Order on the Marketing of Foreign UCITS in Denmark

Order on the Marketing of Foreign UCITS in Denmark 1)

Pursuant to Section 27, paragraph 2, and Section 190, paragraph 6, of the Act on Investment Funds and the like, cf. Act Consolidation No. 46 of 13 January 2023, it is hereby prescribed:

Scope of Application
Section 1. This Order applies to foreign UCITS covered by Directive 2009/65/EC of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (the UCITS Directive), which wish to market their shares directly or indirectly in Denmark, and which are approved by a competent authority in another country within the European Union or in a country with which the Union has concluded an agreement in the financial sector.

Definitions
Section 2. In this Order, the following definitions apply:

1. UCITS: An investment undertaking which has been granted permission in accordance with rules implementing Directive 2009/65/EC of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (investment undertakings) (the UCITS Directive), and which, pursuant to Article 1(3) of the Directive, may be established
   a) under an agreement as investment funds administered by investment management companies or administration companies (in Denmark: investment funds), b) as unit trusts, or c) under articles of association as investment companies (in Denmark: investment companies and companies for investment with variable capital (SICAVs)).

2. The UCITS Directive: Directive 2009/65/EC of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities.

3. A professional investor: An investor who is considered a professional client or, upon request, may be treated as a professional client as defined in Annex II to Directive 2014/65/EU.

4. A retail investor: An investor who is not a professional investor.

5. Direct marketing: Any form of communication addressed to the Danish market in connection with the conduct of business as an investment undertaking, which aims to promote the placement of shares from an investment undertaking either through direct sales from the investment undertaking or through distributors.

6. Indirect marketing: Any form of communication addressed to the Danish market, which aims to promote the placement of shares from an investment undertaking through insurance contracts or to promote the placement of other securities, including bonds, if the price and risk profile of such securities closely follows that of the investment undertaking, linearly or with leverage.

Notification of Marketing of Foreign UCITS
Section 3. A foreign UCITS wishing to market its shares directly or indirectly in Denmark must specify in the notification which types of investors the foreign UCITS addresses.

Name and Address
Section 4. A foreign UCITS is entitled to use the same name or designation for its business as is used in its home country.

Paragraph 2. If the name or designation involves a risk of confusion, the Danish Financial Supervisory Authority may require a foreign UCITS to add an explanatory note to the name or designation.

Paragraph 3. A foreign UCITS must notify the Danish Financial Supervisory Authority of changes in name or address no later than 14 days after the decision on the change is made.

1. The Order contains provisions implementing parts of Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (investment undertakings), OJ L 302, 17.11.2009, p. 32, and parts of the Order of Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 2019 amending Directives 2009/65/EC and 2011/61/EU as regards the cross-border distribution of collective investment undertakings, OJ L 188, 12.7.2019, p. 106-115.

Official Gazette A
2024 Published on 24 February 2024
20 February 2024. No. 169.
Ministry of Industry, Business and Financial Affairs, Danish Financial Supervisory Authority, file no. 23-003246 CQ002785

Tasks
Section 5. A foreign UCITS intending to market its shares directly or indirectly in Denmark must be organized so that it can perform the following tasks:

1. Process subscription, repurchase, and redemption orders and make other payments to investors in relation to shares in the foreign UCITS. Processing and payments must be carried out in accordance with the conditions set out in the documents required pursuant to Chapter IX of the UCITS Directive.

2. Provide investors with information on how an order covered by item 1 can be made, and how repurchases and redemptions are to be paid.

3. Facilitate the handling of information and access to procedures and arrangements as described in Article 15 of the UCITS Directive regarding investors' exercise of their rights as a result of their investments in the foreign UCITS in Denmark.

4. Make available to investors the information and documents required pursuant to Section VII of the Act on Investment Funds and the like or in rules issued pursuant to provisions in Section VII, for closer examination and requisition of copies thereof.

5. Make available an annual report for each financial year, and a half-yearly report covering the first six months of the financial year, to investors for closer examination and requisition of copies thereof.

6. Provide investors with information relevant to the tasks performed by the foreign UCITS on a durable medium.

7. Act as a contact point for communication with the Danish Financial Supervisory Authority and other competent authorities.

Paragraph 2. The foreign UCITS may appoint a third party to perform the tasks described in paragraph 1. The third party must be subject to regulation and supervision regarding the tasks performed by the third party. No requirement may be imposed on the foreign UCITS' physical presence in Denmark when performing the tasks described in paragraph 1.

Paragraph 3. The foreign UCITS must ensure that the appointment of a third party is documented by a written agreement specifying which tasks under paragraph 1 the third party performs on behalf of the foreign UCITS. The written agreement must state that the third party receives all relevant information and documents from the foreign UCITS.

Paragraph 4. The foreign UCITS must ensure that material for performing the tasks described in paragraph 1, including electronic material, is made available in Danish, regardless of whether the tasks are performed by the foreign UCITS or by a third party.

Suspension
Section 6. If a foreign UCITS suspends the redemption of shares, the foreign UCITS must immediately notify the Danish Financial Supervisory Authority thereof.

Publication of Documents and Information
Section 7. The documents and information that a foreign UCITS is required to publish continuously in its home country must also be published in Denmark.

Paragraph 2. The publication must be carried out in the same manner as in the foreign UCITS' home country. However, the foreign UCITS must ensure publication in this country if the home country's supervisory authority publishes documents or information in the home country.

Paragraph 3. The annual report, cf. Section 5, paragraph 1, item 5, must be published no later than four months after the end of the period to which the annual report relates.

Paragraph 4. The half-yearly report, cf. Section 5, paragraph 1, item 5, must be published no later than two months after the end of the period to which the half-yearly report relates.

Paragraph 5. It must be stated in the prospectus or in an annex to this where the publication of documents and information takes place.

Paragraph 6. Documents and information must be published in Danish, English, Norwegian, or Swedish.

Paragraph 7. A foreign UCITS must, prior to the offering of shares in a UCITS, prepare and publish on its website a Key Information Document. The document must be prepared in accordance with Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) and the Delegated Regulation (EU) 2017/653 of 8 March 2017 supplementing Regulation (EU) No 1286/2014 of the European Parliament and of the Council on key information documents for packaged retail and insurance-based investment products (PRIIPs) as regards regulatory technical standards for the presentation, content, review and revision of key information documents and conditions for fulfilling the requirement to make such documents available. The Key Information Document must be drawn up in Danish.

Paragraph 8. A foreign UCITS is responsible for ensuring that its translations of information or documents faithfully reproduce the original information or documents.

Cessation of Marketing of Shares
Section 8. The Danish Financial Supervisory Authority may order a foreign UCITS to cease marketing its shares in Denmark if:

1. the foreign UCITS' measures to ensure investors' right to payment of dividends and redemption of shares do not sufficiently protect the rights of Danish investors,
2. the foreign UCITS has not paid the fee in a timely manner, cf. Section 9,
3. the foreign UCITS is not marketed in accordance with the marketing material,
4. the foreign UCITS' approval or supervision from the home country's competent authority lapses, or

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5. the foreign UCITS commits a serious or repeated violation of the rules in this Order or other Danish legislation.

Fee
Section 9. A foreign UCITS that markets its shares in Denmark pursuant to this Order pays a fee to the Danish Financial Supervisory Authority pursuant to Section 361, paragraph 8, of the Act on Financial Business.

Penalties
Section 10. Violation of Section 5, paragraph 1, items 3 and 4, and Sections 6-7 is punishable by fine.

Paragraph 2. Violation of orders pursuant to Section 8 is punishable by fine.

Paragraph 3. Companies and the like (legal persons) may be subject to criminal liability pursuant to the rules in Chapter 5 of the Criminal Code.

Entry into Force
Section 11. This Order enters into force on 1 March 2024.

Paragraph 2. Order No. 1504 of 7 December 2023 on the marketing of foreign UCITS in Denmark is repealed.

Danish Financial Supervisory Authority, 20 February 2024 Louise Mogensen / Sean Hove

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