Circular 2/2011 of the National Securities Market Commission on Information Regarding Foreign Collective Investment Institutions Registered with the CNMV

OFFICIAL STATE GAZETTE
No. 148 Wednesday, June 22, 2011 Sec. I. Page 65531
I. GENERAL PROVISIONS
NATIONAL SECURITIES MARKET COMMISSION
10830 Circular 2/2011, of June 9, of the National Securities Market Commission, regarding information on foreign collective investment institutions registered in the Records of the National Securities Market Commission.

The deadline for transposing Directive 2009/65/EC of the European Parliament and of the Council of July 13, 2009, on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), ends on June 30, 2011. This directive, among other aspects, establishes a new notification procedure for harmonized foreign Collective Investment Institutions (CIIs) to facilitate their access to the markets of other Member States.

Similarly, Commission Regulation (EU) No 584/2010 and Commission Directive 2010/42/EU, which detail the new procedure, become applicable on July 1, 2011.

Circular 2/2006, of June 27, of the National Securities Market Commission, regulated the sending to the CNMV of information and documentation regarding harmonized and non-harmonized foreign CIIs marketed in Spain, the information obligations to shareholders and participants, the communication of the number of shareholders and assets in accordance with Article 52 of the Personal Income Tax Regulation, as well as the sending of statistical information.

This Circular, which repeals and replaces the aforementioned Circular 2/2006, under the authorization conferred upon the National Securities Market Commission by Article 19 of the Regulation of Law 35/2003, of November 4, on Collective Investment Institutions, and Article 52 of the Personal Income Tax Regulation, simplifies the notification procedure and rationalizes the information that must be sent to the CNMV.

The new notification procedure implies that the CII must submit the relevant documentation to the competent authority of the Member State of origin. Among this documentation is the notification letter containing, on the one hand, Part A, with the CII's data, and, on the other, Part B, non-harmonized, in which the information regarding the provisions foreseen for the marketing of the CII in the host State is detailed. In this regard, this Circular determines the specific information that the foreign CII must include in Part B of the notification letter, establishing a standardized model for the marketing memorandum. Furthermore, the obligation is established for the designated entity to keep certain information of the foreign CII updated via telematic means.

Similarly, the obligations to send documentation from the CII to the CNMV are modified, and certain adjustments are introduced in the information obligations to investors.

Finally, the requirement for the registration of compartments in the Record of the National Securities Market Commission is eliminated, and the content of the communication to be made to the CNMV in accordance with Article 52 of the Personal Income Tax Regulation is expanded, so that it includes the data of the compartments and/or classes to which the tax information refers.

Regarding non-harmonized CIIs, the obligation to send information via telematic means is eliminated.

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OFFICIAL STATE GAZETTE
No. 148 Wednesday, June 22, 2011 Sec. I. Page 65532

In virtue thereof, the Council of the National Securities Market Commission, after receiving the report of the Advisory Committee, in its meeting of June 9, 2011, has ordered:

First Rule. Sending to the CNMV of information regarding harmonized foreign CIIs.

1. Foreign CIIs referred to in paragraph 1 of Article 15 of Law 35/2003, of November 4, on Collective Investment Institutions (hereinafter, CII Law), which intend to market their shares or participations in Spain, must include in Part B of the notification letter defined in Annex I of Commission Regulation (EU) No 584/2010, to be sent to the competent authorities of their Member State of origin, the following information:

a) The identification of the entity responsible for representing the CII before the CNMV and, in particular, for sending the information referred to in number 3 of this Rule.

b) In the case of CIIs with a corporate legal form, the identification of the marketing entity with a establishment in Spain designated by the CII or its management company to carry out the communication referred to in the Fourth Rule of this Circular.

c) The identification of the entity with domicile in Spanish territory responsible subsidiarily for the payment of fees to the CNMV, in accordance with what is established in Article 47 of Law 58/2003, of December 17, General Tax Law, as well as the volume expected to be marketed in Spain.

2. The entity mentioned in letter a) of number 1 above may be the foreign CII itself or its management company, or the marketing entity or legal person designated by it, and must have the necessary capacity and technical means to comply with the obligations established in this Circular.

This entity will be responsible before the CNMV for aspects related to the information communicated within the scope of this Circular. Said entity may designate a natural person with domicile in Spain to act as interlocutor before the CNMV.

3. Once the foreign CII is registered in the corresponding Record, the entity designated in number 2 above must communicate via telematic means, according to the model and technical requirements established for these purposes by the CNMV at any given time:

a) The additions and removals of marketing entities in Spain of the CII.

b) Modifications regarding the data of the CII.

c) Modifications regarding the entities mentioned in letters a), b) and c) of number 1 above.

d) Modifications in the volume expected to be marketed in Spain.

e) If applicable, the request for removal of the CII from the corresponding Record of the CNMV.

The information indicated in paragraphs a), b), c), d) and e) above must be communicated within a maximum period of 7 days following the date on which such modification occurred.

The CNMV may include in the communication model any other additional information it deems necessary.

4. Exceptionally, foreign CIIs may submit information via means other than telematic means, provided that this is authorized by the CNMV, upon justified request.

Second Rule. Information to shareholders and participants regarding harmonized foreign CIIs.

1. With regard to foreign CIIs referred to in paragraph 1 of Article 15 of the CII Law and registered in the corresponding CNMV record, the entity responsible for representing the CII before the CNMV, as well as all marketing entities, must keep at their registered office available to the CNMV for a minimum period of 6 years, the successive reports of economic content, regardless of the time period to which they refer, as well as the successive annual reports prepared after registration with the CNMV.

2. Marketing entities in Spain of foreign CIIs registered in the corresponding CNMV Record must deliver to each participant or shareholder, prior to the subscription of participations or shares, a copy of the simplified prospectus or the document replacing it in the CII's State of origin and a copy of the last published report of economic content. Likewise, a copy of the Memorandum on the foreseen marketing modalities in Spanish territory according to the model published on the CNMV website must be delivered.

This delivery is mandatory and cannot be waived by the participant or shareholder.

Additionally, upon request, an updated copy of the remaining official documentation of the institution must be provided. In any case, at least one of the marketing entities will enable the consultation via telematic means of all these documents, as well as the corresponding liquidation values for the shares or participations marketed in Spain.

Marketing entities in Spain will send free of charge to participants or shareholders, to the address indicated by them, the successive reports of economic content and annual reports prepared after registration with the CNMV, within one month from their publication in the country of origin, unless they have waived their right to separate written delivery and duly signed after receiving the first periodic shipment. Nevertheless, the marketing entity will be obliged to send said documents to the participant or shareholder when the latter, despite having waived, so requests. The waiver is revocable.

Likewise, they must send free of charge to participants or shareholders who have acquired their participations or shares in Spain, all information provided for by the legislation of the State in which they have their headquarters, additional to that indicated in this same number, under the same terms and deadlines provided for in the legislation of the country of origin.

When the participant or shareholder expressly requests it, said reports of economic content will be sent to them via telematic means.

Third Rule. Submission to the CNMV of documentation regarding non-harmonized foreign CIIs and information to shareholders and participants.

1. With regard to non-harmonized foreign CIIs, the legal person designated by the foreign CII must communicate to the CNMV any information that may be relevant for the marketing in Spain of the CII, as well as any change in the CII that affects the essential elements of its offer in Spain or its registration before the CNMV, and must also present all modifications that occur in the registered documentation with the translation requirements referred to in paragraph 2 of Article 15 of the CII Law.

2. The legal person designated by the foreign CII, as well as all marketing entities, must keep at their registered office available to the CNMV, for a minimum period of 6 years, the successive reports of economic content, regardless of the time period to which they refer, as well as the successive annual reports prepared after registration with the CNMV.

These documents must comply with the translation requirements of paragraph 2 of Article 15 of the CII Law and must be available from the month following the conclusion of their preparation in the country of origin.

3. In the case of essential changes in the offer, the marketing in Spain of the shares and participations of the CII will be conditioned to the express, prior authorization of the CNMV. For these purposes, essential changes are considered those that significantly affect the adequate protection of the investor and, in any case, those that are foreseen as such for Spanish CIIs.

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OFFICIAL STATE GAZETTE
No. 148 Wednesday, June 22, 2011 Sec. I. Page 65534

4. Marketing entities of non-harmonized foreign CIIs must comply with the information availability obligations, delivery of information prior to subscription, and periodic remittance of information collected in Rule 2.2 above, with the exception of the marketing memorandum, which will be replaced by the particular conditions applied by the marketing entity.

Fourth Rule. Communication of the number of shareholders and assets for the purposes of Article 52 of the Personal Income Tax Regulation.

1. The communication to be made regarding the accreditation of the number of shareholders, assets, and maximum participation percentage in a company that, according to what is established in Article 52 of the Personal Income Tax Regulation, must be directed to the CNMV, must be carried out via telematic means in the model established for this purpose by the CNMV, and must be sent to the CNMV before the expiration of the maximum validity period of the last communication sent.

2. The entity responsible for carrying out the telematic submission regarding the number of shareholders and assets of the foreign CII with a corporate legal form will be the marketing entity designated in accordance with letter b) of number 1 of the First Rule.

3. The communication must include the following information:

a) Identifying data of the foreign CII.

b) Name of the compartments or sub-funds marketed in Spain, with more than 500 shareholders, and the classes of shares that form part of said compartments or sub-funds.

c) ISIN codes of the CII, compartments or sub-funds and, if applicable, classes of shares.

d) Total number of shareholders of the compartment or sub-fund.

e) Total assets of the foreign CII or of the compartment or sub-fund.

f) Reference date of the communicated data.

In the event that the foreign CII does not have compartments or sub-funds, this information will refer to the foreign CII.

Fifth Rule. Statistical States of foreign CIIs.

1. The legal person designated by the foreign CII or, if applicable, each of the marketing entities of the foreign CIIs registered in the corresponding CNMV Record, must send to the CNMV quarterly, completed, the model collected in the Annex of this Circular.

2. The information referred to in the previous point must be presented via telematic means, no later than the last natural day of the month following the end of each natural quarter.

Repealing Rule.

Circular 2/2006, of June 27, of the National Securities Market Commission, regarding information on foreign collective investment institutions registered in the Records of the National Securities Market Commission, is repealed.

Final Rule.

This Circular will enter into force on July 1, 2011.

Madrid, June 9, 2011.–The President of the National Securities Market Commission, Julio Segura Sánchez.

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OFFICIAL STATE GAZETTE
No. 148 Wednesday, June 22, 2011 Sec. I. Page 65535 STATE A01 Page 1 Month/Year Stamp and Signature ....................... FOREIGN CII STATISTICAL STATE MARKETING IN SPAIN Date: .............. Marketing Entity: Signed by proxy

FOREIGN COLLECTIVE INVESTMENT INSTITUTIONS MARKETED TYPE CII Name Reg. No. Type Situation Start Quarter Inflows Outflows Situation End Quarter Situation Start Quarter Inflows Outflows Situation End Quarter

CII 1 .............. .............. ...................... .................. .................. ...................... ...................... .................. .................. ......................
CII 2 .............. .............. ...................... .................. .................. ...................... ...................... .................. .................. ......................
. . . . . .............. .............. ...................... .................. .................. ...................... ...................... .................. .................. ......................
CII n .............. .............. ...................... .................. .................. ...................... ...................... .................. .................. ......................

TOTAL CIIs ...................... .................. .................. ...................... ...................... .................. .................. ......................

Amounts in thousands of euros

Note: National Securities Market Commission

ANNEX
The Marketed Amount is the result of multiplying the number of participations/shares acquired or sold by their value on the date of the operation, for all compartments that make up the CII.
The Investment Volume is the result of multiplying the number of participations/shares held by investors at the end of the quarter by their value at the end of the quarter, for all compartments that make up the CII.

INVESTMENT VOLUME
Situation End Quarter

NAME AND REG. NO. CII
NUMBER OF PARTICIPANTS/SHAREHOLDERS
MARKETED AMOUNT

cve: BOE-A-2011-10830 http://www.boe.es OFFICIAL STATE GAZETTE D. L.: M-1/1958 - ISSN: 0212-033X