In response to the COVID-19 pandemic, the Irish Government passed into law emergency legislation on March 24, 2020 allowing the Government to make exceptional provisions in order to mitigate the effect of the spread of COVID-19 as well as the resulting or likely adverse economic consequences from the spread of the disease in Ireland. Further legislation allowing additional measures to be implemented in order to mitigate the effect of COVID-19 is expected to be implemented before the end of March.
The Central Bank also announced that it has released a capital buffer that Irish banks are required to hold in order to support the continued provision of credit to households and businesses in light of the virus. It has written to fund management companies reminding them of their obligation to ensure the continuity of their business activities notwithstanding any difficulties caused by the virus. It has also asked fund management companies to engage with them prior to invoking liquidity management tools such as redemption gates or suspension of redemptions.
Clarification on authorisation process applicable to UCITS funds
In a revised Central Bank UCITS Q&A issued in February, the Central Bank confirmed that during the authorisation process for a UCITS, the Central Bank may require additional information to be provided in the course of reviewing a specific application with a view to ensuring that the proposal is appropriate, taking into account the overall portfolio of assets that is proposed for the UCITS fund. It notes, by way of example, that where a UCITS proposes to invest in CFDs, CLOs, Contingent Convertible (CoCo) bonds or binary options, this may result in additional information being requested by the Central Bank and additional scrutiny of the relevant application. In practice, in the case of UCITS proposing to invest in such assets, the Central Bank expects additional information to be provided at the start of the application process.
Fitness and probity regime
The Central Bank has released a Notice of Intention to industry outlining its proposal to introduce three new “pre-approval controlled functions” (PCF functions) candidates which would need to be prior-approved by the Central Bank before the roles are taken up so that the Central Bank can determine whether they are of appropriate character and have the necessary qualifications and experience required to discharge the specific PCF function for which they are proposed. It also proposes to split the existing PCF function of ‘Designated Person’ within UCITS management companies and AIFM into six separate PCF roles aligned to specific managerial functions. Of relevance to the Irish asset management industry is the proposal to create a new PCF function of Chief Information Officer. This role, if introduced, will typically apply to the most senior individual within the organization responsible for IT matters and it will be up to the organization to determine in each case whether the role meets the substance of a Chief Information Officer role. The Central Bank has requested to receive feedback by March 26, 2020.
Central Bank ‘Dear CEO Letter’ on cybersecurity
In March, the Central Bank issued a letter to all fund management firms on the key findings of their recent thematic inspection of cybersecurity risk management in fund management firms. The letter, which must be brought to the attention of all board members and senior management by April 30, 2020, obliges these entities to fully consider the findings outlined in the letter and evaluate their own cybersecurity arrangements in light of such findings to establish if any improvements are required.
In March, the Central Bank wrote to all fund management companies (including internally managed funds) to remind them of the obligation to ensure that they adequately prepare for the implementation of global benchmark reforms and any associated risks and to ensure a smooth transition to alternative or reformed benchmark rates ahead of the relevant deadlines.
In January, the Central Bank published the first edition of its EMIR Q&A which updates and replaces web-based guidance.
In March, the European Union (Shareholders’ Rights) Regulations 2020, which transpose Directive (EU) 2017/828 into Irish law, were published and, subject to certain transitional arrangements, enter into force on 30 March 2020. These regulations impose an obligation on Irish regulated UCITS management companies, AIFM and MiFID firms, amongst others, to prepare a shareholder engagement policy that describes how shareholder engagement is integrated into their investment strategy and how investee companies are monitored on relevant matters. In scope, firms must make this policy publicly available on their websites. Alternatively, they must publish a statement on their websites setting out why they have chosen not to do so. They must also disclose on an annual basis how that engagement policy has been implemented and provide additional information on how their strategy contributes to the medium/long-term performance to in-scope institutional investors which invest in their funds or managed accounts on an annual basis. Helpfully, the regulations confirm that a listed UCITS or AIF fund does not constitute “traded PLC” for the purposes of the legislation and as a result is not subject to the obligations imposed on investee companies under SRD II.