|
|
|
|
The information
contained in this Newsletter is of a general nature and does not constitute
legal advice |
|
|
|
1.
THE SIMPLIFICATION OF REGISTRATION PROCEDURES (MORE INFORMATION)
1.1
Method of submitting information
1.2
Person responsible for submission
1.3
Initial registration
1.4
Registration of modifications to the documentation
1.5
Keeping additional documentation at the CNMV’s
disposal
2.
SIMPLIFICATION OF REQUIREMENTS TO PROVIDE INFORMATION TO SHAREHOLDERS (MORE
INFORMATION)
3.
OTHER MATTERS (MORE
INFORMATION)
Circular
2/2006 of 27 June 2006 (the “Circular”) of the National Securities Market
Commission (“CNMV”) on information about foreign
collective investment undertakings (“UCIs”)
registered with the CNMV was published on 25 July
2006 in the Spanish Official Gazette. The Circular shall come into force six
months after its publication, i.e. on 25 January 2007. The CNMV’s Circular, which replaces the previous Circular
3/2003 of 29 December: 1.
Simplifies procedures involving the registration of information. 2. Simplifies
the duty to provide investors with information. 3. Creates
the obligation to submit documents via telematics,
unless the CNMV expressly authorises
otherwise. 1.
THE SIMPLIFICATION OF REGISTRATION PROCEDURES
1.1
Method of submitting information
Foreign UCIs that intend to market their shares in Spain must
submit the relevant information via telematics
using the CNMV’s CIFRADOC
system, which consists of encoding systems and an electronic signature with a
set of public and private codes, as well as on paper. 1.2
Person responsible for submission
The
information may be submitted by the foreign UCI
itself, by its management company, by the distributor or by any appointed
legal person. Henceforth, law firms may act as representatives,
submitting the information by means of the CIFRADOC
system. The party that submits the information by telematics
is also responsible for submitting the documentation on paper. 1.3
Initial registration
The
submission by telematics to the CNMV
must include certain basic information, which supplements the documentation
required from UCIs by Article 15 of Law 35/2003 of
4 November. The latter still requires that a permit be obtained from the
competent authority of the country of origin for initial registration,
and that all documents be accompanied by a sworn translation into Spanish.
The lifting of these requirements, in line with the CESR’s
latest criteria, would require the amendment of Article 15. Information
concerning the CNMV’s new criteria and
administrative practice will be provided as these change. 1.4
Registration of modifications to the documentation
Foreign UCIs registered in the corresponding CNMV
register are obliged to forward to the CNMV, via telematics, directly or through the appointed
representative, the following documentation during the month following its
preparation: a) Modifications
to the abridged prospectus with a translation into Spanish b) Modifications
to the memorandum concerning the planned marketing methods in Spain. Marketing
in Spain of new sub-funds issued by a UCI but not
previously registered with the CNMV will require
prior registration in the corresponding CNMV
register. The remaining UCI documentation (e.g.
full prospectus, articles of association and accounts) need not be forwarded
when amended, though it must be kept at the CNMV’s
disposal as explained below in section 1.5. 1.5
Keeping additional documentation at the CNMV’s
disposal
The
appointed representative and all distributors must keep the following
documents at their offices, should the CNMV require
them: a) Financial
reports, whatever period of time they may refer to, as well as annual
reports that are completed after registration at the CNMV
for a minimum of six years; and b) Modifications
to the registered documentation, full prospectus and regulations or articles
of association not forwarded to the CNMV. These
documents must be Spanish translations of the originals and must be
available from the month after their preparation in the home country. The
regulations only require that Spanish translations of the documentation be
held. This simplifies the legal requirement enormously because the
translations need not be sworn, nor must they be endorsed or legalised by means of an Apostille.
Therefore, it will only be necessary to establish a procedure for translating
and sending the documents to the representative and the distributors (so that
they can, in turn, make them available to investors). 2.
SIMPLIFICATION OF REQUIREMENTS TO PROVIDE INFORMATION TO
SHAREHOLDERS
1. Before
the subscription of shares, provide each shareholder with: −
a copy of the simplified prospectus translated into Spanish; −
the most recently published financial report; and −
as an annex to the simplified prospectus, a copy of the Marketing Memorandum
registered with the CNMV concerning the intended
methods of marketing in Spain. The
provision of this information shall be obligatory and inalienable for the
shareholder. Shareholders may demand a copy of the UCI’s
remaining official documentation. Therefore, it is no longer necessary to
provide the complete prospectus, articles of association and annual accounts,
provided that the investor does not expressly request the same. 2. After
the subscription of shares, send the shareholders, free of charge,
the documents listed below to the address indicated by them: −
the financial reports and annual reports prepared after registration
with the CNMV, within a month, unless the
shareholder has waived his/her right to be provided with them in a separate
written document, duly signed, after receiving the first periodic remittance.
Financial reports shall be forwarded via telematics
when the shareholder expressly so demands. The management company will be
obliged to send the above-mentioned documents to the shareholder when the
latter, even having waived his/her right, so requests. The waiver is
revocable. −
all information required by the legislation of the country in which the UCI has its domicile, subject to the same deadlines and
time constraints provided by the home country’s legislation. This clarifies
that the notices to shareholders shall be issued in accordance with the
legislation of the UCI’s country of origin. 3. At
least one of the distributors or the management company shall make the
documents available for consultation via telematics,
as well as the net asset value corresponding to the shares marketed in Spain. The
Circular also regulates foreign non-harmonized UCIs’
information obligations, which seems to indicate that the CNMV
may be considering their authorization in the not too distant future. 3.
OTHER MATTERS
The
Circular obliges UCIs with a corporate structure to
appoint an authorised distributor as a
representative for the purposes of communicating to the CNMV
all the information it requires to apply the roll-over relief for income tax
("IRPF"). Such communication must be
issued via telematics using the model
established for such purposes by the CNMV and must
be sent to the CNMV prior to the end of the maximum
term of validity of the last communication sent, which is of one year. 2nd August 2006 * * * * * * For further information, you may contact Salvador Ruiz Bachs (srb@uria.com) or Marta Oñoro Carrascal (moc@uria.com) (tel. 91 586 0696) in our Madrid office, or, alternatively, Juan Carlos Machuca in our office in London (jcm@uria.com) (tel. + 44 207 645 02 80).
The information contained in
this Newsletter is of a general nature and does not constitute legal advice |