behalf of any UCITS scheme or EEA UCITS scheme it manages are carried out in compliance with the objectives and the investment strategy and risk limit system of the scheme;

  4. (4)

    when implementing its risk management policy, and where it is appropriate after taking into account the nature of a proposed investment:

    1. (a)

      formulate forecasts and analyse the investment’s impact on the portfolio composition, liquidity and risk and reward profile of the scheme before carrying out the investment; and

    2. (b)

      carry out the analysis in (a) only on the basis of reliable and up-to-date information, both in quantitative and qualitative terms;

  5. (5)

    exercise due skill, care and diligence when entering into, managing or terminating any arrangement with third parties in relation to the performance of risk management activities; and

  6. (6)

    before entering into any arrangements of the type referred to in (5):

    1. (a)

      take the necessary steps in order to verify that the third party has the ability and capacity to perform the risk management activities reliably, professionally and effectively; and

    2. (b)

      establish methods for the on-going assessment of the standard of performance of the third party.

[Note: article 23 of the UCITS implementing Directive]

Compliance with the regulatory requirements applicable to the conduct of business activities of a UCITS management company

COLL 6.6A.5 R

The authorised fund manager of a UCITS scheme or the UK UCITS management company of an EEA UCITS scheme must comply with all regulatory requirements applicable to the conduct of its business activities so as to promote the best interests of its investors and the integrity of the market.

[Note: article 14(1)(e) of the UCITS Directive]

Strategies for the exercise of voting rights

COLL 6.6A.6 R
  1. (1)

    An authorised fund manager of a UCITS scheme or a UK UCITS management company of an EEA UCITS scheme must develop adequate and effective strategies for determining when and how voting rights attached to ownership of scheme property, or the instruments held by an EEA UCITS scheme, are to be exercised, to the exclusive benefit of the scheme concerned.

  2. (2)

    The strategy referred to in (1) must determine measures and procedures for:

    1. (a)

      monitoring relevant corporate events;

    2. (b)

      ensuring that the exercise of voting rights is in accordance with the investment objectives and policy of the relevant scheme; and

    3. (c)

      preventing or managing any conflicts of interest arising from the exercise of voting rights.

  3. (3)

    An authorised fund manager of a UCITS scheme or a UK UCITS management company of an EEA UCITS scheme must make available to Unitholders:

    1. (a)

      a summary description of the strategies referred to in (1); and

    2. (b)

      free of charge and on their request, details of the actions taken on the basis of the strategies referred to in (1).

[Note: article 21 of the UCITS implementing Directive]

Appointment of a single depositary

COLL 6.6A.7 R

2An authorised fund manager of a UCITS scheme, or a UK UCITS management company of an EEA UCITS scheme, must (for each scheme it manages) ensure that:

  1. (1)

    a single depositary is appointed; and

  2. (2)

    the assets of the UCITS are entrusted to the depositary for safekeeping in accordance with:

    1. (a)

      for a UCITS scheme, COLL 6.6B.18R and COLL 6.6B.19R; and

    2. (b)

      for an EEA UCITS scheme, the national laws and regulations in the Home State of the EEA UCITS scheme that implement article 22(5) of the UCITS Directive.

[Note: article 22(1) and (5) of the UCITS Directive]

Eligible depositaries for UCITS schemes

COLL 6.6A.8 R

2An authorised fund manager must ensure that the depositary it appoints under COLL 6.6A.7R is a firmestablished in the United Kingdom that has the Part 4A permission of acting as trustee or depositary of a UCITS and is one of the following:

  1. (1)

    a national central bank; or

  2. (2)

    a credit institution; or

  3. (3)

    a firm which:

    1. (a)

      has own funds of not less than the higher of:

      1. (i)

        the requirement calculated in accordance with articles 315 or 317 of the EU CRR; or

      2. (ii)

        £4million; and

    2. (b)

      either:

      1. (i)

        is a full-scope IFPRU investment firm; or

      2. (ii)

        is an investment management firm to which IPRU(INV) 5 applies; and

    3. (c)

      satisfies the non-bank depositary organisational requirements in COLL 6.6B.11R.

[Note: article 23(2)(a), (b) and (c) (first sentence) of the UCITS Directive]

COLL 6.6A.9 G

2For a depositary to be established in the United Kingdom, it must have its registered office or branch in the United Kingdom.

Eligible depositaries for EEA UCITS schemes

COLL 6.6A.10 R

2A UK UCITS management company must ensure the depositary it appoints for each EEA UCITS scheme it manages is established in the Home State of the EEA UCITS scheme and is eligible to be a depositary in that Home State.

[Note: article 23(2) of the UCITS Directive]

Written contract

COLL 6.6A.11 R
  1. (1)

    2An authorised fund manager of a UCITS scheme, or a UK UCITS management company of an EEA UCITS scheme, must ensure that the appointment of the depositary is evidenced by a written contract.

  2. (2)

    The contract must regulate the flow of information deemed necessary to allow the depositary to perform its functions for the scheme.

[Note: article 22(2) of the UCITS Directive]

COLL 6.6A.12 G

2The written contract referred to in COLL 6.6A.11R may cover more than one scheme.

COLL 6.6A.13 G

2Article 2 of the UCITS level 2 regulation sets out the minimum information that must be included in the written contract between:

  1. (1)
    1. (a)

      the authorised fund manager of a UCITS scheme; or

    2. (b)

      a UK UCITS management company of an EEA UCITS scheme; and

  2. (2)

    the depositary.