Helping you through changing times - Our European Brexit tracker for financial services institutions
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Helping you through changing times Our European Brexit tracker for financial services institutions Click to begin
Helping you through changing times
Our European Brexit tracker for financial services institutions
Contacts
Introduction
Austria
Belgium
Bulgaria
Helping you through changing times
Croatia
Eversheds Sutherland’s Financial Services team is one of the leading law practices focusing on asset management and
Cyprus financial services product development and regulation. Since June 2016, our lawyers and consultants have advised
Czech Republic various institutions passporting into the UK from EU27 Member States and passporting from the UK into the EU27 on
Denmark Brexit planning and Brexit related issues.
Estonia Our European Brexit tracker provides a quick overview of the current position in relation to UK funds and UK fund
Finland managers seeking to sell services into EU27 countries after the end of the Brexit transitional or implementation period
France (“TIP”), including what steps may be necessary to relocate to those countries and whether delegation of functions from
Germany those countries to the UK after Brexit may be possible.
Greece We have updated this tracker several times during the Brexit negotiations to ensure that our clients have always had the
Hungary latest information as it became available, however, this will be its last iteration. The position on Brexit for the provision of
Ireland cross-border asset management services is now known, if complex and less advantageous than before. If the EU were
Italy to find the UK equivalent under MiFIR and MiFID, some small aspects of cross-border asset management firms would be
Latvia eased, but the position would not fundamentally alter and given that equivalence decisions can be withdrawn on 30 days’
notice without cause, no prudent asset management firm would seek to rely upon them. We remain of the opinion
Lithuania
that those asset management firms wanting to trade in the UK and the EU require a fully authorised subsidiary in
Luxembourg each jurisdiction.
Malta
As we note above, the position, while now known, is complex and fact specific: the tracker is not a substitute for obtaining
Netherlands
detailed, tailored legal advice and we would strongly encourage you to make contact with a member of our team if you
Norway
would like to discuss the content of this tracker and how it may impact your business in more detail.
Poland
Portugal About Eversheds Sutherland
Romania Eversheds Sutherland is one of the largest global law organisations in the world. With some 4,000 people, including more
Slovakia than 700 partners and 2,300 lawyers, located in over 30 countries worldwide, we are a go-to firm for Brexit legal advice
Slovenia and regularly advise businesses across multiple sectors on the implications of Brexit on their operations. Our international
reach extends further through our network of excellent relationship firms, many which have contributed to this European
Spain
Brexit tracker.
Sweden
Helping you through changing times Our European Brexit tracker for financial services institutions Contacts Contents Austria Belgium Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Romania Slovakia Slovenia Spain Sweden
Helping you through changing times
Our European Brexit tracker for financial services institutions
Contacts
Austria
Austria Is there an existing Cooperation Agreement or Memorandum in accordance with the Austrian AIFMG in order to continue
Belgium of Understanding in place between the UK’s Financial Conduct marketing in Austria. Any further marketing of UK funds must
Bulgaria Authority (FCA) and the Austria’s Financial Market Authority cease at the end of the TIP until the (re)registration is confirmed
Croatia
(FMA)? by the FMA.
Yes.
Cyprus Will UK UCITS funds currently passported in Austria under the
Czech Republic The FCA has entered into a multilateral memorandum of UCITS Directive that do not wish to de-register the fund, be
Denmark understanding (“MMoU”) with the European Securities and subject to a different regime in terms of regulatory reporting
Markets Authority (“ESMA”) and a series of bilateral memoranda to FMA and provision of information to local investors after the
Estonia
of understanding (“MoUs”) with each of the EU/EEA securities end of the TIP?
Finland
regulators all of which came into force at the end of the UK UCITS will be treated as non-EEA AIFs and will lose the right
France Brexit transitional or implementation period (“TIP” ) on to market shares in Austria at the end of the TIP. In order to
Germany 31 December 2020. continue marketing in Austria UK UCITS must be successfully
Greece
The MMoU and MoUs cover supervisory cooperation, registered as a third country AIF and comply with all local
Hungary enforcement and information exchange between the EU/EEA requirements under the Austrian AIFMG and AIFMD transparency
Ireland securities regulators and the FCA. The MMoU and MoUs allow and disclosure requirements as set out in Articles 22, 23 and 24
Italy the regulators to share information relating to (amongst other of the AIFM Directive 2011/61/EU and related Level 2 provisions in
things) market surveillance, investment services and asset Austria.
Latvia
Lithuania management activities. Aside from complying with national rules, UK funds considering
Luxembourg de-registration must ensure they comply with FCA guidance and
How will the FMA treat UK funds (UCITS funds and AIFs) which
“treat customers fairly, irrespective of where those customers are
Malta are currently passported in Austria under the UCITS/AIFM
based”.
Netherlands Directive after the end of the TIP?
Norway As third country AIFs i.e. non-EEA AIFs.
Poland Will UK funds (UCITS funds and AIFs) currently passported in
Portugal Austria under the UCITS/AIFM Directive have to (re)register or
Romania make any notification with the FMA as a result of the end of the
Slovakia TIP to continue marketing in Austria?
Yes. The FMA has explicitly confirmed that UK funds currently
Slovenia
registered in Austria must (re)register as third country AIFs
Spain
Sweden
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Austria (Cont)
Austria If UK funds (UCITS funds and AIFs) currently passported in If a UK fund manager is currently providing services (e.g. MiFID
Belgium Austria under the UCITS/AIFM Directive wish to de-register services) in Austria, will these services be deemed to be carried
Bulgaria the fund, will they be able to do so if there are still investors out from the UK or from Austria after the end of the TIP?
Croatia
left in the fund – or would they first need to move/redeem all From the UK.
investors in order to de-register?
Cyprus Has the FMA put in place any temporary permissions or
UK funds can be de-registered in Austria even if there are still
Czech Republic Austrian investors invested in the fund. recognitions regimes to manage or alleviate the end of the
Denmark single market in financial services and passporting between the
Estonia Has the FMA introduced a streamlined process for setting up a UK and the EU at the end of the TIP?
management company or fund in Austria with a view to making No.
Finland
it attractive for UK managers and/or UK funds to set up in/re-
France domicile?
Germany No.
Greece
Has the FMA published any guidance around delegation,
Hungary
including delegation of portfolio management, from a local
Ireland
UCITS management company or AIFM back to a UK based
Italy entity? If not, what is the current position on delegation from
Latvia a local UCITS management company or AIFM to a non-EEA
Lithuania country?
Luxembourg No, but based on the MMoU it will be possible for Austrian UCITS
Malta management companies and AIFM to continue delegation of
portfolio management to a UK firm in accordance with Sec. 18
Netherlands
AIFMG, provided the UK firm is authorised to provide portfolio
Norway management services under UK laws.
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
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Belgium
Austria Is there an existing Cooperation Agreement or Memorandum UK AIFMs who are managing and publicly marketing an AIF will
Belgium of Understanding in place between the UK’s Financial Conduct be subject to local licensing provisions under the Belgian AIFM
Bulgaria Authority (FCA) and the Belgian Financial Services and Markets Act of 19 April 2014 (the “AIFM Law”).
Croatia
Authority (FSMA)?
Third country investment firms intending to continue their
Yes.
Cyprus activities after the end of the TIP must notify FSMA, setting out
Czech Republic The FCA has entered into a multilateral memorandum of their plan for operating in Belgium.
Denmark understanding (“MMoU”) with the European Securities and
UK investment firms will have three means of operating in
Markets Authority (“ESMA”) and a series of bilateral memoranda
Estonia Belgium after the end of the TIP:
of understanding (“MoUs”) with each of the EU/EEA securities
Finland
regulators all of which came into force at the end of the 1. Establishing a branch and obtaining a licence from FSMA.
France Brexit transitional or implementation period (“TIP” ) on Brokerage firms require a licence from the Belgian National Bank
Germany 31 December 2020. (NBB).
Greece
The MMoU and MoUs cover supervisory cooperation, 2. Without establishing a branch, by providing services from the
Hungary enforcement and information exchange between the EU/ UK but only to eligible counterparties, professional clients and UK
Ireland EEA securities regulators and the FCA. The MMoU and MoUs nationals resident in Belgium.
Italy allow the regulators to share information relating to (amongst
3. Establish a subsidiary in Belgium and obtain the relevant
Latvia other things) market surveillance, investment services and asset
licence and authorisation. Alternately, setting up a subsidiary
Lithuania management activities.
in another EEA state, obtaining the relevant licence and
Luxembourg How will FSMA treat UK funds (UCITS funds and AIFs) which authorisation and then passporting into Belgium.
Malta are currently passported in Belgium under the UCITS/AIFM
Belgian law permits FSMA to prohibit the provision of investment
Netherlands Directive after the end of the TIP?
services in Belgium by third country firms based in a country
Norway As third country funds, i.e. non-EEA funds.
which does not offer Belgian investment firms the same access
Poland Will UK funds (UCITS funds and AIFs) currently passported in to its market. The FCA’s temporary permissions regime for
Portugal Belgium under the UCITS/AIFM Directive have to (re)register or inbound passporting EEA firms may be sufficient to meet this
Romania make any notification with FSMA as a result of the end of the reciprocity condition for as long as such temporary arrangement
Slovakia TIP to continue marketing in Belgium? is in force.
Existing UK UCITS will be considered as third-country AIFs and
Slovenia UK investment firms must notify FSMA in advance of their
AIFMs. Those hoping to market an AIF into Belgium will have to
Spain planned activities in Belgium and the categories of investors to
comply with the local article 42 AIFMD authorisation procedure.
Sweden whom they intend to provide those services.
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Belgium (Cont)
Austria UK investment firms recognised by FSMA will be removed from (c) the fund is subject to a regime at least equivalent to that
Belgium the list of recognised firms if they do not take the necessary steps applicable to Belgian AIF managers offering public AIFs.
Bulgaria to comply with option (1), (2) or (3). Once removed from the list,
the investment firms will no longer be able to offer investment If UK funds (UCITS funds and AIFs) currently passported
Croatia Belgium under the UCITS/AIFM Directive wish to de-register
services or activities in Belgium and to continue to do so will
Cyprus the fund, will they be able to do so if there are still investors
incur criminal and/or administrative penalties.
Czech Republic left in the fund – or would they first need to move/redeem all
Denmark Will UK UCITS funds currently passported in Belgium under the investors in order to de-register?
Estonia UCITS Directive that do not wish to de-register the fund, be If a UCITS with 150 or more unit-holders wishes to stop
subject to a different regime in terms of regulatory reporting to marketing units in Belgium it must:
Finland
FSMA and provision of information to local investors after the
France give unit-holders the opportunity to have their units repurchased
end of the TIP?
Germany without charge or to exchange, without charge, their units for
Yes, UK UCITS will be treated as non-EEA (third country AIFs)
those of another open-ended UCI marketed in Belgium
Greece funds and will therefore have to comply with AIFMD transparency
Hungary and disclosure requirements as set out in Articles 22, 23 and 24 retain a financial service provider and remain on the list of foreign
Ireland of the AIFM Directive 2011/61/EU and related Level 2 provisions) law UCITS until it provides evidence that it has fewer than 150
Italy
in Belgium. unit-holders in Belgium
Latvia These funds may be marketed provided a third country AIFM FSMA has not prescribed a process for deregistering an AIF, but
Lithuania notification form is completed and the offering does not almost all the same thresholds and requirements apply.
Luxembourg constitute a public offer within the meaning of the AIFM Law.
Aside from complying with national rules, UK funds considering
Malta The fund manager must inform investors of the new AIF status, de-registration must ensure they comply with FCA guidance and
Netherlands the consequences for investors and the procedures and costs “treat customers fairly, irrespective of where those customers are
Norway should investors wish to redeem their holdings. based”.
Poland Third country AIFs may only be marketed to the public Has FSMA introduced a streamlined process for setting up
Portugal in Belgium if: a management company or fund in Belgium with a view to
Romania (a) the fund complies with legal requirements applicable to making it attractive for UK managers and/or UK funds to set up
Slovakia foreign public AIFs; in/re-domicile?
Slovenia No.
(b) appropriate cooperation arrangements are in place between
Spain
the FSMA and the UK supervisory authorities; and
Sweden
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Belgium (Cont)
Austria Has FSMA published any guidance around delegation, If a UK fund manager is currently providing services (e.g. MiFID
Belgium including delegation of portfolio management, from a local services) in Belgium, will these services be deemed to be
Bulgaria UCITS management company or AIFM back to a UK-based carried out from the UK or from the Belgium after the end of
Croatia
entity? If not, what is the current position on delegation from the TIP?
a local UCITS management company or AIFM to a non-EEA If a UK fund manager provides financial services regulated by EU
Cyprus
country? regulation, these will be deemed to be carried out from the UK
Czech Republic No, there has been no such guidance or delegation introduced. after the end of the TIP.
Denmark
Art. 20 AIFM Directive 2011/61/EU and Delegated Regulation Has FSMA put in place any temporary permissions or
Estonia
(EU) No 231/2013 apply to an AIFM and Art. 13 UCITS Directive recognitions regimes to manage or alleviate the end of the
Finland
2009/65/EC and Directive 2010/43/EU apply to a UCITS single market in financial services and passporting between
France management company. In order for delegation to be permitted the UK and the EU at the end of the TIP?
Germany under AIFM Directive or UCITS Directive, a cooperation No.
Greece agreement must be in place between the EEA member state
Hungary regulator and the non-EEA member state regulator. There is
Ireland such a cooperation agreement in place between the FCA and
FSMA.
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Norway
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
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Bulgaria
Austria Is there an existing Cooperation Agreement or Memorandum the TIP, UK management companies which currently operate in
Belgium of Understanding in place between the UK’s Financial Conduct Bulgaria under passporting rights will be treated as unlicensed
Bulgaria Authority (FCA) and the Bulgarian Financial Supervision third-party entities and will not be allowed to carry out fund
Croatia
Commission (FSC)? management activities in Bulgaria territory. Management
Yes. companies seeking to operate in Bulgaria should establish a local
Cyprus
branch and obtain an licence.
Czech Republic The FCA has entered into a multilateral memorandum of
Denmark understanding (“MMoU”) with the European Securities and Will UK funds (UCITS funds and AIFs) currently passported in
Markets Authority (“ESMA”) and a series of bilateral memoranda Bulgaria under the UCITS/AIFM Directive have to (re)register or
Estonia
of understanding (“MoUs”) with each of the EU/EEA securities make any notification with the FSC as a result of the end of the
Finland
regulators all of which came into force at the end of the TIP to continue marketing in Bulgaria?
France Brexit transitional or implementation period (“TIP”) on UK management companies which have exercised their
Germany 31 December 2020. passport rights to operate in Bulgaria which provide portfolio
Greece
The MMoU and MoUs cover supervisory cooperation, management and/or investment advice to Bulgarian clients must
Hungary enforcement and information exchange between the EU/EEA draw up and submit to the FSC a plan for winding down their
Ireland securities regulators and the FCA. The MMoU and MoUs allow client relationships within 14 days of the end of the TIP. The plan
Italy the regulators to share information relating to (amongst other must provide a procedure for informing Bulgarian clients that
things) market surveillance, investment services and asset the management company has ceased to carry out activities
Latvia
management activities. and for the settlement of the client accounts within 30 days.
Lithuania UK management companies which have previously exercised
Luxembourg How will the FSC treat UK funds (UCITS funds and AIFs) which their passport rights in Bulgaria but no longer have any clients in
Malta are currently passported in Bulgaria under the UCITS/AIFM Bulgaria must make a declaration to the FSC that they no longer
Netherlands Directive after the end of the TIP? have Bulgarian clients and therefore do not need to wind down
Norway As third country funds, i.e. non-EEA funds. any Bulgarian accounts.
Poland On 17 December 2019 the FSC published official Guidelines The Guidelines refer to UCITS funds but not to AIFs. The position
Portugal on the interpretation and application of the Bulgarian Law on with respect to AIFs is not yet clear.
Romania the Activities of Collective Investment Schemes and Other
Slovakia Collective Investment Undertakings (“LACISOCIU”) upon no-deal
withdrawal of the United Kingdom from the European Union
Slovenia
(the “Guidelines”). According to the Guidelines, after the end of
Spain
Sweden
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Bulgaria (Cont)
Austria Will UK UCITS funds currently passported in Bulgaria under the Has the FSC published any guidance around delegation,
Belgium UCITS Directive that do not wish to de-register the fund, be including delegation of portfolio management, from a local
Bulgaria subject to a different regime in terms of regulatory reporting to UCITS management company or AIFM back to a UK-based
Croatia
the FSC and provision of information to local investors after the entity? If not, what is the current position on delegation from
end of the TIP? a local UCITS management company or AIFM to a non-EEA
Cyprus
Yes, UK UCITS funds will be treated as non-EEA funds and country?
Czech Republic will therefore have to comply with AIFMD transparency and The FSC has not published any guidance on the matter.
Denmark disclosure requirements as set out in Articles 22, 23 and 24 of
Art. 20 AIFM Directive 2011/61/EU and Delegated Regulation
Estonia the AIFM Directive 2011/61/EU and related Level 2 provisions
(EU) No 231/2013 apply to an AIFM and Art. 13 UCITS Directive
Finland in Bulgaria.
2009/65/EC and Directive 2010/43/EU apply to a UCITS
France If UK funds (UCITS funds and AIFs) currently passported in management company (which have been transposed in the
Germany Bulgaria under the UCITS/AIFM Directive wish to de-register national law in Article 106 and Article 222 of LACISOCIU). In
Greece the fund, will they be able to do so if there are still investors order for delegation to be permitted under AIFM Directive or
Hungary left in the fund – or would they first need to move/redeem all UCITS Directive, a cooperation agreement must be in place
Ireland investors in order to de-register? between the EU member state regulator and the non-EEA
Bulgarian legislation does not contain specific provisions member state regulator. There is such a cooperation agreement
Italy
requiring passported UCITS funds/AIFMs to move/redeem in place between the FCA and the FSC.
Latvia
investors in order to de-register the fund, nor is there any existing
Lithuania If a UK fund manager is currently providing services (e.g. MiFID
regulatory practice on the subject.
Luxembourg services) in Bulgaria, will these services be deemed to be
Aside from complying with national rules, UK funds considering carried out from the UK or from Bulgaria after the end of
Malta
de-registration must ensure they comply with FCA guidance and the TIP?
Netherlands
“treat customers fairly, irrespective of where those customers From Bulgaria. A local licence may be required.
Norway are based”.
Poland Has the FSC put in place any temporary permissions or
Portugal
Has the FSC introduced a streamlined process for setting up recognitions regimes to manage or alleviate the end of the
a management company or fund in Bulgaria with a view to single market in financial services and passporting between the
Romania
making it attractive for UK managers and/or UK funds to set up UK and the EU at the end of the TIP?
Slovakia in/re-domicile? No. The FSC has not put in place any temporary permissions or
Slovenia No. recognitions regimes relating to financial services.
Spain
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Croatia
Austria Is there an existing Cooperation Agreement or Memorandum Will UK funds (UCITS funds and AIFs) currently passported in
Belgium of Understanding in place between the UK’s Financial Conduct Croatia under the UCITS/AIFM Directive have to (re)register
Bulgaria Authority (FCA) and the Croatian Financial Services Supervisory or make any notification with the FSSA as a result of Brexit to
Croatia
Agency (FSSA)? continue marketing in Croatia?
Yes. As Croatia has not implemented any Brexit transitional regime in
Cyprus
case of a no-deal Brexit, it will not be possible to offer units of
Czech Republic The FCA has entered into a multilateral memorandum of
AIFs from third countries (the UK), or units of AIFs managed by
Denmark understanding (“MMoU”) with the European Securities and
non-EU AIFMs (the UK) in Croatia without a passport. In addition,
Markets Authority (“ESMA”) and a series of bilateral memoranda
Estonia in the case of a no-deal Brexit, UK UCITS will be regarded as
of understanding (“MoUs”) with each of the EU/EEA securities
Finland non-EU AIFs and their distribution will no longer be allowed
regulators all of which came into force at the end of the
France without a passport.
Brexit transitional or implementation period (“TIP” ) on
Germany 31 December 2020. If UK funds (UCITS funds and AIFs) currently passported in
Greece Croatia under the UCITS/AIFM Directive wish to de-register
How will the FSSA treat UK funds (UCITS funds and AIFs) that
Hungary the fund, will they be able to do so if there are still investors
are currently passported in Croatia under the UCITS/AIFM
Ireland left in the fund – or would they first need to move/redeem all
Directive after Brexit?
Italy
investors in order to de-register?
Following Brexit, UK UCITS and UK AIFs will be regarded as non-
Under applicable Croatian laws, fund de-registration is treated
Latvia EU funds in Croatia and lose their passporting rights.
as a liquidation of the fund. Therefore, UK AIFs and UCITS
Lithuania Complying with the National Private Placement Regime (NPRR) wishing to de-register will have to undertake all the prescribed
Luxembourg would theoretically allow funds to continue to be marketed liquidation steps pursuant to the applicable FSSA Ordinance(s) on
Malta in Croatia. However, this is impossible in practice because liquidation and dissolution of AIFs or UCITS funds respectively.
Netherlands the Republic of Croatia has not implemented Articles 36 and Consequently, all investors would have to be redeemed in
Norway 42 of the Directive 2011/61/EU on AIFMs that govern NPRR. liquidation proceedings prior to formal de-registration.
Consequently, Brexit will make it impossible to market UK AIFs
Poland Aside from complying with national rules, UK funds considering
and EU AIFs managed by UK AIFMs in Croatia.
Portugal de-registration must ensure they comply with FCA guidance and
Romania “treat customers fairly, irrespective of where those customers are
Slovakia
based”. Further information can be found here.
Slovenia
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Croatia (Cont)
Austria Has the FSSA introduced a streamlined process for setting up a If a UK fund manager is currently providing services (e.g. MiFID
Belgium management company or fund in Croatia with a view to making services) in Croatia, will these services be deemed to be carried
Bulgaria it attractive for UK managers and/or UK funds to set up out from the UK or from Croatia after Brexit?
Croatia
in/re-domicile? From the UK, but a Croatian licence will be required.
No.
Cyprus In a no-deal Brexit, UK investment firms will be prohibited from
Czech Republic Has the FSSA published any guidance around delegation, providing investment services directly to Croatian professional
Denmark including delegation of portfolio management, from a local and retail investors. Those wishing to continue providing services
UCITS management company or AIFM back to a UK based in Croatia must either establish a branch (and obtain a licence
Estonia
entity? If not, what is the current position on delegation from FSSA in accordance with the Croatian Capital Market Act),
Finland
from a local UCITS management company or AIFM to a or provide services exclusively in response to requests from
France non-EEA country? clients (known as “reverse solicitation”).
Germany
No. The current position is as follows: Firms operating solely under the principle of reverse solicitation
Greece
will not be able to solicit potential clients or promote and
Hungary – AIFM - Art. 20 AIFM Directive 2011/61/EU and
advertise their investment services in Croatia.
Ireland Delegated Regulation (EU) No 231/2013 applies
Existing branches of UK investment firms will be required to
Italy – UCITS - Art. 13 UCITS Directive 2009/65/
cease their operations or obtain a licence from the FSSA as a third
Latvia EC and Directive 2010/43/EU applies
country (non-EU) investment firm branch. In order to provide
Lithuania – in order for delegation to be permitted under AIFM investment services directly to professional investors in Croatia,
Luxembourg Directive or UCITS Directive, a cooperation agreement investment firms from the UK must be registered with ESMA as
Malta must be in place between the EU member state third country (non-EU) entities.
Netherlands regulator and the non-EEA member state regulator
Norway – an approval of or a notification to the FSSA is required
Poland
– tasks including managing the UCITS fund assets or
Portugal
risk management may be delegated only to those
Romania third persons who have obtained a license from a
Slovakia competent authority and are subject to supervision in
Slovenia accordance with the provisions of the applicable law
Spain
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Cyprus
Austria Is there an existing Cooperation Agreement or Memorandum Will UK funds (UCITS funds and AIFs) currently passported in
Belgium of Understanding in place between the UK’s Financial Cyprus under the UCITS/AIFM Directive have to (re)register or
Bulgaria Conduct Authority (FCA) and Cyprus Securities and Exchange make any notification with the CySEC as a result of the end of
Croatia
Commission (CySEC)? the TIP to continue marketing in Cyprus?
Yes. This is not clear yet.
Cyprus
Czech Republic The FCA has entered into a multilateral memorandum of Will UK UCITS funds currently passported in Cyprus under the
Denmark understanding (“MMoU”) with the European Securities and UCITS Directive that do not wish to de-register the fund, be
Markets Authority (“ESMA”) and a series of bilateral memoranda subject to a different regime in terms of regulatory reporting to
Estonia
of understanding (“MoUs”) with each of the EU/EEA securities the CySEC and provision of information to local investors after
Finland
regulators all of which came into force at the end of the the end of the TIP?
France Brexit transitional or implementation period (“TIP”) on Yes, UK UCITS funds will be treated as non-EEA funds and
Germany 31 December 2020. will therefore have to comply with AIFMD transparency and
Greece
The MMoU and MoUs cover supervisory cooperation, disclosure requirements as set out in Articles 22, 23 and 24
Hungary enforcement and information exchange between the EU/EEA of the AIFM Directive 2011/61/EU (and related Level 2 provisions)
Ireland securities regulators and the FCA. The MMoU and MoUs allow in Cyprus.
Italy the regulators to share information relating to (amongst other If UK funds (UCITS funds and AIFs) currently passported in
Latvia things) market surveillance, investment services and asset Cyprus under the UCITS/AIFM Directive wish to de-register
Lithuania management activities. the fund, will they be able to do so if there are still investors
Luxembourg How will the CySEC treat UK funds (UCITS funds and AIFs) left in the fund – or would they first need to move/redeem all
Malta which are currently passported in Cyprus under the UCITS/ investors in order to de-register?
AIFM Directive after the end of the TIP? According to the CySEC’s Directives (DI78-2012-11 and DI131-56-
Netherlands
In the absence of any directives or guidelines by the CySEC, UK 02) in order to be able to terminate the marketing of their units
Norway in Cyprus, UCITS funds and AIFs must give CySEC two months’
Poland
funds will be treated as third country funds, i.e. non-EEA funds.
Both UCITS funds and AIFs will have to comply with Cyprus’ written notice of termination setting out the date of and reasons
Portugal
private placement regime in order to market units, and where for the termination of the marketing in Cyprus, the number
Romania applicable manage funds (pending the implementation of the of existing unit-holders in Cyprus and the measures taken to
Slovakia third-country regime under the AIFMD) in Cyprus. safeguard investors rights.
Slovenia Directive 2019/1160 make various provisions regarding the
Spain de-registration of UCITS funds and AIFs currently passported
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Cyprus (Cont)
Austria those Directives. These require that a blanket offer is made to agreement must be in place between the EU member state
Belgium repurchase or redeem, free of any charges or deductions, any regulator and the non-EEA member state regulator. There is such
Bulgaria UCITS/AIF units held by investors in the Member State from a cooperation agreement in place between the FCA and
Croatia
which the UCITS/AIF in question is being de-registered. the CySEC.
Cyprus At present the amendments to Directives 2009/65/EC and If a UK fund manager is currently providing services (e.g. MiFID
Czech Republic 2011/61/EU introduced by Directive 2019/1160 have yet to be services) in Cyprus, will these services be deemed to be carried
Denmark transposed into Cypriot domestic law. There are no additional out from the UK or from Cyprus after the end of the TIP?
domestic law provisions governing the de-registration of After the end of the TIP, and in the absence of any future express
Estonia
passported funds. provision to the contrary, a UK fund manager offering such
Finland
services in future would be deemed to be providing them from
France Has the CySEC introduced a streamlined process for setting
the UK. If the UK fund manager were offering such services
Germany up a management company or fund in Cyprus with a view to
through an EU authorised subsidiary or branch located in Cyprus,
making it attractive for UK managers and/or UK funds to set up
Greece then they would likely be deemed to be carried out from Cyprus.
in/re-domicile?
Hungary
At present, the CySEC has not introduced such a process. Has the CySEC put in place any temporary permissions or
Ireland
recognitions regimes to manage or alleviate the end of the
Italy Has the CySEC published any guidance around delegation,
single market in financial services and passporting between the
Latvia including delegation of portfolio management, from a local
UK and the EU at the end of the TIP?
UCITS management company or AIFM back to a UK-based
Lithuania On 22 December 2020, CySEC announced the establishment of
entity? If not, what is the current position on delegation from
Luxembourg a temporary permissions regime (‘TPR’) for UK firms providing
a local UCITS management company or AIFM to a non-EEA
Malta MiFID II services in Cyprus. Those UK financial services which
country?
gave notice of intention to participate in the TPR before the end
Netherlands There has been no specific guidance published by the CySEC
of the TIP on 31 December 2020 do not have to have a physical
Norway regarding delegation from a local UCITS management company
presence in Cyprus in order to provide investment services and
Poland or AIFM back to a UK-based entity.
investment activities solely to professional clients and eligible
Portugal Art. 20 AIFM Directive 2011/61/EU and Delegated Regulation counterparties based in Cyprus during the TPR. The TPR runs
Romania (EU) No 231/2013 apply to an AIFM and Art. 13 UCITS Directive until 31 December 2021. At the end of the TPR, UK firms in the
Slovakia 2009/65/EC and Directive 2010/43/EU apply to a UCITS TPR will only be able to continue to provide such investment
Slovenia management company. In order for delegation to be permitted services if they have established a branch or subsidiary in Cyprus
under AIFM Directive or UCITS Directive, a cooperation and obtained the relevant authorisations.
Spain
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Czech Republic
Austria Is there an existing Cooperation Agreement or Will UK funds (UCITS funds and AIFs) currently passported in
Belgium Memorandum of Understanding in place between the the Czech Republic under the UCITS/AIFM Directive have to
Bulgaria UK’s Financial Conduct Authority (FCA) and the (re)register or make any notification with the CNB as a result of
Croatia
Czech National Bank (CNB)? Brexit to continue marketing in the Czech Republic?
Yes. Following a no-deal Brexit, existing UK funds will need to re-
Cyprus
register as a non-EU funds with the CNB in order to market in the
Czech Republic The FCA has entered into a multilateral memorandum of
Czech Republic.
Denmark understanding (“MMoU”) with the European Securities and
Markets Authority (“ESMA”) and a series of bilateral memoranda If UK funds (UCITS funds and AIFs) currently passported in
Estonia
of understanding (“MoUs”) with each of the EU/EEA securities the Czech Republic under the UCITS/AIFM Directive wish to
Finland
regulators all of which came into force at the end of the de-register the fund, will they be able to do so if there are still
France Brexit transitional or implementation period (“TIP” ) on investors left in the fund – or would they first need to move/
Germany 31 December 2020. redeem all investors in order to de-register?
Greece The CNB will de-register UK funds automatically as they will
How will the CNB treat UK funds (UCITS funds and AIFs) that are
Hungary cease to meet legal requirements for passporting after a no-deal
currently passported in Czech Republic under the UCITS/AIFM
Ireland Brexit. Accordingly, UK funds will probably not need to move/
Directive after Brexit?
Italy
redeem all investors for de-registration to take place. Affected
The Czech Brexit Act, permits all types of UK-based financial
funds may be required to notify their Czech investors and enable
Latvia services providers with existing passporting rights to run off
voluntary redemption.
Lithuania contracts and services provided before Brexit until 31 December
Luxembourg 2020. The CNB will supervise these providers as if the Czech Aside from complying with national rules, UK funds considering
Republic were their home Member State. They will not be de-registration must ensure they comply with FCA guidance and
Malta
allowed to enter into new contracts or to amend the content “treat customers fairly, irrespective of where those customers are
Netherlands
of existing contracts. According to the CNB’s note, UK-based based”. Further information can be found here.
Norway financial services providers are expected to duly contact their
Poland Czech clients, setting out the legal consequences of a no-deal Has the CNB introduced a streamlined process for setting up a
Brexit on rights and obligations arising from existing contracts, management company or fund in Czech Republic with a view
Portugal
including a proposed plan of action which aims to settle claims to making it attractive for UK managers and/or UK funds to
Romania
and debts arising from those contracts. The CNB expects UK set up in/re-domicile?
Slovakia No.
providers to maintain adequate records clearly demonstrating
Slovenia
their fulfilment of these obligations.
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Czech Republic
(Cont)
Austria Has the CNB published any guidance around delegation, If a UK fund manager is currently providing services (e.g. MiFID
Belgium including delegation of portfolio management, from a local services) in Czech Republic, will these services be deemed to
Bulgaria UCITS management company or AIFM back to a UK based be carried out from the UK or from Czech Republic after Brexit?
Croatia
entity? If not, what is the current position on delegation Under the Czech Brexit Act these services will be deemed to be
from a local UCITS management company or AIFM to a provided from another EU Member State. However, the CNB will
Cyprus
non-EEA country? supervise providers as though they were established in the
Czech Republic No. The current position is as follows: Czech Republic.
Denmark
– AIFM - Art. 20 AIFM Directive 2011/61/EU and
Estonia
Delegated Regulation (EU) No 231/2013 applies
Finland
France – UCITS - Art. 13 UCITS Directive 2009/65/
Germany
EC and Directive 2010/43/EU applies
Greece – in order for delegation to be permitted under AIFM
Hungary Directive or UCITS Directive, a cooperation agreement
Ireland must be in place between the EU member state
regulator and the non-EEA member state regulator
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Norway
Poland
Portugal
Romania
Slovakia
Slovenia
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Denmark
Austria Is there an existing Cooperation Agreement or Memorandum Will UK funds (UCITS funds and AIFs) currently passported in
Belgium of Understanding in place between the UK’s Financial Conduct Denmark under the UCITS/AIFM Directive have to (re)register
Bulgaria Authority (FCA) and the Danish Financial Supervisory or make any notification with the FSA as a result of Brexit to
Croatia
Authority (FSA)? continue marketing in Denmark?
Yes. UK funds will not be able to offer financial services in Denmark
Cyprus
without securing new permission from the Danish authorities.
Czech Republic The FCA has entered into a multilateral memorandum of
Denmark understanding (“MMoU”) with the European Securities and UK investment firms planning to continue offering financial
Markets Authority (“ESMA”) and a series of bilateral memoranda services in Denmark after a no-deal Brexit have a number of
Estonia
of understanding (“MoUs”) with each of the EU/EEA securities choices:
Finland
regulators all of which came into force at the end of the
France – UK funds can apply for permission to set up
Brexit transitional or implementation period (“TIP” ) on
Germany
a financial undertaking in Denmark;
31 December 2020.
Greece – UK funds can set up a financial undertaking in another EU
How will the Danish FSA treat UK funds (UCITS funds and AIFs) member state and then invoke the right to set up a Danish
Hungary
that are currently passported in Denmark under the UCITS/ subsidiary or offer cross-border services into Denmark; or
Ireland AIFM Directive after Brexit?
Italy If the UK leaves the EU without a withdrawal agreement the – undertakings offering investment services and activities can
Latvia UK will be deemed a third country with respect to EU Member apply for permission to continue providing cross-border
Lithuania States, including Denmark. The automatic right for financial activities directly from the UK under Danish third country rules
Luxembourg undertakings in the UK to set up and do business in the Member (as set out in section 33 of the Danish Financial Business Act)
States, as a result of the EU’s single market, will lapse.
Malta Firms hoping to rely on Danish third country rules should
Netherlands It means that UK funds will be treated as third country funds, i.e. note that such permission only grants the right to carry out
Norway non-EEA funds. cross-border investment services and activities in Denmark for
approved counterparties or professional customers. Furthermore,
Poland
the permission does not extend to activities carried out in
Portugal Member States other than Denmark.
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Denmark (Cont)
Austria In the case of a “no-deal Brexit”, permission to operate on a – the Danish FCA and the corresponding competent authority/
Belgium third country basis will only be granted under the following authorities in the United Kingdom have signed the same
Bulgaria circumstances: relevant agreement concerning consultation and cooperation
Croatia
and the exchange of information (e.g. IOSCO, MMoU)
– The UK becomes a third country as defined
Cyprus under MiFID II, Article 4(1), no. 57; Owing to the extraordinary circumstances surrounding Brexit,
Czech Republic any license granted by the Danish FCA under the conditions
– The EU has not entered into an agreement
Denmark outlined above will only be valid for a 12 month period.
to create a financial area with the UK;
Estonia
– The Commission has not adopted an equivalence decision
Finland
for the United Kingdom in accordance with MiFIR,
France Article 47(1), or such a decision ceases to be valid;
Germany
– UK financial regulation and supervision of
Greece
investment firms remains essentially equivalent
Hungary to EU and Danish regulation and supervision
Ireland
– any investment services and activities, ancillary services
Italy
or instruments applied for by the UK firm are covered
Latvia
by the applicant’s license and comply with both
Lithuania MiFID II and the Danish Financial Business Act;
Luxembourg
– there have been no changes to EU or Danish
Malta
third country regime regulations that might
Netherlands affect the firm’s application; and
Norway
Poland
Portugal
Romania
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Spain
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Denmark (Cont)
Austria If UK funds (UCITS funds and AIFs) currently passported in Has the Danish FSA published any guidance around delegation,
Belgium Denmark under the UCITS/AIFM Directive wish to de-register including delegation of portfolio management, from a local
Bulgaria the fund, will they be able to do so if there are still investors UCITS management company or AIFM back to a UK based
Croatia
left in the fund – or would they first need to move/redeem all entity? If not, what is the current position on delegation from
investors in order to de-register? a local UCITS management company or AIFM to a
Cyprus
If an alternative investment fund manager ceases to market their non-EEA country?
Czech Republic alternative investment fund (and its sub-funds) in Denmark, the No. The current position is as follows:
Denmark manager must notify all Danish investors and the Danish FSA,
– AIFM - Art. 20 AIFM Directive 2011/61/EU and
Estonia setting a date of cessation. Notifications must be made no later
Delegated Regulation (EU) No 231/2013 applies
Finland than 14 days after the decision was taken. The same will apply if
France an investment undertaking (or a compartment of such) ceases – UCITS - Art. 13 UCITS Directive 2009/65/
to market its units investment fund in Denmark. The process EC and Directive 2010/43/EU applies
Germany
will apply whether marketing is directed at professional or retail
Greece – in order for delegation to be permitted under AIFM
investors.
Hungary Directive or UCITS Directive, a cooperation agreement
Ireland As a result, the redemption of all units will not be necessary if a must be in place between the EU member state
UK fund wishes to cease marketing its units/shares in Denmark. regulator and the non-EEA member state regulator
Italy
Latvia Aside from complying with national rules, UK funds considering If a UK fund manager is currently providing services (e.g. MiFID
Lithuania de-registration must ensure they comply with FCA guidance and services) in Denmark, will these services be deemed to be
“treat customers fairly, irrespective of where those customers are carried out from the UK or from Denmark after Brexit?
Luxembourg
based”. Further information can be found here. The position is not yet clear, but it is likely that such services will
Malta
be deemed to be carried out from the UK, since the UK fund
Netherlands Has the Danish FSA introduced a streamlined process for
manager will use its UK license when providing these services.
Norway setting up a management company or fund in Denmark with a
Poland
view to making it attractive for UK managers and/or UK funds
to set up in/re-domicile?
Portugal
No.
Romania
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Estonia
Austria Is there an existing Cooperation Agreement or Has the FSA published any guidance around delegation,
Belgium Memorandum of Understanding in place between the including delegation of portfolio management, from a local
Bulgaria UK’s Financial Conduct Authority (FCA) and the UCITS management company or AIFM back to a UK based
Croatia
Estonian Financial Supervision Authority (FSA)? entity? If not, what is the current position on delegation
Yes. from a local UCITS management company or AIFM to a
Cyprus
non-EEA country?
Czech Republic The FCA has entered into a multilateral memorandum of
No. The current position is as follows:
Denmark understanding (“MMoU”) with the European Securities and
Markets Authority (“ESMA”) and a series of bilateral memoranda – AIFM - Art. 20 AIFM Directive 2011/61/EU and
Estonia
of understanding (“MoUs”) with each of the EU/EEA securities Delegated Regulation (EU) No 231/2013 applies
Finland
regulators all of which came into force at the end of the
France – UCITS - Art. 13 UCITS Directive 2009/65/
Brexit transitional or implementation period (“TIP” ) on
Germany
EC and Directive 2010/43/EU applies
31 December 2020.
Greece – in order for delegation to be permitted under AIFM
How will the FSA treat UK funds (UCITS funds and AIFs) that are Directive or UCITS Directive, a cooperation agreement
Hungary
currently passported in Estonia under the UCITS/AIFM Directive must be in place between the EU member state
Ireland after Brexit? regulator and the non-EEA member state regulator
Italy The position is not yet clear.
Latvia – Art. 364 and 365 of the Investment Fund Act would apply
Will UK funds (UCITS funds and AIFs) currently passported in
Lithuania – a written delegation agreement would be required
Estonia under the UCITS/AIFM Directive have to (re)register
Luxembourg or make any notification with the FSA as a result of Brexit to As of today, the FSA and the FCA are both members of the
Malta continue marketing in Estonia? International Organisation of Securities Commissions’ Multilateral
Netherlands The position is not yet clear. Memorandum of Understanding concerning consultation and
Norway cooperation and the exchange of information.
Has the FSA introduced a streamlined process for setting up a
Poland
management company or fund in Estonia with a view to making If a UK fund manager is currently providing services (e.g. MiFID
Portugal it attractive for UK managers and/or UK funds to set up in/re- services) in Estonia, will these services be deemed to be carried
Romania domicile? out from the UK or from Estonia after Brexit?
Slovakia No. The position is not yet clear.
Slovenia
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Finland
Austria Is there an existing Cooperation Agreement or If UK funds (UCITS funds and AIFs) currently passported in
Belgium Memorandum of Understanding in place between the Finland under the UCITS/AIFM Directive wish to de-register
Bulgaria UK’s Financial Conduct Authority (FCA) and the the fund, will they be able to do so if there are still investors
Croatia
Finnish Financial Supervisory Authority (FIN-FSA)? left in the fund – or would they first need to move/redeem all
Yes. investors in order to de-register?
Cyprus
There is no need to move or redeem investors if marketing is
Czech Republic The FCA has entered into a multilateral memorandum of
discontinued in Finland. However, UK funds considering de-
Denmark understanding (“MMoU”) with the European Securities and
registration must ensure they comply with FCA guidance and
Markets Authority (“ESMA”) and a series of bilateral memoranda
Estonia “treat customers fairly, irrespective of where those customers are
of understanding (“MoUs”) with each of the EU/EEA securities
Finland based”. Further information can be found here.
regulators all of which came into force at the end of the
France Brexit transitional or implementation period (“TIP” ) on Has the FIN-FSA introduced a streamlined process for setting
Germany 31 December 2020. up a management company or fund in Finland with a view to
Greece making it attractive for UK managers and/or UK funds to set up
How will the FIN-FSA treat UK funds (UCITS funds and AIFs)
Hungary in/re-domicile?
that are currently passported in Finland under the UCITS/AIFM
Ireland The FIN-FSA has made no official announcement on the issue.
Directive after Brexit?
Italy
However, the regulator has unofficially indicated that UK funds
The FIN-FSA has made no official announcement on the issue.
will be treated as third-country funds, i.e. non-EEA funds.
Latvia However, the regulator has unofficially indicated that in case of
Lithuania no-deal Brexit, UK funds will be treated as third-country funds,
Luxembourg i.e. non-EEA funds.
Malta Will UK funds (UCITS funds and AIFs) currently passported in
Netherlands Finland under the UCITS/AIFM Directive have to (re)register or
Norway make any notification with the FIN-FSA as a result of Brexit to
Poland continue marketing in Finland?
FIN-FSA has indicated that it would not allow funds to register
Portugal
under AIFMD Article 42 before the Exit day (31 January 2020).
Romania
Funds that wish to continue operating in Finland after Brexit can
Slovakia now file for notification.
Slovenia
Spain
SwedenContacts
Finland (Cont)
Austria Has the FIN-FSA published any guidance around delegation, If a UK fund manager is currently providing services (e.g. MiFID
Belgium including delegation of portfolio management, from a local services) in Finland, will these services be deemed to be carried
Bulgaria UCITS management company or AIFM back to a UK based out from the UK or from Finland after Brexit?
Croatia
entity? If not, what is the current position on delegation The position is not yet clear, but probably from the UK.
from a local UCITS management company or AIFM to a
Cyprus The Finnish regulator’s MiFID position is that the grandfathering
non-EEA country?
Czech Republic of passported services/activities will only occur if the UK MiFID
– AIFM - Art. 20 AIFM Directive 2011/61/EU and
Denmark entity applies for a cross-border authorisation by the date the
Delegated Regulation (EU) No 231/2013 applies
withdrawal takes effect. There will be no transition period.
Estonia
– UCITS - Art. 13 UCITS Directive 2009/65/ For more information, please consult the dedicated FIN-FSA
Finland
EC and Directive 2010/43/EU applies webpage.
France
Germany
– in order for delegation to be permitted under AIFM
Directive or UCITS Directive, a cooperation agreement
Greece
must be in place between the EU member state
Hungary regulator and the non-EEA member state regulator
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Norway
Poland
Portugal
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France
Austria Is there an existing Cooperation Agreement or Memorandum will no longer qualify as UCITS funds after Brexit and existing UK
Belgium of Understanding in place between the UK’s Financial Conduct UCITS will be considered as third-country AIFs.
Bulgaria Authority (FCA) and the French Financial Market Authority
ESMA has not yet activated the third country fund managers
Croatia
(Autorité des marches Financiers – AMF) ?
regime under AIFMD which would allow fund managers to
Yes.
Cyprus market AIFs in Member States where they have obtained an
Czech Republic The FCA has entered into a multilateral memorandum of appropriate licence.
Denmark understanding (“MMoU”) with the European Securities and
Marketing “without passport” to professional and non-
Markets Authority (“ESMA”) and a series of bilateral memoranda
Estonia professional customers is available on a country by country basis.
of understanding (“MoUs”) with each of the EU/EEA securities
Finland In France, prior AMF authorisation is required.
regulators all of which came into force at the end of the
France Brexit transitional or implementation period (“TIP”) AIFMs will also be able to use reverse solicitation or set up a
Germany on 31 December 2020. subsidiary in a Member State to manage and market UCITS funds
Greece and AIFs in the EU.
The MMoU and MoUs cover supervisory cooperation,
Hungary enforcement and information exchange between EU/EEA Will UK UCITS funds currently passported in France under the
Ireland regulators and the FCA. The MMoU and MoUs allow the UCITS Directive that do not wish to de-register the fund, be
Italy regulators to share information relating to (amongst other things) subject to a different regime in terms of regulatory reporting
Latvia market surveillance, investment services and asset management to AMF and provision of information to local investors after the
Lithuania activities. end of the TIP?
Luxembourg Yes, UK UCITS will be treated as non-EEA funds and will therefore
How will the AMF treat UK funds (UCITS funds and AIFs) which
have to comply with AIFMD transparency and disclosure
Malta are currently passported in France under the UCITS/AIFM
requirements as set out in Articles 22, 23 and 24 of the AIFM
Netherlands Directive after the end of the TIP?
Directive 2011/61/EU and related Level 2 provisions) in France.
Norway As third country funds, i.e. non-EEA funds.
Poland Will UK funds (UCITS funds and AIFs) currently passported in
Portugal France under the UCITS/AIFM Directive have to (re)register or
Romania make any notification with the AMF as a result of the end of the
Slovakia TIP to continue marketing in France?
Slovenia The UCITS Directive and its implementing provisions under
French law do not provide for non-EEA funds to be marketed
Spain
as UCITS funds. Accordingly, UCITS funds established in the UK
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