Cross-Border Distribution Regulation and UCITS Marketing Materials Requirements 

Regulation (EU) 2019/1156 on facilitating cross-border distribution of collective undertakings (the “Cross-Border Distribution Regulation” or “Regulation”) took effect on 2 August 2021. 

The Cross-Border Distribution Regulation sets out requirements for marketing communications in relation to UCITS and AIFs. This blog focuses on the Regulation’s requirements for UCITS’ marketing communications. UCITS management companies are responsible for complying with these requirements. The Regulation is directly applicable and does not require transposition at the national level.  

Some of the requirements of the Cross-Border Distribution Regulation for UCITS’ marketing communications already existed under Article 77 of Directive 2009/65/EC (the “UCITS Directive”), which Article has now been repealed. However, four of the requirements of the Cross-Border Distribution Regulation are new: 

• Each marketing communication must describe the risks and rewards of purchasing units in a UCITS in an equally prominent manner; 
• Each marketing communication must include a hyperlink to or a website address where the prospectus and KIIDs are available;  
• Each marketing communication must specify where, how and in which language investors or potential investors can obtain a summary of investor rights and provide a hyperlink to such a summary, which shall include, as appropriate, information on access to collective redress mechanisms at European Union and national level in the event of litigation; and  
• Each marketing communication must set out clear information that the UCITS management company may decide to terminate the arrangements made for the marketing of the UCITS in accordance with Article 93a of the UCITS Directive. 

Finally, a few months ago ESMA released Guidelines ESMA34-45-1272 on marketing communications under the Regulation on cross-border distribution of funds (the “ESMA Guidelines” or “Guidelines”). Although these Guidelines will only come into force on 2 February 2022, UCITS management companies may wish to already take them into account while implementing the requirements of the Regulation. 

In general, the ESMA Guidelines aim at aligning the regime of marketing communications issued by UCITS management companies with the regime currently applicable to MiFID firms under Directive 2014/65/EU (“MiFID II”). It is worth noting, however, that in some instances the Guidelines go beyond the MiFID II requirements. This is the case, for example, with regard to the display of past performance for UCITS funds. Even if your marketing materials are currently “MiFID-compliant”, consider reviewing them against the ESMA Guidelines too. 

How can we assist? 

Zeidler can review any marketing communications against the requirements of the Cross-Border Distribution Regulation and/or the ESMA Guidelines. 

We also monitor on a regular basis any interpretation or gold-plating which may arise at the national level and can advise you on any more specific local requirements. 

For more information on this matter, please get in touch and email [email protected]

Download a pdf version of this update here