European passport for ESISs, IICS and SGIICs

European Passport for IFs

It’s the simplest regime of all. The IFs authorised in one Member State can operate in any other State. It can act through the freedom of establishment (branch) or through the freedom to provide services. The supervisory regime is divided between the two competing state supervisors. The home state supervisor will monitor the solvency of the IFs. The host supervisor will ensure that the IFs operates in accordance with the rules.

• Departure of Spanish IFs to other Member States:

It can, as mentioned above, operate through a branch in the host state or through the freedom to provide services. The IFs must inform the CNMV about its willingness to exit. The CNMV will then initiate an exchange of information with the host State authority.

• Entry of IFs from Member States into Spain:

Same system as for the exit of Spanish IFs, but in the opposite direction. The foreign IFs must communicate to its home State authority its willingness to operate in Spain. The home authority will initiate an exchange of information regarding the IFs with the CNMV

European Passport for CISs and CISMCs

• Departure of Spanish CISs and CISMCs to other Member States:

Spanish CISs must submit to the CNMV the information set out in Article 16 LIICs. Once submitted, they may market their shares or holdings in another Member State.

A distinction must be made for the CISMCs:

• • CISMCs authorised under Directive UCITS 2009/65/EU:

Spanish CISMCs wishing to operate in another Member State are free to do so. They can choose to market either through a branch or under the freedom to provide services. In both cases they must comply with the communication procedure set out in Articles 54 LIIC and 121 RIIC.

• • CISMCs authorised under Directive FIA 2011/61/EU:

In this case, these CISMCs will also be able to operate freely, but a distinction must be made between the type of CISs to be marketed:

If the CISs marketed are Community CISs, the CISMCs must communicate the relevant information to the CNMV. In particular, this information is set out in Article 54 bis of the LIIC. The information required by this article is:

• • • Specify the host State.
    • Programme of activities. It must include the investment services to be provided and the CISs to be managed.

  • In case of operating through a branch, it must also communicate:

• • • The organizational structure of the Branch
    • Address in the home Member State of the CISs where documentation can be obtained
    • Name and contact details of the persons responsible for the branch.

• • If the CISMCs marketed is non-EU, the following conditions must be met:

1. 1. 1. The CISs must meet all the requirements laid down by the LIIC for the type of CISs it will manage; and
      2. There must be cooperation agreements between the CNMV – competent authority in the non-Member State where the marketed CISs is located.

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• Entry of CISs and CISMCs from Member States into Spain:

Depending on the type of CISs, a distinction must be made between:

• • Harmonized CISs in accordance with the UCITS Directive 2009/65/EU:

The transfer in Spain of the shares and holdings of these CISs is free.

• • Non-harmonized CISs:

In order to market them, they must prove to the CNMV that they comply with the legal and regulatory requirements, in accordance with article 15 LIIC.

Depending on the type of CISs, a distinction must be made between:

• • CISMCs authorised in accordance with Directive UCITS 2009/65/EU.

Similar regime to the exit of Spanish CISMCs to another Member State

• • CISMCs authorised under FIA Directive 2011/61/EU

Similar regime to the departure of Spanish CISMCs to another Member State

Conclusions

It is indisputable that the European Single Market has favoured the development of the economy in the European Union. But until the harmonisation of regulations on investment, these advantages were not felt in this sector. Particularly relevant are the above-mentioned UCITS 2009/65/EU and FIA 2011/61/EU Directives. Even with this, there is still a way to go before the free market in investment is completed.

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