On December 30th 2014, the Luxembourg Supervisory Authority for the Financial Sector ("CSSF") published its "Frequently Asked Questions in relation to investment funds established in Luxembourg concerning the Law of 28 July 2014 regarding immobilisation of bearer shares and units" (the "FAQ").
The purpose of the FAQ is to draw the investment fund sector's attention to the implications of the law of July 28th 2014 regarding the immobilisation of bearer shares and units (the "2014 Law") for regulated investment fund structures and for investors.
Pursuant to the 2014 Law, all regulated investment funds (which include UCITS, Part II UCIs, SIFs and SICARs) under the corporate form of a société anonyme or a société en commandite par actions and those which are constituted as fonds commun de placement and which issue or have issued bearer shares/units (hereafter the "Impacted Investment Funds") must appoint a depositary which shall keep those bearer shares/units in custody (the "Depositary").
Impacted Investment Funds shall appoint a Depositary before February 18th 2015 in respect of those bearer shares/units in existence as of the date of entry into force of the 2014 Law (i.e. August 18th 2014).
Impacted Investment Funds issuing bearer shares/units after August 18th 2014 are required to appoint a Depositary immediately.
The Depositary can be any entity from the list of regulated professionals enumerated in article 42 (2) of the law of August 10th 1915 on commercial companies as amended by the 2014 Law.
Such list includes, among others, traditional investment fund service providers. Impacted Investment Funds may therefore appoint their current service providers (such as the registrar and transfer agent or the custodian bank).
Non-compliance with the 2014 Law may result in criminal prosecutions against the persons composing the management board of the Impacted Investment Funds.
Investors on their side are required to deposit their bearer shares/units with the Depositary. Bearer shares/units which are not deposited on February 18th 2015 with the Depositary shall have their voting rights suspended and payment of distributions will be deferred. On February 18th 2016, in case of non-compliance with the obligation to deposit, such shares/units shall be cancelled by the Impacted Investment Fund and their value deposited with the Luxembourg Caisse de Consignation.
"Impacted Investment Funds have to inform their investors."
Impacted Investment Funds are required to inform their investors about the deadlines and implications of the 2014 Law by amending their prospectus and also by other adequate means such as the usual means used by the fund to communicate with its unit-/shareholders.
