ESMA34-43-392 Q&As on the Application of the UCITS Directive

14 June 2023

ESMA34-43-392

20 July 2022 | ESMA34-43-392

Questions and Answers

Application of the UCITS Directive

Please note that this document is not updated after 31 December 2023. For Q&As issued from 1 January

2024, please search in the ESMA Q&A IT-tool.

     
 
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Table of contents 
Section I – General .................................................................................................................... 7 
Question 1: Directive 2014/91/EU (UCITS V) – update of documentation ................... 7 
Question 2: Master-feeder structures ............................................................................ 8 
Question 3: Regulated markets under the UCITS Directive .......................................... 8 
Question 4: Investment limits ......................................................................................... 9 
Question 5: Issuer concentration ................................................................................... 9 
Question 6: UCITS investing in other UCITS with different investment policies ......... 11 
Question 7: Supervision of branches ........................................................................... 11 
Question  8:  Management  of  AIFs  and  pension  schemes  by  UCITS  management 
companies .................................................................................................................... 12 
Section II – Key Investor Information Document (KIID) for UCITS ......................................... 14 
Question 1: Preparation of KIID by UCITS that are no longer marketed to the public or 
by UCITS in liquidation ................................................................................................. 14 
Question 2: Communication of KIID to investors ......................................................... 14 
Question 3: Treatment of UCITS with share or unit classes ....................................... 15 
Question 4: Past performance ..................................................................................... 16 
Question 5: Clear language ......................................................................................... 18 
Question 6: Identification of the UCITS ....................................................................... 19 
Question 7: Translation requirements in relation to the remuneration disclosure ...... 19 
Question  8:  Disclosure  of  the  benchmark  index  in  the  objectives  and  investment 
policies .......................................................................................................................... 19 
Section III – ESMA’s guidelines on ETFs and other UCITS issues ........................................ 25 
Question 1: Information to be inserted in the prospectus ............................................ 25 
Question 2: UCITS ETF label....................................................................................... 25 
Question 3: Secondary market..................................................................................... 25 
Question 4: Efficient portfolio management techniques .............................................. 26 
Question 5: Financial derivative instruments ............................................................... 27 
Question 6: Collateral management ............................................................................ 28 
Question 7: Financial indices ....................................................................................... 32 

     
 
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Question 8: Transitional provisions .............................................................................. 34 
Section IV – Notification of UCITS and UCITS management companies; exchange of 
information between competent authorities ............................................................................. 36 
Question 1: Notification of new investment compartments ......................................... 36 
Question 2: Amendments and updates of documents referred to in Article 93(2) of 
Directive 2009/65/EC ................................................................................................... 37 
Question 3: UCITS host Member State’s access to documents ................................. 38 
Question 4: Part A of the notification letter .................................................................. 38 
Question 5: Exchange of information between competent authorities in the context of 
establishment of a branch of a UCITS management company................................... 38 
Question 6: Attestation of payment of notification fees ............................................... 39 
Question 7: Advance notification of provision of services ........................................... 39 
Question 8: Advance notice for the marketing of new share classes of UCITS notified 
for cross-border marketing ........................................................................................... 39 
Question 9: De-notification of marketing arrangements for UCITS ............................. 40 
Question 10: Scope of activities passported by UCITS management companies ..... 40 
Section V – Risk Measurement and Calculation of Global Exposure and Counterparty Risk 
for UCITS ................................................................................................................................. 42 
Question 1: Hedging strategies .................................................................................... 42 
Question 2: Disclosure of leverage by UCITS ............................................................. 43 
Question 3: Concentration rules .................................................................................. 43 
Question 4: Calculation of global exposure for fund of funds ...................................... 44 
Question  5:  Calculation  of  counterparty  risk  for  exchange-traded  derivatives  and 
centrally-cleared OTC transactions .............................................................................. 44 
Section VI – Impact of Regulation (EU) 648/2012 (EMIR) on the UCITS Directive ............... 45 
Question 1: Valuation of OTC derivatives .................................................................... 45 
Question 2: Application to UCITS of the exemption for intra-group transactions under 
EMIR ............................................................................................................................. 45 
Section VII – Impact of Regulation (EU) 2015/2365 (SFTR) on the UCITS Directive ............ 47 
Question 1: Commencement of reporting under SFTR ............................................... 47 
Question 2: Periodic reporting under Article 13 of SFTR for UCITS and AIFs ........... 47 
Section VIII – Independence of management boards and supervisory functions .................. 52 
Question 1: Group links, independence and cooling-off periods................................. 52 

     
 
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Section IX – Remuneration ...................................................................................................... 53 
Question 1: Application of disclosure requirements on remuneration to delegates .... 53 
Section X – Depositary .......................................................................................................... 54 
Question 1: Depositaries as counterparties in a transaction of assets that they 
hold in custody ........................................................................................................... 54 
Question 2: Distinction between depositary tasks and mere supporting tasks ........... 54 
Question 3: Depositary tasks entrusted to third parties ............................................... 55 
Question 4: Performance of depositary functions where there are branches in other 
Member States ............................................................................................................. 55 
Question 5: Supervision of depositary functions in case of branches in other Member 
States ............................................................................................................................ 55 
Question 6: Delegation by a depositary to another legal entity belonging to the same 
group ............................................................................................................................. 56 
Question 7: Reconciliation frequency for funds trading on a daily basis..................... 56 
Question 8: Reconciliations with tri-party collateral managers .................................... 57 
Section XI – ESMA’s guidelines on performance fees in UCITS and certain types of AIFs .. 58 
Question 1: Crystallisation of performance fees .......................................................... 58 
Question 2: Timeline of the application of the performance reference period ............ 59 
Question 3: Performance reference period for the benchmark model ........................ 60 
Question 4: Performance reference period in case of funds’ mergers ........................ 62 
Question 5: Application of the guidelines to funds with multiple portfolio managers .. 63 
Question  6:  Crystallisation  of  performance  fees  in  case  of  the  creation  of  a  new 
UCITS/compartment/share class in the course of the financial year .......................... 63 
Question 7: Performance reference period for the hurdle rate model ......................... 64 
Section XII – Costs and fees.................................................................................................... 65 
Question 1: Fee rebate arrangements ......................................................................... 65 
Section XIII – Delegation ......................................................................................................... 67 
Question 1: Responsibility to ensure compliance with the rules governing marketing 
communications............................................................................................................ 67 
 
 

I. Background

1. The Undertakings for Collective Investment in Transferable Securities (UCITS) Directive

puts in place a comprehensive framework for the regulation of harmonised investment

funds within Europe. The extensive requirements with which UCITS must comply are de-

signed to ensure that these products can be sold on a cross-border basis. The most recent

version of the Directive (as amended by Directive 2014/91/EU, so called ‘UCITS V’)

introduces rules on remuneration policies and sanctions and strengthens the depositary

regime.

2. The UCITS framework is made up of Directive 2009/65/EC which has been supplemented

by technical delegated and implementing measures

, including Directive 2007/16/EC

;

Directive 2010/43/EU

; Regulation No 583/2010

; Directive 2010/42/EU

; Regulation No

584/2010

; and Regulation (EU) 2016/1212

3. ESMA is required to play an active role in building a common supervisory culture by

promoting common supervisory approaches and practices. In this regard, the Authority

develops Q&As as and when appropriate to elaborate on the provisions of certain EU

legislation or ESMA guidelines.

4. Moreover, according to Article 16b of the ESMA Regulation, ESMA forwards questions

that require the interpretation of Union law to the European Commission. In this document,

ESMA publishes also answers provided by the European Commission to the questions

forwarded.

II. Purpose

5. The purpose of this document is to promote common supervisory approaches and

practices in the application of the UCITS Directive and its implementing measures. It does

this by providing responses to questions posed by the general public and competent

authorities in relation to the practical application of the UCITS framework.

Link to implementing and delegated acts for Directive 2009/65/EC on undertakings for collective investment in transferable

securities: https://finance.ec.europa.eu/system/files/2022-09/ucits-directive-level-2-measures-full_en.pdf.

COMMISSION DIRECTIVE 2007/16/EC of 19 March 2007 implementing Council Directive 85/611/EEC on the coordination of

laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS)

as regards the clarification of certain definitions.

COMMISSION DIRECTIVE 2010/43/EU of 1 July 2010 implementing Directive 2009/65/EC of the European Parliament and of

the Council as regards organisational requirements, conflicts of interest, conduct of business, risk management and content of

the agreement between a depositary and a management company.

COMMISSION REGULATION (EU) No 583/2010 of 1 July 2010 implementing Directive 2009/65/EC of the European Parliament

and of the Council as regards key investor information and conditions to be met when providing key investor information or the

prospectus in a durable medium other than paper or by means of a website.

COMMISSION DIRECTIVE 2010/42/EU of 1 July 2010 implementing Directive 2009/65/EC of the European Parliament and of

the Council as regards certain provisions concerning fund mergers, master-feeder structures and notification procedure.

COMMISSION REGULATION (EU) No 584/2010 of 1 July 2010 implementing Directive 2009/65/EC of the European Parliament

and of the Council as regards the form and content of the standard notification letter and UCITS attestation, the use of electronic

communication between competent authorities for the purpose of notification, and procedures for on-the-spot verifications and

investigations and the exchange of information between competent authorities.

Commission Implementing Regulation (EU) 2016/1212 of 25 July 2016 laying down implementing technical standards with

regard to standard procedures and forms for submitting information in accordance with Directive 2009/65/EC of the European

Parliament and of the Council.

The content of this document is aimed at competent authorities under UCITS to ensure

that in their supervisory activities their actions are converging along the lines of the

responses adopted by ESMA. However, the answers are also intended to help UCITS

management companies by providing clarity as to the content of the UCITS Directive rules,

rather than creating an extra layer of requirements.

III. Status

6. The Q&A mechanism is a practical convergence tool used to promote common

supervisory approaches and practices under Article 16b of the ESMA Regulation.

7. Therefore, due to the nature of Q&As, formal consultation on the draft answers is

considered unnecessary. However, even if they are not formally consulted on, ESMA may

check them with representatives of ESMA’s Securities and Markets Stakeholder Group,

the relevant Standing Committee’s Consultative Working Group or, where specific

expertise is needed, with other external parties.

8. ESMA will review these questions and answers on a regular basis to identify if, in a certain

area, there is a need to convert some of the material into ESMA guidelines. In such cases,

the procedures foreseen under Article 16 of the ESMA Regulation will be followed.

IV. Questions and Answers

9. This document is intended to be continually edited and updated as and when new

questions are received. The date each question was last amended is included after each

question for ease of reference.

Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European

Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing

Commission Decision 2009/77/EC Regulation, 15.12.2010, L331/84.

Section I – General

Question 1: Directive 2014/91/EU (UCITS V) – update of documentation

Date last updated: February 2016

Question 1a [last update 1 February 2016] Q&A 938: UCITS V requires (i) the KIID to include

a prescribed statement in relation to remuneration policy and (ii) the prospectus to include

some remuneration-related information. UCITS are required to make an updated KIID

available within 35 days of 31 December each year, while the ‘essential elements’ of the

prospectus must be kept up to date at all times. Will UCITS be required to issue a further KIID

and a revised prospectus on 18 March 2016 to reflect the UCITS V requirement?

Answer 1a: No: except where a UCITS is subject to national laws and regulations in its home

Member State that require updates to be made by 18 March 2016, the UCITS will be allowed

to update the KIID with this information at the next annual update after 18 March 2016, or on

the first occasion after 18 March 2016 on which the KIID is revised or replaced for another

purpose, if the information is available at that point in time. Similarly, a UCITS will be allowed

to add the relevant information to the prospectus at the next occasion it is revised for another

purpose or in any event by 18 March 2017 at the latest.

In the meantime, UCITS management companies should make available on a relevant website

the additional information about the management company’s remuneration arrangements as

soon as it becomes available.

Question 1b [last update 1 February 2016] Q&A 945: UCITS V requires the annual report

to include some remuneration-related information. The annual report shall be published within

four months from the end of the period to which it relates. Does the UCITS V requirement apply

to all annual reports published on or after 18 March 2016?

Answer 1b: No, it is not necessary to include the remuneration-related information in any

annual report relating to a period that ended before 18 March 2016. For annual reports relating

to periods that end on or after 18 March 2016, but before the UCITS management company

has completed its first annual performance period in which it has to comply with articles 14a

and 14b of the Directive, the UCITS management company should include the remuneration-

related information in the report on a best efforts basis and to the extent possible, explaining

the basis for any omission.

Question 1c [last update 1 February 2016] Q&A 946: When must existing UCITS depositary

contracts be updated in order to meet the requirements under Directive 2014/91/EU

(UCITS V)?

Answer 1c: UCITS V will start to apply on 18 March 2016. Under Article 22(2) of the UCITS

Directive, introduced by UCITS V, the appointment of the depositary shall be evidenced by

written contract, while the delegated acts required under Article 26b will set out the particulars

that need to be included in that written contract. UCITS depositary contracts should be revised

promptly in accordance with any transitional arrangements outlined in the delegated acts.

UCITS V contains provisions which prescribe in law the liability of depositaries. While there is

no requirement to include those liability provisions in depositary contracts, in practice existing

depositary contracts will contain liability provisions which will not be consistent with the

depositary liability provisions set out in UCITS V. In accordance with Article 24(4), those

provisions of a contract which set out the parties’ agreement on depositary liability and which

conflict with the UCITS V depositary liability provisions will be void with effect from 18 March

2016. The UCITS V depositary liability provisions will apply instead. The liability provisions in

existing depositary contracts should be amended to reflect the UCITS V depositary liability

provisions when those depositary contracts are revised to comply with the delegated acts.

Question 2: Master-feeder structures

Date last updated: April 2016

Question 2a [last update 1 April 2016] Q&A 947: Can a UCITS invest in a UCITS feeder

fund?

Answer 2a: No. As UCITS feeder funds have to invest at least 85% of their net assets in their

UCITS master fund, another UCITS cannot invest in a UCITS feeder fund. According to Article

50(1)(e)(iv) of the UCITS Directive, a UCITS can only invest in other UCITS if “no more than

10 % of the assets of the UCITS or of the other collective investment undertakings, whose

acquisition is contemplated, can, according to their fund rules or instruments of incorporation,

be invested in aggregate in units of other UCITS or other collective investment undertakings”.

Question 3: Regulated markets under the UCITS Directive

Date last updated: October 2016

Question 3a [last update 12 October 2016] Q&A 948: Can the term “regulated market in a

Member State” in Article 50(1)(b) of the UCITS Directive be understood to include a

“multilateral trading facility” (MTF) as defined in Article 4(1)(15) of MiFID?

Answer 3a: Yes. An MTF operated in the EU is a regulated market within the scope of the

UCITS framework as long as it meets the requirements set out in Article 50(1)(b). Instruments

in which a UCITS invests that are traded on such an MTF on behalf of a UCITS must comply

with the Eligible Assets Directive

, in particular with its Article 2(1). If a UCITS proposes to

invest in such an instrument, it should actively seek and review information regarding the

Commission Directive 2007/16/EC of 19 March 2007 implementing Council Directive 85/611/EEC on the coordination of laws,

regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) as

regards the clarification of certain definitions (“Eligible Assets Directive”)

liquidity and negotiability of that instrument in order to be satisfied that that the presumptions

of liquidity and negotiability in the last sub-paragraph of Article 2(1) are well-founded.

Question 4: Investment limits

Date last updated: November 2016

Question 4a [last update 21 November 2016] Q&A 949: Pursuant to Article 56(2)(c) of the

UCITS Directive, a UCITS may acquire no more than 25% of the units of any single UCITS or

other collective investment undertaking. Where the underlying UCITS or other collective

investment undertaking is an umbrella fund, should this limit be applied at the level of the

umbrella or at the level of the individual sub-funds within the umbrella?

Answer 4a: The limit set out in Article 56(2)(c) should be applied at the level of the individual

sub-funds in the UCITS or collective investment undertaking of which the units are to be

acquired, to ensure the principle of risk-spreading within the investing UCITS. Where an

investment company or a management company is currently applying a different interpretation

of this limit, it must at the earliest convenience adjust the funds' portfolios whilst acting with

due skill, care and diligence in the best interest of the UCITS it manages.

Question 4b [last update 21 November 2016] Q&A 950: Pursuant to Article 55(1) of the

UCITS Directive, a UCITS may acquire the units of UCITS or other collective investment

undertakings referred to in Article 50(1)(e), provided that no more that 10% of its assets are

invested in units of a single UCITS of other collective investment undertaking. Where the

underlying UCITS or other collective investment undertaking is an umbrella fund, should this

limit be applied at the level of the umbrella or at the level of the individual sub-funds within the

umbrella?

Answer 4b: The limit set out in Article 55(1) applies at the level of the individual sub-funds in

the UCITS or collective investment undertaking of which the units are to be acquired. Where

an investment company or a management company is currently applying a different

interpretation of this limit, it must at the earliest convenience adjust the funds' portfolios whilst

acting with due skill, care and diligence in the best interest of the UCITS it manages.

Question 5: Issuer concentration

Date last updated: February 2023

Question 5a Q&A 951: Does the 40% limit set out in Article 52(2) of the UCITS Directive apply

to index-tracking UCITS that are subject to Article 53 of the UCITS Directive?

Answer 5a: No. The 40% limit set out in Article 52(2) does not apply to index-tracking UCITS

that comply with the requirements set out in Article 53.

Question 5b Q&A 952: Can netting and hedging arrangements be taken into account for the

purposes of calculating issuer concentration limits pursuant to Article 52 of the UCITS

Directive?

Answer 5b: Only netting arrangements in accordance with the definition and conditions set

out in the guidelines on Risk Measurement and the Calculation of Global Exposure and

Counterparty Risk for UCITS (Ref. CESR/10-788) may be taken into account when

calculating issuer concentration limits.

Question 5c Q&A 953: Article 54 of Directive 2009/65/EC permits competent authorities to

authorise UCITS to invest up to 100% of their assets in transferable securities issued by certain

issuers e.g. sovereigns. Do the six different issues mentioned in Article 54(1), third sub-

paragraph of the UCITS Directive refer to any kinds of issues of transferable securities and

money market instruments or must they be guaranteed by a Member State, one or more of its

local authorities, a third country or a public international body to which one or more Member

States belong? If the UCITS holds more than six different issues, must all of these issues

comply with the 30 % limit?

Answer 5c: Pursuant to article 54(1) of the UCITS Directive, UCITS cannot invest up to 100%

of their assets in transferable securities or money markets instruments that are not issued nor

guaranteed by a Member State, one or more of its local authorities, a third country or a public

international body to which one or more Member States belong. In addition, Article 54(1) of the

UCITS Directive unambiguously provides that if a UCITS holds more than six issues in

transferable securities and money market instruments issued or guaranteed by a Member

State, one or more of its local authorities, a third country or a public international body to which

one or more Member States belong, all the issues should respect the 30% limit (i.e. even if the

UCITS holds more than 6 issues).

Question 5d Q&A 954: Where a UCITS has a hedged share class in a different currency,

should unrealised FX profits and losses be counted towards the NAV of the hedged share

class and accordingly be taken into account when calculating the counterparty risk limit of

Article 52(1) of the UCITS Directive?

Answer 5d: FX forward are OTC instruments. This means that when UCITS invest in this type

of instruments for currency hedging purposes in a share class they should comply with the

counterparty risks limits laid down in Article 52(1) of the UCITS Directive in respect to the NAV

of the share class as provided in paragraph 26a of the ESMA’s Opinion on share classes

[1]

Therefore, unrealised FX profits and losses should be counted towards the NAV of the hedged

share class of the UCITS and taken into account when calculating the counterparty risk limits

of Article 52(1) of the UCITS Directive in respect to the NAV of the hedged share class.

Question 5e [last update 3 February 2023] Q&A 955: Article 52(1)(b) of the UCITS Directive

requires a UCITS not to invest more than 20% of its assets in deposits made with the same

body. Does the term “body” referred to in the aforementioned article mean “credit institution”

[1]

See ESMA’s Opinion on share classes (ESMA34-43-296)

as mentioned in Article 50(1)(f) of the UCITS Directive or does it include also any other

counterparty which is not a credit institution?

Answer 5e: The term “body” as referred to in Article 52(1)(b) means “credit institution” as

mentioned in Article 50(1)(f) of the UCITS Directive.

The guidance provided by this Q&A is only applicable in the context of Article 52(1)(b) and

should not affect the meaning of the term “body” in other instances of the UCITS Directive.

Question 6: UCITS investing in other UCITS with different investment policies

Date last updated: July 2018

Question 6a Q&A 956: Is a UCITS permitted to invest in other UCITS or collective investment

undertakings with different investment strategies or investment restrictions? By way of

example, could a UCITS that in accordance with its fund rules or instruments of incorporation

and prospectus is not permitted to invest in certain assets or use derivatives for purposes other

than hedging invest in other UCITS or collective investment undertakings that are not subject

to the same investment restrictions?

Answer 6a: The prospectus of a UCITS should clearly disclose whether in the case of fund of

fund investments, the target fund(s) might have different investment strategies or restrictions.

Where the fund rules or instruments of incorporation and prospectus of a UCITS expressly rule

out certain types of assets or derivative use without any reservations, UCITS management

companies/self-managed investment companies should carry out proportionate due diligence

to ensure that fund of fund investments do not result in a circumvention of the investment

strategies or restrictions set out in the fund rules or instruments of incorporation and prospectus

of the investing UCITS.

Question 7: Supervision of branches

Date last updated: July 2018

Question 7a Q&A 957: What are the supervisory responsibilities of competent authorities in

host Member States when a UCITS management company provides investment services

through a branch established in the host Member State?

Answer 7a: Under both the UCITS and the AIFM Directives, supervisory powers of competent

authorities in relation to branches of UCITS management companies or alternative investment

fund managers (AIFMs) established in a Member State that is not the home Member State are

shared. The competent authority of the Member State in which the branch is located (host

Member State) is responsible for the supervision of the branch’s compliance with conduct rules

referred to in Article 17(5) of the UCITS Directive and Article 45(2) of the AIFMD and the

competent authority of the Member State in which the UCITS management company or the

alternative investment fund manager is established (home Member State) is responsible for

the supervision of the other requirements provided under the relevant applicable framework.

Neither the UCITS Directive nor the AIFMD provides for an explicit framework for the allocation

of supervisory responsibilities and powers for those cases where UCITS management

companies or AIFMs are authorised to carry out investment services set out in Article 6(3) of

the UCITS Directive and Article 6(4) of the AIFMD and have branches providing those services

in other Member States. ESMA is of the view that responsibilities of home and host Member

States should be identified similarly to, and consistently with, the general framework

established for the provision of activities pursued by UCITS management companies and

AIFMs through branches as well as with the MiFID II framework regulating the supervision on

the provision of investment services across the EU. This approach is in line with the division

of responsibilities provided under the MiFID II framework. In accordance with Article 35(8) of

MiFID II, the competent authority of the host Member State has the responsibility for ensuring

that the services provided by the branch of an investment firm or a credit institution in its

territory comply with the MiFID II requirements under Articles 24 (“General principles and

information to clients”) and 25 (“Assessment of suitability and appropriateness and reporting

to clients”) of MiFID II, which also apply to UCITS management companies and AIFMs

providing investment services.

Question 8: Management of AIFs and pension schemes by UCITS management

companies

Date last updated: 13 June 2023

Answers provided by the European Commission in accordance with Article 16b(5) of

the ESMA Regulation

Question 8a Q&A 1074: Pursuant to Article 6(2) of the UCITS Directive, are UCITS

management companies allowed to manage AIFs as a registered AIFM under Article 3 of

Directive 2011/61/EU (AIFMD)?

Answer 8a: Yes. UCITS management companies are allowed to manage AIFs as AIFMs

registered under Article 3 AIFMD. Pursuant to Article 6(2) of the UCITS Directive, management

See Article 17(4) and (5) of UCITS Directive and Article 45(1) and (2) of AIFMD. On this subject, see also “Notification

frameworks and home-host responsibilities under UCITS and AIFMD”, an ESMA Thematic Study among National Competent

Authorities https://www.esma.europa.eu/sites/default/files/library/esma34-43-

340_final_report_on_thematic_study_on_notification_frameworks.pdf

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.

companies can manage other collective investment vehicles, for which the management

company is subject to prudential supervision. Registered AIFMs are subject to the prudential

supervision under AIFMD to the degree commensurate with their complexity and systemic

relevance for the stability of the financial system. Pursuant to Article 3(3) and (4) AIFMD, sub-

threshold AIFMs shall be at least registered by the home competent authorities and identify

the AIFs they manage providing information on the employed investment strategies. Such

AIFMs are also subject to the periodic supervisory reporting obligation. There is national

discretion to make those requirements stricter. Importantly, the national competent authorities

can exert any of the supervisory powers enumerated in Article 46 AIFMD. This allows

concluding that AIFMs registered in accordance with Article 3(3) AIFMD should be considered

as prudentially supervised within the meaning of Article 6(2) of the UCITS Directive.

Question 8b Q&A 1075: Pursuant to Article 6(2) of the UCITS Directive, are UCITS

management companies allowed to manage pension schemes under Directive (EU)

2016/2341?

Answer 8b: Yes, provided that it is authorised by national legislation implementing the UCITS

Directive. The scope of the UCITS license allows UCITS management companies to undertake

as core services only the management of UCITS. However, Article 6(3), point (a), of the UCITS

Directive provides the possibility for Member States to authorise UCITS management

companies to provide, in addition to the management of UCITS, the management of pension

funds’ portfolios, in accordance with mandates given by investors on a discretionary, client-by-

client basis, where such portfolios include one or more of the instruments listed in Section C

of Annex I to Directive 2004/39/EC. Therefore, Member States can authorise UCITS

management companies, in addition to the management of UCITS, to manage investment

portfolios of pension funds only on a mandate basis, acting as service providers and not as

investment managers of the pension funds.

Section II – Key Investor Information Document (KIID) for UCITS

Question 1: Preparation of KIID by UCITS that are no longer marketed to the public or

by UCITS in liquidation

Date last updated: September 2012

Question 1a Q&A 1078: Where an existing UCITS is no longer marketed to the public, should

it be required to prepare a KIID?

Answer 1a: In accordance with Article 82 of the UCITS Directive a UCITS is required to keep

the essential elements of key investor information up-to-date. In accordance with Article 23 of

Commission Regulation (EU) No 583/2010, a KIID with duly revised presentation of past

performance of the UCITS shall be made available no later than 35 business days after 31

December each year. Notwithstanding that a UCITS is no longer marketed to the public, an

up-to-date version of the KIID should be available to the existing investors.

Question 1b Q&A 1079: Similarly, should there be an obligation to prepare a KIID for a UCITS

that is in liquidation?

Answer 1b: When a UCITS is in liquidation there can be no obligation to prepare a KIID as

the liquidator may have assumed many of the powers of the UCITS management company.

Question 1c Q&A 1080: For a structured UCITS, as defined in Article 36 of Commission

Regulation (EU) No 583/2010 that is no longer marketed to the public, should there be an

obligation to update the KIID?

Answer 1c: Yes. A structured UCITS, as defined in Article 36 of Commission Regulation (EU)

No 583/2010, needs to keep its KIID up to date.

Question 2: Communication of KIID to investors

Date last updated: September 2012

Question 2a Q&A 1081: Should existing investors within a UCITS be provided with a KIID in

the case of additional investments?

Answer 2a: Yes. Existing investors should be provided with a KIID in the case of additional

investments, on the basis that the KIID is a pre-contractual document and each additional

subscription is a new contract. However, where unit holders in a UCITS invest through a

regular savings plan, a KIID is not required in relation to the periodic subscriptions, unless a

This section mirrors the content of the old Q&A on the Key Investor Information Document (KIID) for UCITS (2015/ESMA/631),

which is replaced by the present document.

change is made to the subscription arrangements, for example, increases or decreases in the

subscription amount, which would require a new subscription form.

Question 2b Q&A 1082: Should existing investors within a UCITS umbrella fund, who switch

or exchange units in one sub-fund for units in another, be provided with the KIID for the sub-

fund in which they are going into?

Answer 2b: Yes. As a pre-contractual document, the investor must receive the KIID for the

sub-fund they are going into including where this investment arises from switching from another

sub-fund within the umbrella.

Question 2c Q&A 1083: Should an amended KIID be provided to existing investors within the

UCITS?

Answer 2c: No. In accordance with Article 79 of the UCITS Directive, key investor information

shall constitute pre-contractual information. A KIID does not need to be provided to existing

investors unless they are making additional subscriptions. Investors always have the right to

be provided with the KIID on request.

Question 2d Q&A 1084: Must professional investors be provided with a KIID?

Answer 2d: Yes. All prospective investors must be provided with a KIID.

Question 3: Treatment of UCITS with share or unit classes

Date last updated: September 2012

Question Q&A 1085: Should individual KIIDs be prepared for each class of units or shares

within a UCITS?

Answer: In accordance with Article 26 of Commission Regulation (EU) No 583/2010 a

separate KIID shall be produced for each individual share class. However, information relevant

to two or more share classes may be combined into a single KIID provided the resulting KIID

complies in full with all KIID requirements (including the limit on length). Also, a UCITS may

select a class to represent one or more other classes of the UCITS provided the information in

the KIID is fair, clear and not misleading to prospective investors in those other classes. Where

charging structures differ between classes, the share class with the highest overall charge is

the most appropriate representative share class to avoid the risk of understating charges.

However, it is the responsibility of the UCITS to select the most appropriate representative

share class having regard to the characteristics of the UCITS, the natures of the differences

between share classes in the UCITS and the range of choices on offer to each investor.

Question 4: Past performance

Date last updated: March 2019

Question 4a Q&A 1086: If a UCITS does not yet have performance data for one complete

calendar year (and is not a UCITS which may provide simulated data for past performance),

how should this position be disclosed in the KIID?

Answer 4a: In accordance with Article 15(4) of Commission Regulation (EU) No 583/2010 a

statement that there is insufficient data to provide a useful indication of past performance

should be included in the KIID. There is no need to accompany that statement with a blank

performance chart.

Question 4b Q&A 1087: Where a UCITS refers to an index in its investment objectives and

policy as a benchmark and will measure the performance against that index, but does not

intend to track it, is it necessary to show the performance of the benchmark index in the past

performance section of the KIID?

Answer 4b: Yes, in accordance with Article 18(1) of Commission Regulation (EU) No

583/2010, a bar showing the performance of the benchmark index must be included in the bar

chart alongside each bar showing the UCITS past performance. It should be made clear in the

past performance section of the KIID that the performance is not tracking the index.

For additional clarity, the requirements of Article 18(1) apply to all UCITS, including total

return/absolute return UCITS. For example, the requirement also applies to cases where:

The comparator is not named a ‘benchmark’, but the objectives and investment policy make it

clear that it is a comparator the UCITS aims to outperform. For example, if the fund’s objectives

and investment policy state it will seek to:

o outperform cash (for example, 3-month EURIBOR), the performance of the fund

against the full target should be shown

o outperform a target ‘plus X%’, the performance of the fund against the enhanced

target should be shown.

The UCITS targets outperformance of the benchmark index over a period of time, for example

‘X% per annum over four years’. In this case, annualised performance of the benchmark index

should be shown alongside that of the UCITS, even if the target is to beat it over four years.

UCITS management companies should make any changes to the KIID in order to incorporate

this additional guidance as soon as practicable, or by the next KIID update following the

publication of this Q&A.

In accordance with Article 79(1) of the UCITS Directive and to ensure fair, clear and not

misleading communications, the information disclosed in the UCITS KIID should be consistent

with the UCITS’ Investment Objective in the Prospectus.

Question 4c Q&A 1088: Does the overall requirement for the UCITS KIID to be ‘fair, clear and

not misleading’ under Article 3(2) mean that performance disclosed in the KIID regarding a

benchmark index should be consistent with performance disclosure in other investor

communications, including marketing?

Answer 4c: Yes. UCITS management companies should ensure that disclosure of

performance in the KIID is not misleading by way of being inconsistent, including by ensuring

consistency:

• Across offering documents and marketing material, including the prospectus. It may be

unclear to investors if the UCITS names and measures performance against a

benchmark index in the prospectus, or other marketing material, but not in the KIID.

The KIID should be consistent with other fund documents. This also applies to ensuring

that the benchmark index used is consistent.

• Across distribution channels. It may be inconsistent if a UCITS arranges for, or permits,

an index to be referred to as a benchmark in certain media, such as online platforms

or financial data providers, but it does not make the same comparison in the KIID. This

also applies to ensuring that the benchmark index used is consistent.

• Across investor types. It should be ensured that all types of investors receive consistent

and not misleading information regarding whether or not the UCITS has a benchmark

index. For example, it may be inconsistent if a UCITS suggests performance should be

measured against a benchmark index to only a cohort of investors (such as in

communications to professional investors only) but does not provide the equivalent

performance comparison to all investors through the KIID. This also applies to ensuring

the version of the benchmark index used is consistent.

Question 4d Q&A 1089: What should be displayed in the bar chart for years when there is no

data?

Answer 4d: Pursuant to Article 15, paragraph 3 of Regulation 583/2010, when there is no data

available, the year shall be shown as blank with no annotation other than the date.

Question 4e Q&A 1090: If the benchmark is changed, how should the chart of past

performance be displayed for the period preceding the change?

Answer 4e: Pursuant to Article 17 of Regulation 583/2010, where a material change occurs

to a UCITS’ objectives and investment policy during the period displayed in the bar chart, the

UCITS’ past performance prior to that material change shall continue to be shown. Therefore,

if the benchmark is modified, the bar chart should display the performance of the previous

benchmark for the period preceding the change. A statement indicating this change should

also be included in the past performance section.

Question 4f Q&A 1091: When several versions of a benchmark are available which differ in

the approach taken to reinvestment of revenues, which version should be used in the past

performance chart?

Answer 4f: Pursuant to Article 16 of Regulation 583/2010, past performance figures shall be

calculated on the basis that any distributable income of the fund has been reinvested.

Therefore, where available the performance of the benchmark with reinvestment of revenues

should be used in the bar chart alongside the UCITS’ past performance. Where such a

benchmark does not exist, an appropriate disclosure highlighting that the benchmark does not

take into account the reinvestment of revenues should be included in the KIID.

Question 4g Q&A 1092: Article 19(4) of Commission Regulation (EU) No 583/2010 states that

“In the case of mergers referred to in Article 2(1)(p)(i) and (iii) of Directive 2009/65/EC, only

the past performance of the receiving UCITS shall be maintained in the key investor

information document.” Article 19(4) applies in cases where a receiving UCITS has a

performance history. How should Article 19(4) be interpreted in cases where the receiving

UCITS is a newly established UCITS with no performance history and is in effect a continuation

of the merging UCITS?

Answer 4g: In the case of a merger where the receiving UCITS is a newly established UCITS

with no performance history, UCITS should use the past performance of the merging UCITS

in the KIID of the receiving UCITS if the competent authority of the receiving UCITS reasonably

assesses that the merger does not impact the UCITS’ performance. ESMA expects the

performance of the UCITS to be impacted if there is, inter alia, a change to the investment

policy or to the entities involved in the investment management. It should also be made clear

in the KIID of the receiving UCITS that the performance is that of the merging UCITS.

Question 5: Clear language

Date last updated: September 2012

Question 5a Q&A 1093: Is it possible to signpost to a glossary?

Answer 5a: Yes. However, as provided by the guide to clear language and layout for the Key

Investor Information document (ref. CESR/10-1320), the use of a glossary should not result in

too numerous cross-references.

Question 5b Q&A 1094: Is it possible to show the complete name of the fund when first

mentioned and then simply refer it as “the Fund” after in the KIID.

Answer 5b: Yes and the same approach can be taken for share classes of funds with a

reference to “the share class of the fund” in the KIID.

Question 6: Identification of the UCITS

Date last updated: September 2012

Question Q&A 1098: Should the name of the investment manager(s) of the UCITS, if any, be

disclosed in the KIID?

Answer: No. Only the name of the UCITS management company should be disclosed.

Question 7: Translation requirements in relation to the remuneration disclosure

Date last updated: October 2016

Question 7 [last update 12 October 2016] Q&A 1099: Article 78(4), second sub-paragraph

of the UCITS Directive requires the KIID to include a statement to the effect that the details of

the up-to-date remuneration policy are available by means of a website and that a paper copy

will be made available free of charge upon request. Does this mean that, in case of cross-

border distribution of a UCITS, the information on the remuneration policy which has to be

made available on a website (and the paper copy of it to be made available on request) needs

to be translated into the same language as the one into which the KIID has to be translated?

Answer 7: No. The information on the remuneration policy which has to be made available on

a website (and the paper copy of it to be made available on request) should fall under Article

94(1)(c) of the UCITS Directive relating to information or documents other than the KIID.

Therefore, this information should be translated, at the choice of the UCITS, into one of the

following:

a) the official language, or one of the official languages, of the UCITS host Member State,

b) a language approved by the competent authorities of that Member State, or

c) a language customary in the sphere of international finance.

Question 8: Disclosure of the benchmark index in the objectives and investment

policies

Date last updated: March 2019

Question 8a Q&A 1100: Does Article 7(1)(d) of Commission Regulation (EU) No 583/2010

require a UCITS to provide a clear indication of whether it is actively or passively managed?

Answer 8a: Yes. Article 7(1)(d) requires that a UCITS either has an index tracking objective,

or alternatively allows for discretionary choices, and in both cases this must be disclosed in

the objectives and investment policy section of the KIID.

In the case of index-tracking UCITS, using the terms ‘passive’ or ‘passively managed’ in

addition to ‘index-tracking’ is recommended practice in order to assist investor understanding.

A UCITS management company should consider providing additional wording to ensure the

meaning of the term ‘passive’ or ‘passively managed’ is clear. An index-tracking (passive)

UCITS must disclose the index it is tracking and show performance against that index in the

past performance section of the KIID.

An actively managed UCITS is one where the manager has discretion over the composition of

its portfolio, subject to the stated investment objectives and policy. As opposed to a passive

UCITS, an active UCITS does not have an index-tracking objective although it may include or

imply reference to a benchmark. A spectrum exists regarding the level of discretion active

UCITS may wish to take or be permitted to take against a benchmark index. Some active

UCITS take a lower level of risk against a benchmark index than others, and some are

managed without any reference to a benchmark index at all.

Nevertheless, just as there is a requirement under the KIID Regulation to identify a UCITS that

is index-tracking (passive), it should be equally clear to investors where the UCITS is actively

managed. Explicitly using the terms ‘active’ or ‘actively managed’ is recommended practice in

order to assist investor understanding, and a UCITS management company should consider

providing additional wording to ensure the meaning of the term ‘active’ or ‘actively managed’

is clear.

Active UCITS which are managed in reference to an index must provide additional disclosure

on the use of the benchmark index (Article 7(1)(d)) and show past performance against it

(Article 18(1)). They must also indicate the degree of freedom from the benchmark (see Q&A

8c). Article 18(1) requires active UCITS managed in reference to a benchmark index to display

past performance against that benchmark.

It should be clear which benchmark index (or indices) the UCITS is tracking or is being

managed in reference to. Where more than one version of a benchmark index is published (for

example a total return version, price return version, etc.), it should be clear which version is

being used by the UCITS.

To assist investor understanding, it is recommended practice that active UCITS which are not

managed in reference to any benchmark should also make this clear to investors (see Q&A

8b).

This information is summarised in the following graphic, which is also applicable to Q&As 8b,

8c and 4b.

UCITS management companies should make any changes to the KIID in order to incorporate

this additional guidance as soon as practicable, or by the next KIID update following the

publication of this Q&A.

In accordance with Article 79(1) of the UCITS Directive and to ensure fair, clear and not

misleading communications, the information disclosed in the UCITS KIID should be consistent

with the UCITS’ objectives and investment policy in the Prospectus.

Question 8b Q&A 1101: What is the meaning of ‘whether this approach includes or implies a

reference to a benchmark’ in Article 7(1)(d) of Commission Regulation (EU) No 583/2010?

Answer 8b: A UCITS managed in reference to a benchmark index is one where the

benchmark index plays a role in the management of the UCITS, for example, in the explicit or

implicit definition of the portfolio’s composition and/or the UCITS’ performance objectives and

measures. This reference may be present at the outset of a UCITS’ existence, or may be

introduced during its lifecycle; in both cases it should be disclosed. Ultimately, the onus is on

the UCITS management company to identify whether the UCITS is in practice managed in

reference to a benchmark index. However, the following are (non-exhaustive and non-

cumulative) examples of where an approach may include or imply reference to a benchmark

index and where a UCITS should disclose that it is managed in reference to that benchmark

index:

Portfolio composition

• The UCITS uses a benchmark index as a universe from which to select securities. This

applies even if only a minority of securities listed in the index are held in the portfolio

and the weightings of the UCITS’ portfolio holdings diverge from their equivalent

weighting in the index.

• The UCITS portfolio holdings are based upon the holdings of the benchmark index. For

example:

o The individual holdings of the UCITS’ portfolio do not deviate materially from

those of the benchmark index.

o Monitoring systems are in place to limit the extent to which portfolio holdings

and/or weightings diverge from the composition of the benchmark index.

• The UCITS invests in units of other UCITS or AIFs in order to achieve similar

performance to a benchmark index.

Performance measures

• Performance fees are calculated based on performance against a reference

benchmark index.

• The UCITS has an internal or external target to outperform a benchmark index.

• Contracts between the management company and third parties, such as the

Investment Management Agreement covering delegation of investment management,

or between the management company and its directors and employees, state that the

portfolio manager must seek to outperform a benchmark index.

• The individual portfolio manager(s) receive(s) an element of performance-related

remuneration based on the fund’s performance relative to a benchmark index.

• The UCITS is constrained by internal or external risk indicators that refer to a

benchmark index (e.g. tracking error limit, relative VaR for global exposure calculation).

• Marketing issued by the UCITS management company to one or more investors or

potential investors shows the performance of the fund compared with a benchmark

index.

For clarity, a benchmark index may refer to an individual index or composite index comprised

of more than one index / a basket of indices.

For additional clarity on disclosure of benchmarks, see the graphic in Q&A 8a.

To assist investor understanding, it is recommended that UCITS which are not managed in

reference to a benchmark index also make this clear to investors.

UCITS management companies should make any changes to the KIID in order to incorporate

this additional guidance as soon as practicable, or by the next KIID update following the

publication of this Q&A.

In accordance with Article 79(1) of the UCITS Directive and to ensure fair, clear and not

misleading communications, the information disclosed in the UCITS KIID should be consistent

with the UCITS’ Investment Objective in the Prospectus.

Question 8c Q&A 1102: What is the meaning of indicating ‘the degree of freedom from the

benchmark’ in Article 7(1)(d) of Commission Regulation (EU) No 583/2010?

Answer 8c: To satisfy the requirements of this element of the Article, investors should be

provided with an indication of how actively managed the UCITS is, compared to its reference

benchmark index. The KIID should strike a balance between providing the level of detail

required to sufficiently disclose a UCITS’ degree of freedom from a benchmark index, and the

obligation to do so in clear language understandable to a retail investor.

On this basis, the UCITS management company should at least take into account the following

elements when indicating in the KIID the degree of freedom from the benchmark index for

actively managed UCITS whose investment approach includes or implies a reference to a

benchmark index:

a) The description of the underlying investment universe of the UCITS should indicate to what

extent the target investments are part of the benchmark index or not.

b) The KIID should describe the degree or level of deviation of the UCITS in regards to the

benchmark index, thereby considering, where applicable, the quantitative and/or qualitative

deviation limitations underlying the investment approach (e.g. risk limits defined by

reference to the benchmark index such as tracking error) as well as the narrowness of the

investment universe. In this context UCITS may, when necessary for investor

understanding, also disclose quantitative metrics (e.g. precise internal limits on tracking

error etc.).

Unless stricter requirements specific to a Member State apply, UCITS which are actively

managed in reference to a benchmark index are not required to numerically quantify the degree

of freedom by outlining for instance expected tracking error, active share, or other metrics in

order to provide a quantitative indication. However, where the UCITS management company

believes such information will assist investor understanding, it may do so by providing

explanations in language sufficiently comprehensible to retail investors.

Some examples of wording that is likely to be acceptable when indicating the degree of

freedom from the benchmark index in the KIID can be found below. These examples are for

illustrative purposes only and are non-exhaustive:

1. Regarding point a) above: “The majority of the Sub-Fund’s equity securities will be

components of and have similar weightings to the Benchmark. The Investment Manager

may use its discretion to invest in companies or sectors not included in the Benchmark in

order to take advantage of specific investment opportunities.”

2. Regarding point b) above: “The investment strategy will restrict the extent to which the

portfolio holdings may deviate from the ABCD index. This deviation may be

[limited]/[material]/[significant]. This is likely to limit the extent to which the Sub-Fund can

outperform the ABCD Index. Deviations from the ABCD index are limited by a target

tracking error of [X] [accompanied by a clear, concise description of the quantitative

indicator’s meaning]”.

Where a UCITS has a defined strategy to vary the risk it will take against an index, this should

be disclosed. For example, where a UCITS is structured in order to be managed in alignment

with an index during periods of market volatility, it should disclose this. This does not imply that

the KIID should be updated to reflect very short-term / one-off variations in the investment

strategy during a UCITS lifecycle, as long as the capacity for such variations has been

previously disclosed.

For additional clarity on disclosure of benchmarks, see the graphic in Q&A 8a.

UCITS management companies should make any changes to the KIID in order to incorporate

this additional guidance as soon as practicable, or by the next KIID update following the

publication of this Q&A.

In accordance with Article 79(1) of the UCITS Directive and to ensure fair, clear and not

misleading communications, the information disclosed in the UCITS KIID should be consistent

with the UCITS’ Investment Objective in the Prospectus

Section III – ESMA’s guidelines on ETFs and other UCITS issues

Question 1: Information to be inserted in the prospectus

Date last updated: 11 July 2013

Question 1a Q&A 1103: Can the prospectus of an index-tracking UCITS mention both

replication methodologies (physical and synthetic replication)?

Answer 1a: Yes. If the UCITS intends to use both replication methodologies either at the same

time or alternatively, this should be reflected in the prospectus.

Question 1b Q&A 1105: Do the provisions on Index-tracking UCITS also apply to UCITS

ETFs?

Answer 1b: Yes, to the extent that the UCITS ETF is tracking an index or indices.

Question 2: UCITS ETF label

Date last updated: 15 March 2013

Question 2 Q&A 1104: In the case of umbrella UCITS, does the requirement to use the label

“UCITS ETF” apply to both the umbrella level and the sub-fund level?

Answer 2: If all the sub-funds are UCITS ETFs, the labelling requirement applies to the sub-

fund level and the UCITS may decide to apply it to the umbrella level as well. However, if not

all the sub-funds are UCITS ETFs, the labelling requirement only applies to the relevant sub-

funds.

Question 3: Secondary market

Date last updated: 11 July 2013

Question 3a Q&A 1106: If a UCITS ETF is open for direct redemption for secondary market

investors, what should be the redemption price?

Answer 3a: If secondary market investors are given the possibility to redeem directly at the

level of the UCITS ETF, the redemption price should be the Net Asset Value (NAV) from which

costs may be deducted. According to paragraph 24 of the guidelines the costs of direct

redemptions should not be excessive.

This section mirrors the content of the old Q&A on ESMA’s guidelines on ETFs and other UCITS issues (ESMA/2015/12), which

is replaced by the present document.

Question 3b Q&A 1107: When the UCITS ETF is open for direct redemptions, should UCITS

management companies arrange the redemptions directly with secondary market investor of

the UCITS ETF?

Answer 3b: In most cases, UCITS ETFs do not have a direct relationship with secondary

market investors of UCITS ETFs. Therefore, UCITS management companies are not required

to be directly in contact with the secondary market investors of the UCITS ETF but should

make sure that appropriate processes are in place in order to allow direct redemptions when

needed. In this context, the reference to unit-holders in Article 92 of the UCITS Directive should

be understood as including secondary market investors of UCITS ETFs.

Question 4: Efficient portfolio management techniques

Date last updated: 15 March 2013

Question 4a Q&A 1108: According to the guidelines, all revenues arising from efficient

portfolio management techniques, net of direct and indirect operational costs, should be

returned to the UCITS. Does this mean that securities lending agents should not be paid for

their services?

Answer 4a: No. The guidelines do not prohibit the deduction from gross revenues arising from

efficient portfolio management techniques of fees paid to securities lending agents as a normal

compensation for their services in the context of such techniques. However, pursuant to

paragraph 35 of the guidelines, the annual report of the UCITS should contain details on the

revenues arising from efficient portfolio management techniques for the entire reporting period

together with the direct and indirect operational costs and fees incurred.

Question 4b Q&A 1109: In some jurisdictions, UCITS management companies may also act

as securities lending agents. In this case, what information should be provided to investors?

Answer 4b: First, pursuant to paragraph 28 of the guidelines, it should be disclosed to

investors that the UCITS management company acts a securities lending agent. Also,

according to paragraph 35 of the guidelines, the annual report of the UCITS should provide

investors with details on the amount of fees paid to the UCITS management company that may

be deducted from the gross revenues arising from efficient portfolio management techniques.

Question 4c Q&A 1110: According to paragraph 28 of the guidelines, UCITS should disclose

the identity of the entity(ies) to which the direct and indirect costs and fees are paid and indicate

if these are related parties to the UCITS management company or the depositary. Where

should this information be disclosed?

Answer 4c: UCITS management companies may disclose this information in the prospectus

of the UCITS or in the annual report of the UCITS.

Question 5: Financial derivative instruments

Date last updated: 9 January 2015

Question 5a Q&A 1112: When a UCITS enters into an unfunded swap, should the exposure

swapped into the UCITS be considered in combination with the assets that are swapped out

to assess the compliance with investment limits laid down in Article 52, 53, 54, 55 and 56 of

the UCITS Directive?

Answer 5a: No. If the UCITS swaps the performance of its assets against the performance of

another portfolio of assets, the UCITS should not combine both the assets swapped out and

the exposure swapped into the UCITS when assessing the investment limits laid down in

Articles 52, 53, 54, 55, 56 of the UCITS Directive because the ultimate exposure of the UCITS

is not a combination of the two portfolios.

However, pursuant to paragraphs 36 and 37 of the guidelines, when a UCITS enters into an

unfunded swap, both the UCITS’ investment portfolio that is swapped out and the portfolio that

is swapped into the UCITS should comply with the investment limits laid down in Articles 52,

53, 54, 55 and 56 of the UCITS Directive.

Question 5b Q&A 1113: Section XI of the guidelines on financial derivative instruments refers

to total return swaps or other financial derivative instruments with similar characteristics. What

types of instrument are covered here?

Answer 5b: First of all, the purpose of paragraphs 36 and 37 is to clarify that total return swaps

should be treated like any other financial derivative instrument. This means that, in accordance

with Article 51(3) of the UCITS Directive, the UCITS’ investment portfolio as well as the final

exposure of the UCITS resulting from the investment in financial derivative instruments should

comply with the UCITS investment limits laid down in Articles 52, 53, 54, 55 and 56 of the

UCITS Directive.

As far as paragraph 36 is concerned, ESMA’s intention is to make sure that the guidelines are

not circumvented via the use of financial derivative instruments that are not total return swaps

but that have similar characteristics.

Question 5c Q&A 1114: What is the scope of application of paragraphs 37, 39 and 40 of the

guidelines?

Answer 5c: Paragraphs 37, 39 and 40 of the guidelines apply to any financial derivative

instrument by which UCITS gain exposure to an asset.

Question 5d Q&A 1115: For the purposes of paragraph 39 of the guidelines, would the

counterparty to a financial derivative instrument be considered as having discretion over the

composition of the underlying of the financial derivative instrument under the following

arrangement? The counterparty to the financial derivative instrument can decide on the

composition of the underlying of the financial derivative instrument or the UCITS investment

portfolio without the prior consent of the UCITS management company.

Answer 5d: Yes, because the counterparty to the financial derivative instrument has discretion

over the composition of the underlying of the financial derivative instrument or the UCITS’

investment portfolio.

Question 5e Q&A 1116: For the purposes of paragraph 39 of the guidelines, would the

counterparty to a financial derivative instrument be considered as having discretion over the

composition of the underlying of the financial derivative instrument under the following

arrangement? The counterparty to the financial derivative instrument offers advice to the

UCITS management company on the composition of the underlying of the financial derivative

instrument or the UCITS’ investment portfolio but any investment decision must be approved

by the UCITS management company.

Answer 5e: No, provided that the UCITS management company expressly approves any

investment decision in advance.

Question 5f Q&A 1117: For the purpose of paragraph 39 of the guidelines, would the

counterparty to a financial derivative instrument be considered as having discretion over the

composition of the underlying assets of the financial derivative instrument under the following

arrangement? The role of the counterparty only involves implementing a set of rules and this

set of rules is agreed in advance with the UCITS management company and does not allow

the exercise of any discretion by the counterparty.

Answer 5f: No, in such circumstances the counterparty to the financial derivative instrument

will not be considered as having any discretion over the composition of the underlying assets

of the financial derivative instrument.

Question 6: Collateral management

Date last updated: October 2016

Question 6a Q&A 1134: Do the requirements on collateral only apply to the fraction of assets

that reduces the counterparty risk of the UCITS to the limit imposed by the UCITS Directive?

Answer 6a: No. The requirements on collateral apply to all the assets received in the context

of OTC financial derivative transactions and efficient portfolio management (EPM) techniques

to cover counterparty risk. This means that assets received in excess (i.e. after the application

of haircuts) should also comply with the same requirements.

Question 6b Q&A 1135: Should re-invested cash collateral comply with the 20% issuer limit

of paragraph 43 (e)?

Answer 6b: Yes. According to paragraph 44 of the guidelines, re-invested cash collateral

should be diversified in accordance with the diversification requirements applicable to non-

cash collateral. This means that the 20% issuer limit applies to:

• entities prescribed in Article 50(f) of the UCITS Directive at which UCITS may place

cash collateral;

• high-quality government bonds and Short-Term Money Market Funds in which cash

collateral may be reinvested;

If UCITS reinvest cash collateral in reverse repo transactions, the reverse repo transactions

should comply with sections X and XII of the guidelines on efficient portfolio management

techniques and collateral management.

Question 6c Q&A 1136: Which types of asset do not comply with the requirement of

correlation of paragraph 43 (d) of the guidelines?

Answer 6c: According to paragraph 43 (d) of the guidelines, collateral received by the UCITS

should be issued by an entity that is independent from the counterparty and is expected not to

display a high correlation with the performance of the counterparty. Therefore, collateral issued

or guaranteed by the counterparty of an OTC financial derivative transaction or EPM technique

or by one of its subsidiaries or by a parent company, or more generally by an entity belonging

to the same issuer group should not be considered compliant with paragraph 40 (d) of the

guidelines.

Question 6d Q&A 1137: Are tripartite agreements for collateral management in the context of

efficient portfolio management techniques and OTC financial derivative transactions forbidden

by paragraph 40(g) of the guidelines?

Answer 6d: No. Tripartite agreements are possible under paragraph 40(g) as long as there is

no title transfer and the collateral is held by a third party custodian subject to prudential

supervision and that is unrelated to the provider of the collateral.

Question 6e Q&A 1138: When there is transfer of title, can the collateral be held by a

custodian that is not the depositary of the UCITS?

Answer 6e: Yes, but only if the UCITS’ depositary has delegated the custody of the collateral

to a sub-custodian and the depositary remains liable if the collateral is lost by the sub-

custodian.

Question 6f Q&A 1139: Paragraph 43(e) refers to “a basket of collateral with a maximum

exposure to a given issuer of 20% of its net asset value”. Does this diversification requirement

refer to the basket of collateral or to the net asset value of the UCITS?

Answer 6f: The diversification refers to the net asset value of the UCITS. Therefore, collateral

received should be diversified so that exposure to any issuer does not exceed 20% of the net

asset value of the UCITS. This means that where the amount of collateral received by a UCITS

does not exceed 20% of its net asset value, the collateral can be issued by a single issuer.

Question 6g Q&A 1140: In the case of government bonds, can the 20% limit be deemed to

apply to each different issue of bonds of the same issuer?

Answer 6g: No. The limit applies to the issuers and not to the issue. Accordingly, exposure to

any one government issuer, or any individual issuer, is limited to 20% of the net asset value of

the UCITS.

Question 6h Q&A 1141: Do the ESMA guidelines require that counterparty risk exposures be

aggregated across both financial derivative instruments and efficient portfolio management

techniques?

Answer 6h: Yes. According to paragraph 41 of the ESMA guidelines, both exposures should

be combined when calculating the counterparty risk limits of Article 52 of the UCITS Directive.

Question 6i Q&A 1142: Are government bonds exempt from the provisions laid down in

paragraphs 43(a) and paragraphs 43 (e) of the guidelines?

Answer 6i: No, paragraphs 43(a) and 43 (e) apply to all types of collateral received by the

UCITS in the context of over-the-counter financial derivative transactions and efficient portfolio

management techniques.

Question 6j Q&A 1143: Can cash collateral received by UCITS in the context of EPM

techniques or OTC financial derivative transactions be used by UCITS for clearing obligations

under EMIR?

Answer 6j: No. Cash collateral received by UCITS can only be placed or invested in the assets

listed in paragraph 43(j) of the guidelines.

Question 6k Q&A 1159: When assessing the diversification of the collateral, should re-

invested cash collateral be aggregated with non-cash collateral?

Answer 6k: Yes. UCITS should aggregate non-cash collateral and re-invested cash collateral

when assessing the diversification requirements of collateral received by UCITS.

Question 6l Q&A 1160: According to paragraph 43(g), where there is title transfer, the

collateral received should be held by the depositary of the UCITS. Where there is title transfer

and where the provider is also the depositary of the UCITS, should the collateral be held by

the depositary of the UCITS?

Answer 6l: Yes. However, the depositary should have functionally and hierarchically

separated the performance of its depositary tasks from its activity of collateral provider vis-à-

vis the UCITS in order to address potential conflicts of interest.

Question 6m Q&A 1161: When UCITS reinvest cash collateral, should the reinvested cash

collateral be taken into account for the calculation of the issuer concentration limits laid down

in the UCITS Directive?

Answer 6m: Yes, in accordance with paragraph 2 of Box 27 of the guidelines on Risk

Measurement and Calculation of Global Exposure and Counterparty Risk for UCITS (Ref.

CESR/10-788) the reinvested cash collateral should be taken into account for the calculation

of the investment restrictions applicable to UCITS. For example, this means that if a UCITS

has already placed 10% of its assets on deposits with a given issuer, it should not reinvest

cash collateral for more than 10% of its assets in deposits with the same issuer in order to

comply with the 20% limit of Article 52(1)(b) of the UCITS Directive.

In addition, the reinvested cash collateral has to comply with the diversification requirement

laid down in paragraph 44 of the ESMA guidelines on ETFs and other UCITS issues.

Question 6n Q&A 1162: When a UCITS reinvests cash collateral in short-term money market

funds pursuant to paragraph 43 (j) of the guidelines, should the short-term money market funds

comply with the requirements of Article 50(1)(e)(iv) of the UCITS Directive (i.e. the short-term

money market funds should not invest more than 10% of their assets in aggregate in other

money market funds)?

Answer 6n: Yes, the requirement of Article 50(1)(e)(iv) of the UCITS Directive also applies to

short-term money market funds in which UCITS may reinvest cash collateral.

Question 6o [last update 12 October 2016] Q&A 1163: A UCITS has a clause in its fund

rules limiting investment in units of other funds to 10%, in line with Article 50(1)(e)(iv) of the

UCITS Directive. If, in accordance with paragraph 43 of the ESMA Guidelines on ETFs and

other UCITS issues, this fund re-invests cash collateral in short-term money market funds,

should this investment be included in the calculation when calculating the 10% limit?

Answer 6o: Yes. Investment of cash collateral in short-term money market funds should be

treated in the same way as any other investment made by the UCITS in units of other UCITS

or other collective investment undertakings and should be compliant with all the requirements

of the UCITS Directive.

Question 7: Financial indices

Date last updated: 24 March 2014

Question 7a Q&A 1164: Do the guidelines on financial indices also apply to UCITS that only

use financial indices as performance benchmark?

Answer 7a: No. The guidelines on financial indices apply only to UCITS that are using any

indices for investment purposes.

Question 7b Q&A 1165: Do the guidelines on financial indices apply only to index-tracking

UCITS?

Answer 7b: No, the guidelines on financial indices apply to any UCITS investing in financial

indices and not only to index-tracking UCITS. This means that the guidelines on ETFs and

other UCITS issues take precedence over the guidelines on eligible assets issued by CESR in

2008 (Ref. CESR/07-044b) and that UCITS should not invest even a small amount of their

assets in financial indices that do not comply with paragraphs 48 to 61 of the guidelines.

Question 7c Q&A 1166: Paragraph 56 of the guidelines recommends that all levels of an

index should be subject to transparency requirements. What does this mean?

Answer 7c: This means that if a financial index is comprised of other financial indices, the

transparency requirements also apply to the underlying indices.

Question 7d Q&A 1167: According to the guidelines, index components’ weightings should

be published after each re-balancing on a retrospective basis. What is the timetable for such

publication?

Answer 7d: Weightings of index components should be published before the next rebalancing

of the index. For example, if an index rebalances on a monthly basis, information on the

weightings of the index components should be provided as soon as possible after the

rebalancing but within one month of the rebalancing.

Question 7e Q&A 1168: Paragraph 54 of the guidelines prohibits investment in financial

indices which rebalance on an intra-day or daily basis but notes that technical adjustments

made to financial indices (such as leveraged indices) according to publicly available criteria

should not be considered as rebalancing in the context of the guidelines. What is meant by

“technical adjustments”?

Answer 7e: Technical adjustments in the context of the guidelines are adjustments which:

- are based solely on algorithmic non-subjective frameworks;

- are generally published on an ex-ante basis;

- draw on publicly available criteria (or data); and

- do not rely on the judgement of the index-provider, for example, indices which follow

mechanical rebalancing formulae.

Question 7f Q&A 1169: Are financial indices of indices permitted?

Answer 7f: Yes.

Question 7g Q&A 1170: Should underlying financial indices composing financial indices in

which UCITS invest comply with the guidelines on financial indices?

Answer 7g: Underlying financial indices should comply with section XIII of the guidelines

except paragraphs 48, 49, 50 and 53 of the guidelines. This means that underlying financial

indices do not need to satisfy the diversification requirements laid down in Article 9 of the

Eligible Assets Directive.

However, to fulfil the guidelines of paragraphs 53, UCITS that invest in indices of indices should

take into account the rebalancing frequency of the underlying indices.

Question 7h Q&A 1171: Paragraph 61 of the guidelines recommends that financial indices in

which UCITS invest should be subject to independent valuation. Does this mean that UCITS

should not invest in financial indices for which the valuation is performed by the index provider

itself?

Answer 7h: No. If the valuation is performed by an entity independent from the index provider,

the criterion of independent valuation is considered to be fulfilled. However, UCITS can invest

in financial indices for which the valuation is performed by the index provider, insofar as the

unit in charge of the valuation of the index is functionally independent from the unit responsible

for the design of the index and the UCITS itself carries out its own due diligence. Also, the

remuneration of the staff responsible for the valuation of the index should not be linked to the

performance of the financial index.

Question 7i Q&A 1172: According to paragraph 59 of the guidelines, UCITS should not invest

in financial indices whose methodologies permit retrospective changes to previously published

index values (‘backfilling’). Does this provision cover calculation mistakes?

Answer 7i: No. Calculation mistakes are not covered by paragraph 59 of the guidelines.

Question 7j Q&A 1173: According to paragraph 55 of the guidelines, UCITS should not invest

in financial indices for which the full calculation methodology to, inter alia, enable investors to

replicate the financial index, is not disclosed by the index provider. Such information should be

easily accessible, free of charge. What is meant by disclosed, easily accessible and free of

charge in the context of the guidelines?

Answer 7j: The information to be disclosed and provided must be publicly available to

investors and prospective investors, and published in such a way that direct access to this

information is possible. Such information may be so accessed, for example, as a direct

publication or via a source which directly links to a public website or other public forum which

is not password protected, encrypted or in any way hinders or impedes immediate and direct

access.

Question 7k Q&A 1174: Paragraph 50 of the guidelines prohibits investment by UCITS in

commodity indices that do not consist of different commodities and applies a correlation factor

to be considered in this regard. Can UCITS invest in a commodity index for which a particular

commodity component does not have 5 years of price history available for the purposes of the

correlation observation?

Answer 7k: Yes, provided that a similar asset serves as an adequate proxy. The basis for

such an asset being considered as an adequate proxy needs to be supported by both

qualitative and quantitative data. Those qualitative and quantitative data should be

documented by UCITS management companies. The proxy asset cannot constitute more than

3 years of the 5 years of data for the purposes of the calculation. The proxy must be a single

commodity (rather than a component of a basket or other amalgam/hybrid product) asset.

However, this asset could include a financial index which complies with section XIII of the

guidelines.

Question 8: Transitional provisions

Date last updated: 15 March 2013

Question 8a Q&A 1175: From when are the requirements set out in paragraphs 43, 44, 45

and 46 of the guidelines applicable for UCITS existing before the guidelines apply?

Answer 8a: UCITS existing before the guidelines apply should comply with the provisions of

paragraphs 41, 43, 44, 45 and 46 within 12 months of the date of application of the guidelines.

However, pursuant to paragraph 65 of the guidelines, any new reinvestment of cash collateral

made by UCITS existing before the guidelines apply should comply with the guidelines

immediately.

Question 8b Q&A 1176: With respect to the tracking error, what type of information should

existing UCITS provide for accounting periods that end within 12 months of the date of

application of the guidelines if the prospectus has not been amended according to the

guidelines?

Answer 8b: In this situation, existing UCITS only need to provide information on the realised

tracking error; information on the anticipated tracking error and any difference between the two

can be reported as from the next accounting period.

Question 8c Q&A 1177: Are EPM techniques concluded by UCITS before the date of

application of the guidelines subject to transitional provisions?

Answer 8c: UCITS that exist before the date of application of the guidelines should amend

the agreements governing EPM techniques in accordance with Sections X and XII of the

guidelines as soon as possible. At the latest, 12 months after the date of application of the

guidelines any EPM techniques should comply with the provisions of Section X and XII of the

guidelines.

Question 8d Q&A 1178: Are structured UCITS created after the entry into force of the

guidelines and which are compartments of an umbrella UCITS created before the guidelines

take effect subject to the grandfathering rule set out in paragraph 64 of the guidelines.

Answer 8d: No. The transitional provisions apply to compartments of umbrella UCITS and not

to umbrella UCITS themselves.

Section IV – Notification of UCITS and UCITS management companies; exchange of

information between competent authorities

Question 1: Notification of new investment compartments

Date last updated: July 2012

Question 1a Q&A 1179: Should UCITS that wish to market new investment compartments in

a Member State where they are already notified for marketing for other existing investment

compartments undertake a new notification procedure via their competent authority?

Answer 1a: Yes. According to Article 91(4) of Directive 2009/65/EC, the notification procedure

as referred in to Article 93 of that Directive also applies to investment compartments of UCITS.

Question 1b Q&A 1180: Should UCITS that wish to market several investment compartments

of the same UCITS undertake different notification procedures via their competent authority?

Answer 1b: No. UCITS can undertake a single notification procedure via their competent

authority when they wish to market several investment compartments of the same UCITS in a

Member State. Indeed, according to the Annex I of the Commission Regulation 584/2010,

UCITS may indicate names of different investment compartments in the notification letter they

transmit to their competent authority pursuant to Article 93(1) of Directive 2009/65/EC.

Question 1c Q&A 1181: If the UCITS attestation transmitted to the competent authority of the

home Member State lists all the existing investment compartments of a UCITS, should the

UCITS undertake a notification procedure for all the investment compartments it intends to

market in a Member State?

Answer 1c: Yes. Even if the UCITS attestation lists all the existing investment compartments

of a UCITS, the marketing of these investment compartments in a Member State is possible

only if the competent authority of the host Member State has been duly notified by the

competent authority of the home Member State.

This section mirrors the content of the old Q&A on Notification of UCITS and exchange of information between competent

authorities (ESMA/2012/428), which is replaced by the present document.

Question 2: Amendments and updates of documents referred to in Article 93(2) of

Directive 2009/65/EC

Date last updated: July 2012

Question 2a Q&A 1182: Should notifications to the competent authorities of the host Member

States of amendments to the documents referred to in Article 93(2) of Directive 2009/65/EC

(i.e. fund rules or instruments of incorporation, prospectus, latest annual report and half-yearly

report by the UCITS) be accompanied by an attestation letter?

Answer 2a: No. The attestation letter should only be transmitted to the competent authority of

the host Member State by the competent authority of the home Member State at the time of

the original notification of marketing.

Question 2b Q&A 1183: Should notification by the UCITS to the competent authorities of the

host Member States of a change in the name of the UCITS or in one of its investment

compartments be accompanied by an attestation letter?

Answer 2b: No. When UCITS notify the competent authorities of home Member States of a

change in the name of the UCITS or in one of its investment compartments, no UCITS

attestation should be transmitted.

Question 2c Q&A 1184: Should a UCITS follow a new notification procedure via its competent

authority when it notifies updates of documents referred to in Article 93(2) to competent

authorities of host Member States?

Answer 2c: No. When UCITS notify updates of documents to the competent authority of the

host Member State they should not undertake a new notification procedure via their competent

authority.

Question 2d Q&A 1185: Should all the documents referred in to Article 93(2) of Directive

2009/65/EC be transmitted when UCITS send updates of documents to the competent

authorities of the host Member States pursuant to Article 32(2) of Directive 2010/42/EU?

Answer 2d: No. Only the documents which have been modified should be transmitted to the

competent authority of the host Member State.

Question 3: UCITS host Member State’s access to documents

Date last updated: July 2012

Question 3a Q&A 1186: When a UCITS is notified for the first time for marketing in a Member

State, when should the UCITS make available on a website an electronic copy of each

document referred to in Article 93(2)?

Answer 3a: In order to satisfy the obligation of Article 31(1) of Directive 2010/42/EU, UCITS

should make available on a website an electronic copy of each document referred to in Article

93(2) as soon as possible after they receive confirmation from their national competent

authorities that the notification of marketing has been transmitted to the competent authority

of the host Member State.

Question 3b Q&A 1187: When complying with the obligation of access to documents as

required by Article 31(1) of Directive 2010/42/EU, can UCITS use password-protected

documents?

Answer 3b: No. The use of password-protected documents by UCITS is not permitted.

Question 4: Part A of the notification letter

Date last updated: July 2012

Question Q&A 1188: If the UCITS is a self-managed investment company, what information

should be provided under the heading ‘details of contact person at the management company’

in Part A of the notification letter?

Answer: If the UCITS is a self-managed investment company, the details of the contact person

at the self-managed investment company and the relevant contact information should be

provided.

Question 5: Exchange of information between competent authorities in the context of

establishment of a branch of a UCITS management company

Date last updated: July 2012

Question Q&A 1189: In the context of establishment of a branch by a UCITS management

company in a different Member State, in which language should competent authorities of home

Member States send the relevant information to competent authorities of host Member States?

Answer: The information should be sent in a language customary in the sphere of international

finance, unless the competent authorities of the UCITS home and host Member States agree

to that information being provided in an official language of both Member States.

Question 6: Attestation of payment of notification fees

Date last updated: July 2012

Question Q&A 1190: Under Part B of the model notification letter set out in Annex I of

Regulation 584/2010, the UCITS’ host Member State may require evidence of payment of

notification fees. How should this evidence of payment be provided?

Answer: There should be evidence that the notification fee has been transferred e.g. by a

scan of the transfer form. The evidence should be attached to the notification as proof of

payment.

Question 7: Advance notification of provision of services

Date last updated: April 2017

Question Q&A 1191: A UCITS management company wishes to pursue cross-border

activities (MiFID services, collective portfolio management of UCITS) by way of the UCITS

management company passport (Articles 16 to 21 of the UCITS Directive). Does the

management company have to identify a specific UCITS, in respect of which it wants to pursue

said activities, in the notification letter?

Answer: No. The management company can notify cross-border activities without having to

identify a specific UCITS. When the management company, at a later point in time, has

identified a UCITS that it wants to manage on a cross-border basis, it has to notify the

competent authorities in the home Member State of the UCITS in accordance with Article 20

of the UCITS Directive.

Question 8: Advance notice for the marketing of new share classes of UCITS notified

for cross-border marketing

Date last updated: December 2021

Question 8a Q&A 958: According to Article 93(8) of the UCITS Directive, in the event of a

change to the information in the notification letter submitted in accordance with paragraph 1 of

Article 93, or a change regarding share classes to be marketed, the UCITS shall give written

notice thereof to the competent authorities of both the UCITS home Member State and the

UCITS host Member State at least one month before implementing that change. If a UCITS

intends to market a new share class in a host Member State where it has already been notified

for marketing, should the UCITS give written notice to the competent authorities of the UCITS

home and host Member States, at least one month before the marketing of the new share

class starts?

Answer: Yes, if a UCITS intends to market a new share class in a Member State where it has

already been notified for marketing, the UCITS should give written notice to the competent

authorities of both the UCITS home and host Member State, at least one month before the

marketing of the new share class starts.

Question 9: De-notification of marketing arrangements for UCITS

Date last updated: 13 June 2023

Answer provided by the European Commission in accordance with Article 16b(5) of the

ESMA Regulation

Question 9 Q&A 1076: In case there are no investors in a host Member State, do UCITS

wishing to de-notify the arrangements previously made for marketing their units have to comply

with the obligations set out in Article 93a(1) of the UCITS Directive?

Answer: Yes. In case there are no investors in a host Member State, UCITS wishing to de-

notify the arrangements previously made for marketing their units, will still have to comply with

all the obligations set out in Article 93a(1) of the UCITS Directive, making sure that there are

no investors uninformed about the UCITS’ market exit, that all marketing is publicly terminated

and any marketing arrangements with third parties are terminated or modified to prevent any

further marketing of the de-notified UCITS.

Question 10: Scope of activities passported by UCITS management companies

Date last updated: 13 June 2023

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.

Answer provided by the European Commission in accordance with Article 16b(5) of the

ESMA Regulation

Question 10 Q&A 1097: When a management company intends to pursue the activities for

which it has been authorised in a host Member State, either directly or through a branch, may

that management company passport in that host Member State only the administration or

marketing functions referred to in Annex II of the UCITS Directive, without also passporting

investment management functions?

Answer: No. The UCITS passporting regime is linked to the management of UCITS by UCITS

management companies on a cross-border basis. Pursuant to Articles 5 and 6 of the UCITS

Directive, UCITS management companies are authorised to manage collective investment

undertakings and to perform the activities referred to in Annex II to the UCITS Directive.

Pursuant to Article 17(2), point (b), and Article18(1), point (b), of the UCITS Directive, a UCITS

management company intending to manage UCITS established in another Member State,

either directly or through the creation of a branch in another Member State, shall communicate

to the competent authorities of its home Member State a program of operations referring to the

services it intends to provide. That requirement cannot be interpreted otherwise than referring

to investment management foremost, whereas auxiliary services remain as such auxiliary and

are to be performed only in relation to the management of a UCITS.

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.

Section V – Risk Measurement and Calculation of Global Exposure and

Counterparty Risk for UCITS

Question 1: Hedging strategies

Date last updated: July 2012

Question 1a Q&A 1194: Can the following strategy be qualified as a hedging strategy as

defined in CESR’s guidelines?

A portfolio management practice which only aims to reduce the interest rate risk of a corporate

bond portfolio by entering into a short position on bond future contracts (or an interest rate

swap) in the same currency and with a similar interest rate duration. Note that in this case the

portfolio credit risk would remain un-hedged.

Answer 1a: Yes. This strategy could be considered as a hedging arrangement as defined in

CESR’s guidelines as it is in line with the example set out in paragraph 33(a) of the guidelines.

Question 1b Q&A 1195: Can the following strategy be qualified as a hedging strategy as

defined in CESR’s guidelines?

A portfolio management practice which aims to reduce the credit risk of a corporate or

government bond portfolio through purchased Credit Default Swaps (CDS). Note that in this

case the portfolio interest rate risk would remain un-hedged.

Answer 1b: Yes, but only if the corporate or government bond and the purchased CDS relate

to the same issuer.

Question 1c Q&A 1196: When calculating the global exposure according to the Commitment

Approach, can UCITS that invest in other funds make use of hedging arrangements?

Answer 1c: According to Box 8 of CESR’s guidelines, for the purpose of calculating global

exposure under the Commitment Approach, hedging arrangements may only be taken into

account if they relate to the same asset class. Therefore, hedging arrangements for UCITS

funds of funds are possible provided that the management company of the investing UCITS

has full knowledge of the underlying investments of the target funds.

This section mirrors the content of the old Q&A on Risk Measurement and Calculation of Global Exposure and Counterparty

Risk for UCITS (ESMA/2013/1950), which is replaced by the present document.

Question 2: Disclosure of leverage by UCITS

Date last updated: July 2012

Question 2a Q&A 1197: For UCITS using VaR to calculate global exposure, can the required

disclosure of leverage be made on a net basis i.e. leverage calculated after netting/hedging

arrangements are taken into account?

Answer 2a: No. In accordance with Boxes 24 and 25 of CESR’s guidelines, leverage should

be calculated as the sum of the notionals of the derivatives used.

Question 2b Q&A 1198: Could UCITS using the VaR approach to calculate global exposure

disclose leverage based on the Commitment Approach?

Answer 2b: Yes. However, the leverage should be disclosed based on both the ‘sum of the

notionals’ as provided by CESR’s guidelines and the Commitment Approach.

Question 3: Concentration rules

Date last updated: July 2012

Question Q&A 1199: Article 54 of Directive 2009/65/EC permits competent authorities to

authorise UCITS to invest up to 100% of their assets in transferable securities issued by certain

issuers e.g. sovereigns. In such cases the UCITS must hold securities from at least six different

issues and securities from any single issue shall not exceed 30% of its total assets.

Should this diversification rule apply on the basis of the net assets of the UCITS or on a gross

basis?

Answer: The 100% diversification limit of Article 54 should be applied on the net assets (i.e.

exposure to assets referred to in this article is limited to 100% of the net asset value) as all

investment restrictions applicable to UCITS, including the diversification limits of Article 54,

have to be applied with reference to their net assets and because any exposure beyond 100%

to a sovereign issuer cannot be considered as ‘equivalent protection’ with regard to Article 52.

Furthermore, it is explicitly clarified that any exposure taken to assets referred to in Article 54,

including through derivatives (e.g. bond future contracts such as Euro. Bund Future, 10 Year

US T-Note future) and any efficient portfolio management techniques (e.g. reinvestment of

cash collateral) must be included when calculating the limit of 100% according to Article 54.

Question 4: Calculation of global exposure for fund of funds

Date last updated: July 2012

Question Q&A 1200: Is the look-through approach compulsory for the calculation of global

exposure when UCITS invest in other funds?

Answer: No. For the purpose of calculating global exposure, a look-through approach is not

compulsory when UCITS invest in other funds. As an alternative, UCITS may treat the NAV of

the target fund as an equity and use it as a substitute in the calculation of global exposure, in

particular when the VaR Approach is used.

This method may only be used if the risk management function can prove and document that

this approach does not lead to an inaccurate picture of the fund of funds. In addition, UCITS

fund of funds structures have to comply with all due diligence and risk management

requirements laid down in the UCITS framework (Directive 2009/65/EC, Directive 2010/43/EU

and the CESR guidelines on Risk Management principles for UCITS

). Finally, the method

chosen by the UCITS should be disclosed in the prospectus.

Question 5: Calculation of counterparty risk for exchange-traded derivatives and

centrally-cleared OTC transactions

Date last updated: December 2013

Question Q&A 1201: How should UCITS calculate their counterparty risk for exchange-traded

derivatives and OTC transactions that are centrally cleared under the European Market

Infrastructure Regulation (EMIR)?

Answer: When calculating the counterparty risk for exchange-traded derivatives and OTC

transactions that are centrally cleared, UCITS should look at the clearing model used to

determine the existence of counterparty risk and, if any, where the counterparty risk is located.

When analysing the clearing model used, UCITS should have regard to the existence of

segregation arrangements of the assets and the treatment of claims on these assets in the

event of bankruptcy of the clearing member or central counterparty.

CESR guidelines on Risk Management principles for UCITS – Ref. CESR/09-178,

https://www.esma.europa.eu/sites/default/files/library/2015/11/09_178.pdf

Since this question was last updated, ESMA has issued an opinion to the European institutions on the Impact of Regulation

648/2012 on Articles 50(1)(g) (iii) and 52 and of Directive 2009/65/EC for over-the-counter financial derivative transactions that

are centrally cleared (ESMA/2015/880)

Section VI – Impact of Regulation (EU) 648/2012 (EMIR)

on the UCITS Directive

Question 1: Valuation of OTC derivatives

Date last updated: July 2016

Question [last update 19 July 2016] Q&A 1202: For OTC financial derivative transactions

that are centrally cleared and subject to the reporting obligation of EMIR, can UCITS

management companies rely on the valuation provided by the central counterparty (CCP)?

Answer: No. The UCITS framework requires UCITS management companies to have in place

a process for accurate and independent verification of the value of the OTC financial derivative

transactions, even if they are centrally cleared. The valuation provided by the CCP can only

serve as a point of reference for the verification performed by the UCITS management

company. Nevertheless, the UCITS management company should be able to justify any

deviation from the valuation provided by the CCP.

Question 2: Application to UCITS of the exemption for intra-group transactions under

EMIR

Date last updated: 24 May 2017

Question Q&A 1203: Where a UCITS is subject to the clearing obligation of Article 4(1) of

EMIR, can it make use of the exemption for intragroup transactions (Article 4(2) of EMIR)?

Answer: ESMA is of the view that in the case of UCITS the exemption for intragroup

transactions should be construed narrowly, and that in most cases it will not be possible for

the exemption to be used. A UCITS can only make use of the exemption for intragroup

transactions if it has been established to form part of the same group (as defined in Article

2(16) of EMIR) as the counterparty to the OTC derivative contract and if it fulfils all the criteria

for intragroup transactions set out in Article 3(2)(a)(i)-(iv), (b), or (d) of EMIR.

Article 3(2)(a)(iii) of EMIR requires both counterparties to be included in the same consolidation

on a full basis. In addition, they have to be subject to appropriate centralised risk evaluation,

measurement and control procedures, as well as fulfil other specific requirements set out in

Article 3(2) of EMIR.

An exemption to the clearing obligation based on Article 4(2) of EMIR can only be granted after

a thorough case-by-case assessment, which will have to take into account whether the UCITS

has been established to form part of the same group as the counterparty to the OTC derivative

Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central

counterparties and trade repositories (“European Markets Infrastructure Regulation”)

contract and whether the UCITS fulfils all the criteria set out in Article 3(2)(a), (b), or (d) of

EMIR.

Where a UCITS is granted an intragroup exemption for the clearing obligation, it follows that

the UCITS will not be considered a distinct entity and will not be treated separately for other

purposes under EMIR either, in particular for the purpose of the bilateral margining thresholds

calculation. Therefore, the aggregate month-end average notional amount referred in Article

28(1) of Commission Delegated Regulation (EU) 2016/2251 shall be calculated at the group

level (including the relevant UCITS).

Section VII – Impact of Regulation (EU) 2015/2365 (SFTR)

on the UCITS Directive

Question 1: Commencement of reporting under SFTR

Date last updated: October 2016

Question 1a [last update 12 October 2016] Q&A 1204: Article 13 of Regulation (EU)

2015/2365 on transparency of securities financing transactions and of reuse and amending

Regulation (EU) No 648/2012, requires UCITS management companies, UCITS investment

companies, and AIFMs to provide information to investors on the use made of SFTs and total

return swaps in the annual report of each UCITS/AIF under management, as well as in each

half-yearly report for UCITS. As Article 13 applies from 13 January 2017, which report should

be the first to include this disclosure?

Answer: The information should be included in the next annual or half-yearly report to be

published after 13 January 2017 which may relate to a reporting period beginning before that

date.

Question 2: Periodic reporting under Article 13 of SFTR for UCITS and AIFs

Date last updated: 5 October 2017

Question 2a [last update 5 October 2017] Q&A 1205: Pursuant to Article 13 of SFTR, UCITS

management companies, UCITS investment companies, and AIFMs (“UCITS/AIF managers”)

shall inform investors on the use they make of SFTs and total return swaps in annual (UCITS

and AIFs) and half-yearly (UCITS only) reports. The information on SFTs and total return

swaps shall include the data provided for in Section A of the Annex to SFTR.

Should this data be reported as aggregate data (with respect to the whole of the reporting

period) or based on a snapshot (taken at the end of the reporting period)?

Answer: The table below explains how each data item in Section A of the Annex to the SFTR

should be reported. All data items should be reported as a snapshot, with the exception of the

following:

- Data on reuse of collateral

o Cash collateral reinvestment returns to the collective investment undertaking.

- Data on return and cost for each type of SFTs and total return swaps

o broken down between the collective investment undertaking, the manager of

the collective investment undertaking and third parties (e.g. agent lender) in

Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities

financing transactions and of reuse and amending Regulation (EU) No 648/2012

absolute terms and as a percentage of overall returns generated by that type of

SFTs and total return swaps

For each of the data items firms should not artificially alter their practices in a way that would

lead to the reporting being misleading.

The guidance provided by this Q&A is without prejudice to further work that ESMA intends to

carry out in relation to the disclosure obligations for UCITS and AIFs under SFTR.

Heading

Sub-item

How to report

Global data

The amount of securities

and commodities on loan as

a proportion of total lendable

assets defined as excluding

cash and cash equivalents

Snapshot

The amount of assets

engaged in each type of

SFTs and total return swaps

expressed as an absolute

amount (in the collective

investment undertaking’s

currency) and as a

proportion of the collective

investment undertaking’s

assets under management

(AUM).

Snapshot

Concentration data

Ten largest collateral issuers

across all SFTs and total

return swaps (break down of

volumes of the collateral

securities and commodities

received per issuer’s name);

Snapshot

Top 10 counterparties of

each type of SFTs and total

return swaps separately

(Name of counterparty and

gross volume of outstanding

transactions).

Snapshot

Aggregate transaction

data for each type of

SFTs and total return

Type and quality of

collateral;

Snapshot

swaps separately to be

broken down according

to the below categories

Maturity tenor of the

collateral broken down in the

following maturity buckets:

less than one day, one day

to one week, one week to

one month, one to three

months, three months to one

year, above one year, open

maturity;

Snapshot. All

outstanding/existing collateral at

the end of the reporting period

should be aggregated according

to their maturity tenor. That

aggregation should be broken

down in the mentioned maturity

buckets.

Currency of the collateral;

Snapshot. Currency of the

existing collateral at the end of the

reporting period.

Maturity tenor of the SFTs

and total return swaps

broken down in the following

maturity buckets: less than

one day, one day to one

week, one week to one

month, one to three months,

three months to one year,

above one year, open

transactions;

Snapshot. All

outstanding/existing SFTs at the

end of the reporting period

should be aggregated according

to their maturity tenor. That

aggregation should be broken

down in the mentioned maturity

buckets.

Country in which the

counterparties are

established;

Snapshot. Country where the

counterparties of existing SFTs

as of the end of the reporting

period are established.

Settlement and clearing

(e.g., tri-party, Central

Counterparty, bilateral).

Snapshot

Data on reuse of

collateral

Share of collateral received

that is reused, compared to

the maximum amount

specified in the prospectus

or in the disclosure to

investors;

Snapshot

Cash collateral reinvestment

returns to the collective

investment undertaking.

See explanation below table

Safekeeping of collateral

received by the

collective investment

undertaking as part of

SFTs and total return

swaps

Number and names of

custodians and the amount

of collateral assets safe-kept

by each of the custodians

Snapshot

Safekeeping of collateral

granted by the collective

investment undertaking

as part of SFTs and total

return swaps

The proportion of collateral

held in segregated accounts

or in pooled accounts, or in

any other accounts

Snapshot

Data on return and cost

for each type of SFTs

and total return swaps

broken down between the

collective investment

undertaking, the manager of

the collective investment

undertaking and third parties

(e.g. agent lender) in

absolute terms and as a

percentage of overall returns

generated by that type of

SFTs and total return swaps

See explanation below table

Regarding the field “Cash collateral reinvestment returns to the collective investment

undertaking”, during the year the fund receives a certain amount of cash as collateral for SFTs

which is invested and produces a return. All SFTs have a given duration (normally short term)

and there may be several SFTs that are carried out on a number of occasions with repeated

investments and divestments of cash. Due to the possible concatenation of the operations,

there may be a certain amount of cash collateral which is constantly invested for the whole

year and produces a return. One interpretation is that the SFTR requires managers to disclose

at least the overall sum of the returns earned by the fund from all the investment operations

made during the year with cash collateral. This sum may only be an income flow that covers

the whole year and therefore the distinction between aggregate vs snapshot (i.e. flow vs stock

data) is not meaningful, because it could be calculated in only one way. One alternative would

be to state that this is “aggregate” by definition. Another alternative would be to require the

disclosure of the cash collateral investment return, calculated as the sum of the cash flows

received for the investment of SFTs cash collateral over the yearly average amount of cash

collateral investments.

The same reasoning applies to the field “Data on return and cost for each type of SFTs and

total return swaps/broken down between the collective investment undertaking, the manager

of the collective investment undertaking and third parties (e.g. agent lender) in absolute terms

and as a percentage of overall returns generated by that type of SFTs and total return swaps”.

The manager has to sum the inflows and outflows generated by all the operations during the

year and disclose the two total amounts; again, there appears to be only one way to calculate

the data required and the disclosure of rate of returns (gross and net of cost) could be required

if deemed more appropriate.

Section VIII – Independence of management boards and supervisory functions

Question 1: Group links, independence and cooling-off periods

Date last updated: July 2017

Question Q&A 1206: Where a group link exists for the purpose of Article 24 of the Commission

Delegated Regulation (EU) 2016/438 (“UCITS V Level 2”), does a person who served in the

management body or supervisory body of an entity within the group or was otherwise employed

by such an entity fulfil the independence requirement under Article 24(2) of the UCITS V Level

2 where the person has ceased any function within the entity?

Answer: A person who served in the management body or supervisory body of an entity or

was otherwise employed by such an entity should be deemed to fulfil the independence

requirement only after an appropriate cooling-off period following the termination of his/her

relationship with the relevant entity. That period should start from the final payment of any

outstanding remuneration due to him/her which entails a margin of discretion from the entity

(e.g. in case of any portion of variable remuneration which is deferred and still subject to

contraction, including through malus or clawback arrangements) and is linked to his/her

previous employment or other relationship with that entity. Non-discretionary outstanding

payments from the entity to the person should not be taken into account for this purpose.

Without prejudice to any requirements established under the relevant national corporate

governance rules or codes, the cooling-off period should be proportionate to the length of the

employment or other relationship that the individual had with any of the companies within the

group and to the type of functions performed within such company(ies).

Section IX – Remuneration

Question 1: Application of disclosure requirements on remuneration to delegates

Date last updated: May 2018

Question 1 [last update 25 May 2018] Q&A 1207: Do the remuneration-related disclosure

requirements under Article 69(3)(a) of the UCITS Directive also apply to the staff of the

delegate of a management company to whom investment management functions (including

risk management) have been delegated?

Answer: Yes. In line with the approach followed under the UCITS Remuneration Guidelines

management companies can ensure compliance in one of the following two ways:

i) where the delegate is subject to regulatory requirements on remuneration

disclosure for its staff to whom investment management (including risk

management) activities have been delegated that are equally as effective as those

under Article 69(3)(a) of the UCITS Directive, the management company should

use the information disclosed by the delegate for the purposes of fulfilling its

obligations under Article 69(3)(a) of the UCITS Directive; or

ii) in other cases, appropriate contractual arrangements should be put in place with

the delegate allowing the management company to receive (and disclose in the

annual report for the relevant UCITS that it manages) at least information on the

total amount of remuneration for the financial year, split into fixed and variable

remuneration, paid by the management company, the investment company and,

where relevant the UCITS itself to the identified staff of the delegate – and number

of beneficiaries, and, where relevant, performance fee – which is linked to the

delegated portfolio. This means that the disclosure should be done on a prorated

basis for the part of the UCITS’ assets which are managed by the identified staff

within the delegate.

In both situations set out above, the disclosure may be provided on an aggregate basis i.e. by

means of a total amount for all the delegates of the management company in relation to the

relevant UCITS.

See paragraph 16 of the UCITS Remuneration Guidelines.

Section X – Depositary

Question 1: Depositaries as counterparties in a transaction of assets that they hold in

custody

Date last updated: July 2018

Question Q&A 1208: According to Article 22(7) of the UCITS Directive the depositary (or any

third party to which the custody function has been delegated) shall not reuse the assets they

hold in custody for their own account. Does this provision imply that a depositary (or a

delegated third party) should never act as counterparties in a transaction of assets that they

hold in custody (including, but not limited to, transfer, pledge, sale and lending of those

assets)?

Answer: No. A depositary (or a delegated third party) should be able to act as counterparties

in a transaction of assets that they hold in custody, provided that (i) the four conditions under

Article 22(7)(a) to (d) of the UCITS Directive are complied with, and (ii) conflicts of interest are

properly managed and (iii) the transaction is conducted on an arm-length basis.

Question 2: Distinction between depositary tasks and mere supporting tasks

Date last updated: June 2019

Question 2 Q&A 1209: The UCITS Directive sets out strict restrictions under which

depositaries are allowed to delegate the safekeeping of assets of UCITS, whereas the

delegation of depositary functions pursuant to Article 22(3) and (4) of the UCITS Directive (i.e.

monitoring of the cash flow and oversight functions) is not permitted. Recital 42 of the AIFMD

states that “delegation of supporting tasks that are linked to its depositary tasks, such as

administrative or technical functions performed by the depositary as a part of its depositary

tasks, is not subject to the specific limitations and requirements set out in the AIFMD”. Does

this principle also apply to UCITS depositaries and if so, what are ‘supporting tasks that are

linked to depositary tasks such as administrative or technical functions performed as part of

the depositary tasks’ and under which conditions would it be possible to entrust third parties

with such tasks?

Answer 2: The answer refers to supporting tasks linked to the depositary tasks, such as

administrative or technical functions performed as part of the depositary tasks, only.

Supporting tasks that are linked to depositary tasks such as administrative or technical

functions performed as part of the depositary tasks listed under Article 22(3) and (4) of the

UCITS Directive could be entrusted to third parties where all of the following conditions are

met:

i. the execution of the tasks does not involve any discretionary judgement or interpretation by

the third party in relation to the depositary functions;

ii. the execution of the tasks does not require specific expertise in regard to the depositary

function; and

iii. the tasks are standardised and pre-defined.

Question 3: Depositary tasks entrusted to third parties

Date last updated: June 2019

Question 3 Q&A 1210: May depositaries entrust third parties with the performance of tasks

that would give them the ability to transfer assets belonging to UCITS?

Answer 3: Yes, where depositaries entrust tasks to third parties and give them the ability to

transfer assets belonging to UCITS without requiring the intervention of the depositary, these

arrangements are subject to the delegation requirements set out in Article 22a(2) of the UCITS

Directive.

Question 4: Performance of depositary functions where there are branches in other

Member States

Date last updated: June 2019

Question 4 Q&A 1211: Where the depositary of a UCITS is a branch and the head office is

established in a Member State other than the home Member State of the UCITS, to which

extent may the branch allocate its depositary functions (e.g. custody) to its head office in

compliance with the establishment requirement set out in Article 23(1) of the UCITS Directive?

Answer 4: The internal allocation of functions between the head office and the branches of a

depositary shall not lead to situations that may represent a circumvention of the establishment

requirement under Article 23(1) of the UCITS Directive. Therefore, the operational

infrastructure and internal governance system of such branches must be adequate to carry out

depositary functions autonomously from its head office and ensure compliance with national

rules implementing the UCITS Directive.

Question 5: Supervision of depositary functions in case of branches in other Member

States

Date last updated: June 2019

Question 5 Q&A 1212: Where depositary functions are performed by a branch established in

the home Member State of a UCITS other than the home Member State of the depositary’s

head office, who is responsible for supervising the activities of the branch relating to depositary

functions? Is it the competent authority of the Member State where the depositary’s head office

is established or the competent authority of the Member State where the branch is established?

Answer 5: The UCITS Directive, the CRD and the MiFID II do not grant any passport for

depositary activities in relation to UCITS. Hence, branches located in the home Member State

of the UCITS other than the home Member State of the depositary’s head office may also be

subject to local authorisation in order to perform depositaries activities in relation to UCITS.

Therefore, the competent authority of the Member State where the branch is established

should be responsible for supervising the activities of the branch with regard to depositary

functions in relation to UCITS. This includes the supervision of the allocation of depositary

functions from the branch to its head office or vice versa to avoid any possible circumvention

of the establishment requirement under Article 23(1) of the UCITS Directive.

Question 6: Delegation by a depositary to another legal entity belonging to the same

group

Date last updated: June 2019

Question 6 Q&A 1213: Where a depositary delegates some of its functions to another legal

entity which belongs to the same group, should this be considered a delegation for the

purposes of the application of the depositary delegation rules under Article 22a of the UCITS

Directive?

Answer 6: Yes. Legal entities within the same group of a depositary should be considered

‘third parties’ for the purpose of the depositary delegation rules under Article 22a of the UCITS

Directive.

Question 7: Reconciliation frequency for funds trading on a daily basis

Date last updated: July 2022

Answer provided by the European Commission in accordance with Article 16b(5) of the

ESMA Regulation

Question 7a Q&A 959: According to Article 89(1)(c) of Commission Delegated Regulation

(EU) No 231/2013 as modified by Commission Delegated Regulation (EU) 2018/1618 and

Article 13(1)(c) of Commission Delegated Regulation (EU) 2016/438 as modified by

Commission Delegated Regulation (EU) 2018/1619 reconciliations are conducted as

frequently as necessary between the depositary’s internal accounts and records and those of

any third party to whom safekeeping has been delegated. What does this mean for an AIF or

UCITS with a weekly dealing frequency which trades on a daily basis?

Answer 7a: The reconciliation frequency depends not only on the dealing frequency of the

relevant AIF or UCITS, but also on any trade which occurs even outside the dealing frequency.

Therefore, if an AIF or UCITS with a weekly dealing frequency trades on a daily basis, daily

reconciliations are required.

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.

Question 8: Reconciliations with tri-party collateral managers

Date last updated: July 2022

Answer provided by the European Commission in accordance with Article 16b(5) of the

ESMA Regulation

Question 8a Q&A 960: According to Article 89(1)(c) of Commission Delegated Regulation

(EU) No 231/2013 as modified by Commission Delegated Regulation (EU) 2018/1618 and

Article 13(1)(c) of Commission Delegated Regulation (EU) 2016/438 as modified by

Commission Delegated Regulation (EU) 2018/1619 reconciliations are conducted as

frequently as necessary between the depositary’s internal accounts and records and those of

any third party to whom safekeeping has been delegated. What does this mean in case of use

of a tri-party collateral manager, which is not the depositary?

Answer 8a: In this case the tri-party collateral manager is appointed by the asset manager in

accordance with Article 20 of Directive 2011/61/EU or in accordance with Article 13 of Directive

2009/65/EC; it also needs to be the delegate of the depositary in accordance with Article 21(11)

of Directive 2011/61/EU or in accordance with Article 22a(2) of Directive 2009/65/EC. The tri-

party collateral manager is required to transmit the end-of-day positions on a fund-by-fund

basis or, if applicable, on a compartment-by-compartment basis. The information provided

allows the depositary to record the end-of-day positions and allows it to comply with the

provisions (a) of Article 98(2a)(a) (as inserted by Delegated Regulation (EU) 2018/1618) and

in particular point (ii) thereof, and (b) with the provisions under Article 15(2a)(a) (as inserted

by Delegated Regulation (EU) 2018/1619), and in particular point (ii) thereof. Thus, the

information provided allows the depositary (for both Regulations) to verify that the quantity of

the identified financial instruments recorded in the financial instruments accounts opened in its

books matches the quantity of the identified financial instruments held in custody by the third

party.

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.

Section XI – ESMA’s guidelines on performance fees in UCITS and certain types of

AIFs

Question 1: Crystallisation of performance fees

Date last updated: March 2021

Question 1a Q&A 961: Based on paragraphs 40

and 41

of the guidelines on performance

fees in UCITS and certain types of AIFs (“Guidelines on performance fees”), should

performance fees be paid only at the end of the performance reference period of 5 years?

Answer 1a: No. The Guidelines on performance fees do not prevent to pay performance fees

during the performance reference period of 5 years and/or in the first years of a fund's

existence, in case the fund has not existed for 5 years.

By way of example, if on the crystallisation date of the fund (e.g. at the end of the second year

of existence of the fund), the fund has overperformed the reference indicator and there is a

positive accrual of performance fees those can be paid. In this case, the accrual will be

crystallised in the payment of the performance fees to the management company.

On the contrary, if on the crystallisation date of the fund (e.g. at the end of the third year of

existence of the fund) the fund has underperformed the reference indicator and as a

consequence there are no accrued performance fees, this underperformance is brought

forward for the purpose of the calculation of performance fees the following year. In this way,

compensation of negative performances is ensured over the years during a reference period

of 5 years.

Example:

• Crystallisation date: end of the second year of existence of the fund

Performance of the fund: 10%

Performance of the reference indicator: 5%

Overperformance: 5%

Performance fees can be paid to the management company

Paragraph 40) of the Guidelines on performance fees states that “In case the fund employs a performance fee model based on

a benchmark index, it should be ensured that any underperformance of the fund compared to the benchmark is clawed back

before any performance fee becomes payable. To this purpose, the length of the performance reference period, if this is shorter

than the whole life of the fund, should be set equal to at least 5 years.”

Paragraph 41) of the Guidelines on performance fees states that “Where a fund utilises a HWM model, a performance fee

should be payable only where, during the performance reference period, the new HWM exceeds the last HWM. The starting point

to be considered in the calculations should be the initial offering price per share. For the HWM model, in case the performance

reference period is shorter than the whole life of the fund, the performance reference period should be set equal to at least five

years on a rolling basis. In this case, performance fee may only be claimed if the outperformance exceeds any underperformances

during the previous five years and performance fees should not crystallise more than once a year”.

• Crystallisation date: end of the second year of existence of the fund

Performance of the fund: 10%

Performance of the reference indicator: 10%

Overperformance: 0%

No crystallisation of performance fees

• Crystallisation date: end of the third year of existence of the fund

Performance of the fund: 5%

Performance of the reference indicator: 10%

Underperformance: -5% (this underperformance should be taken into account in the

subsequent calculation of performance fees)

Not only performance fees cannot be paid but the underperformance of -5% should be brought

forward to the following year and clawed back before any performance fee can be paid (see

below)

• Crystallisation date: end of the fourth year of existence of the fund

Performance of the fund: 8%

Performance of the reference indicator: 5%

Overperformance: 3%

Underperformance from year 3: -5%

Global net performance: -2%

Not only performance fees cannot be paid but the underperformance of -2% should be brought

forward to the following year and clawed back before any performance fee can be paid

This should not prevent NCAs to require funds to apply stricter rules (e.g. to crystallise fees

only after 5 years or to apply reference periods longer than 5 years), bearing in mind that any

specific provision applying at national level in addition to the provisions set out in the guidelines

should not jeopardise the rules regarding funds’ cross border distribution

and the split of

competences between the home and host competent authority

to this regard.

Question 2: Timeline of the application of the performance reference period

Date last updated: March 2021

Question 2a Q&A 962: Paragraphs 40)

and 41)

of the Guidelines on performance fees

recommend that the length of the performance reference period

(if this is shorter than the

whole life of the fund) should be set equal to at least 5 years. How should the performance

reference period be set for the first time in light of the application date of the guidelines?

See Chapter XI of the UCITS Directive.

See Chapter XII of the UCITS Directive.

See footnote 19.

See footnote 20.

This is defined as “the time horizon over which the performance is measured and compared with that of the reference indicator,

at the end of which the mechanism for the compensation for past underperformance (or negative performance) can be reset”.

Answer 2a: Managers of any funds already compliant with paragraphs 40) and 41) of the

Guidelines on performance fees before the application date of the guidelines should look at

the past 5 years/whole life of the fund for the purpose of setting the performance reference

period (i.e. they should not reset the performance reference period after the application date

of the guidelines).

In all the other cases, managers should apply the performance reference period starting from

the beginning of the financial year following 6 months from the application date of the

Guidelines (i.e. the performance reference period should start at the beginning of the financial

year following 5 July 2021; by way of example, if the financial year of the fund starts on 1

September 2021, the period 1 September 2021 – 1 September 2022 should be considered as

the first year of the performance reference period).

Question 3: Performance reference period for the benchmark model

Date last updated: May 2022

Question 3a Q&A 963: Based on paragraph 40

of the Guidelines on performance fees, how

should the performance reference period

for the benchmark model

be set?

Answer 3a: Paragraph 40) of the guidelines recommends that:

i. any underperformance of the fund compared to the benchmark index should be clawed

back before any performance fee becomes payable; and

ii. the length of the performance reference period, if this is shorter than the whole life of

the fund, should be set equal to at least 5 years.

In order to comply with the above recommendations, it should be ensured that any

underperformance is brought forward for a minimum period of 5 years before a performance

fee becomes payable, i.e. fund managers should look back at the past 5 years for the purpose

of compensating underperformances.

In case the fund has overperformed the benchmark index, the fund manager should be able

to crystallise performance fees.

The following example illustrates the principles above (please note that the two tables below

relate to the same example, the first one illustrated through a graphical representation, while

the second one displayed in numerical terms):

See footnote 19.

See footnote 25.

This is defined as a performance fee model whereby the performance fees may only be charged on the basis of outperforming

the reference market index. See the definitions Section of the Guidelines on performance fees.

Net

performance

Underperformance to be

compensated in the

following year

Payment of

performance

fees

YES

-5%

-2%

YES

-10%

-8%

Y10

-6%

Y11

-4%

Y12

Y13

YES

Y14

-6%

Y15

-4%

Y16

-2%

Y17

-4%

-6%

The underperformance of Y12 to be taken forward to the following year (Y13) is 0% (and not -4%) in light of the fact that the

residual underperformance coming from Y8 that was not yet compensated (-4%) is no longer relevant as the 5-year period has

elapsed (the underperformance of Y8 is compensated until Y12).

Y18

-4%

Y19

YES

The following are additional examples aimed at further clarifying the mechanism of

compensation of underperformances:

i. in the case the net performance of the fund in Y18 was equal to 2% (instead of 0%),

the underperformance to be carried forward to the following year (Y19) would be equal

to -4%. This is in light of the fact that during Y18, the underperformance of -2% coming

from Y14 should still be compensated and, in addition to that, the performance of -4%

coming from Y17 should be brought forward to the following year.

ii. in the case the net performance of the fund in Y18 was equal to 5% (instead of 0%),

the underperformance to be carried forward to the following year (Y19) would be equal

to -1%. This is in light of the fact that the residual underperformance coming from Y17

that was not yet compensated (-1%) should be brought forward to the following year

(Y19).

iii. in the case the net performance of the fund in Y18 was equal to 7% (instead of 0%),

the net performance of the fund would compensate the underperformance of -6%

coming from Y17. The positive accrual of performance fees for the 1% difference would

therefore be crystallised in the payment of the performance fees to the management

company. There would be no underperformance to be carried forward to Y19.

This is in line with the principle in the guidelines that underperformance in a given year (e.g.

Y14) should still be compensated during a period which includes the fifth year following that

underperformance (Y18), while not be brought forward to the sixth year (Y19).

Question 4: Performance reference period in case of funds’ mergers

Date last updated: May 2021

Question 4a Q&A 964: How should the performance reference period

be set in case of a

merger where the receiving UCITS is a newly established fund with no performance history

and it is in effect a continuation of the merging UCITS?

Answer 4a: In order to ensure that the merger is not conducted with the aim of resetting the

performance reference period, in the case of a merger where the receiving UCITS is a newly

established fund with no performance history and the competent authority of the receiving

UCITS assesses that the merger does not substantially change the UCITS’ investment policy,

The underperformance of Y18 to be taken forward to the following year (Y19) is 4% (and not -6%) in light of the fact that the

residual underperformance coming from Y14 that was not yet compensated (-2%) is no longer relevant as the 5-year period has

elapsed (the underperformance of Y14 is compensated until Y18).

See footnote 25.

the performance reference period of the merging UCITS should continue applying in the

receiving UCITS.

Question 5: Application of the guidelines to funds with multiple portfolio managers

Date last updated: July 2021

Question 5a Q&A 965: In case the authorised management company has delegated the

portfolio management function to different delegated portfolio managers, would it be

admissible to pay a performance fee to those delegated portfolio managers who have

overperformed during the performance reference period, despite a global underperformance

of the fund during the same performance reference period?

Answer 5a:

No. Based on paragraph 37 of the guidelines, performance fees:

- should be paid only where positive performance has been accrued during the

performance reference period;

- could be paid in case the fund has overperformed the reference benchmark but had

a negative performance.

The above also applies in case of delegation by the authorised management company to

different delegated portfolio managers. Therefore, in case of a global underperformance of the

fund, performance fees should not be paid to those delegated portfolio managers who have

overperformed.

Question 6: Crystallisation of performance fees in case of the creation of a new

UCITS/compartment/share class in the course of the financial year

Date last updated: July 2021

Question 6a Q&A 966: In case of creation of a new compartment/share class in an existing

UCITS in the course of its financial year or in case of creation of a new UCITS, can

performance fees be crystallised after less than 12 months from the date of creation of such a

new UCITS/compartment/share class?

Answer 6a: No. Performance fees, if any, should be crystallised after at least 12 months from

the creation of a new UCITS/compartment/share class. Moreover, paragraph 35 of the

guidelines foresees that the crystallisation date should be the same for all share classes of a

fund that levies a performance fee.

Question 7: Performance reference period for the hurdle rate model

Date last updated: May 2022

Question 7a Q&A 967: Paragraphs 40

and 41

of the Guidelines on performance fees

recommend that the length of the performance reference period (if this is shorter than the

whole life of the fund) should be set equal to at least 5 years. Is this requirement applicable to

the hurdle rate model?

Answer 7a: Yes, as paragraph 42 of the guidelines

clarifies that the only exception to the

application of the 5-year performance reference period is “the fulcrum fee model and other

models which provide for a symmetrical fee structure”.

See footnote 19.

See footnote 20.

Paragraph 42 of the Guidelines states that “The performance reference period should not apply to the fulcrum fee model and

other models which provide for a symmetrical fee structure, as in these models the level of the performance fee increases or

decreases proportionately with the investment performance of the fund”.

Section XII – Costs and fees

Question 1: Fee rebate arrangements

Date last updated: November 2021

Answer provided by the European Commission in accordance with Article 16b(5) of the

ESMA Regulation

Question 1a Q&A 968: Do you agree that:

(i) restrictions under Article 29 of the Commission Directive 2010/43/EU

shall not be

applicable to a rebate arrangement, if management companies pay these rebates from their

own resources (payment vis-à-vis an individual investor)?

(ii) management companies may pay fees from their own resources to separate investors (e.g.

by concluding side letters with institutional investors, which buy investment fund units on behalf

of their clients), where management companies prevent undue costs being charged to the

UCITS and its unit-holders?

Answer 1a: No.

Article 29 of Commission Directive 2010/43/EU lays down strict conditions for fees or

commissions paid or received to/from a third party in relation to the activity of investment

management and administration of the UCITS. Those conditions ensure that management

companies act honestly, fairly and professionally. In particular, they ensure UCITS best

interests, investors’ fair treatment and the transparency of UCITS operations.

Management fee discount arrangements entail payments to certain investors based on the

fees charged by the UCITS management companies to remunerate investment management

and/or administration activities. As such, they should be analysed as payments for the activity

of the investment management and administration of the UCITS. Therefore, management

Question related to Articles 22 and 29 Directive 2010/43/EU (UCITS level 2)

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.

Commission Directive 2010/43/EU of 1 July 2010 implementing Directive 2009/65/EC of the European Parliament and of the

Council as regards organisational requirements, conflicts of interest, conduct of business, risk management and content of the

agreement between a depositary and a management company (OJ L 176, 10.7.2010, p. 42).

companies shall ensure that the conditions laid down in Article 29(1)(b) of Commission

Directive 2010/43/EU are satisfied:

“(i) the existence, nature and amount of the fee, commission or benefit, or, where the amount

cannot be ascertained, the method of calculating that amount, must be clearly disclosed

to the UCITS in a manner that is comprehensive, accurate and understandable, prior to

the provision of the relevant service;

(ii) the payment of the fee or commission, or the provision of the non-monetary benefit must

be designed to enhance the quality of the relevant service and not impair compliance with

the management company’s duty to act in the best interests of the UCITS;”

It follows from the above that, in particular:

(a) those arrangements should be transparent and meet the conditions laid down in Article

29(1)(b) of Commission Directive 2010/43/EU;

(b) management companies should demonstrate that:

(i) these arrangements will “enhance the quality of the relevant service” for the UCITS.

That requirement refers to the quality of the UCITS services to the benefit of all

investors and not only to investors who benefit from those arrangements;

(ii) those arrangements will “not impair compliance with the management company’s duty

to act in the best interests of the UCITS”. In particular, Article 22 of Commission

Directive 2010/43/EU sets out rules related to the “Duty to act in the best interests of

UCITS and their unit-holders”. Under that Article, management companies are bound

to treat all unit-holders fairly, act in the best interest of the unit-holders and to refrain

from placing the interest of any group of unit-holders above others. Therefore,

management companies should be able to justify that all investors pay their fair share

in the funds functioning (taking into account management fee discount) and the

UCITS cost structure. Those arrangements should not have a negative impact on

other investors.

Upon national competent authorities’ request, management companies should be able to

provide accurate and documented justifications.

Section XIII – Delegation

Question 1: Responsibility to ensure compliance with the rules governing marketing

communications

Date last updated: July 2022

Answer provided by the European Commission in accordance with Article 16b(5) of the

ESMA Regulation

Question 1a Q&A 969: When the marketing of an AIF or a UCITS is not performed by the

AIFM or UCITS management company but by a third party distributor, does the responsibility

for ensuring that marketing communications comply with the requirements set out in Article

4(1) of Regulation (EU) 2019/1156 lie with the AIFM or the UCITS management company

where there is a contractual relationship between the AIFM or the UCITS management

company and the third party distributor? Conversely, does the responsibility for ensuring that

marketing communications comply with the requirements set out in Article 4(1) of Regulation

(EU) 2019/1156 still lie with the AIFM or the UCITS management company in case there is no

contractual relationship with the third party distributor?

Answer 1a: Marketing is one of the functions included in the management of funds, and

therefore subject to the provisions on delegation (Article 13 of Directive 2009/65/EC and Article

20 of Directive 2011/61/EU), which themselves govern the conditions for that delegation under

the principle of full responsibility of fund managers.

Article 1 of Regulation (EU) 2019/1156 specifies that the aim of this Regulation is to establish

uniform rules on the publication of national provisions concerning marketing requirements for

collective investment undertakings and on marketing communications addressed to investors.

These requirements are laid down in Article 4 of this Regulation, and are further clarified in

ESMA Guidelines.

Fund managers are responsible for the compliance with Article 4 of Regulation (EU)

2019/1156, irrespective of who is the actual entity marketing the fund, and of the relationship

it has with the third party distributor (whether it is contractual or not).

The answers provided by the European Commission clarify provisions already contained in the applicable legislation. They do

not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements

for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons,

including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant

legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views

expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before

the Union and national courts.