COLLG 1
Overview
COLLG 1.1
Introduction
- 01/12/2004
About this guide
COLLG 1.1.1
See Notes
(1) This Collective Investment Scheme Information Guide (COLLG) contains some key facts on the regulation of collective investment schemes in the United Kingdom. It will
be of interest primarily to those who wish to gain a general understanding
of the regulatory regime governing these schemes.
(2) This guide is intended to complement the rules and guidance in the New Collective Investment Schemes sourcebook (COLL) and explains
how an authorised firm should
go about applying for authorisation of a scheme under
the Act and
the OEIC Regulations.
(3) This guide does not contain information on unregulated schemes. Such schemes cannot be marketed to the general
public and are otherwise restricted in their promotion.
(4) The material in this guide is intended as a summary only of a number of significant legal provisions
affecting authorised collective
investment schemes. It does not constitute guidance under sections 157 and 158 of the Act and does not have the
status of the guidance in the Handbook.
This also means that GEN 2.2 (Interpreting
the Handbook) does not apply. If you have any doubt about any legal provision
you should seek appropriate legal advice from your legal adviser.
(5) This guide italicises words that are defined in the Glossary that forms part
of the Handbook.
For the full definition of the term, the reader should consult the Glossary.
(6) The Overview is current as of May 2004. The Overview does not remove the need
for firms to keep up-to-date with regulatory developments
and to consider the potential impact on business of proposed changes, for example, the regulatory framework
of changes required by further European initiatives.
Structure of collective investment regulation in the UK
COLLG 1.1.2
See Notes
(1) There are three broad levels of regulation of collective investment schemes in the United Kingdom. These can be summarised as European, HM Government and the FSA. They should be viewed as a hierarchy of rules that, at each level, deals with more specific aspects of collective investment scheme regulation.
(2) European collective investment scheme product regulation was introduced in 1985 by the UCITS Directive and this has been updated by amendments to the Directive which came into force in February 2004. If a UK scheme complies with the Directive's provisions (a UCITS scheme) it can be promoted throughout the EEA. However not all regulated collective investment schemes are UCITS schemes. COLLG 2 provides more detail on the scope and contents of the UCITS Directive.
(3) The main Government legislation is the Act (under which AUTs operate) and the OEIC regulations (under which ICVCs operate). COLLG 3 provides details on the FSA's responsibilities under the Act, how a firm may go about applying for authorisation of a unit trust or recognition of an overseas scheme and what notifications are required to the FSA in terms of changes to those schemes. COLLG 4 provides details on the FSA's responsibilities under the OEIC regulations, how a firm may go about applying for authorisation of an ICVC and what notifications are required to the FSA in respect of changes to the ICVC.
What are regulated collective investment schemes?
COLLG 1.1.3
See Notes
Under section 238 of the Act (Restrictions
on promotion), only certain kinds of collective
investment schemes may be promoted to the public by authorised persons. These
are:
(2)
collective
investment schemes constituted outside the United Kingdom and recognised by the FSA under:
(a) section 264 of the Act (Schemes
constituted in other EEA
States) - these are schemes that
qualify under the UCITS
Directive;
(b) section 270 of the Act (Schemes
authorised in designated countries or territories); and
(c) section 272 of the Act (Individually
recognised overseas schemes).
What are ICVCs?
COLLG 1.1.4
See Notes
(1) An ICVC is the UK-based form of an open-ended investment company as defined by section 236 of the Act (Open-ended investment companies). Section 262 of the Act (Open-ended investment companies) empowers the Treasury to make provisions relating to open-ended investment companies (the OEIC Regulations) which enable the establishment of ICVCs. Paragraph 1 (3) of Schedule 5 to the Act states that an authorised open-ended investment company is an authorised person. So, an ICVC is an authorised person.
(2) An ICVC is constituted by an instrument of incorporation. Regulation 15(4) of the OEIC Regulations requires an ICVC to have at least one director. A person who is a sole director of an ICVC must be an authorised corporate director ('ACD'). A depositary must take responsibility for the safekeeping of the scheme property and the ACD and depositary must be independent of each other. Under regulation 14 of the OEIC Regulations the FSA may authorise an ICVC by making an authorisation order.
What are AUTs?
COLLG 1.1.5
See Notes
(1) Under section 237 of the Act, (Other definitions), a unit trust scheme is a collective investment scheme under which the property is held on trust for the participants by the trustee. An AUT is constituted by a trust deed, entered into by the manager and trustee. Under section 243(4) of the Act, (Authorisation orders) they must be independent of each other and COLL 6.9 (Ongoing responsibilities) provides guidance on what the FSA consider independence means. The FSA may authorise an AUT by making an authorisation order.
Duties and responsibilities of the authorised fund manager and depositary
COLLG 1.1.6
See Notes
(1) The OEIC Regulations include
requirements that the business of an ICVC be
managed:
(a) in accordance with the FSA
rules; and
(b) where there is only one director,
that director must
be a body corporate with
the permission to act as a director of an ICVC.
Content of COLL 6.6 (Powers and duties of the scheme, the authorised fund manager, and the depositary)
COLLG 1.1.7
See Notes
(1)
COLL 6.6 includes rules:
(b) requiring the depositary to
check that the authorised
fund manager carries out certain of its functions in accordance
with the applicable rules in this sourcebook;
(d) requiring firms to
avoid conflicts of interest that could prejudice investors; and
(2) For an ICVC,
the depositary and
the directors are
required to comply with the OEIC
Regulations and the rules in
this sourcebook and, in accordance with paragraph 6(1) of Schedule 2 to the OEIC Regulations, are
also bound by the provisions of the instrument
constituting the scheme.
(3) The directors (including
the ACD) and
the depositary of
an ICVC may each to the extent permitted by this section, retain the services of others to assist
them to perform their respective functions. Where there is a vacancy in the position
of an ACD,
the directors should
appoint one or more authorised
persons to assist them in performing the functions that the ACD would otherwise be required
to perform. Where there are no directors,
the depositary's powers
are extended, temporarily, to enable it to manage the scheme property.
COLLG 2
European Legislation
COLLG 2.1
Introduction
- 01/12/2004
Background and scope
COLLG 2.1.1
See Notes
(1) This section summarises the scope and content of the UCITS Directive, as amended. The Directive establishes a degree of harmonisation of EEA states' laws governing:
(a) the activities of management companies;
(b) the schemes they manage; and
(c) how their schemes' units are sold to the public.
(2) The main topics governed by the Directive and summarised in this section concern:
(a) the general scope of the Directive;
(b) obligations of the management company and depositary;
(c) investment and borrowing power limits;
(d) information for investors,
(e) how the management passport works; and
(f) marketing requirements.
General scope of the UCITS Directive
COLLG 2.1.2
See Notes
(1) The Directive is only relevant to open-ended collective vehicles that promote to the general public, so schemes that are restricted in their promotion fall outside the Directive's scope. Furthermore, the Directive applies to any collective investment scheme falling within its scope, regardless of whether it is promoted in other EEA States.
(2) The Directive does not cover collective investment schemes that are authorised in an EEA state with different investment and borrowing powers to those covered by the Directive. So, investment in real property and commodities are not within the Directive's scope.
Obligations on the management company and depositary
COLLG 2.1.3
See Notes
(1) The UCITS Directive identifies the management company and depositary and assigns certain requirements to each. For management companies, the Directive lists the types of activities such firms undertake. As a result, the FSA has identified the authorised fund manager as the UCITS management company. So, a UK firm which wishes to operate a UCITS scheme must first seek authorisation as a UCITS management company.
(2) In addition, the Directive imposes certain conduct of business and financial resources rules on the management company. The conduct of business rules are very similar to the rules placed on ISD firms and can be found in COB. The financial resources rules can be found in IPRU(INV) 7, and are different to those for ISD firms.
(3) For depositaries, the Directive states they must be subject to 'Public control' and provide 'sufficient financial and professional guarantees'. Depositaries are responsible for the safe keeping of a scheme's assets and for ensuring that sales, redemptions, cancellation and issue of units and calculation of the value of units are effected in accordance with the law and rules of the scheme.
(4) Two principal rules govern the relationship between a management company and the depositary of a scheme. Firstly, no single company may act in both capacities. Secondly, they must act independently of each other and, apart from management of a UCITS scheme, a UCITS management company cannot engage in any activities other than:
(a) management of other collective investment schemes;
(b) managing investments, and
(c) advising on investments and carrying out safeguarding and administering collective investment scheme units where it has permission to manage investments.
COLLG 2.1.4
See Notes
[not used]
Investment and borrowing power limits
COLLG 2.1.5
See Notes
(1) The Directive states the types of assets a scheme can invest in. These are:
(b) money market investments;
(c) deposits;
(d) derivatives and forwards; and
(e) units in other collective investment schemes.
(2) Within this range of investment assets there are some detailed spread and concentration rules. The main requirements can be summarised as:
(a) no more than 5% in transferable securities or money market instruments with one issuer. This can be raised to 10% but only in respect of a maximum 40% of the scheme value;
(b) no more than 20% in deposits with one body;
(c) 100% may be invested in other schemes provided:
(i) they meet the requirements of the UCITS Directive, otherwise there is a limit of 30% in schemes offering equivalent protection to investors; and
(d) no more than 20% in transferable securities and money market instruments within one group,
(e) no more than 20% with a single body from any combination of transferable securities or money market instruments, deposits, or OTC derivatives, and
(f) no more than 5% OTC derivative exposure to one counterparty, or 10% where the counterparty is an EEA credit institution or is subject to equivalent prudential supervision.
(3) Where a scheme has the investment objective of replicating the composition of a qualifying index, it may have an exposure of up to 20% in any issuer or exceptionally up to 35% (but only for one issuer). A qualifying index is one which has a sufficiently diversified composition, is a representative benchmark for that market, and is published in an appropriate manner.
(4) Where derivatives are to be used within a scheme, a specific risk management system must be employed by the scheme operator to monitor the risk of all derivative positions. Details of this risk management system and any significant change to it must be sent to the FSA by the authorised fund manager. The exposure to all derivative transactions must not exceed the current net asset value of the scheme. The underlying assets representing any derivative position must be taken into account in applying the spread of limits above. This does not apply in the case of any derivative which is on a qualifying index.
Information to investors
COLLG 2.1.6
See Notes
(1) The Directive sets out which documents must be made available or offered to investors. The three main documentary requirements are:
(a) the full prospectus,
(b) the simplified prospectus, and
(c) report and accounts.
(2) The full prospectus requirements are covered in Annex A of the Directive and provide detailed information on the main parties involved in operating the scheme, the investment objectives and policy of the scheme and general day-to-day operating matters such as dealing times and income allocation.
(3) In addition to the full prospectus, the management company must publish a marketing document (the "simplified prospectus").This must be offered to any prospective investor free of charge before the conclusion of any contract for the purchase of units in that scheme. Most of the required contents for the simplified prospectus are set out in Schedule C of the Directive. Schedule C sets maximum rather than minimum requirements and is intended to provide a standardised document to be used for selling schemes that meet the requirements of the UCITS Directive throughout the EEA.
(4) Report and accounts must be prepared on a half yearly and annual basis and the latest report must be supplied to investors free of charge on request. They must also be available at the places specified in the full and simplified prospectus. The required contents for the report and accounts are set out in Schedule B of the Directive.
The management passport
COLLG 2.1.7
See Notes
(1) Section III of the UCITS Directive provides the framework for a management company to provide services by way of a branch or cross border services in another EEA state.
(2) UK firms which are UCITS management companies can operate in other EEA states similar to ISD firms. SUP 13 will be of particular relevance and explains the process such firms need to follow to provide services in other EEA states.
(3) Non-UK management companies are defined in the Handbook as EEA UCITS management companies. The manager will be a UCITS qualifier, and so be an authorised person under Schedule 5 to the Act, if it carries out scheme management activity and activity in connection with the operation of the scheme only. If the manager of such a scheme wishes to undertake the passported activities of managing investment (other than of a collective investment scheme), investment advice or safekeeping and administration of investments, as provided by article5(3) of the UCITS Directive, as well as scheme management activity, it will need to do so in accordance with an authorisation conferred by Schedule 3 to the Act and should refer to the procedures in AUTH 5 and SUP 14 accordingly.
Marketing requirements (for UK firms)
COLLG 2.1.8
See Notes
(1) Section VIII of the UCITS Directive provides the framework for a UCITS scheme to undertake marketing in another EEA State. A UCITS scheme is required to comply with the marketing and advertising rules in the relevant Host State (Article 44). And is also required to maintain facilities in the Host State (Article 45).
(2) Certain documents must be provided to the overseas regulator in the relevant EEA State. The documents have to be provided at the same time as notification of the proposal to market there. The UCITS scheme may begin marketing two months following notification (Article 46) unless the Host State objects within that period.
(3) The relevant information and documents distributed in the Host State are required to be the same as those that the UCITS scheme provides in its Home State. The documents must be published in an official language of the Host State or another language if approved by the relevant overseas regulator (Article 47). So, COLL 4.2 (Pre-sale notifications) and COLL 4.5 (Report and accounts) will apply.
(4) If the UCITS scheme is being marketed in another EEA State, the publication of prices in the Host State is required (Article 34). COLL 6.3.11 (Publication of prices) will be applicable in this case.
COLLG 3
The FSA's responsibilities under the Act
COLLG 3.1
Introduction
- 01/12/2004
COLLG 3.1.1
See Notes
Marketing of schemes in the UK (section 238)
COLLG 3.1.2
See Notes
Application for authorisation (section 242 and 243)
COLLG 3.1.3
See Notes
(1) Applications for authorisation of a UK unit trust, need to be made by the manager and trustee, who need to:
(a) be persons authorised under the Act with a Part IV permission to act as manager and trustee respectively;
(b) submit a joint application giving details of themselves and the scheme;
(c) be independent of each other (see COLL 6.9 (Ongoing obligations) which provides guidance on independence;
(d) provide a copy of the trust deed;
(e) a business plan;
(f) provide a solicitor's certificate stating that the trust deed complies with the rules made under section 247 of the Act (Trust scheme rules); and
(g) submit a copy of the prospectus and simplified prospectus.
(2) The name of the scheme must not be undesirable or misleading and its purpose must be reasonably capable of being successfully carried into effect). COLL 6.9 (ongoing obligations) provides guidance on misleading names.
(3) Application forms are available free of charge from the forms page. An application fee is payable (see COLL 10 (fees)).
(4) Under section 244 of the Act (Determination of applications), the FSA has up to 6 months in which to consider a completed application following its receipt and must inform the manager and trustee of its decision within that timescale. In practice, the FSA aim to process a completed application relating to a UCITS scheme within 6 weeks. If the FSA is satisfied with the application, an authorisation order is issued for the scheme.
(5) If the FSA propose to refuse an application, it must give a warning notice which will contain the reasons for the refusal. If, having given the warning notice, it decides to re-use the application, a decision notice will be sent and the applicant may refer the matter to the Tribunal.
COLLG 3.1.4
See Notes
(1) The FSA can
revoke an authorisation
order declaring a unit trust to be authorised if:
(a) the requirements of authorisation are no longer satisfied; or
(b) the manager or trustee has contravened
any provision of the Act or
any rules or
regulations made under it, or has given false or misleading information to
the FSA;
or
(c) no regulated
activity is being carried on in relation to the scheme and the period
of that inactivity began at least twelve months earlier;
or
(d) it is undesirable for investors or potential investors that the unit trust continues;
(2) The FSA may
refuse to revoke an authorisation
order if it considers:
(a) that any matter should be investigated prior to revocation;
(b) that revocation would not be in the interests of investors; or
(c) that revocation would be incompatible with the UCITS Directive.
(3) If the FSA proposes
to revoke an authorisation
order, a separate warning
notice will be sent to the manager and trustee. The same procedures
as stated for refusal of authorisation, in relation to the
warning
notices
and
decision notices, will apply.
Notification of changes to unit trusts (section 251)
COLLG 3.1.5
See Notes
(1) The manager must
give written notice to the FSA when:
(a) an alteration to the unit trust is proposed; and
(b) it is proposed the trustee retires.
(2) Any proposal that involves a change in the trust deed must be accompanied by a solicitor's
certificate stating that the change will not affect the compliance of the
deed with the rules.
Powers of intervention (section 257 and section281)
COLLG 3.1.6
See Notes
The FSA has powers of intervention if there is a breach of the Act or COLL, or if it is in the interest of unitholders or potential unitholders in a scheme. In respect of an AUT, directions can be made for the manager to suspend the issue and redemption of units or wind up the scheme.
Scheme particulars (section 248)
COLLG 3.1.7
See Notes
The Act empowers
the FSA to
require a manager to
publish scheme particulars. Details relating
to the timing of publication, how and when they must be offered to prospective
investors, and their content is contained in
COLL 4 (Investor
relations) which refers to the scheme
particulars as a prospectus.
Recognition of overseas schemes (section 264, 270 and 272)
COLLG 3.1.8
See Notes
(1) Recognition by the FSA enables overseas schemes to be marketed to the public in the United Kingdom.
(2) Section 264 covers schemes constituted in another EEA State that are certified by their Home State as meeting the requirements of the UCITS Directive. The scheme becomes recognised unless, within two months of receiving written notice of the intention to market into the United Kingdom, the FSA notifies the applicant and its Home State regulator that the manner in which the invitation is to be made (to the public) does not comply with UK law. Such schemes cannot be marketed to the public in the United Kingdom before the two month period is over. (Information and documents to be supplied with a section 264 notification) provides specific details.
(3) If there is a change in the information supplied to the FSA in accordance with COLL 9.2.1 G following initial recognition, the FSA wishes to be notified of such changes and revised documents (certified as true copies) should be sent.
(4) Section 270 covers schemes that are managed in and authorised under the law of a country or territory outside the United Kingdom that has been designated for this purpose by an order made by the Treasury ("the Designation Order"). These are currently Jersey, Guernsey, the Isle of Man and Bermuda. Notification forms are available, free of charge, at the FSA website and COLL 9.3 (Section 270 and 272 recognised schemes) provides further information on the documents to be supplied to the FSA. The scheme becomes recognised on the FSA's written approval or automatically after two months from notification. It should be noted that the Treasury:
(a) retains responsibility for the designation of countries or territories and must be satisfied that their laws and practices relating to the authorisation and regulation of their collective investment schemes provide a level of protection at least equivalent to that provided under the Act;
(b) must be content that adequate arrangements exist for co-operation between regulators in each country or territory and the FSA; and
(c) may request the FSA to provide a report on the regimes of regulation in existing or prospective designated territories.
(5) Section 272 covers overseas schemes that are not recognised by virtue of section 264 or section 270. The FSA may make an order declaring the scheme to be recognised if it is satisfied that the scheme will afford adequate protection (i.e. a similar level of protection to that provided under the Act) for investors and the arrangements for the scheme's constitution and management and the powers and duties of the operator and of any trustee or depositary are also "adequate". In deciding what is adequate, the FSA will consider the rules applicable to AUTs or ICVCs). Section 272 applications require detailed and rigorous analysis of all aspects of the scheme and the level of investor protection provided by the regime under which the scheme operates. So the FSA has 6 months in which to determine a complete application. Details of the information and documents required for a section 272 application can be found in COLL 9.3 (Section 270 and 272 recognised schemes).
Subsequent notification in respect of schemes recognised under sections 270 and 272 of the Act
COLLG 3.1.9
See Notes
(1) The FSA wishes
to be informed of changes in the information supplied by the operator of a section
270 or section 272 scheme under COLL
9.3.1 D
(2) Any revised documents sent
under (1) should be certified as true copies of the originals and accompanied,
where relevant, by written evidence of the approval of the overseas regulator to the change.
- 01/12/2004
Refusal of approval: schemes recognised under section270 and 272 of the Act
COLLG 3.1.10
See Notes
- 01/12/2004
Revocation of recognition of overseas schemes (section 279)
COLLG 3.1.11
See Notes
(1) If the operator of a scheme recognised under section 264 gives written notice to the FSA under section 264(6) that it desires the scheme to no longer be recognised, then the scheme ceases to be recognised.
(2) Under section 279, the FSA may direct that a scheme shall cease to be recognised under section 270, or revoke its recognition under section 272, on similar grounds to those provided for in the revocation of authorised funds under section 254.
(3) If the FSA proposes to give a direction under section 279 or to revoke a scheme's recognition, it will give a warning notice. Should the FSA decide to give a direction or revoke recognition, it will issue a decision notice. Thereafter, the matter may be referred to the Tribunal.
Scheme facilities in the UK(section 283)
COLLG 3.1.12
See Notes
- 01/12/2004
COLLG 4
The FSA's Responsibilities under the OEIC Regulations
COLLG 4.1
Introduction
- 01/12/2004
COLLG 4.1.1
See Notes
Section 262 of the Act provides for the Treasury to make regulations
governing the establishment and regulation of ICVCs. Rather than merely adopting various
parts of UK company
law, the Treasury chose a 'stand alone' approach for its OEIC Regulations. The
main features and practical effects of those regulations are outlined below.
- 01/12/2004
Applications for authorisation (Regulations 12 - 17)
COLLG 4.1.2
See Notes
(1) The FSA requires
an application for authorisation to be made by the ACD and
Depositary, who must:
(a) be persons authorised under the Act with the appropriate
permission under Part
IV of the Act (Permission
to carry on regulated activities);
(b) submit a joint application giving details of themselves, any other person proposed as a director of the ICVC;
(c) be independent of each other;
(d) provide a copy of the proposed ICVC's instrument of incorporation;
(e) a business plan;
(f) provide a solicitor's certificate to the effect that the instrument of incorporation complies
with Schedule 2 to the OEIC
Regulations and with COLL;
and
(2) The name of the ICVC must
not be undesirable or misleading and must not be the same as an existing company.
Regulation 19 includes a list of words and expressions that are prohibited
from inclusion within the name of an ICVC and
further guidance can
be found in COLL 6.9 (Ongoing obligations).
As with AUTs the
aim of the ICVC must
be reasonably capable of being achieved.
(3) As with AUTs,
the FSA has
up to 6 months to
determine a completed application, but aims to process an application within
6 weeks for UCITS schemes.
If the FSA is
satisfied with the application, an authorisation
order is issued. The ICVC becomes incorporated when the authorisation order is
issued.
Notification of changes to ICVCs (Regulation 21)
COLLG 4.1.3
See Notes
(1) The FSA's approval is required before the following
changes can take place:
(a) any alteration to the instrument
of incorporation;
(b) any alteration to
the prospectus that would
be of significance;
(c) any reconstruction or amalgamation involving the ICVC;
(d) any proposal to wind up the ICVC otherwise
than by court;
(e) any proposal to replace a director, to appoint an additional director, or decrease
the number of directors in
post; and
(f) any proposal to replace the depositary.
(2) Any notice proposing to change the instrument of incorporation must be accompanied
by a solicitor's certificate confirming that the change will not affect
compliance of the instrument with schedule2 to the OEIC
Regulations and COLL as they relate to the contents of the
instrument.
Revocation of authorisation (Regulation 23)
COLLG 4.1.4
See Notes
The FSA can revoke an authorisation order or refuse to revoke an authorisation order on similar grounds to those for an AUT. If it proposes to do so, similar procedures for warning notices and decision notice as for AUTs apply.
Power of intervention (Regulation 25)
COLLG 4.1.5
See Notes
The FSA has
a power of intervention if it appears there is a breach of the Act or COLL, or it is desirable to give a direction to protect the interests of
investors in the ICVC.
Directions can be given to cease the issue or redemption of units or any class of unit in
the ICVC or
for the winding up of the ICVC.
Corporate Code
COLLG 4.1.6
See Notes
(1) Certain provisions of the Companies Acts will apply to ICVCs, as they are incorporated
bodies (especially, but not exclusively, regarding the holding of meetings).
(2) Regulations 34 to 70 lay down the corporate code for ICVCs. The code contains
provisions dealing with the operation of ICVCs and
includes a number of general company law provisions, for example personal
liability for contracts and deeds and punishment for fraudulent trading. The
operation of an ICVC is
also governed by COLL.
- 01/12/2004
The FSA's Registration Function
COLLG 4.1.7
See Notes
In accordance with Part IV of the OEIC Regulations, the FSA is required to maintain
a register of ICVCs,
allocate to each a registered number, and carry out certain other registration
functions,
including publication in the London or Edinburgh Gazette of the issue or receipt
by the FSA of
those documents as listed in regulation 78.
COLLG 5
The COLL sourcebook
COLLG 5.1
Introduction
- 01/12/2004
COLLG 5.1.1
See Notes
(1) COLL is a specialist sourcebook that sits in Block 5 (specialist sourcebooks) of the FSA Handbook. It provides the detailed framework within which authorised funds operate and includes requirements relating to what certain overseas schemes must provide by way of facilities in order to recognised schemes.
(2) Until 13 February 2007, COLL is optional for any person seeking authorisation of a scheme, as they may apply for authorisation of the scheme under the Collective Investment Schemes sourcebook (CIS). CIS will cease to apply after 13 February 2007 and firms already operating schemes under CIS will need to comply with COLL by that date.
The Collective Investment Schemes Sourcebook information guide
COLLG 5.1.2
See Notes
Some parts of this sourcebook relate only to ICVCs and some parts only to AUTs. However, most of this sourcebook covers both ICVCs and AUTs. So, some of the defined terms included relate equally to both ICVCs and AUTs (together defined as "authorised funds"). Other key examples of these terms are:
(1) "authorised fund manager", which refers to both the ACD of an ICVC and the manager of an AUT. (The term "ACD" is used only for an ICVC and the term "manager" is used only for an AUT);
(2) "depositary", which, when used for an authorised fund, refers to both the depositary of an ICVC and the trustee of an AUT;
(3) "unit", which according to the context, can refer to a "share" in an ICVC, a "unit" in an AUT, or the rights or interests of participants in other types of collective investment scheme.
Outline of the content of COLL
COLLG 5.1.3
See Notes
(1) COLL 2 (Authorised funds applications) sets out the initial application requirements for authorised funds and the rules concerning notifications which need to be made to the FSA in its role as registrar of ICVCs.
(2) COLL 3 (Constitution) includes requirements regarding the contents of the instrument constituting the scheme for authorised funds that are retail schemes and other matters relating to their constitutional features, such as classes of units.
(3) COLL 4 (Investor relations) includes consumer-facing material relating to authorised funds that are retail schemes. So, material on the prospectus and reports and accounts is included in that chapter, together with rules relating to when unitholders must be notified of events and when meetings of unitholders are required.
(4) COLL 5 (Investment and borrowing powers) requires authorised funds that are retail schemes, their authorised fund managers and depositaries, to comply with rules on the investment composition of the scheme. It is split into three:
(a) COLL 5.1 to COLL 5.3 implement the UCITS Directive requirements which require quality, spread and counterparty limits to be imposed on funds investing in asset classes covered by the Directive;
(b) COLL 5.4 provides rules on stock lending;
(d) COLL 5.6 provides risk-spreading rules for schemes that are not UCITS schemes but are nevertheless authorised funds capable of being promoted to retail investors (for non-UCITS retail schemes).
(5) COLL 6 (Operating duties and responsibilities) contains rules on the day-to-day operation of authorised funds. In particular:
(c) COLL 6.4 provides requirements relating to the register of unitholders in an AUT (see the OEIC Regulations for ICVCs) and plan register;
(d) COLL 6.5 sets out rules relating to the appointment and replacement of the authorised fund manager and depositary;
(f) COLL 6.7 lays down conditions concerning charges and expenses when investors buy or sell units and when such payments are made out of the scheme property;
(6) COLL 7 (Suspension of dealings and termination of authorised funds) includes the requirements for suspension of dealing in the units of authorised funds and how they may be wound up (including termination of sub-funds).
(7) COLL 8 (Qualified investor schemes) provides requirements for authorised funds which cannot be promoted to retail investors.
(8) COLL 9 (Recognised schemes) includes rules and guidance on notification procedures for recognised schemes.
(9) COLL 10 (Fees) sets out the application and periodic fees payable.
Related Sourcebooks
COLLG 5.1.4
See Notes
(1) Establishing, operating or winding up a collective investment scheme constitutes a regulated activity. No person may carry on a regulated activity by way of business in the United Kingdom, or purport to do so, unless he is an authorised person (or an exempt person). This prohibition is referred to in the Act as the general prohibition. Guidance for persons considering carrying on regulated activities in the United Kingdom can be found in AUTH. AUTH 3 (Applications for Part IV permission) gives guidance on how to apply to the FSA for a Part IV permission. This authorisation is different to the authorisation of an AUT under Part XVII of the Act, or of an ICVC (for which see Schedule 5 of the Act and Regulation 14 of the OEIC Regulations (Authorisation), guidance on which is provided in this guide and COLL.
(2) There are a number of other parts of the FSA's Handbook that are particularly relevant to those having a responsibility in relation to authorised funds. These include:
(a) PRIN (The Principles for Businesses);
(b) SYSC (Senior Management Arrangements, Systems and Controls);
(c) APER (The Statements of Principle and Code of Practice for Approved Persons);
(d) COB (The Conduct of Business sourcebook);
(e) SUP (The Supervision manual);
(f) DEC (The Decision making manual); and
(g) CASS (The Client Assets sourcebook).
(3) ENF 16 sets out the FSA's policies and procedures concerning the use of its enforcement powers in relation to regulated collective investment schemes.
(4) ML is also relevant in particular when considering COLL 6.2.16 R (Sale and redemption) and COLL 6.4 (Title and registers). Due regard should be given to compliance with the Joint Money Laundering Steering Group Guidance Notes for the Financial Sector in determining compliance with the Money Laundering Regulations.
Function of the sourcebook: the two-tier regime
COLLG 5.1.5
See Notes
(1) The material in chapters 2 to 8 of COLL forms a major part of the product regulation regime for ICVCs and AUTs, supplementing the material in the OEIC Regulations (for ICVCs) and chapter III of Part XVII of the Act (for AUTs) and giving effect to the UCITS Directive. This is shown in the diagram at COLLG 5.1.7 G.
(2) The sourcebook is designed as a two-tier approach depending on whether the authorised scheme is promoted to the general public (retail schemes) or to institutions and expert private customers (qualified investor schemes).
Retail schemes
COLLG 5.1.6
See Notes
Retail schemes must be either UCITS schemes or non-UCITS retail schemes and COLL provides material relating to:
- (1) matters relating to authorisation and notification (COLL 2);
- (2) the constitution (COLL 3), investment powers (COLLG 5) and general management (COLL 6) of schemes and the arrangements for investor notification and participation (COLL 4);
- (3) how an authorised fund or sub-fund may suspend dealing in units or be wound up (COLL 7); and
- (4) fees payable in respect of them (COLL 10).
Qualified investor schemes
COLLG 5.1.7
See Notes
(1) If a scheme is
to be restricted in its promotion or subscription to sophisticated investors,
the FSA considers
that not all the detailed product rule protections
that apply to retail schemes are
necessary. So, the sourcebook provides a framework of rules for such schemes which satisfies the essential features
of an authorised product and so distinguishes them from unregulated collective investment schemes,
but otherwise allows more flexibility in the scheme's operation compared to the framework
provided for retail schemes.
(2)
COLL 2 is relevant for achieving
authorisation. COLL 8 provides the framework
mentioned in (1) and, compared to retail schemes,
places more emphasis on the contents of the prospectus to describe the operating procedures.
Recognised schemes
COLLG 5.1.8
See Notes
For collective
investment schemes constituted outside the United Kingdom and referred to in COLLG
1.1.3 G (2) the sourcebook brings together the material
relating to the admission to marketing of
such schemes in
the United Kingdom,
supplementing material in Chapter V of Part XVII of the Act (Recognised overseas schemes). This material
can be found at COLL 9 and
COLL 10.
Regulated schemes: explanatory diagram
COLLG 5.1.9
See Notes
