Key Benefits:
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Proposal for Law No 129 /XII
Exhibition of Motives
The proposal for a legislative authorization bill that presents itself to the Assembly of the Republic
authorize the Government to review the Legal Regime of Collective Investment Bodies
(OIC), approved by the Decree-Law No. 252/2003 of October 17, as amended by the
Decrees-Leis n. ºs 52/2006, March 15, 357-A/2007, October 31, 211-A/2008,
of November 3, 148/2009, of June 25, and 71/2010, of June 18.
Attentive to the relevance and breadth of the changes that occurred in European Union law in the
Respect to the OIC regime, it is the purpose of the Government to approve a new Regime
Legal of Collective Investment Organisms (NRJOIC), which welcomes and transposes to
the internal legal order the new subjects and the changes arising from the following
directives:
a) The Directive No 2009 /65/CE, of the European Parliament and of the Council, of 13 of
is July 2009, which coordinates the laws, regulations and
administrative relating to some collective investment bodies in
securities (UCITS), in the essay given by Directive No 2010 /78/UE, of the
European Parliament and of the Council;
b) The Commission's Directive No 2010 /43/UE of July 1, 2010, which applies to
Directive No 2009 /65/CE, of the European Parliament and of the Council, in what it says
respect to the organisational requirements, conflicts of interest, the exercise of the
activity, risk management and the content of the agreement concluded between the
depositary and the managing company;
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c) The Commission's Directive No 2010 /44/UE of July 1, 2010, which applies to
Directive No 2009 /65/CE, of the European Parliament and of the Council, as regards
certain provisions relating to mergers of funds, main type structures / of
food ( master-feeder ) and notification procedures; and
d) Partially, the Directive No 2010 /78/UE, of the European Parliament and of the
Council, of November 24, 2010, amending Directives n. ºs 98 /26/CE,
2002 /87/CE, 2003 /6/CE, 2003 /41/CE, 2003 /71/CE, 2004 /39/CE,
2004 /109/CE, 2005 /60/CE, 2006 /48/CE, 2006 /49/CE and 2009 /65/CE, in what
concerns the competences of the European Supervisory Authority (Authority
European Banking Authority), of the European Supervisory Authority (European Authority
of Insurance and Occupational Pensions of Reformation) and the European Authority
of Supervision (European Securities and Markets Authority), such
as rectified, in the part where it amends the Directive No 2009 /65/CE, of the
European Parliament and of the Council, with regard to the competences of the
European Securities and Markets Authority.
In addition to the changes specifically related to the transposition of the said
directives, the NRJOIC reflects materially relevant changes, notably at the level of the
classification of the OIC, requirements of own funds, independence regime of the entity
responsible for the management and eligibility of the assets.
The NRJOIC still translates an effort of systematization and ordering of the subjects that the
make up.
In this framework, the authorization of the Assembly of the Republic is to be submitted and the extension
of the new regime, particularly with regard to (i) to the access and exercise requirements of the
activities related to the management of OIC and related professional activities; and (ii) to the
sanctionatory regime applicable to the violation of the provisions laid down in the diploma.
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Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Object
1-It is granted to the Government legislative authorization for, in the frame of the transposition of the
Directives n. 2009 /65/CE, of the European Parliament and of the Council, of July 13 of
2009, 2010 /43/UE, of the Commission of July 1, 2010, 2010 /44/UE, of the Commission, of
July 1, 2010, and, partially, 2010 /78/UE, of the European Parliament and of the
Council of November 24, 2010 to review the Legal Regime of the Organisms of
Collective Investment (OIC), approved by the Decree-law No. 252/2003, of 17 of
October, and amended by the Decrees-Leis n. ºs 52/2006, of March 15, and 357-A/2007,
of October 31, 211-A/2008, of November 3, 148/2009, of June 25, and
71/2010 of June 18, inter alia, in respect of:
a) To the requirements for access to and exercise of the activities related to the management of
OIC and related professional activities; and
b) To the sanctionatory regime applicable to the provisions laid down in the diploma.
2-A review referred to in the preceding paragraph is carried out upon adoption of a new
Legal Regime of Collective Investment Organisms and the introduction of amendments
punctual to the General Regime of Credit Institutions and Financial Societies and to the
Code of Securities.
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Article 2.
Sense and extent of legislative authorization as to the access requirements and
exercise of the activities related to the management of OIC and activities
related professionals
In the use of the legislative authorization conferred by the letter (s) a) of paragraph 1 of the preceding Article, may the
Government to establish the requirements for access and exercise of the activities related to the
management of OIC and related professional activities, in the following terms:
a) Define the guiding principles of the exercise of functions by the entity
responsible for the management, the depositary and the marketer of a
OIC, by imposing independent acting and in the exclusive interest of the
participants of an OIC;
b) Making conditional on authorisation of the CMVM the process of constituting a
OIC, either of a contractual nature or of a societal nature, by defining rules
for the instruction of the respecting process, it is predicated that it will include:
i) The projects of contracts to be concluded with the depositary, with the entities
marketers, with the subcontracted entities and with the society
gestures, as per the cases, as well as with other preseging entities of
services;
ii) The supporting documents of acceptance of functions of all
entities involved in the activity of an OIC;
iii) Information on the idoneity and experience of the administrators of
investment society furniture and a reasoned statement of the
applicants attesting that the same meet the requirements of
applicable independence;
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c) Make depend on communication to the CMVM the changes to the information referred to
in the preceding paragraph and set the date for the production of effects of the said
changes;
d) Establish the terms and conditions regarding the exercise of activities
related to the management of an ICO by investment company furnishing,
fixing:
i) Organizational requirements;
ii) Minimum initial capital requirements and own funds;
iii) Requirements relating to idoneity, professional experience and independence
of the members of the social bodies, in accordance with the terms set out in paragraphs 3 and 4 of the
article 30 and in Article 31 of the General Regime of Credit Institutions and
Financial Societies;
iv) The requirement that close relations should exist, should they exist, do not compromise the
supervision;
e) Make dependent on communication to CMVM the designation of new members of the
body of administration or surveillance of an investment company
furniture;
f) Define the scope of the powers of the governing body of a society
of furniture investment, as well as the regime of responsibility among the
members of the administrative and supervisory bodies before the participants and
in the face of society for the failure to comply or defective compliance of the
applicable legal and regulatory duties and obligations arising from the
constitutive documents;
g) Define the entities that consider themselves to be eligible for the exercise of the management of
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a heterogerated furniture investment society, restricting them to
corporate fund management of investment funds and the institutions of
credit, making it conditional on communication to the Bank of Portugal to be referred to
designation and defining the terms and conditions governing the relationship between the
investment society heterogeride furniture and the designated entity for the
exercise of the respect management;
h) Define the entities that consider themselves to be eligible for the exercise of the function of
managing entities, restricting them to fund holding companies from
investment furniture and credit institutions when the funds of
investment are closed;
i) Define the terms and conditions applicable to the managing entities in the financial year
of the activities related to the management of an OIC, as well as the scope of
respects functions, fixing:
i) General duties, such as the duty to act in the interest of the participants and the
duty of due diligence;
ii) Organizational requirements, particularly the policy for evaluation and management
of risk, execution of the operations on account of the OIC managed, transmission,
aggregation and affectation of orders, handling of operations, registration of
operations of the portfolio and of underwriting and rescue orders, treatment of
complaints from the participants, as well as mechanisms for the management of
conflicts of interest, the exercise of voting rights and respect for the
limits to holdings and detention of assets, and by the regime of operations
whose exercise is vetted to them;
iii) Requirements of own funds applicable to fund managing companies
of furniture investment;
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iv) Requirements for the independence of the respective members of the organs of
administration; and
v) Scope and extent of the subcontracting and replacement arrangements of the
functions of the managing entity;
j) Establishing the regime that regulates the activity abroad of societies
authorized gestures in Portugal, as well as the activity of gestural societies
authorized in other Member States.
k) Define the nature and criteria to be observed by the depositories in the exercise of their
activity, as well as the scope of the respective functions and remunerative regime,
fixing:
i) The scope of the contract to be concluded between the entity responsible for the management of
an OIC and the depositary;
ii) The requirement for minimum own funds;
iii) The requirements for independence and the duty to act in the interests of the
participants, as well as the regime of responsibility, of replacing the
depositary and holders of the respective governing bodies;
l) Define the entities that consider themselves to be eligible for the exercise of the function of
marketing, restricting them to entities responsible for management, the
depositaries, financial intermediaries and other entities authorized by the
CMVM;
m) Define the terms and conditions applicable to the marketer entities in the
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exercise of your activity, setting:
i) The respective general duties, such as the duty to act in the interests of the
participants, the duty of diligence, and the duty to make available to the investor
information that for the purpose has been remitted to them by the entity
responsible for the management;
ii) The regime of responsibility;
n) Establish the duties applicable to the auditors in the performance of their duties
concerning the activity of an ICO, as well as demands for plurality and
turnover to be ensured by the managing entity of the OIC in relation to those;
o) Assign powers to the CMVM to:
i) Require the entities involved, directly or indirectly, in the management and
marketing of the OIC and provided for in the new Legal System of the OIC to
presentation of any documents or information required to
verification of the compliance of the access regime and exercise of the activities
related to the management or operation of an OIC and activities
related professionals, when deemed necessary by the authority of
supervision;
ii) Authorize or oppose the access and exercise of the activities related to
the management and operation of an OIC and related professional activities,
in particular as to the designation of new members of the organ of
administration, replacement of the depositary and, should the case be verified
fulfillment of certain conditions, the carrying out of operations
vetted, in the acetation of the new Legal Regime of the OIC;
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p) Assign powers to the Bank of Portugal to require the envisaged entities in the new
Legal Regime of the OIC the submission of any documents or
information necessary for the verification of compliance with the access regime and
exercise of the activities related to the management or operation of a
OIC and related professional activities, when deemed necessary by the
supervisory authority;
q) Without prejudice to the competences of the Bank of Portugal, assign powers to the CMVM
to establish the terms of the contents of the annual report of the shares of
supervision developed by the depositary.
Article 3.
Sense and extent of legislative authorization as to the sanctionatory regime that
discipline the violation of the provisions laid down in the new Legal Scheme of the OIC
In the use of the legislative authorization conferred by the letter (s) b) of Article 1, may the Government
define the sanctionatory regime applicable to the violation of the provisions laid down in the new
Legal Regime of the OIC, in the following terms:
a) To establish that to their illicit mere-ordinance of social ordering, by
remission, the substantive and procedural rules established by the Code of
Securities and by the General Regime of Credit Institutions and Societies
Financial;
b) Qualifying and graduating the violation of the provisions laid down in the new Legal Regime
of the OIC, adopting the criteria and the sanctionatory limits established by the
Code of Securities and the General Regime of Credit Institutions and
Financial Societies.
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Article 4.
Duration
The legislative authorization granted by this Law shall be for the duration of 180 days.
Article 5.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of February 9, 2013.
The Prime Minister
The Deputy Minister and Parliamentary Affairs
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The present decree-law approves the new Legal Regime of Investment Organisms
Collective (NRJOIC), proceeding to the repeal of the Decree-Law No. 252/2003, 17 of
October, changed by the Decrees-Laws n. ºs 52/2006, March 15, 357-A/2007, 31 of
October, 211 A/2008, of November 3, 148/2009, of June 25, and 71/2010, of 18 of
June.
By this diploma they are transposed into the internal legal order: (a) the Directive
n. 2009 /65/CE, of the European Parliament and of the Council of July 13, 2009, which
coordinates the legislative, regulatory and administrative provisions relating to some
collective investment bodies in securities (UCITS), in the given essay
by Directive No 2010 /78/UE, of the European Parliament and of the Council, (b) the Directive
n 2010 /43/UE of the Commission of July 1, 2010, which applies the Directive
n. 2009 /65/CE, of the European Parliament and of the Council, with regard to the
organisational requirements, conflicts of interest, the exercise of activity, the management of
risks and the content of the agreement concluded between the depositary and the managing company, (c) a
Directive No. 2010 to /44/UE of the Commission of July 1, 2010, which applies the Directive
n. 2009 /65/CE, of the European Parliament and of the Council, in respect of certain
provisions relating to fund mergers, main type and food-type structures
( master-feeder ) and notification procedures, and (d) the Directive No 2010 /78/UE, of the
European Parliament and of the Council of November 24, 2010 amending the Directive
n. ºs 98 /26/CE, 2002 /87/CE, 2003 /6/CE, 2003 /41/CE, 2003 /71/CE, 2004 /39/CE,
2004 /109/CE, 2005 /60/CE, 2006 /48/CE, 2006 /49/CE and 2009 /65/CE, in what it says
respect the competences of the European Supervisory Authority (Banking Authority
European), of the European Supervisory Authority (European Insurance Authority and
Supplementary Retirement Pensions) and the European Supervisory Authority
(European Securities and Markets Authority), as rectified, in the
part in which it aments Directive No 2009 /65/CE, of the European Parliament and of the Council, in the
relating to the competences of the European Securities Authority and the
Markets.
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The transposition of the UCITS Directive further implies changes to the General Regime of the
Credit Institutions and Financial Societies and the Securities Code, the
which are, likewise, approved by this diploma.
The handling of matter on national mergers is not new in planning
Portuguese legal, sendoyou enshrined an autonomous chapter of the Regulation of
CMVM n. 15/2003. However, the specific consecration of the aspets related to mergers
cross-border diplomas in the above diplomas implies that their transposition into planning
legal Portuguese to be held, by constitutional imposition, through formal law.
Similar treatment has had the framing of other subjects, not already by imperative
constitutional, but for their material dignity and in attention to a principle of consistency
systematic. They include in the latter case the rules relating to heritage and functioning
of the non-harmonized OIC.
The subjects related to the freedom of establishment and freedom to provide
services, as well as with cross-border marketing and provision of information
are the object of reformulation with the aim of ensuring convergence with the rules
European.
By their shift, the subjects related to the main and type structures
food consubstantiate innovative legal institutes.
In addition to the changes specifically related to the transposition of the directives
referred to, the NRJOIC reflects materially relevant changes, particularly at the level of the
classification of the OIC, own funds, independence regime of the responsible entity
by the management and eligibility of the assets.
This decree-law also carries out amendments that aim to make the procedures
more Celtic and efficient, adopting the rule of tacit deferrals in many situations. In this
scope is proposed yet new deadlines and new rules regarding procedures for
authorization and communication.
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At the similarity of the scheme in force, the NRJOIC excludes from its scope the funds
of real estate investment, venture capital, real estate management, of
securitisation of credits and pensions, providing for their regulation in special legislation.
The NRJOIC still translates an effort of systematization and ordering of the subjects that the
make up. The NRJOIC is repart in four titles, being that in Title I, its Chapter I
develops the general principles northerners of the OIC regime and accompanies some of the rules
structurants applicable to the OIC, such as acting in the exclusive interest of the participants and
the dispersion requirements.
The NRJOIC introduces changes to the concept of OIC and the classification of the OIC by reserving the
expression "UCITS" to the OIC complying with the investment requirements set out in the
Directive and by imposing that all too many OIC be considered investment
alternative, in line with the terminology adopted in Directive No 2011 /61/UE, of the
European Parliament and of the Council of June 8, 2011 (GFIA Directive) concerning the
alternative investment fund managers, which uses the expression "alternative" to
designate the non-harmonised OIC.
The requirement to obtain capital from the public provided for in the Directive to the UCITS
is reflected in the NRJOIC in the demand for the opening of the capital, defined by the
variability of the capital and translated into the possibility of underwriting and continuous rescue by
any investor and not only qualified investors, allied to the dispersion requirement
of capital by a minimum of 100 participants. Differently, the Organisms of
Alternative Investment in Open Securities (OIAVM) will be able to be
constituted exclusively with qualified investors, while remaining the
demand for dispersion by at least 30 participants.
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The call for public investment is still present in the closed OIC, not covered
by the UCITS Directive, which constitute themselves upon the launch of a public offering of
subscribed, pursuant to Title III of the Securities Code. In this case, the
minimum number of recipients of the offer will have to comply with the criterion set out in Title III
of the Securities Code. Preset, thus, to define the achievement of capital
to the public, resulting in the concept of both the UCITS regime and the regime of the
public offerings for the closed OIC.
The marketing becomes defined as the activity directed at investors, in the sense
to disclose or propose the subscription of participation units in OIC, using
any advertising or communication medium, thus covering investors
qualified. However, if the marketing of the OIC is exclusively aimed at investors
qualified, only its constitution and operation will be subject to authorisation and
supervision of CMVM in the terms to be defined in regulation of this entity.
Chapter II of Title I of the NRJOIC deals with the vicissitudes of the OIC, by staying the Chapter
III reserved for the treatment of constitutive and transversal elements to the operation
of the furniture investment corporations (SIM) and Chapter IV to the general rules that
northeate the specific activity and functioning of the closed OIC.
Titulo II is dedicated to the entities related to OIC, containing the rules regarding the
managing entity, the depositary, the marketer and the auditor of the OIC.
In order to favour efficient and centric management in the exclusive interest of the
participants and with greater independence in the face of the economic group in which the entity
gestures if it inserts itself and in the face of specific interest groups that do not coincide with the
general interest of the participants, the NRJOIC requires a minimum number of administrators
independent and a majority of independent members in the supervisory body.
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With respect to the set of minimum initial capital requirements and own funds, the
national regime is now approaching the European Union regime, taking into account that the
maintenance of a more demanding regime would create barriers to the entry of new societies
national law gestures in the face of competition with law-holding societies
foreign to operate in Portugal. They thus welcome the requirements of own funds
provided for in Directive No 2009 /65/CE, of the European Parliament and of the Council, of 13 of
july 2009, in the NRJOIC and, in its own registered office, the initial capital amount is revised
Demanded to the holding companies of investment funds.
With a view still to the prevention of conflicts of interest and the promotion of a market
competitive, the NRJOIC imposes that the depositary pay this service in no way
discriminate, prevents the OIC auditor from being auditor, or belonging to the auditor's network,
of the parent company in which the entity responsible for the management consolidates its accounts and
obliges the rotating of the OIC auditors.
In the context of Title III and with regard to the regulation of activity and operation, the
NRJOIC establishes, on the basis of the new classificatory structure of OIC, a general regime
for all OIC, followed by the scheme applicable exclusively to UCITS and the
specificities related to the OIA, whose terms develop systematically
in autonomous chapters.
In the context of the prevention of conflicts of interest, the prohibition of operations between parties
related susceptible to generating conflicts of interest extends to the management of any
OIC. In the exception of the rule, the NRJOIC allows the acquisition and alineation of assets to
related entities as long as authorized by the CMVM and demonstrate the acting in the
interest of the participants. The acquisitions and disposals carried out in
regulated market or in multilateral trading system in which the counterparty
be unknown.
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Still at this headquarters, the NRJOIC sets out the prohibition on the OIC to hold issued assets or
guaranteed by entities related to management above 20% of the overall net value,
in line with the limit set for the UCITS as to the group's assets.
With respect to eligible assets, it is to highlight the scheme concerning the OIA that are not
OIAVM, going on to demand that these OIC invist only a minimum of 30% of the value
global net in non-financial assets. It is judged that the relaxation of the scheme will allow the
managing entities the presentation of investment policies that are more tailored to the
interests of the market.
Finally, Title IV develops the rules related to the supervision of the activity of the
OIC, the cooperation between the respective competent authorities, as well as the cast of the
subjects on which, within the framework of the NRJOIC, CMVM has regulatory habilitation.
The Bank of Portugal, the Securities Market Commission, was heard.
National Board of Consumption, the National Data Protection Commission, the
Portuguese Association of Investment Funds, Pensions and Patrimias, the Association
Portuguese of Banks and the Portuguese Association for the Defense of Consumption-Deco.
Thus:
In the use of the legislative authorization granted in the by the Law n. [ Reg. PL 8/2013 ] and on the terms
points a) and b) of Article 198 (1) of the Constitution, the Government decrees the following:
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Article 1.
Object
1-The present decree-law proceeds to the review of the legal regime of the bodies of
collective investment (OIC), approved by the Decree-Law No. 252/2003, 17 of
October, as amended by the Decrees-Leis n. ºs 52/2006, of March 15, and 357-A/2007, of
October 31, by the Declaration of rectification n. 117-A/2007 of December 28,
by the Decrees-Leis n. ºs 211-A/2008, of November 3, 148/2009, of June 25, and
71/2010, of June 18, approving the new Legal Regime of the Organisms of
Collective Investment and transposing into the internal legal order the following
directives:
a) The Directive No 2009 /65/CE, of the European Parliament and of the Council, of 13 of
is July 2009, which coordinates the laws, regulations and
administrative relating to some collective investment bodies in
securities (UCITS), in the essay given by Directive No 2010 /78/UE,
of the European Parliament and of the Council;
b) The Commission's Directive No 2010 /43/UE of July 1, 2010, which applies to
Directive No 2009 /65/CE, of the European Parliament and of the Council, in what it says
respect to the organisational requirements, conflicts of interest, the exercise of the
activity, risk management and the content of the agreement concluded between the
depositary and the managing company;
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c) The Commission's Directive No 2010 /44/UE of July 1, 2010, which applies to
Directive No 2009 /65/CE, of the European Parliament and of the Council, in what
complies with certain provisions relating to fund mergers, type structures
main and type feeding ( master-feeder ) and notification procedures; and
d) The Directive No 2010 /78/UE, of the European Parliament and of the Council, of 24 of
november 2010, which amends the Directives n. ºs 98 /26/CE, 2002 /87/CE,
2003 /6/CE, 2003 /41/CE, 2003 /71/CE, 2004 /39/CE, 2004 /109/CE,
2005 /60/CE, 2006 /48/CE, 2006 /49/CE and 2009 /65/CE, as far as the
competences of the European Supervision Authority (Banking Authority
European), of the European Supervisory Authority (European Authority of the
Insurance and Supplementary Pensions) and the European Authority of
Supervision (European Securities and Markets Authority), such
as rectified, in the part where it amends the Directive No 2009 /65/CE, of the
European Parliament and of the Council, with regard to the competences of the
European Securities and Markets Authority.
2-The present decree-law further proceeds to the introduction of amendments to the General Regime of the
Credit Institutions and Financial Societies and the Securities Code.
Article 2.
Approval of the new Legal Regime of Collective Investment Organisms
The Legal Regime of Collective Investment Bodies is approved, which is published
in annex to the present decree-law, of it being an integral part.
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Article 3.
Amendment to the General Regime of Credit Institutions and Financial Societies
Articles 6, 199.-A, 199.-B and 199.-L of the General Regime of Credit Institutions and
Financial Societies (RGICSF), approved by the Decree-Law No. 298/92, of 31 of
December, changed by the Decrees-Laws 246/95, of September 14, 232/96, of 5 of
December, 222/99, of June 22, 250/2000, October 13, 285/2001, 3 of
November, 201/2002, of September 26, 319/2002, of December 28, 252/2003, 17
of October, 145/2006, of July 31, 104/2007, of April 3, 357-A/2007, of 31 of
October, 1/2008, of January 3, 126/2008, of July 21, and 211-A/2008, of 3 of
november, by Law No. 28/2009 of June 19, by the Decree-Law No. 162/2009, 20 of
July, by Law No. 94/2009, of September 1, by the Decrees-Leis n. ºs 317/2009, of 30 of
October, 52/2010, of May 26, 71/2010, of June 18, by Law No. 36/2010, of 2 of
September, by the Decree-Law No. 140-A/2010 of December 30, by Law No. 46/2011, of
June 24, and by the Decrees-Leis n. ºs 88/2011, of July 20 and 119/2011, of 26 of
December, 31-A/2012, of February 10, 242/2012, November 7, 64/2012, 20 of
December, and by the Decree-Law No. 18/2013 of February 6, they go on to have the following
essay:
" Article 6.
[...]
1-[...].
2-[...].
3-For the purposes of this diploma, do not consider themselves financial companies
insurance companies, pension fund management companies and the
furnishing and real estate investment societies.
4-[...].
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Article 199-The
[...]
[...]:
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-The managing company of investment funds furniture: the society whose
customary activity consisted in the management of investment bodies
collective in securities, and may manage, in parallel, other
collective investment bodies.
Article 199-B
[...]
1-[...].
2-Within the scope of the provision of investment services, the provisions of paragraph 5 of the
article 199-D, in Article 199-F, and in Article 199 (2 a) of Article 199-J is also
applicable to credit institutions.
Article 199-L
[...]
1-[...].
2-[...]:
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a) [...];
b) [...];
c) [...];
d) The relevant time limit for the effects set out in the paragraph d) of paragraph 1 of the
article 22 is six months;
e) [ Previous point (d) ].
3-The establishment of branches and the provision of services in others
Member States in the European Union by fund holding companies of
investment furnishing with registered office in Portugal is governed, with the necessary
adaptations, by the provisions of Articles 36, 37 (1), 39, 40, 40, para. 1, and
43., with the following modifications:
a) The notifications referred to in Article 36 (1) and in Article 43 (1)
are to be made also to the Stock Market Committee
Securities and also include the following elements:
i) Description of risk management procedures;
ii) Description of the procedures and rules set out for the
treatment of complaints;
b) Of the elements accompanying the notification provided for in paragraph 1 of the
article 37 and in Article 43 (2) shall appear as yet:
i) The additional elements referred to in the preceding paragraph;
ii) The necessary clarifications on the guarantee systems of the
which society manager of investment funds furnishings
be a member and on the data relating to the system of
compensation to investors; and
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iii) The scope of the authorisation granted and the possible restrictions on the
types of UCITS that the investment fund manager society
is authorised to manage;
c) The communications and certifications referred to in Article 37 (1) and in the
n Article 43 (2) are transmitted to the supervisory authority of the
Host Member State by the Committee on the Market
Securities, after appearing favorable by the Bank of Portugal that
is pronounced within 20 days;
d) The communication referred to in Article 37 (1) shall be effected in the
period of two months;
e) [ Previous point (d) ];
f) The Securities Market Commission informs the authority
competent from the host Member State if there is any change:
i) From information relating to the scope of the consent of the society
manager of investment funds furnishings or of any
restrictions on the types of UCITS that the same is authorized to
manage, updating the certificate referred to in the point c );
ii) In the guarantee systems as well as in the data concerning the system
of compensation to investors;
g) In Articles 39 and 43, the reference to the listed transactions
append to Directive No 2006 /48/CE, the European Parliament and the
Council, of June 14, 2006, is replaced by the reference to
activity and services listed in paragraphs 2 and 3 of Article 6 of the Directive
n. 2009 /65/CE, of the European Parliament and of the Council, of 13 of
July 2009;
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h) The communication referred to in Article 40 (1) shall be made
also to the Securities Market Committee, a month earlier
of the same to produce effects, so as to allow the Commission to
European pronouns on the amendment, or with the authority
competent from the host Member State, or from the
managing company of investment funds furnishings;
i) In case of modification of the plan of activities referred to in paragraph 1
of Article 43, the managing company of investment funds
furnishings will communicate it, in writing, in the minimum advance of
one month in the face of the date of its implementation to the Market Committee of
Securities and the supervisory authority of the Member State
of reception.
4-[...]:
a) [...];
b) [...];
c) Of the elements accompanying the notifications to the Commission of the
Securities Market should also appear:
i) The description of risk management procedures;
ii) The description of the procedures and rules set out for the
treatment of complaints;
iii) The data relating to the systems for compensation to the
investors; and
iv) The possible restrictions on the types of UCITS that the society
investment fund manager furnishings is authorized to
manage;
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d) In Articles 52 and 60, the reference to the listed transactions
append to Directive No 2006 /48/CE, the European Parliament and the
Council, of June 14, 2006, is replaced by the reference to
activity and services listed in paragraphs 2 and 3 of Article 6 of the Directive
n. 2009 /65/CE, of the European Parliament and of the Council, of 13 of
July 2009;
e) [ Previous point (d) ];
f) [ Previous point (e) ];
g) [ Previous point f) ].
5-The managing companies of furniture investment funds based in
Portugal who exercise the activities for which they are authorized in the
territory of another Member State of the European Union in freedom of
provision of services must comply with the Portuguese laws concerning the
rules of conduct.
6-The managing companies of furniture investment funds based in
Portugal who exercise OIC management activity in the territory of another
State Member of the European Union must comply with Portuguese laws
concerning your organization, including the subcontracting rules, the
risk management procedures, the prudential and supervisory rules and
the reporting obligations incumbent upon them.
7-The Bank of Portugal and the Commission of the Securities Market are
responsible for the supervision of compliance with the rules referred to in paragraphs 5
and 6, and they must still ensure that the managing society is able to comply with the
obligations and standards relating to the constitution and operation of all
OICVM by you managed.
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8-The activities of managing companies of investment funds Furniture
with registered office in another Member State of the European Union who exercise
activities in Portugal upon the establishment of a branch stay
subject to the rules of conduct laid down in Portuguese legislation. "
Article 4.
Amendment to the Securities Code
Articles 2, 289, 305, 305, 305-B, 305.-D, 305.--E, 307, 309.-B, 309.
309.--E, 312.--E, 312.-G and 323 of the Securities Code, approved by the
Decree-Law No. 486/99 of November 13, they pass the following essay:
" Article 2.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-The references made in this Code to units of participation shall
be understood in order to cover the shares of investment institutions
collective, save if the other way round results from the provision itself.
Article 289.
[...]
1-[...].
2-[...].
3-[...].
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4-The provisions of Articles 294 to 294.-D, paragraph 3 a to 10 of Article 306, Articles
306.-A to 306.-D, 309.-D, 314 to 314.-D, 317 to 317.-D and chapters II and
III is not applicable to the investment management activity of institutions of
collective investment.
5-In addition to the provisions of the articles and chapters referred to in the preceding paragraph, the
provisions of paragraphs 2 a to 4 of Article 305-A, Articles 305-B, 305-C, para. 3 of the
article 305-D, Articles 305--E, 307 to 307-B, 308 to 308.-C, 309.-G and
310. to 316 is not applicable to investment companies furnishing and to
heterogeride real estate investment societies.
Article 295.
[...]
1-[...].
2-[...].
3-[...].
4-A CMVM communicates to the European Securities Authority and the
Markets the registration of:
a) Investment firms and credit institutions that provide
services or exercise investment activities;
b) Managing companies of investment funds of furniture and of
investment companies furniture that spin organisms from
collective investment in securities.
Article 305.
[...]
1-[...]:
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a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) Adopt appropriate systems and procedures to safeguard security,
the integrity and confidentiality of the information, including the
electro-trophic treatment of data;
i) [...];
j) [...];
k) Have appropriate internal control procedures, including
rules regarding the personal transactions of your collaborators or the
detention or management of investments in financial instruments for
investment on its own.
2-[...].
3-[...].
Article 305-B
[...]
1-[...].
2-In the case of the management of collective investment institutions, the policy of
risk management includes:
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a) The necessary procedures to allow the intermediary
financial, evaluate, for each autonomous heritage compartment
or managed institution, the exposure to market risks, liquidity and
of counterparty, as well as exposure to all other risks that
may be significant, specifically the operational risks,
and shall cover the following elements:
i) The techniques, tools and mechanisms that enable you
to comply with obligations relating to risk assessment and management and to the
calculation of the exhibition of the collective investment body;
ii) The distribution of responsibilities in relation to management of
risks within the financial intermediary;
b) The conditions, the content and the frequency of communication of
information between the risk management service and the organs of
administration and, if it is the case, of supervision of the intermediary
financial responsible for the management.
3-For the purposes of applying the previous number, the financial intermediary
takes into account the nature, the size and the complexity of its activities and
of the collective investment institutions that generate.
4-The financial intermediary must keep up with the suitability and effectiveness of the
policies and procedures adopted in the terms of paragraphs 1 and 2, the
performance of these on the part of the persons referred to in Article 304 (5)
and the appropriateness and effectiveness of the measures taken to correct any possible
deficiencies in those.
5-The financial intermediary must establish a risk management service
responsible for:
a) [ Point (a) of the previous paragraph 3 ];
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b) [ Point (b) of the previous paragraph 3 ].
6-In the case of the management of collective investment institutions, the service
referred to in the preceding paragraph is still responsible for:
a) Ensuring compliance with the risk control system of the
institutions, including the legal limits of global and risk exposure
of counterparty;
b) Submit regularly reports to the members of the organ of
administration and the members of the supervisory body concerning:
i) To the consistency between the levels of risk incurred by each
gerida collective investment institution and the risk profile
agreed for the institutions in question;
ii) To compliance with the risk limit system for each
managed collective investment institution;
c) Provide on a regular basis and at least annually to members of the
administration body reports that describe the current level of risk
incurred by each collective investment institution managed and
any effective or predictable defaults of such limits, of
mode to ensure that quick and appropriate action is taken in
compliance;
d) Review and strengthen, when necessary, the mechanisms and procedures
of evaluation of transacted financial instruments
out of regulated market and trading system
multilateral.
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7-The risk management service is independent whenever appropriate and
proportional, taking into account the nature, the size and the complexity of the
activities, as well as the type of financial intermediation activities
presaged.
8-The financial intermediary who, depending on the criteria set out in the
previous number, do not adopt an independent risk management service
must ensure that the adopted policies and procedures meet the
constant requirements of n. ºs 1, 2 and 4.
9-The financial intermediary must be able to demonstrate that they have been
adopted appropriate safeguards with respect to preventing conflict
of interests, so as to allow the independent realization of the activities
of risk management.
10-The risk management service shall have the means and skills
necessary to the cabal performance of the respective functions.
11-The financial intermediary must notify the CMVM of any changes
significant effectuation in the risk management procedure.
Article 305-D
[...]
1-[...].
2-[...].
3-In the case of the management of collective investment institution, the holders of the
managing body of the financial intermediary are still responsible
for the performance of the duties provided for in the respect of legislation and
specifically:
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a) By the implementation of the general investment policy, as described in the
constitutive documents;
b) By the approval of investment strategies;
c) For ensuring and regularly checking that the general policy of
investment, investment strategies, and risk limits are
applied and complied with in an appropriate and effective manner, even if the
risk management function is exercised by third parties.
4-For the purposes of the provisions of the preceding paragraph, it shall be drawn up and
presented to the body of administration a report, of periodicity by the
less annual, on the application of investment strategies and the
internal procedures for making investment decisions.
Article 305-And
[...]
1-[...].
2-[...].
3-Investors can submit claims free of charge, being
also free of charge access to the response to complaints filed.
Article 307.
[...]
1-[...].
2-A accounting for the management of collective investment institutions
should be maintained in such a way that the assets and liabilities of them can
be directly identified at all time.
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3-In the case of a collective investment institution with compartments
autonomous patrimonial, separate accounts must be kept for each
one of the autonomous patrimonial compartments.
4-In the case of the management of an OICVM authorised in another Member State, the
financial intermediary must adopt policies and procedures of
accounting, in compliance with the accounting rules of that
Member State, so as to ensure that the calculation of the overall net value
of each UCITS is carried out strictly and that the subscription and order orders
rescue can be correctly executed on the basis of the net value of the
calculated participation unit.
5-[ Previous Article No 2 ].
6-[ Previous Article No 3 ].
7-[ Previous Article No 4 ].
8-The registration of subscription orders or rescue of units of participation
in collective investment institutions includes the following data:
a) The relevant collective investment institution;
b) The person who gives or transmits the order;
c) The person who receives the order;
d) The date and time of the order;
e) The conditions and mode of payment;
f) The type of order;
g) The date of execution of the order;
h) The number of participation units subscribed or refunded;
i) The unitary subscription or redemption price;
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j) The total subscription or redemption value of the units of
participation;
l) The gross value of the order including the subscribing charges or the
net amount after deducting the charges from the refund.
9-[ Previous Article No 5 ]
10-The financial intermediary shall adopt appropriate measures in respect of
to the electronic systems needed to allow for rapid registration and
proper of every movement of the wallet or order.
Article 307-B
[...]
1-[...].
a) Operations on financial instruments, including orders received,
by the time limit of five years after the operation is carried out;
b) [...].
2-The duty provided for in the paragraph a ) of the previous number remain, with respect
the collective investment institution, in the event of the revocation of the authorization
of the financial intermediary responsible for the management of the same, by the
remnant period of the five years.
3-Case the financial intermediary responsible for the management of institution of
collective investment transfits its responsibilities towards the
even for another intermediary, the one must ensure that the records of the
last five years are accessible to this financial intermediary.
4-[ Previous Article No 2 ].
5-[ Previous Article No 3 ].
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6-[ Previous Article No 4 ].
Article 309-B
[...]
1-[ Previous body of the article ].
2-For the purposes of the provisions of the d) of the previous number, in the framework of
management of collective investment institutions, is in question the situation in
that the financial intermediary develops the same activities for the
collective investment institution and for another client.
3-In the identification of the types of conflicts of interest, the intermediary
financial responsible for the management of collective investment institutions
considers:
a) The interests of one's own, including those arising from belonging to a
group or the provision of services and activities, the interests of the
customers and the duties in relation to the institution that manages;
b) The interests of two or more managed institutions.
Article 309-And
[...]
1-[...].
2-[...].
3-For the purposes of the b ) of the previous number, if certain activities
are secured by subcontractor entities, the financial intermediary
must ensure that the subcontractor entity keeps a record of the
personal operations carried out and provides that information to the intermediary
immediately, when this is asked for you.
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Article 312-And
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-In the case of units of collective investment body participation
in securities, the document entitled Fundamental Information
to the Investor (IFI) is deemed to be suitable for the purposes of the willing
point ( d) of Article 312 (1).
Article 312-G
[...]
1-[...].
2-[...].
3-In the case of units of collective investment body participation
in securities, the IFI is deemed to be suitable for the purposes of
provisions of the paragraph h ) of Article 312 (1) in respect of costs
related to the collective investment body, including the
underwriting and rescue committees.
Article 323.
[...]
1-[...].
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2-[...].
3-[...].
4-In the case of orders from an unqualified investor, who focus on
participation units and are performed periodically, the
financial intermediary shall send the communication referred to in point (b) of the
n. 1 or provide the customer, at least semester, the information
indicated in the following number.
5-[...].
6-[...].
7-[...].
8-[...] "
Article 5.
Addition to the Securities Code
Articles 309-G and 323-D to the Securities Code, approved, are postponed.
by Decree-Law No. 486/99 of November 13, with the following essay:
" Article 309-G
Management of assets
1-Being in question the management of collective investment institutions, the
financial intermediary must structure itself and organize itself by way of
minimize the risks of the interests of the collective investment institution
or the customers come to be harmed by conflicts of interest between the
intermediate and its customers, among its customers, among one of its
clients and a collective investment institution or between institutions of
collective investment.
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2-When the authorisation of the financial intermediary covers not only the management
of collective investment institutions as also the management service
discretionary of portfolios, the intermediary cannot invest totality or
part of a customer's portfolio in units of participation of a
collective investment institution under its management, saved with the
prior consent of that, which can be given in generic terms.
Article 323-D
Particularities regarding the execution of underwriting and ransom orders
1-Notwithstanding the provisions of Article 323 (1), where it is executed
an underwriting or rescue order of units of participation of
collective investment institutions, the responsible financial intermediary
by the management of these sends a communication to the participant, in support
lasting, which confirms the execution of the order, until the first working day
following the execution.
2-The duty of communication does not apply when the relationship with the participant
is ensured by marketer, in which case this has the
duty to provide such information promptly, in the terms provided for in the
point ( b ) of Article 323 (1).
3-For the purposes of the provisions of the preceding paragraph, the financial intermediary
responsible for the management provides the marketer with the information
necessary for the performance of the duty of communication incumbent upon it.
4-Should the financial intermediary responsible for the management receive the
information regarding the execution of subcontractor entity, the confirmation of
execution of the order with the participant is carried out until the first working day
following the recetion of this confirmation.
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5-A communication referred to in the preceding paragraphs includes, in addition to information
provided for in Article 323 (5), the following information:
a) The date and time of order payout and the mode of payment and
b) The date-value of reference. "
Article 6.
Transitional arrangement
1-The provisions of Article 62 (1) and 2 of the Legal Regime of the Bodies of
Collective Investment, approved in annex to this decree-law and which it is a part of
member, does not apply to the mandates of the members of the governing body and of the
tax advice in progress at the date of the entry into force of this decree-law.
2-The provisions of Article 103 of the Legal Regime of Investment Organisms
Collective, approved in annex to this decree-law and that of it is an integral part, not
applies to the mandates of the auditors in progress at the date of entry into force of the present
Decree-law.
3-The Collective Investment Bodies of indefinite duration already constituted
date of entry into force of this decree-law dispose of a period of six months
for the adaptation of their portfolios to the provisions of the Legal Regime of the Organisms of
Collective Investment approved in annex to this diploma decree-law and that of it
forms an integral part, regardless of the provisions of the respecting documents
constitutive, not being the new rules regarding the composition of the planned portfolios
in that regime applicable to the Collective Bargaining Investment Bodies
determined already constituted.
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Article 7.
Abrogation standard
The Decree-Law No. 252/2003 of October 17, as amended by the Decrees-Laws, is repealed
n. ºs 52/2006, March 15, 357-A/2007, October 31, 211 A/2008, of 3 of
November, 148/2009, of June 25, and 71/2010, of June 18.
Article 8.
Entry into force
This decree-law shall come into force 120 days after its publication.
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ANNEX I
(referred to in Article 2)
Legal Regime of Collective Investment Organisms
Title I
From collective investment bodies
CHAPTER I
General provisions
Article 1.
Scope of material application
1-The present regime regulates collective investment institutions, hereinafter referred to
by "collective investment bodies" or, abbreviated, by "OIC".
2-Register by special legislation the real estate investment bodies, of capital
of risk, of real estate management, of securitisation of credits and of pensions.
3-Without prejudice to the provisions of this regime and in respect of regulation, they are
subsidally applicable to the OIC the provisions of the Securities Code and
of the regulatory respect.
4-The closed OIC that are not constituted upon public offer:
a) They shall only be subject to the rules of the present regime which are appropriate to the
particular character of the underwriting, not being applicable to them, namely, the
standards relating to the following aspets:
i) Fundamental information to the investor, hereinafter referred to as "IFI";
ii) Minimum amount under management;
iii) Dispersion of capital;
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b) They shall be subject to specific rules in respect of the instruction of the application for
constitution, subsequent amendments, vicissitudes of the OIC, reports and accounts and
vector operations, to be defined in regulation of CMVM.
5-A the constitution and operation of OIC in which there is obtaining capital
exclusively together with qualified investors becomes subject to authorization and supervision
of the CMVM, in the terms defined by this in regulation.
6-When in this regime they impose duties or imputation actuations or intentions to OIC,
they must understand themselves as the subject of the duty the entities responsible for the management, save
if another sense results from the provision in question.
Article 2.
Definitions
1-For the purposes of this regime, it is understood to be:
a) "Collective investment body", or abbreviated "OIC", the institutions,
gifted or not legal personality, which have as an end the investment
capital collective obtained from the investors, the operation of which
finds subject to a principle of allocation of risks and the pursuit of the
exclusive interest of the participants;
b) "Collective investment body in securities", or abbreviated
"UCITS", the open OIC:
i) Whose exclusive object is the collective investment of capitals obtained together
of investors not exclusively qualified in securities or
other net financial assets referred to in subsection I of section I of the
chapter II of Title III and which comply with the limits provided for in subsection II
of the same section; and
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ii) Whose units of participation are, at the request of their holders,
reacquired or salvaged, directly or indirectly, in charge of these
organisms, equipping themselves with these reacquisitions or rescues the fact of a
OICVM to act in such a way that the value of its units of participation in
regulated market does not significantly depart from its value
net worth;
c) "Alternative investment bodies" or, abbreviated, "OIA":
i) The OIC, open or closed, whose exclusive object is the investment
collective in securities or other liquid financial instruments
referred to in subsection I of section I of Chapter II of Title III and which no
comply with the limits set out in subsection II of the same section, designated
alternative investment bodies in securities, or
abbreviately "OIAVM"; and
ii) Other closed OIC;
d) "Commercialization", the activity directed at investors, in the sense of divulging or
propose underwriting of units of participation in OIC, using any
means of advertising or communication;
e) "Entities responsible for the management", OIC managing entity or Societies of
Investment self-managed Furniture;
f) "Member State", the Member State of the European Union;
g) "State-Member State of the UCITS", the Member State in which the UCITS
has been authorized;
h) "Member State of host of the UCITS", any Member State,
divers from its Member State of origin, in whose territory they are
marketed the units of participation of the UCITS;
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i) "close relations", those provided for in paragraph a ) of Article 13 (12) of the Regime
General of Credit Institutions and Financial Societies;
j) "initial capital", the funds referred to in points a ) and b ) of Article 57 of the Directive
n. 2006 /48/CE, of the European Parliament and of the Council, of June 14 of
2006;
k) "own funds", the own funds referred to in section 1 of Chapter 2 of the
title V of Directive No 2006 /48/CE, of the European Parliament and of the Council, of
June 14, 2006, being applicable, with the necessary adaptations, the articles
13 to 16 of Directive No 2006 /49/CE, of the European Parliament and of the Council,
of June 14, 2006;
l) "durable support", any instrument that allows the investor to store
information that is addressed to you personally, in such a way that they may be
consulted afterwards for a period appropriate to the purposes to which
are intended, and to allow an exact reproduction of the stored information;
m) "Merger", an operation upon which:
i) One or more OIC or autonomous patrimonial compartments of these (OIC
incorporated) transfer, in the sequence and on the occasion of their dissolution without
settlement, the set of the asset and the liability that integrates its heritage
for another OIC already existing or for a heritage compartment
autonomous of this (OIC incorporator), upon allocation to the respects
participants of built-in OIC participation units and, if
provided for in the merger project, of an amount in cash not exceeding the
10% of the net worth of these units of participation;
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ii) Two or more OIC or autonomous patrimonial compartments of these
(embedded ICO) transfer, in the sequence and on the occasion of your
dissolution without liquidation, the set of the asset and the liability that integrates the
your heritage for another OIC by them formed or for a
autonomous heritage compartment of this (OIC incorporator), upon
assignment to the participating respects of OIC participation units
embedding and, if provided for in the merger project, of a cash amount
not more than 10% of the net worth of these units of
participation; or
iii) One or more UCITS or autonomous patrimonial compartments of these
(Embedded UCITS), which continue to exist until the settlement of the liability,
transfer your net asset to another housing estate
autonomous of the same UCITS, for an OIC that this constitutes for the purpose
or for another existing OICVM or autonomous heritage compartment
of this (Embedded UCITS);
n) "Cross-border merger of OICVM", the merger in which:
i) Two of them, at least, are authorised in Member States
different; or
ii) Two UCITS authorised in the same Member State merge into a
OICVM new authorised and constituted in another Member State;
o) "National Merger" means the merger in the modalities provided for in subparagraphs i ) and ii ) from the
point ( m ) between OIC constituted in Portugal;
p) "Constitutive documents":
i) Dealing with OIC of a contractual nature, the IFI, the prospetto and the
management regulation;
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ii) Addressing OIC of a societtal nature, the IFI, the prospearer, the
management regulation and the contract of society;
q) " Global net value of the OIC or of autonomous heritage compartment
of this ", the amount corresponding to the total value of the active respects minus the
total value of its liabilities.
2-All establishments set up in a same Member State by a society
manager of investment funds furnished with registered office in another state-
Member are considered a single branch.
3-For the purposes of the definition of qualified participation given by point 7 of Article 13.
of the General Regime of Credit Institutions and Financial Societies, the rights of
voting is computed pursuant to Rule 20 of the Securities Code.
Article 3.
Typicity
1-Only the OIC may be constituted in this scheme or in regulation of the
CMVM.
2-Should the OIC be constituted in regulation of the CMVM, they must be ensured
appropriate conditions for transparency and provision of relative information,
specifically, to the transaction markets of the underlying assets, to their valuation and
to the content and valorisation of the securities representative of the heritage of the
OIC to be distributed to the public.
Article 4.
Form and structure
1-The OIC takes the form of investment fund or investment society
furniture, abbreviately designated "SIM".
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2-Investment funds are self-governing heritage, without legal personality,
belonging to the participants in the special arrangements of communion regulated in the present
regime.
3-SIM are joint-stock companies of fixed or variable capital.
Article 5.
Denomination
1-To the investment fund is reserved the expression "investment fund" that should
integrate their denomination.
2-To the SIM is reserved the designation "SICAF" or "SICAV", depending on whether it constitutes as
SIM of fixed capital or variable capital, and the same shall be integrated into its denomination.
3-A The denomination unequivocally identifies the species and the type of the OIC.
4-In the OIA the expressions referred to in paragraphs 1 and 2 include the "alternative" designation, in the
following terms: "alternative investment fund", " SICAV-investment
alternative "or" SICAF-alternative investment ".
Article 6.
Representative securities of heritage
1-The heritage of investment funds is represented by portions of content
identical, without prejudice to the provisions of paragraph 3 of the following article, without nominal value, which
if assignments are units of participation.
2-The social capital of the SIM is divided into nominative shares of identical content, without
nominal value, without prejudice to the provisions of the following article.
3-The references in this scheme to units of participation should be understood in a manner
cover SIM actions, unless the contrary results from the provision itself.
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Article 7.
Regime of the units of participation
1-The value of the units of participation determines by dividing the overall net value of the
OIC by the number of units of participation in circulation.
2-Participate units can be represented by certificates of one or more
units of participation or adopt the scriptural form, being admitted to its
fractionation for underwriting and redemption effects or reimbursement.
3-Participity units may only be issued after the amount corresponding to the
subscription price to be effectively integrated into the OIC heritage, except if
deal with unfolding of already existing or distribution units
free.
4-There can be issued different categories of units of participation in function of
rights or special characteristics relating to them, as long as provided for in the
constitutive documents and ensured consistency with the risk profile and the policy
of investment from the OIC.
5-The rules regarding the creation of categories of units of participation are developed
in regulation of the CMVM.
Article 8.
Participants
1-The holders of participation units designate themselves "participants".
2-A The quality of participant acquires at the time of subscribing to the units of
participation against the payment of the value respect, or of the respect of the acquisition in
market, and it is lost at the time of the extinction of the units of participation in the scope
of rescue operation, refund or liquidation of the OIC, or of the divestance on the market.
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3-Unless otherwise stipulated, the payment in kind of the subscription shall not be admitted,
of the rescue, the refund or the proceeds of the liquidation.
4-A underwriting implies acceptance of the provisions of the constitutive documents of the OIC.
5-The participants in closed OIC enjoy a right of preference in the underwriting of
new units of participation, except if the constitutive documents were to be expected to not
allocation of that right.
Article 9.
Species and type
1-OIC may be opened or closed, depending on the units of participation are,
respect, either in variable number or in fixed number.
2-Open OIC participation units are issued and salvaged at the request of the
participants, in accordance with the stipulation in the constitutive documents and in
regulation of CMVM.
3-The closed OIC participation units cannot be the object of rescue, save the
provisions of Article 57 (1).
4-Unless otherwise provided, SICAF observes the scheme of the funds of
closed investment and the SICAV that of the open investment funds.
5-A typology of OIC is established in regulation of CMVM considering,
specifically, the assets and the rules of composition of the portfolios.
Article 10.
Furnishing investment companies
1-SIM shall be governed by the present regime and still by the provisions of the Code of Societies
Commercials, save when the standards of this show are incompatible with nature and
specific object of these societies or with the provisions of this regime,
in particular with respect to the following aspets:
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a) Composition, increase, reduction and intangibility of social capital and amortization
of shares;
b) Constitution of reserves;
c) Limitation of distribution of results to shareholders;
d) Rules relating to the drafting and provision of accounts;
e) Regime of merger, spinoff and transformation of societies; and
f) Acquisition scheme tendant to the total field.
2-SIM may be heterogerated or self-managed depending on or not a
third entity for the exercise of the respect management.
3-Constitutive documents may provide for the change of type of management, provided that
authorized by the CMVM, after an assent of the depositary.
4-SIM are financial intermediaries.
5-The SIM authorized by the CMVM shall be seated in Portugal.
6-It is not applicable to the SIM the scheme enshrined in the Securities Code for
open societies.
Article 11.
Autonomic heritage compartments
1-Constitutive documents can predict the division of the OIC into compartments
autonomous patrimonial, in the terms provided for in this scheme and in regulation of the
CMVM.
2-In the case of investment funds, autonomous heritage compartments
they designate themselves "subfunds".
3-Each autonomous heritage compartment is represented by one or more categories
of units of participation and is subject to the rules of equity autonomy.
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4-A part of the heritage of the SIM consisting of the goods required for the exercise of the
activity is, in the terms of the constitutive documents, prorated by all the
self-contained or integrated heritage compartments in a heritage compartment
autonomous of the remaining, whose shares are not the object of ransom or refund.
5-The value of the units of participation of the autonomous heritage compartment
determines, at each time, by the division of the global net value of the compartment
autonomous patrimonial by the number of units of participation of that compartment
autonomous patrimonial in circulation.
6-A each autonomous heritage compartment shall apply for the established legal regime
for the OIC respect, including the regime of the participation units and the requirements
relative to the overall net value.
Article 12.
Heritage autonomy
The OIC does not respond, under any circumstances, by the debts of the participants, the entities that
they ensure the functions of management, deposit and marketing, or other OIC.
Article 13.
Rights of customers
1-Customers interested in underwriting units of participation are entitled to
is provided the IFI free of charge.
2-The participants are entitled, inter alia:
a) To receive the units of participation issued or by adopting these the form
scriptural, to the inscription of the same on individualized registration account, after
have paid in full the subscription value, within the time specified in the
constitutive documents of the OIC;
b) To information, under the terms of this scheme;
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c) To receive the amount corresponding to the value of the rescue, the refund or the
product of the settlement of the units of participation.
Article 14.
Independence and exclusive interest of the participants
The entity responsible for the management, the depositary and the marketer entities of a
OIC act independently and in the exclusive interest of the participants.
Article 15.
Requirements for global net value
1-The overall net value of the OIC is to be € 1,250,000 a from the first six months
of activity.
2-If the overall net value of the OIC presents value lower than the defined in the number
previous, the entity responsible for the management of the immediate communicates this fact to the CMVM,
that they should adopt the necessary measures to the regularization of the situation.
3-The requirement provided for in paragraph 1 shall not be entrusted for a period of more than six
months, saved if longer period is authorized by the CMVM.
4-If the period referred to in the preceding paragraph is elapsed, the entity responsible for the management
has not regularised the situation should promote the liquidation of the OIC.
Article 16.
Dispersion requirements
1-A from the first six months of activity of the OIC:
a) The units of participation shall be dispersed by a minimum number of
100 participants, in the case of OICVM, and 30 participants, in the case of the OIA;
b) A single participant may not hold more than 75% of the units of participation.
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2-The requirements set out in the preceding paragraph may not be defaults for a period
higher than six months.
Article 17.
Underwriting and rescue
1-Constitutive documents set out the terms and conditions in which the units of
participation are subscribed and the payment of your ransom or refund is effected, well
as the conditions under which the same operations can be suspended.
2-The value of the participation unit for subscription and rescue or redemption effects
is, in accordance with the constitutive documents, the disclosed in the terms of paragraph 3 of the
article 112 at a later time on request.
3-In the open OIC, the subscriptions and rescues are effectuated with periodicity
corresponding to the disclosure of the value of the units of the participation, independently
of the date of the respect requested.
4-In excecional circumstances and whenever the interest of the participants advises you, the
underwriting or rescue operations of participation units can be suspended
by decision of the entity responsible for the management in accordance with the provisions of
regulation of the CMVM and in the constitutive documents.
5-A The entity responsible for the management communicates in advance to the CMVM the suspension.
6-The underwriting or rescue operations of the OIC share units
established in Portugal may also be suspended by decision of the CMVM, in the
interest of the participants or in the public interest, in accordance with the provisions of
in regulation of the CMVM.
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CHAPTER II
Conditions of access and exercise of activity
Article 18.
Authorization and constitution
1-A constitution of OIC in Portugal, as well as of the compartments
autonomous patrimonial, depends on prior authorization from the CMVM.
2-A authorisation of OIC implies the approval by the CMVM of the constitutive documents,
of the choice of the depositary and still:
a) Dealing with an investment fund, from the request of the managing body to manage the
investment fund;
b) Addressing SIM, of the managing body appointed to manage the SIM, case
applicable.
3-A The approval of the constitutive documents shall be governed by the provisions of the provisions of paragraphs 5 and 7 of the
article 118 of the Securities Code.
4-The OIC considers itself constituted on the date:
a) From the commercial register of the respected social contract, dealing with SIM; or
b) From the integration in your portfolio of the amount corresponding to the financial settlement:
i) Of the first subscription, dealing with open investment fund; or
ii) From the set of subscriptions effected in the initial period of subscription,
treating themselves to a closed investment fund.
5-A The financial settlement of the subscriptions for the closed investment fund takes place
up to the working day following the end of the subscription period.
6-A date referred to in paragraph 4 shall be communicated immediately to the CMVM.
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Article 19.
Statement of the order
1-The application for permission of the OIC, endorsed by the promoters of the SIM or by the entity
gestures, is instructed with the following documents:
a) Projects of constitutive documents;
b) Projects of the contracts to be concluded with the depositary, with the entities
marketers, with subcontractor entities and with the managing company in the
case of the heterogeride SIM;
c) Projects of the contracts to be concluded with other servicing entities;
d) Supporting documents of acceptance of functions of all entities
involved in the activity of the OIC in the terms of the contract projects;
e) Information on the idoneity and experience of SIM administrators;
f) Model of the underwriting bulletin, which should contain an unequivocal mention
on the risks inherent in the proposed investment.
2-In addition to the documents referred to in the preceding paragraph, the authorisation of SIM depends
still of the sending of the following elements:
a) Program of activities, including organizational structure and human means,
technicians and materials to be used;
b) Indication of the existing close relationships between SIM and other natural persons
or collectives;
c) Reasoned statement of the applicants, attesting that the members of the organ
of administration comply with the applicable independence requirements;
d) The communication made in accordance with Article 50 (2).
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3-In addition to the documents referred to in paragraph 1, the application for a constitution permit of
OIA is instructed yet with:
a) The supporting elements of the fitness of the entity responsible for the management,
having particular attention to the OIA's investment policy, its objectives,
the management techniques used and the type of assets and markets where it invests and, if it is
the case, of the entities providing advice;
b) The statement of reasons for the minimum amount of subscription, particularly in function
of the respect complexity, risk and specific segments of investors to which if
targets the OIA.
4-A CMVM may ask the applicants for clarifications, supplementary information or
suggest changes to the documents referred to in the preceding paragraphs.
5-Should the documents already build process in the CMVM, it is sufficient the reference to the
documentation presented previously.
Article 20.
Decision
1-A The CMVM's decision is notified to the applicants within 20 days, or 30 days in the
case of the self-managed SIM, from the date of receiving the request completely
instructed.
2-The period referred to in the preceding paragraph shall be suspended by the effect of the notification referred to in the
n. 5 of the following article and by the period provided for therein.
3-In the absence of a decision of the CMVM within the time limit set out in paragraph 1, the authorisation
considers itself granted.
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Article 21.
Refusal of authorization
1-A CMVM refuses authorization when:
a) The content of the elements instrucing the application is insufficient;
b) SIM does not comply with the requirements set out in Chapter III of this Title;
c) The managing company is not authorised to manage UCITS in the Member State
where it has its registered office;
d) The constitutive documents of the OIC do not predict the marketing of the
respects units of participation in Portugal;
e) The entity responsible for the management revolves other OIC in an irregular manner.
2-For the purposes of the b ) of Article 19 (2), the CMVM also refuses the request for
authorization should the legal, regulatory or administrative provisions of countries
third parties by which to rejam natural or collective persons with whom SIM
maintain close relationships jeopardize the effective exercise of the functions of
supervision.
3-A CMVM may refuse the authorization for the marketing of OIA to the
certain specific segments of investors, if they do not meet the
sufficient conditions to their proper protection, particularly in terms of
complexity, liquidity of the assets and risk of the OIA.
4-A CMVM may yet refuse authorization for the constitution of closed OIA
as long as they are not fully subscribed to the units of participation of others
Closed OIA managed by the same entity responsible for management.
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5-Havening grounds for refusal in the terms provided for in the preceding paragraphs, the
CMVM, before turning down the application, notifies the applicants, giving them the maximum deadline
of 10 days, to supply the insufficiency, when appropriate, and to address
as to the appreciation of the CMVM.
Article 22.
Expiry of the authorisation
The authorization of the OIC lapses:
a) If, from the notification of the decision of authorisation to the applicants, it is not
initiated the underwriting within 12 months, with respect to open OIC, and in the
period of six months, in the case of closed OIC;
b) If the SIM expressly waive the authorisation or has ceased there is at least
six months, your activity.
Article 23.
Revocation of authorization
1-A CMVM can revoke the authorization of the OIC:
a) Whether, by virtue of the serious or systematic violation of legal, regulatory standards
or constants of the constitutive documents, the interest of the participants or the
defense of the market justifies it;
b) If the requirements set out in Articles 15 and 16 are to be met;
c) In cases where permission has been obtained with recourse to false
statements or any other irregular means;
d) When the OIC cees to bring together the conditions of granting the permit.
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2-Constitui still ground of revocation of closed OIC authorization, not
submission of the application for admission to the negotiation within the period referred to in paragraph 5 of the article
57., the improper of the same or the absence of admission within 12 months.
Article 24.
Subsequent changes
1-Consideration of relevant amendments to the constitutive documents to which they arise from:
a) Significant modification of the investment policy, the distribution policy
of income and the period of calculation or disclosure of the value of the units of
participation, in the terms defined in regulation of the CMVM; and
b) Changes that result in overall increase in management and deposit commissions
supported by the OIC.
2-The changes referred to in the preceding paragraph are communicated in advance to the CMVM,
may this deduct opposition within 15 days of the receiving of the communication
and become effective 40 days after the course of that period or after the date of notification
of the express decision of non-opposition.
3-Ficam subject to mere communication to the CMVM, becoming effective at the time of that
communication, the amendments to the constitutive documents in respect of the following:
a) Denomination, headquarters, contacts and addresses of the entity responsible for the management,
of the depositary, the marketizing entities, the auditor or the entities
subcontractors;
b) Identification of the members of the social bodies of the entity responsible for the
management;
c) Change of the holders of the majority of the social capital of the entity responsible for the
management;
d) Domain or group relations referring to the entity responsible for the management;
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e) Inclusion of new marketer entities;
f) Reduction of the overall amounts collected for the title of management commissions,
deposit, underwriting, rescue and transfer or fixation of other conditions more
favorable;
g) Updating of quantitative data;
h) Adaptations to legislative or regulatory changes;
i) Merches corrections that do not take place in specific legal provision.
4-Amendments to the constitutive documents not covered by the previous figures
nor by Article 64 (6) and 7 (7) are communicated in advance to the
CMVM, may this deduct opposition within 15 days of this
communication, and become effective after the course of this period or after the date of
notification of the express decision of non-opposition.
5-With respect to the contracts referred to in paragraph b ) of Article 19 (1), the amendments
to the initial contracts, the projects of contracts with new entities as well as the
changes of new contracts are communicated in advance to the CMVM, becoming
effective five days after the recetion of the same communication.
6-A entity responsible for the management further informs the CMVM of any change
relevant of the elements and information presented for the purposes of order instruction
of authorization.
7-A communication of the amendment must be instructed with all documentation to it
concerning.
Article 25.
Information and law of participants
1-OIC participants are individually informed by the responsible entities
by the management, pursuant to the provisions of paragraph 3 a to 6 of Article 36, up to 10 working days after:
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a) The term of the deadline for the CMVM to deduct opposition or after the date of notification
of the express decision of non-opposition, of the amendments referred to in paragraph 1 of the article
previous;
b) The date of the communication, of the amendment referred to in para. c) of the Article 2 (2)
previous;
c) The term of the deadline for the CMVM to grant authorization or after the date of
notification of the decision to deinjury, the changes referred to in Article 1 (1)
64. and in Article 95 (2).
2-In cases where a global increase in management and management commissions occurs.
deposit to be withstand by the OIC or a significant modification of the policy of
investments and the income distribution policy, the participants of OIC
open can, as of the date of the communication, proceed to the rescue of the units of
participation without paying the commission's respects until the same becomes effective.
CHAPTER III
Vicissitudes of the OIC
SECTION I
Merger, spinoff and processing
SUBSECTION I
General rules
Article 26.
Admissibility and competent authority
1-The OIC, regardless of the form they assume, may be the object of merger, fission
and processing, upon authorization.
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2-A CMVM is competent for the authorization of national mergers and mergers
cross-border in which one of the embedded UCITS has been authorized in
Portugal.
3-Unauthorized OIA merger in Portugal with unauthorized OIC is permitted in
Portugal.
4-UCITS cannot turn into OIA, even by way of merger or spin-off.
5-The OIC object of merger, spin-off and processing can be managed by the same entity
or by distinct entities.
Article 27.
Applicable regime
1-The merger of OIA applies the rules regarding the merger of UCITS provided for in subsection
following, with the necessary adaptations, particularly those imposed by the species of the
OIA, and with exclusion of the rules regarding cross-border mergers.
2-A OIC transformation and spinoff is governed by the rules set out in regulation of the
CMVM.
SUBSECTION II
Merger of UCITS
Article 28.
Instruction and procedure of the merger
1-The application for authorisation, submitted by the UCITS involved or, in the case of mergers
cross-border, only by the incorporated UCITS authorised in Portugal, is
instructed with the following elements:
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a) The project of the merger, duly approved by the UCITS incorporated and by the
Built-in UCITS;
b) The updated version of the prospeto and the IFI of the built-in OICVM;
c) Statement of each of the trustees involved, which attests to the compliance
of the elements referred to in points a) , f) and g) of Article 31 (1) with the
applicable requirements and with the constitutive documents of the UCITS respects;
d) The information regarding the merger to be communicated to the participants of the OIVCM
involved;
e) The report of independent auditor on the subjects set out in paragraph 1 of the
article 32, by reference to each embedded UCITS;
f) Elements necessary for the constitution of the UCITS, in the case of merger by
constitution of a new UCITS in Portugal, namely the documents
constitutive.
2-Should you consider that the application has not been properly instructed, the CMVM, within 10
days from the receiving of the application, requests the missing elements or the clarifications
additional necessary.
3-A CMVM examines the possible impact of the merger, both for the UCITS participants
incorporated as for those of the Embedded UCITS, in order to assess whether it is being
provided to the participants sufficient information.
4-In the case of cross-border mergers:
a) The information referred to in paragraph 1 is drawn up in Portuguese or still in a
language accepted by the CMVM;
b) As soon as the process is complete, CMVM sends copies of the information
referred to in paragraph 1 to the competent authorities of the State Member State of the
Built-in UCITS.
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5-For the purposes of the e) of paragraph 1, the auditors of the UCITS consider themselves to be independent
incorporated and the built-in OICVM.
Article 29.
Decision and notification
1-A CMVM authorizes the national merger, upon the supply of all the requirements of the
articles 28 to 32; and
2-In the case of cross-border mergers, the authorization of the CMVM depends on:
a) The Embedded UCITS has been the subject of notification of marketing of the
its units of participation in all Member States in which the UCITS
incorporated is authorized or has been the object of notification of
marketing of the respective units of participation; and
b) Information intended for participants has been considered sufficient
by the CMVM, having this received identical assessment from the competent authorities
of the Member State of origin of the embovant UCITS or not having these
carried out any communication to the contrary.
3-Within 20 days of the submission of the entirety of the elements referred to in the
previous article, CMVM notifies the decision of authorisation or dismisstion of the
merger operation:
a) The UCITS applicants; and
b) In the case of cross-border mergers, the competent authorities of the State-
Member of source of the built-in OICVM.
4-If the content of the elements instrucing the request is insufficient, the CMVM, before
refuse the merger, notifies the applicants, giving them the maximum period of 10 days, to
to supply the insufficiency and to address the assessment of the CMVM.
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5-The time limit referred to in paragraph 2 shall be suspended by the effect of the notification referred to in the number
previous.
6-In the wake of a merger by constitution of a new UCITS, the UCITS
embedding authorised in Portugal finds itself relieved of compliance with the
in the provisions of Articles 142 to 144, for a period of six months from the date of
authorization of the merger.
7-A The authorization of the merger also covers the authorisation for the constitution of the new
UCITS or the approval of the amendments of the constitutive documents of the UCITS
embedding, depending on the cases, if this is constituted in Portugal, and takes into account
the governing bodies and the managing bodies involved, the suitability of the means
technicians, materials and humans of the entity responsible for the management of the UCITS that
result from the merger.
8-In case they are also competent for the authorization of the merger authorities of others
Member States, shall the CMVM make its decision in close collaboration with the
Same.
Article 30.
Collaboration with the competent authorities for the authorisation
In cross-border mergers where the built-in OICVM is or is constituted in
Portugal and the CMVM are not competent authority to authorize the merger, CMVM:
a) You may request, in writing, within 15 working days of the recetion of the
copies of the complete information regarding the merger, which the OICVM incorporates
change the information to be paid to the participating respects, informing the
competent authorities of the Member States of origin of the UCITS
incorporated from that fact;
b) Examines the possible impact of the merger, in order to assess whether it is being provided to the
participants of the OICVM embedding sufficient information;
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c) Informs the competent authorities of the Member States of origin of the
Embedded UCITS, within 20 working days of the recetion of the copies
of the complete information relating to the modified merger, on whether to consider
sufficient the modified version of the information to be provided to the participants;
d) May require the Embedded UCITS to retarget the opinion pertaining to the subjects
provided for in Article 32 (1), if the same does not be referred to it by the
competent authorities for the authorization of the merger.
Article 31.
Fusion project
1-UCITS involved in the merger elaborate a project of the same as it contains, among
other, the following elements:
a) Identification of the type of merger and the UCITS involved;
b) Context and rationale of the merger;
c) Foreseen repercussions of the merger, both for participants of the UCITS
incorporated as for those of the built-in OICVM;
d) Criteria adopted for the evaluation of the asset and, where appropriate, of the liability, in the
date of calculation of the terms of exchange;
e) Method of calculating the terms of exchange;
f) Target date for the production of effects of the merger;
g) Standards applicable, respectively, to the transfer of the assets and liabilities, when
occur, and to the exchange of the units of participation.
2-For the purpose of the realization of the merger operation, evaluation criteria are adopted
identical for the same type of assets and liabilities that integrate the heritage of the
OICVM involved, being adopted, to that end, the evaluation criteria
set out in the constitutive documents of the UCITS that result from the merger.
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Article 32.
Control by auditor
1-The report of the auditor referred to in para. e) of Article 28 (1) validates:
a) The criteria adopted for the evaluation of the asset and, where applicable, of the liability,
on the date of calculation of the terms of exchange;
b) Where applicable, the payment in cash per unit of participation;
c) The method of calculating the exchange ratio, as well as the effective exchange ratio
determined on the date of calculation of the terms of exchange.
2-The report of the auditor referred to in the preceding paragraph is made available, free of charge and the
application, to the participants of the UCITS involved and to the authorities
competent when they are not allowed in Portugal.
Article 33.
Provision of information to participants
1-UCITS involved in the merger provide the participating respects with information
sufficient and precise about the merger, so as to enable them to make an informed judgement about
the repercussions of it on your investments.
2-A information to be provided to the participants of the embedded UCITS must meet the
needs of investors without prior knowledge of the characteristics of the UCITS
embedding or the way this operates, as well as to alert to the IFI of this and to the
advantages of your reading.
3-A information to be provided to the participants of the UCITS incorporeant focuses on the
merger operation and on the possible impact of this on the built-in OICVM.
4-The information referred to in paragraph 1 is only provided to the participants of the UCITS
involved after the authorization of the merger.
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5-The information referred to in paragraph 1 shall be made available at least 30 days before
of the cutest date to apply for the rescue or, where applicable, the exchange of its units of
participation with no extra charge.
6-Whether the embedded UCITS or the built-in OICVM are the subject of marketing
cross-border, the information referred to in paragraph 1 shall also be drawn up in the
official language of the host Member States of the UCITS in question or in another
language authorized by the respective competent authorities.
7-A The translation of the information is effected under the responsibility of the UCITS to which
it is incumbent to provide the information and must faithfully reflect the content of the information
originals.
8-The built-in OICVM makes available to UCITS participants incorporated a
updated version of the IFI respect, which, if it was changed for the purposes of the merger,
is also provided to the participants of the built-in OICVM.
9-Between the date on which the information document provided for in paragraph 1 is provided to the
participants and the date on which the merger produces effects, the information document and the
Updated iFI concerning the built-in OICVM are made available to each new
participant who either acquiesses or subscribs to participation units of the UCITS involved,
as well as to any investor who requests them.
Article 34.
Language
When the merger involves UCITS authorised in other Member States whose units of
participation to be commercialized in Portugal, the information regarding the merger to be released
to participants in Portugal is written in Portuguese or English.
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Article 35.
Content of the information to be made available
1-The information on the merger to be made available to the participants referred to in paragraph 1
of Article 33 shall contain the following elements:
a) Context and rationale for the merger;
b) Possible repercussions of the merger for the participants, including eventual
significant differences with regard to investment policy and strategy,
costs, forecasted results, periodic information, possible dilution of the
performance and, where appropriate, an unequivocal notice to the participants that the
your tax regime may undergo changes in the wake of the merger, owing to the
effect include:
i) Description of differences regarding the rights of participants of the
OICVM incorporated before and after the proposed merger produces effects;
ii) Comparison of the differences verified in the case where the IFIs of the UCITS
involved include synthetic indicators of risk and remuneration in
different categories or identify different significant risks;
iii) Comparison of all the charges of the UCITS involved, based on the
amounts disclosed in the IFI respects;
iv) If the OICVM incorporated charge a performant-based commission,
an explanation of the mode of application up to the time when the merger
produce effects;
v) If the built-in OICVM charges a performant based commission,
an explanation as to how the same is applied subsequently
so as to ensure an equitable treatment of the participants who already
have owned units of participation in the embedded UCITS;
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vi) Information on the form of affectation of the costs referred to in the sub-paragraph
previous with respect to the situations provided for in Article 38;
vii) Clarifications on whether the embedded UCITS intends to proceed to a
reallocation of the portfolio before the merger produces effects;
viii) Clarifications on whether the built-in OICVM intends for the merger
have significant repercussions on your portfolio and you intend to proceed to a
reallocation of the portfolio before or after the merger produces effects;
c) Possible special rights of the participants with respect to the merger, among the
which of receiving additional information and, upon request, an exemplar of the
auditor's report, that of requesting, without additional charge, the rescue, or, if it is the
case, the exchange of your units of participation, and the closing date for the financial year
of that right, and shall for the purpose include:
i) Details on the treatment of any regularization accounts in the
respect OICVM;
ii) Indication of the way to obtain an exemplar of the auditor's report.
d) Relevant procedural aspements and target date for the production of effects of the
merger, and shall for the purpose include:
i) Indication of the intention to suspend the trading of the units of
participation to allow the merger to proceed in an effective manner;
ii) In the case of merger involving unauthorized OICVM in Portugal, if
is relevant in the terms of the respective national legislation, indication of the
procedure by which the participants must approve the merger and
the measures envisaged to inform them of the result.
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2-If the terms of the merger include provisions that provide for a cash payment,
the information to be provided to the participants of the embedded UCITS must contain
indications of the proposed payment, including the date and the manner in which the
payment is effected.
3-When, in the case of cross-border mergers, the approval of the merger depends on the
deliberation of the participants in the terms of the law applicable to UCITS other than
authorized in Portugal, the information to be provided on the merger may still contain
a recommendation issued by the UCITS as to the strategy to be followed.
4-The information to be provided to participants of the embedded UCITS includes as yet:
a) The period during which these can continue to subscribe and request the
rescue of the units of participation of the UCITS incorporated;
b) The moment from which, having not made use of your rights while
participants of the UCITS incorporated within the stipulated time frame for the purpose,
go on to exercise the rights as participants of the built-in OICVM;
c) The information that, if they vote against the proposed merger or to abstain from
and do not exercise the rights conferred upon them, within the time limit stipulated for the
effect, become participants of the built-in OICVM, provided that the proposal
be approved by a majority.
5-If the main elements of the merger are summarized at the beginning of the paper that
inform the participants of the proposed merger shall be made references to the parties of the
document where the developed information is found.
6-In the case of cross-border mergers, the incorporated UCITS and the UCITS
embedding explain in non-technical language the terms and procedures that
characterize the other OICVM that differ from the terms and procedures used in
Portugal.
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Article 36.
Mode and means of providing information to participants
1-The information to be provided to the participants shall be drawn up in a succinct manner and in
non-technical language, so as to allow participants to form a judgement
informed about the impact of the merger on their investments.
2-The information referred to in the preceding paragraph shall be published by one of the means
provided for in Article 128 (1) and communicated, free of charge and individually, to the
participants of the UCITS.
3-A information due to participants is provided on paper or other support
lasting.
4-Whenever information is provided to all or some of the participants through
a lasting support other than the paper, the following conditions must be fulfilled:
a) The adopted method shall comply with the forms of communication agreed between the
participant and the UCITS in the context of the relationship between them established;
b) The participant has specifically opted for different lasting support
of the paper, when you have been given the possibility to choose between the
getting the information on paper or in another lasting support.
5-For the purposes of paragraphs 3 and 4, the provision of the information by electrolytic means is accepted if the
participant has demonstrably regular access to the Internet.
6-A available, by the participant, of an electrochemical address for the purposes of
communication with the UCITS, is considered a proof of regular access to the
Internet.
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Article 37.
Right to the rescue
1-UCITS participants involved in the merger have the right to ask, without others
charges in addition to those retained by the UCITS to cover the costs of disinvestment, the
rescue of the respective units of participation or, in case it is possible, their exchange in
units of participation of another UCITS with an investment policy
similar and managed by the same managing entity, or by any other entity with the
which the managing entity partiates the same administration body or is linked by
a domain relationship or by a qualified, direct or indirect participation.
2-The right referred to in the preceding paragraph may be exercised from the moment in which
the participants of the UCITS involved have been informed of the merger and extinguish themselves
five working days before the date fixed for the calculation of the terms of exchange.
3-Without prejudice to the provisions of the preceding paragraph, the underwriting and rescue operations of the
participation units of the UCITS involved in the merger can be suspended by a
period of time not exceeding the highest of the maximum time limits for the payment effect
of the rescue requests provided for these UCITS, immediately preceding the date of the
merger.
4-For the purposes of the rescue conditions applicable to the participants, the date of subscription
of the units of participation to be considered is the date on which the units were subscribed
of participation of the embedded UCITS.
Article 38.
Costs
1-Except in the case of self-managed SIM, the legal, advisory or administrative costs
linked to the preparation and finalization of the merger are not imputed to the UCITS involved
nor to the participants of any of them.
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2-In self-managed SIM that have an autonomous heritage compartment affection to the
exercise of your activity, the costs referred to in the previous number are affecting you.
Article 39.
Date of production of effects and nullity of the merger
1-A The merger produces effects on the date of subscribing to the UCITS participation units
incorporating, being also the relevant date for the calculation of the terms of exchange
of the UCITS participation units incorporated by units of participation of the
Built-in UCITS and, where appropriate, for the determination of the heritage value
net for cash payments.
2-A The entry into force of the merger shall be immediately made public by the means
provided for in Article 128 (1) and notified to the CMVM, as well as to the authority
competent from the Member State of origin of the remaining UCITS participating in the merger,
applicable case.
3-Merged mergers that have produced effects pursuant to paragraph 1 cannot be declared
nulas.
4-In the case of cross-border mergers where the built-in OICVM is not
established in Portugal, the dates referred to in paragraph 1 shall be fixed by the law of the State-
Member of this.
Article 40.
Effects of the merger
1-Merges have the following effects:
a) All built-in OICVM assets are transferred to the UCITS
embedding;
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b) Built-in UCITS participants become participants of the UCITS
embedding, undergoing a number of units of participation
proportional to the value, at the date of the merger, of the units of participation that
held in the embedded UCITS; and
c) If provided for in the merger project, participants are entitled to a payment in
money not exceeding 10% of the net worth of its units of
participation in the built-in OICVM.
2-In the case of mergers provided for in subparagraphs i ) and ii) of the paragraph m ) from Article 2 (1) to the
effects provided for in the previous number add to the following:
a) Built-in OICVM liabilities are transferred to the UCITS
embedding; and
b) The built-in OICVM extinguishes.
3-A entity responsible for the management of the built-in OICVM confirms immediately, by
written, to the depositary respect that the transfer of the asset and the liability, when
occur, has been completed.
SECTION II
Dissolution and settlement
Article 41.
Dissolution
1-The OIC dissolves by:
a) Course of the period by which they were constituted;
b) Decision of the entity responsible for the management, founded in the interest of the
participants;
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c) Deliberation of the assembly of participants, in the applicable cases;
d) In the situations provided for in the contract of society, in the case of SIM;
e) Expiry of the authorization;
f) Withdrawal of consent;
g) Cancellation of the registration, dissolution or any other reason that determines the
impossibility for the managing entity to continue to perform its functions if, in the
30 days subsequent to the fact, the CMVM declares the impossibility of
replacement of the same.
2-The fact that originates the dissolution is:
a) Immediately communicated to the CMVM, in the situations provided for in the paragraphs a ) a and )
of the previous number;
b) Object of publication by the OIC in the information diffusion system of the CMVM,
as soon as it is notified of the decision of the CMVM, in the situations provided for in the
points f ) and g ) from the previous number, or immediately after the communication
provided for in the preceding paragraph;
c) Immediately communicated individually to each participant by the OIC, in the
terms of the provisions of Article 36 (3 a) (6); and
d) Object of immediate notice to the public, affixed to all locations of
marketing of the units of participation, by the respective entities
marketers.
3-A dissolution produces effects since:
a) The publication, in the situations provided for in points (a) to (e) of paragraph 1;
b) The notification of the decision of the CMVM, in the situations provided for in the paragraphs f ) and g ) from the
n. 1.
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4-A dissolution determines the immediate suspension of underwriting and rescue of the units of
participation and immediate entry into liquidation.
Article 42.
Settlement, sharing and extinction
1-Are liquidatary of the OIC the respective entities responsible for the management, save
provision to the contrary in the constitutive documents, or designation of person
different by the CMVM, in the situations provided for in the paragraphs f ) and g ) of the Article 1 (1)
previous, in which case the remuneration of the liquidator constitutes charge of the entity
responsible for the management.
2-During the settlement period:
a) The duties of information on the value of the units are suspended.
participation and on the composition of the portfolio of the OIC;
b) The liquidator carries out only the operations appropriate to the liquidation, observing
in the disposal of the assets the provisions of this regime, specifically in the
article 139;
c) The liquidator shall not be subject to the standards concerning the activity of the OIC that are
incompatible with the settlement process;
d) The depositary maintains its duties and responsibilities.
3-The final settlement value per unit of participation is disclosed in the five working days
subsequent to its clearance, by the means provided for the disclosure of the value of the
units of participation and composition of the OIC portfolio.
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4-Without prejudice to the provisions of the following number, the payment to the participants of the
product of the OIC settlement may not exceed in five working days the expected time
for purposes of payment of the ransom or refund request, save if, upon
justification duly substantiated by the liquidator, the CMVM authorize a deadline
top.
5-If the liquidator does not proceed to divest of certain assets of the OIC within the time limit set for
the settlement, the amount corresponding to the last value of the assessment, is recorded
attendees, sendothem only paid the amount ascertained after the sale
effective.
6-The liquidator shall proceed to the sale of the assets referred to in the preceding paragraph in the
deadlines set out in Article 44.
7-The income generated by the assets referred to in paragraph 5 up to the date of its disposal, thus
like any other heritage rights generated by the OIC up to the closure of the
settlement, are, as soon as realized, immediately distributed to the participants of the
OIC at the date of settlement.
8-The accounts of the liquidation of the OIC containing the express indication of the operations carried out
out of regulated market and multilateral trading system, if it is the case,
are sent to CMVM:
a) Accompanied by an audit report drawn up by auditor registered in the
CMVM;
b) Within five working days counted from the date of the closing of the liquidation; and
c) In the case of SIM, on the date of the commercial registration of the closing of the liquidation.
9-The OIC considers itself extinct on the date:
a) From the commercial register of the closure of the liquidation of the SIM;
b) From the recetion by the CMVM of the accounts of the settlement, in the remaining cases.
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Article 43.
Settlement requirements
1-A The liquidation of an ICO for the reason provided for in paragraph b ) of Article 41 (1),
it is only possible should the OIC be in activity for at least one year.
2-A from the time the dissolution produces effects, the process of liquidation
becomes irreversible.
3-A dissolution of OIC admitted to trading on regulated market determines the
immediate exclusion of trading of the respective units of participation.
4-A The liquidation of an ICO under the terms set out in paragraph 1 makes it impossible to constitute the constitution by the
same holding company or promoter, within 180 working days, of a new OIC
with identical investment policy.
5-Within the scope of the liquidation process, the disposal of assets not admitted to trading
on regulated market cannot be effected on the basis of assessment there are
more than 15 working days.
6-The charges relating to the liquidation of the OIC may only be charged to the
participants in the case provided for in point (c) of Article 41 (1), provided that they are provided for in the
respects constitutive documents.
7-In the event that it is not possible for the liquidator to proceed to the payment of the product of the
settlement to some of the participants within the deadline set for the completion of the
settlement, adopts the necessary procedures to safeguard this right,
particularly by means of consignment in deposit of the amounts due, owing
that fact is communicated immediately to the CMVM.
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Article 44.
Deadline for settlement
The period for settlement, counted from the date of the dissolution, may not be higher, unless
provision to the contrary in the constitutive documents or authorisation of the CMVM, to:
a) 15 working days, in the case of OICVM;
b) 30 working days, in the case of OIAVM; and
c) 60 days, in the remaining OIA.
Article 45.
Liability of liquidators
The liquidator responds for the damage caused to the participants as a result of
errors and irregularities in the liquidation process that are attributable to it.
Article 46.
Settlement accounts
1-For the purposes of Rule 42 (4), the final settlement value per unit
of participation is accompanied by assent of the auditor of the OIC.
2-The settlement accounts referred to in Article 42 (8) include the balance sheet, the
demonstration of the results, the demonstration of the cash flows, the auditor's report
of the OIC and the settlement report.
3-Of the settlement report stated, namely:
a) The discrimination of all the operations effected with a view to settlement,
including, in particular and being the case, the identification of the counterparties in the
operations carried out outside of regulated market or system of
multilateral trading when relating to financial instruments admitted or
negotiated in these trading structures;
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b) Statement by the liquidator in the sense that they have been acaucated all rights
of the participants of the OIC.
CHAPTER IV
Furnishing investment companies
Article 47.
Capital of SIM
1-The minimum initial capital of self-managed SIM is € 300000.
2-A SIM may issue special category shares, the capital of which is exclusively affection to the
exercise of its activity, in accordance with the terms set out in Article 11 (4).
3-Without prejudice to the provisions of the preceding paragraph, the capital of the SICAV varies depending on the
subscriptions and the bailouts, which, save the suspension situations, are free of
occur.
4-The capital of the SICAF is defined at the time of its constitution, pursuant to the Code
of Commercial Corporations, with any changes arising from increase and
reduction of capital.
Article 48.
Administration and surveillance
1-The governing body of the SIM is composed of:
a) Persons with suitability and proven experience, taking into account,
specifically, the type of activity carried out by the SIM;
b) At least two people; and
c) A suitable minimum number of independent members.
2-The supervision of the SIM shall apply to the provisions of Article 62 (2).
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3-A The independence is affixed to the terms of Article 62 (3), being still applicable to the
administration of SIM the provisions of paragraph 4 of the same article.
4-To workers and members of the SIM governing body who exercise
functions of decision and execution of investments is applicable to the provisions of paragraph 5 of the
article 62 para.
5-A The designation of new members of the administration or supervisory body shall be
immediately communicated to the CMVM, and may this object to the same within 15
days.
6-On the appreciation of the requirements of idoneity and professional experience are applicable, with
the due adaptations, the paragraphs 2 a to 4 of Article 30 and Article 31 of the General Regime of the
Credit Institutions and Financial Societies.
Article 49.
Management and responsibility
1-The SIM's board of directors competes in the management of the heritage of the same in the
exclusive interest of the participants.
2-Should SIM be heterogeride, the competence referred to in the preceding paragraph translates into the
definition of the management policy in the terms provided for in the following article, as well as in the
supervision of the managing entity.
3-The members of the administrative and supervisory bodies of the SIM respond
solidarily with each other, in the face of the participants and in the face of society, by the
non-compliance or defective compliance with legal and regulatory duties
applicable and the obligations arising from the constitutive documents of the SIM.
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4-In the case of a heterogerated SIM, the members of the governing bodies and
supervision of the SIM, the entity that has been designated for the management as well as the
members of the respected bodies of administration and surveillance, respond
jointly and severally by the failure to comply or defective compliance with the legal duties and
regulatory and obligations arising from the constitutive documents, applicable to
gestures entity.
Article 50.
SIM heterogerides
1-Heterogerous SIM can only be designated for the exercise of the respect management a
managing company of securities investment funds or a credit institution,
pursuant to Article 59.
2-A The designation provided for in the preceding paragraph shall be communicated to the Bank in advance
from Portugal.
3-A relationship between heterogeride SIM and the designated entity for the exercise of the respect
management shall be governed by written contract, which shall contain, in particular, the following
elements:
a) The denomination and seat of the managing entity;
b) The conditions of replacement of the managing body, the depositary, the auditor or
of any other third party mandated for investment management functions
or of risks;
c) The investment policy of the OIC and the income distribution policy;
d) The policy for the exercise of the voting rights attached to the shares held;
e) The remuneration for the services provided by the depositary and the managing body;
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f) The value, the calculation mode and the conditions of collection of the commissions of
subscription, rescue and transfer of units of participation, as well as, if it is
the case, of management for remuneration for the service provided by the managing entity;
g) The rules for determining the value of the units of participation and prices of
subscription and rescue or refund;
h) The moment of the day used as a reference for the determination of the value of the
units of participation;
i) The criterion of underwriting and redemption or reimbursement of the units of participation
by the value to be disclosed;
j) The minimum number of units of participation that may be required in each
subscribed;
k) The maximum period for the purposes of the payments of the ransom requests or
reimbursement;
l) The conditions for the suspension of underwriting and rescue operations of
units of participation;
m) The categories of existing units of participation and the definition of the respects
special rights, if applicable;
n) The way to proceed with the amendment of the adopted policies and rules;
o) The articulation with respect to the handling of complaints from participants,
specifically as to the information to be provided by the managing entity to SIM
heterogeride; and
p) The reporting duties of the managing entity to SIM.
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4-The reporting provided for in paragraph p ) of the preceding paragraph shall guarantee to the heterogerous SIM
all the information that enables you to monitor compliance with the duties that
it is incumbent on the managing entity, specifically information concerning the following
elements:
a) The form and the time at which the managing entity informs the heterogerous SIM
on the eventual subcontracting of investment management functions and
risk management to third-party entities;
b) The form and the time at which the managing entity makes available to SIM
heterogerate your internal operating documents, such as your
risk management process and its reports on the control system of
compliance;
c) The information that the managing entity communicates to the heterogerous SIM
relatively to any infractions committed by the same in relation to the
legal provisions, constitutive documents or the contract between both,
as well as the form and time frame in which such information is communicated;
d) The policy of processing operations adopted by the managing body;
e) The description of the procedures adopted with respect to the registration and
conservation of documents;
f) The policy of conflict of interest and the adopted procedures relating to
personal operations;
g) The form and the time at which the managing body must notify the suspension
temporary and the resumption of the underwriting or rescue of its units of
participation;
h) The mechanisms for the notification and resolution of relative valuation errors
of the units of participation.
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5-The contract referred to in paragraph 3 shall still include the rules on coordination between
both, specifically:
a) Should the SIM and the managing body have the same accounting year, the
coordination of the elaboration of the respects reports and accounts;
b) In case the SIM and the managing body do not have the same accounting year, the
applicable mechanisms so that the SIM can obtain from the managing entity the
information necessary for the punctual drafting of its reports and accounts,
so as to ensure that the auditor of the managing entity is in a condition of
submit a report by the date of closing of the accounting year of the SIM.
Article 51.
Conditions of exercise of self-managed SIM activity
1-Sel-managed SIM is subject, with the necessary adaptations, to the requirements of
organization and exercise and the duties of the managing entity in relation to the OIC, the assets
managed and to the participating respects, specifically those relating to rules of conduct,
information, subcontracting and the requirements of own funds.
2-SIM can only manage its own heritage, and in no case may it manage
assets on account of third parties.
3-A The management referred to in the preceding paragraph shall include the acts provided for in Article 60.
Article 52.
Close relations
The close relations between SIM and other people, if existing, cannot compromise
the exercise of the supervisory functions of the CMVM.
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Article 53.
Registration of SIM
The registration for the exercise of the activity, pursuant to the terms set out in the Code of Values
Securities, depends on the prior authorization of authorization and constitution of the SIM
provided for in Article 18.
Article 54.
Competence of the general assembly of the SICAF
In addition to the provisions of Article 56, the general meeting of the SICAF shall be competent to deliberate
on the remaining subjects provided for in the Code of Commercial Societies, save when such
rules if they show incompatible with the nature of the SICAF or the provisions of the
present regime.
CHAPTER V
OIC closed
Article 55.
Terms of the subscription, refund and variation of the number or value of the units of
participation
1-The constitutive documents of the closed OIC predict:
a) The conditions and criteria relating to the initial subscription, the duration of which, subject to a
limit of 6 months, it may not be more than 25% of the initial period of duration of the
OIC;
b) The possibility of increase or reduction in the number of units of participation
provided that:
i) The increase or reduction has been the object of approval in assembly of
participants summoned to the effect; and
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ii) The subscription or refund price corresponds to the value of the unit of
participation of the day of financial settlement, confirmed by the opinion of the
auditor, who is expressly commented on the assessment of the heritage of the
OIC, with an advance no more than 30 days in relation to that day.
c) The possibility of being effected partial amortization of the value of the units of
participation.
2-For the purpose of sub-paragraph ii) of the paragraph b ) of the previous number, dealing with OIC whose
participation units are traded on regulated market or system
multilateral trading, the entity responsible for the fixed management the price at the range
between the value ascertained in the terms referred to in that sub-paragraph and the value of the last quotation
verified in the reference period defined in the issuing prospeit, pronouncing the
auditor also on the fixed price.
Article 56.
Assemblies of participants
1-In the closed OIC depend on favorable deliberation of the assembly of participants:
a) The overall increase in management and deposit commissions;
b) The significant change in investment policy, distribution policy
of income and the period of calculation or disclosure of the value of the units of
participation, in the terms defined in regulation of the CMVM;
c) The issuance or extinction of units of shareholdings for purposes, respectively,
of underwriting or redemption and respect conditions;
d) The prolongation of the duration of the OIC or the passage of undetermined duration;
e) The merger, spinoff and processing;
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f) The replacement of the entity responsible for the management, except when it occurs
transfer of the powers of administration and the human structure, material and
technique for a holding company of investment funds Furniture
integrated in the same economic group;
g) The liquidation of the OIC, when the latter has no fixed duration or when
intend for the liquidation to occur before the term of the duration initially
expected;
h) Other matters that the law or the constitutive documents make depend on
favourable deliberation of the assembly of participants.
2-A Assembly of participants is not competent to rule on decisions
concrete investment or approve guidelines or recommendations on this matter
in addition to the provisions of the paragraph b ) of the previous number.
3-A convocation and the operation of the assembly of participants shall be governed by the provisions of
in the law for shareholders ' assemblies, save amusing prediction of the documents
constitutive, under the terms of the paragraph and ) of Article 125 (3).
Article 57.
Duration
1-The closed OIC of a given duration cannot exceed 10 years, being allowed
its extension, one or more times, for period not exceeding the initial one, upon
deliberation of the assembly of participants in that sense, taken in the last six months
from the previous period, being always allowed the rescue of the units of participation
by the participants who have voted against the extension.
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2-The value of the unit of participation, whose rescue is requested under the provisions of the
previous number, corresponds to that of the last day of the period initially planned for the
duration of the OIC, and there must be an opinion of the auditor, drawn up in advance
not more than 30 days in relation to the date of the rescue, which is expressly pronounced
on the evaluation of the OIA heritage effected by the same.
3-Article 55 (2) is also applicable for the purposes of the preceding paragraph.
4-The closed OIC of undetermined duration are authorized if in the documents
constitutive is planned to be negotiated on a regulated market or in a system of
multilateral trading of its units of participation.
5-The application for admission or selection to the closed OIC trading of duration
undetermined takes place after the end of the respective underwriting period, at the maximum time
of 90 days.
Article 58.
Public subscription
In cases where the constitution of the closed OIC constitutes public offer pursuant to the
provisions of Title III of the Securities Code, the approval of the prospeit of
public offering implies approval of the OIC closed by the CMVM in the terms of the present
regime.
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Title II
Of the entities related to the OIC
CHAPTER I
Managing entities
SECTION I
General provisions
Article 59.
Managing entities
1-Can be OIC gestural entities:
a) The managing companies of furniture investment funds, equally
designated in this diploma by "gestural societies";
b) If the OIC is closed, the credit institutions referred to in points (s) a ) a and ) from the
3. of the General Regime of Credit Institutions and Financial Societies
which have own funds not less than € 7,500,000.
2-A The managing body responds, in the face of the participants, by the default or
defective compliance with applicable legal and regulatory duties and obligations
arising from the constitutive documents of the OIC.
3-A The managing body indemnifies the participants, in the terms and conditions set out in
regulation of CMVM, for the damage caused as a result of situations to you
imputable, specifically:
a) Errors and irregularities in the assessment or imputation of operations to the portfolio of the
OIC;
b) Errors and irregularities in the processing of the subscriptions and rescues;
c) Collection of undue amounts.
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Article 60.
Functions of the managing entities
In the performance of the functions relating to the management of OIC, it is incumbent on the managing entity,
specifically:
a) Managing the investment by practicing the necessary acts and operations to the good
concretization of the investment policy, in particular:
i) Select the assets to integrate the OIC;
ii) Acquire and divest the assets of the OIC by complying with the necessary formalities
for valid and regular transmission of the same;
iii) Exercise the rights related to the assets of the OIC;
b) Administer the OIC, in particular:
i) Providing the necessary legal and accounting services to the management of the OIC,
without prejudice to the specific legislation applicable to these activities;
ii) Clarify and analyze the questions and complaints of the participants;
iii) Evaluate the portfolio and determine the value of the units of participation and issue
tax declarations;
iv) Comply with and monitor the observance of the applicable standards, of the documents
constitutive of the OIC and the contracts concluded in the context of the activity of the
OIC;
v) Proceeding to the registration of the participants, if applicable;
vi) Distribute income;
vii) Issue, rescue or reimburse units of participation;
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viii) Effecating settlement and clearing procedures, including the sending of
certificates;
ix) Conserve the documents.
c) Commercialize the OIC share units under management.
Article 61.
Remuneration
The exercise of the OIC management activity is remunerated through a commission of
management, in the terms provided for in regulation of the CMVM.
Article 62.
Independence and impediment
1-The managing body of managing entity integrates a suitable minimum number of
independent members, listening, among other factors, to the dimension of the entity
gestures and the size of the governing body itself.
2-The tax council of the managing body is composed of a majority of members
independent.
3-Independent is deemed to be the member who is not associated with any group of
specific interests in the managing body nor does it find itself in any circumstance
susceptible to affect your exemption from analysis or decision-making.
4-Cannot be designated as independent administrators persons who, in a manner
direct or indirect, provide services or maintain significant business relationship, or the
have done in the two years antecedent, with the managing body or society that with
this one finds itself in domain or group relation.
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5-It is vetted to the workers and the members of the body's governing body
gestures that exercise decision-making functions and execution of investments the exercise of
any functions in another entity responsible for the management of OIC that exerts a
competing activity.
6-The managing entities communicate to the Bank of Portugal, as soon as they take
knowledge, facts referred to in paragraph 4 that are super-venient to the registration of the
designation and which relate to independent members of the board of
administration.
Article 63.
Subcontracting
1-A subcontracting of functions within the scope of OIC management, in addition to subject to the terms,
principles and requirements provided for in the Securities Code that are not
contradicted by the following points, it also depends on compliance with the following
conditions:
a) The subcontractor entity becomes subject to the same duties as they impend on
the managing body, in particular for the purpose of supervision;
b) Should subcontracting respect to an authorized UCITS in another State-
Member, the CMVM transmits as soon as possible, after the project's fearth of
contract for subcontracting, provided for in Article 24 (4), to the authority
competent from the Member State of origin of the UCITS information relating to the
subcontracting;
c) Case the subcontracting concerns the management function of the expected investment
in the paragraph a) of Article 60, can only be concluded with registered entities
for the exercise of the management activity of collective investment bodies
or of management of portfolios on an account of others, which are subject to the criteria of
allocation of investments defined periodically by the managing entity;
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d) The investment management activity cannot be subcontracted to the
depositary or to other entities whose interests may collide with those of the
managing entity or with those of the participants, owing to the managing entity
record the assessment carried out in this scope;
e) The OIC prospeit must need the functions that the managing entity is
authorized to subcontract under the terms of this Article.
2-A the responsibility of the managing body and the depositary for the fulfilment of the
provisions governing your activity is not, in any case, affected by subcontracting
of third parties for the realization of functions of the competence of the managing entity.
Article 64.
Replacement of the managing entities
1-Being provided for in the constitutive documents of the OIC, with agreement of the
depositary and provided that the interests of the participants and the regular operation of the
market are not affected, the managing entity of the OIC may be replaced by
authorization of the CMVM.
2-A The authorisation decision is notified to the applicant within 15 days of the
order receiving completely instructed, becoming effective 40 days after the date of
notification of a decision of deinjury or after the course of that period, or on date
later indicated by the applicant.
3-If the application is instructed in an insufficient form, the CMVM, before refusing the application,
notifies the applicant giving you the maximum period of 10 days to supply the insufficiency and
to pronounce itself as to the appreciation of the CMVM.
4-The time limit referred to in paragraph 2 shall be suspended by the effect of the notification referred to in the number
previous.
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5-In the absence of a decision of the CMVM within the time limit set out in paragraph 2, the authorisation
considers itself granted.
6-The application for replacement of the managing body is instructed with the documents
amended constitutives accordingly, and these are to be disclosed at the time in
that the replacement becomes effective.
SECTION II
Conditions of access to activity by the managing societies
Article 65.
Social object of gestures society
1-A The fund manager of investment fund furniture has by main object a
oIC management activity authorized under the terms of this regime.
2-A gestures society may also commercialize, in Portugal, units of participation
of OIC managed by outrain, authorised or not in Portugal.
3-A gestures society may still be allowed to exercise the following activities:
a) Discretionary and individualized management of portfolios on account of outrain,
including those corresponding to pension funds, on the basis of mandate
conferred by the investors, to exercise under the Decree Law No. 163/94,
of June 4, as amended by the Decrees-Law No 17/97 of January 21, and 99/98,
of April 21, as long as the portfolios include financial instruments
listed in Section C of the Annex to Directive No 2004 /39/CE of Parliament
European and of the Council of April 21, 2004;
b) Consultancy for investment relating to assets referred to in the previous subparagraph;
c) Registration and deposit of units of participation in OIC.
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4-A gestures society may only be allowed to exercise the activities referred to in the
points b ) or c ) from the previous number to accessory and if it is authorized for the
exercise of the activity referred to in para. a) of the same number.
5-A gestures society can still manage:
a) Venture capital funds, pursuant to the Decree-Law No. 375/2007, of 8 of
November; and
b) Real estate investment bodies, pursuant to the Decree-Law No. 60/2002,
of March 20.
Article 66.
Own funds
1-When the overall net value of portfolios under management exceeds € 250,000,000, the
society gestures is obliged to constitute a supplementary amount of own funds
equal to 0.02% of the amount in which the overall net value of the portfolios under management exceeds
such amount.
2-A gestures society may be allowed not to constitute up to 50% of the amount
supplementary fund of own funds referred to in the preceding paragraph shall be
guarantee of the same amount provided by a credit institution or a company
of insurance with registered office in the European Union, or in a third country as long as it is subject to
prudential standards equivalent to those provided for in national legislation.
3-Without prejudice to the provisions of the following number, the sum of the initial capital with the amount
supplemental of own funds required may not be more than € 10,000,000.
4-Irrespective of the amount of the requirements referred to in the preceding paragraphs, the
own funds from the managing company may not be lower than the prescribed amount
in Article 21 of Directive No 2006 /49/CE, of the European Parliament and of the Council, of
June 14, 2006.
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5-For the purposes of the provisions of paragraph 1, it is understood by portfolio under management:
a) Any ICO managed by the managing company or other institution of
collective investment that revolves in accordance with the provisions of paragraph 5 of the
previous article, including the OIC in relation to which it subcontracted the functions
of management, but excluding the OIC that manages by subcontracting;
b) The SIM for which the managing company is the designated entity for the
respects management.
6-A gestures society that exercises the activities mentioned in paragraph 5 of the previous article
is still subject to the scheme of own funds defined in the diplomas that govern
those activities.
7-Should the own funds of the managing company present an amount lower than
€ 125,000 or that imposed by the provisions of paragraph 1, the Bank of Portugal, by
application, may grant a reasonable time limit for rectification of the situation or for the
cessation of the activity if the circumstances warrant.
SECTION III
Organization and exercise
SUBSECTION I
General provisions
Article 67.
Standards applicable
Without prejudice to the provisions of this scheme, the managing body shall be subject to the principles,
conditions, terms and requirements applicable to the organisation and exercise of intermediaries
financial forecasted in the General Regime of Credit Institutions and Societies
Financial and in the Securities Code.
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Article 68.
Duty to act in the interest of the participants
1-A The managing entity acts independently and in the exclusive interest of the
participants.
2-A The managing body should ensure that the participants of the OIC who generate are treated
equitably, refraining from putting the interests of a group of participants
above the interests of any other group of participants.
3-A managing body should adopt appropriate policies and procedures to prevent
maladministration practices with respect to which it can reasonably be predicted to be
that affect the stability and integrity of the market.
4-Dating performance to the duty of acting in the interest of the participants, the entity
gestures:
a) Ensures the adoption of price determination models and evaluation systems
fair, appropriate and transparent to the OIC that manages;
b) It demonstrates that the portfolios of the OIC that manages have been evaluated rigorously;
c) Does not charge or imslut to the OIC, or its participants, costs that do not
find provided for in the respects constitutive documents;
d) It ensures the appropriate training of the entities in charge of the
marketing, adopting a training plan for that purpose.
Article 69.
Duty of due diligence
The managing body adopts a high degree of diligence in selection and follow-up
continuous of the investments, in the interest of the participants of the OIC that manages and of the
integrity of the market, ensuring that:
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a) It has the knowledge and understands the assets that integrate the portfolios of the
OIC that manages;
b) Adopts written policies and procedures in relation to the duties of diligence to
which is subject;
c) Applies effective mechanisms in such a way as to ensure that decisions to
investment on behalf of the OIC are carried out in compliance with their
goals, investment policy, and risk limits.
SUBSECTION II
Internal organization
Article 70.
Risk assessment and management
1-In the application of its risk management policy and depending on the nature of the
forecasted investment, the managing entity shall formulate forecasts and effect analyses
regarding the contribution of investment to the composition, the liquidity and the profile of
risk and yield of the OIC portfolios prior to performing the investment.
2-The analyses referred to in the preceding paragraph are carried out on the basis of reliable information and
updated, both in quantitative and qualitative terms.
3-A The managing entity adopts appropriate and effective mechanisms, processes and techniques for:
a) Assess and manage at any time the risks to which the OIC that manages are or
may be exposed, particularly the risk of liquidity, so as to comply
at any time with the provisions of Article 9 (2);
b) Ensuring compliance with the limits on global exposure and the risk of
counterpart, in accordance with Articles 104 and 106;
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c) Ensure that the risks of the positions taken and their weight in the risk profile
global are rigorously evaluated on the basis of solid and reliable data and that the
mechanisms, processes and risk assessment techniques are adequately
documented;
d) Carry out, when appropriate, periodic tests to appreciate the validity of the
risk assessment mechanisms ( backtesting ), including estimates and forecasts
based on models;
e) Carry out, when appropriate, tests of resistance ( stress tests ) periodicals and analyses
of scenarios in relation to the risks arising from possible changes of the
market conditions that may harm the OIC, namely that
allow to assess the liquidity risk of the OIC under excecional conditions;
f) Establish, apply and maintain a documented system of internal boundaries
relating to the measures used to manage and control the relevant risks to
each OIC, taking into account all the risks that may be significant to the
OIC and consistent with your risk profile;
g) Confirm in permanence that the level of risk complies with the limit system of
risk, defined in the previous subparagraph for each managed OIC;
h) In the case of effective or forecasted default of the risk limit system of the
OIC, ensure timely remediation actions in the interest of the participants.
4-A gesturing entity must guarantee, for each autonomous heritage compartment or
OIC managed, that the liquidity profile of investments is appropriate to the rescue policy
established in the constitutive documents.
5-The mechanisms, processes and techniques mentioned in this article are proportional
to the nature, size and complexity of the activities and services provided by the entity
gestures and managed OIC, as well as consistent with the risk profile of the same, of
agreement with the terms to be defined in regulation of the CMVM.
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Article 71.
Execution of the operations on account of the managed OIC
1-The managing entities must adopt all reasonable measures to obtain the best
result possible for the OIC when they perform the operations on account of these,
considering the price, the costs, the speed, the probability of execution and settlement, the
volume and nature or any other relevant factor.
2-A The relative importance of the factors mentioned in the previous number is determined by
reference to the following criteria:
a) The objectives, the investment policy and the specific risks for the OIC, of
agreement with the nominee in the constitutive documents of the OIC;
b) The characteristics of the operation;
c) The characteristics of the financial instruments that are the object of the operation;
d) The characteristics of the places of operation of the operation.
3-A The managing body should adopt effective policies and mechanisms to comply with the
obligation referred to in paragraph 1.
4-With respect to heterogerated SIM, the managing entities must obtain the authorisation
preview of those with respect to the implementation policy.
5-The managing entities put at the disposal of the participants appropriate information about the
implementation policy adopted, as well as on any relevant changes to it.
6-The managing entities relay annually their policy of performing operations and
regularly control the effectiveness of the policy and implementing mechanisms in a manner
identify and, where necessary, correct any deficiencies.
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7-A review referred to in the preceding paragraph shall also be carried out where it occurs
any relevant change that affects the capacity of the managing entity to continue the
get the best possible results for the OIC under management.
8-The managing entities must be able to demonstrate that they have carried out the operations
on account of the OIC in accordance with its policy of execution.
Article 72.
Transmission of orders on account of the OIC to other entities for execution
1-The managing entities must take the reasonable steps to obtain the best result
possible for the OIC when they transmit to third parties, for execution, orders of
trading on account of those, considering the factors referred to in paragraph 1 of the article
previous and the criteria referred to in paragraph 2 of the same article.
2-To ensure compliance provided for in paragraph 1, the managing entities shall:
a) Adopt a policy that allows them to identify, in relation to each category of
instruments, the entities to whom the orders are transmitted, owing the
implementation agreements concluded with such entities to ensure compliance with the
provisions of this Article;
b) Place at the disposal of the participants appropriate information about the policy
adopted in the terms set out in the preceding paragraph, as well as any changes
relevant to the same;
c) Assess the effectiveness of the policy adopted under the terms of the a ) and, in particular, the
quality of execution of orders carried out by the entities in that referred to, and
when it is necessary to correct any deficiency found.
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3-The managing entities shall evaluate the policy referred to in paragraph a ) of the previous number
annually and whenever there occurs any relevant change susceptible to affect the
ability of the managing entity to continue to obtain the best possible results
for the OIC that manages.
4-The managing entities must be able to demonstrate that they have conveyed orders to
execution on account of the OIC that manage in accordance with the policy referred to in the
point ( a ) of paragraph 2.
Article 73.
Treatment of operations
1-A The managing body should adopt procedures and mechanisms that allow for the execution
célere, balanced and expedient of the portfolio operations carried out on account of the OIC and
that meet, specifically, the following conditions:
a) Registration and affectation of the operations performed on account of the OIC quickly and
rigorous;
b) Execution of the operations on account of comparable OIC in sequential mode and
célere, save if the characteristics of the operation or the conditions prevailing in the
market to make such an impracticable or if the safeguard of the interests of the OIC
require an alternative procedure.
2-The financial instruments or funds received upon the settlement of the
operations performed must be entered in a speedy and correct manner in the account of the OIC.
3-The managing entities may not unlawfully use the information relating to
outstanding operations of OIC and must take all reasonable steps to prevent the
unlawful use of such information by any person referred to in Article 304 (5).
of the Securities Code.
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Article 74.
Aggregation and affectation of orders
1-An aggregation of the execution of an order of an OIC to an order of
another ICO or other customer or to an order carried out on its own by the
gestures entity, except when:
a) It is unlikely that the aggregation of orders will result, in global terms, in a
injury to any OIC or customer whose order intends to aggregate;
b) Be adopted a policy of affectation of the orders that it provides, in terms
sufficiently accurate, an equitable affectation of aggregated orders, including
how the volume and the price of the orders determine the affectation and the
treatment of partial executions.
2-Whenever you proceed to the aggregation of an order of an OIC with one or more orders
of other OIC or customers and this aggregate order is only performed partially, the
managing entity shall reallocate the corresponding transactions in accordance with its
policy of affectation of orders.
3-Where to proceed to the aggregation of the order of an OIC or another customer with a
order carried out on its own, the managing entity:
a) When the aggregated order is only partially executed, it should affect
as a matter of priority the transactions corresponding to the portfolio of the OIC or other
customers and not the portfolio of their own; and
b) It cannot affect the corresponding transactions in a detrimental way to the OIC
or for the other customers.
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4-Notwithstanding the provisions of paragraph a ) from the previous number, if the managing entity can
demonstrate to the OIC or its other client, on the basis of a reasonable statement of reasons,
that without aggregation it would not have been possible to execute the order in such conditions
advantageous or that this would not have been performed, the transaction carried out may be affected in the
own account of the managing entity in a proportional manner, according to the policy
referred to in paragraph b ) of paragraph 1.
5-To the policy referred to in para. b) of paragraph 1 shall apply to the provisions of Article 330 (9) of the
Code of Securities.
6-For the purposes of the provisions of this Article, the reference to the order shall also cover the
investment decisions concerning the individual, own or customer portfolio, or by
account of an ICO.
Article 75.
Registration of portfolio operations
1-A The managing body shall adopt, for each operation of the OIC portfolio, a record
immediate information to allow for the reconstitution of the order and of the
operation performed.
2-The registration referred to in paragraph 1 shall include the following data:
a) The name or other designation of the OIC and of the person acting on behalf of the OIC;
b) The details necessary to identify the instrument in question;
c) The quantity;
d) The type of order or operation;
e) The price;
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f) In relation to the orders, the date and exact time of the transmission of the order and the
identification of the financial intermediary to whom the order was transmitted or, in
relation to the operations, the date and the exact time of the negotiation decision making and
of the implementation of the operation;
g) The name of the person who transmits the order or performs the operation;
h) Where applicable, the reasons for the revocation of an order;
i) In relation to performed operations, the identification of the counterparty and the structure
of trading.
3-Understand by negotiation structure as referred to in Article 331 (2) of the Code
of the Securities.
Article 76.
Registration of underwriting and rescue orders
1-A The managing body shall take all reasonable steps to ensure that the orders
of underwriting and rescue relating to OIC given by customers or participants, or
transmitted by commercializing entities, are centralized immediately after the
respects recetion.
2-The registration of the underwriting and rescue orders provided for in Article 307 of the Code of
Securities is secured by the marketer entities.
Article 77.
Treatment of complaints from participants
1-In the adoption of the complaints handling procedure provided for in paragraph 1 of the article
305.-And of the Securities Code, the gesturing society shall ensure, in
particular, the non-existence of restrictions on the exercise of the right of participants when
this and the UCITS are established in different Member States.
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2-For the purposes of the provisions of the preceding paragraph, the managing company shall ensure that the
participant may lodge the complaint in the Member State's respective Member State.
3-The procedure referred to in the preceding paragraph allows participants to submit
complaints in the official language of your Member State.
Article 78.
Requests for information from the public and the competent authorities
In addition to the provisions of the previous article, the managing companies establish procedures and
appropriate rules to ensure the provision of the information at the request of the public or
of the competent authorities of the Member State where the UCITS is authorized.
SUBSECTION III
Conflicts of interest and prohibited operations
Article 79.
Registration of activities that originate conflicts of interest
1-Where any person referred to in Article 304 (5) of the Code of Values
Securities detete that the organisational or administrative mechanisms adopted by the
managing entity for the management of conflicts of interest are not sufficient to guarantee
the prevention of injury risks to the interests of the participants of the managed OIC,
shall immediately inform the body of management and the supervisory body of the
gesturing entity, which must make the necessary decisions to ensure that, in
any situation, the entity gestures acts in the interest of the participants.
2-In the situations referred to in the preceding paragraph, the managing body communicates to the
participants, by any appropriate lasting support, the decisions made by the
organs of administration and surveillance and respect for reasons.
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Article 80.
Exercise of voting rights
1-Without prejudice to the duties laid down in Article 20 of the Securities Code,
the managing entity adopts appropriate and effective policies and procedures concerning the
exercise of the voting rights associated with the financial instruments that integrate the
assets of the OIC, for the exclusive benefit of the participating respects.
2-A The policy referred to in the preceding paragraph shall establish measures and procedures of:
a) Monitoring of relevant society-related events;
b) Certification that the exercise of voting rights meets the objectives and the
investment policy of the OIC concerned;
c) Prevention or management of conflicts of interest arising from the exercise of the
voting rights.
3-Constitutive documents include a description of the policy and procedures
referred to in paragraph 1.
4-A policy and adopted procedures identify at least the criteria to be used in the
determination, on a case-by-case one, of the sense of vote in respect of society-political affairs
Taken as of great relevance, enunciating in particular situations and factors
susceptible to motivate, in principle, the opposition or the approval of proposals of
deliberation related to those subjects, and should not enshrine a policy
general of non-systematic participation in general assemblies.
5-A The managing body makes available to the participants free of charge, after solicitation of these,
detailed information on the measures adopted in implementation of the strategies
referred to in paragraph 1, including the measures and procedures laid down in paragraph 2 and the
necessary clarifications as to the underlying ground for the exercise in concrete
of the voting rights inherent in the respects financial instruments.
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6-A The managing body shall not exercise the voting rights inherent in the values
securities held by the OIC that manages with the aim of strengthening the influence
entity society-based that with it find itself in domain or group relation or
that is part related to that one.
7-The entities responsible for the management communicate to the CMVM and the market the justification
of the sense of exercise of the right to vote inherent in stocks of the OIC portfolio that
gerem, in the terms to be defined in regulation of CMVM.
Article 81.
Operations prohibited to the managing entity
1-The managing entity is vetted:
a) Borrowing and lending credit, including the provision of guarantees, by
own account;
b) Make, on your own, sales of the securities discovered;
c) Acquire, on its own, OIC share units, with the exception
of those that are framed in the type of money market OIC or of
treasury and who are not by themselves managed;
d) Acquire, on its own, other financial instruments of any
nature, with the exception of the instruments of the money market provided for in the
article 134;
e) Acquire real estate in addition to the indispensable to the direct pursuit of your
activity and even the competition of your own funds.
2-To the managing body that is credit institution is not applicable the provisions of the number
previous.
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Article 82.
Benefits in favour of the participants
Any remuneration, commission or non-pecuniary benefit, including setbacks,
delivered to the managing entity that:
a) Does not meet the conditions laid down in Article 313 (1) of the Code of
Securities, and
b) Do not correspond to the consideration of the management activity and administration of the
investments of the OIC, revert fully to the OIC heritage.
SECTION IV
Activity abroad of authorized managing companies in Portugal
Article 83.
Right of establishment and freedom to provide services
1-The managing companies based in Portugal may exercise in another Member State as
activities covered by the respect of the authorization, either by the establishment of
a branch office, whether under the freedom to provide services, in the terms provided for
in the General Regime of Credit Institutions and Financial Societies.
2-Should a managerable society based in Portugal propose, without the establishment
of branch office, only marketing one UCITS per se managed in another different State
of the one in which the UCITS is established, without proposing to exercise other activities
or provide other services, such marketing is only subject to the requirements
set out in subsection II of section III of Chapter II of Title III.
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Article 84.
Collaboration in the supervision of OICVM-based managing societies based in
Portugal
1-When, in the context of an application for a constitution of UCITS in another Member State,
or of the OICVM management permit already constituted, the competent authority of the
Member state of origin of the UCITS request clarifications on the instruction of the
application or additional information on the scope of the authorisation or registration
granted the authorised managing society in Portugal, the CMVM transmits the
clarifications requested within a period of 10 days from the date of receiving the application.
2-When, in the framework of the supervision of cross-border activity of gestures society
authorized in Portugal, the competent authority of the host Member State
inform about the refusal to provide for information required or about the persistence of the
non-compliance with standards applicable on the part of the managing company, CMVM takes,
with the greatest possible brevity, the necessary measures to ensure that the society
gestures to provide the information requested by the competent authority of the State-
Member of the host or end the default.
3-The measures taken pursuant to the preceding paragraph shall be communicated to the
competent authority of the host Member State.
4-Before revoking the authorization or registration of the managing company that revolves OICVM
authorized in another Member State, the Bank of Portugal and the CMVM, depending on the
competences in question, consult the competent authorities of the Member States
source of the UCITS.
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5-A CMVM, after prior information to the Bank of Portugal, notifies, without delay, the
competent authorities of the Member State of origin of the UCITS of any
problems loosed at the level of the gestures society, which may affect in terms
materials the ability of this to correctly perform its functions
relating to the UCITS, or of any non-compliance with the requirements set out in the
chapter I of Title II.
SECTION V
Activity in Portugal of authorized holding companies in others
Member States
Article 85.
Right of establishment and freedom to provide services
1-Management companies authorized in other Member States and subject to supervision
of the respective authorities may, received the notification provided for in Article 199-L of the
General Regime of Credit Institutions and Financial Societies, exercise in Portugal
the activities covered by the authorisation, either upon the establishment of a
branch, or under the freedom of provision of services.
2-The managing companies referred to in the preceding paragraph may still commercialize in
Portugal the units for participation of an authorised UCITS in another Member State
per se managed, after receipt of the notification referred to in the preceding paragraph.
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Article 86.
Law applicable to the constitution and operation of UCITS
The managing company that exerts, in Portugal, the management activity of UCITS through the
establishment of a branch or under the freedom to provide services assures,
in respect of UCITS constituted in Portugal, compliance with the provisions of this
Regime relating to the constitution and operation and obligations established in the
constitutive documents, defining all the necessary rules and organisational arrangements
to that fulfillment.
Article 87.
Instruction of the application for management of UCITS in Portugal
1-The application for OICVM management established in Portugal by companies
authorized gestures in another Member State is presented with the CMVM and instructed
with the following documentation:
a) Contract with the depositary;
b) Information on contracts with subcontracted entities concerning the
managerial and administration functions of investments.
2-If the managing society already manages UCITS in Portugal, it is sufficient reference to the
documentation presented previously.
3-To ensure compliance with the standards under its responsibility, the CMVM may
requesting the competent authorities of the State-Member State of origin of the managing company
clarifications and information relating to the documentation referred to in paragraph 1 and on the
scope of the authorization granted to the managing company on the basis of the certificate received
of the competent authority of the Member State of origin under the terms of the ( a ) from the
n Article 49 (1) or Article 61 (1), applicable by virtue of Article 61 (4) of the article
199.-L, all from the General Regime of Credit Institutions and Financial Societies.
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4-Any subsequent relevant changes to the documentation referred to in paragraph 1 are
notified by the managing company to the CMVM.
Article 88.
Refusal of application for OICVM management in Portugal
1-A CMVM may only refuse the request of the managing company if this:
a) Do not comply with the applicable rules;
b) Shall not be authorised by the competent authorities of your Member State
of origin to manage UCITS of the type of that for which it intends to permit; or
c) Do not submit the documentation referred to in paragraph 1 of the previous article.
2-Before turning down the application, CMVM consults the Bank of Portugal and the authorities
competent from the Member State of origin of the managing company.
3-Are communicated to the European Commission the number and the nature of cases of refusal to
requests pursuant to this article.
4-To the decision provided for in paragraph 1, the provisions of Article 20 shall apply, with the necessary
adaptations.
Article 89.
Supervision of activity in Portugal of UCITS gestural societies
1-A CMVM may ask the managing companies to carry out activity in Portugal,
through branch or within the scope of freedom to provide services, the information
necessary for the surveillance of compliance with the applicable rules.
2-The managing companies referred to in the preceding paragraph shall ensure that the procedures and
rules to which Articles 77 and 78 refer to the CMVM, with respect to the
UCITS authorized in Portugal, get directly from those the said information
in the previous number.
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3-When the CMVM checks that a society gestures that it posits a branch or
pay services on national territory does not comply with the applicable standards, it requires the
society gestures that endanger the irregularity and notifies the competent authority
of the Member State of origin of the gestures society.
4-If the society gestures to refuse to provide the information requested or not to take the
measures necessary to end the irregular situation referred to in the preceding paragraph, the
CMVM communicates that fact to the competent authorities of the State-Member State
of the gesturing society, asking you to, with the greatest possible brevity, take the
appropriate arrangements.
5-If, notwithstanding the measures taken by the competent authorities of the State-
Member of origin of the managing company or if, due to the fact that such measures are
revealing inappropriate or unable to be applied in Portugal, the society gestures
continue to refuse to provide the requested information or continue to infringed the
applicable legal or regulatory provisions, the CMVM, after informing this fact to
competent authority of the Member State of origin, sets out the necessary measures
to prevent or sanction new irregularities and, if necessary, to ban society
gestures of initiating new transactions in its territory, including, if the service provided
by the managing company for the management of an UCITS, the requirement that this basket the management
of this UCITS.
6-Should the CMVM consider that the competent authority of the State-Member State
of the holding company did not act in an appropriate manner after the notification provided for in paragraph 4,
referred the matter to the European Securities and Markets Authority,
that you can act in the exercise of your competences.
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7-In case of urgency, the CMVM, before commencing the procedure provided for in the figures
previous, take the precautionary measures necessary to protect the interests of the
investors or other persons to whom services are provided, giving
knowledge of these measures, with the greatest possible brevity, to the European Commission, to the
European Securities and Markets Authority and the authorities of the
too many Member States affected.
8-A CMVM notifies, without delay, the competent authorities of the Member State of
origin of the society gestures from any problems lying at the UCITS level that
may affect in material terms the capacity of the managing society to perform
correctly their duties or to comply with the requirements set out in the terms of
Directive No 2009 /65/CE, of the European Parliament and of the Council of July 13 of
2009, which are of their competence.
9-A CMVM informs beforehand the Bank of Portugal of all communications and
measures provided for in the preceding paragraphs.
10-When consulted by the competent authority of the State-Member State of the
society gestures on the revocation of the respect for permission, the Bank of Portugal and the
CMVM take the necessary measures to safeguard the interests of the participants,
including prohibiting the managing society from initiating new transactions in Portugal.
11-A CMVM communicates to the European Commission and the European Values Authority
Securities and Markets the number and nature of cases in which they have been
taken measures pursuant to paragraph 5.
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Article 90.
Information for statistical purposes
The authorized holding companies in another Member State that exercise activity in
Portugal through branches are subject to the periodical reporting of information on the
management of UCITS to the CMVM, for statistical purposes, in the terms to be defined in regulation of the
CMVM.
CHAPTER II
Depositories
SECTION I
General provisions
Article 91.
Depositary
1-The assets constituting the portfolio of the OIC are entrusted to a depositary.
2-Can be depositary of the credit institutions referred to in points a ) a and ) of Article 3 para.
of the General Regime of Credit Institutions and Financial Societies that have
of own funds not less than € 7,500,000 and to have registered office in Portugal or registered office
in another Member State and branch in Portugal.
3-A provision of the depositary service to entities outside the perimeter of
consolidation in which it integrates the depositary entity is secured under conditions
non-discriminatory economic.
4-A CMVM may request the statement of reasons for refusal to provide the depositary service
to entities referred to in the preceding paragraph.
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5-Mediant application, the depositary shall provide to the Bank of Portugal or CMVM all
the information you have obtained in the performance of your duties and which are necessary
for the supervision of the OIC.
6-The depositary may subscribe to units of participation of the OIC relatively to the
which exercises the functions of depositary, with the acquisition of units of
participation already issued may only take place on the terms set out in regulation of the
CMVM.
Article 92.
Duties of the depositary
The depositary shall be subject, inter alia, to the following duties:
a) Comply with the law, the regulations, the constitutive documents of the OIC and the
contracts concluded in the scope of the OIC;
b) Store the assets of the OIC;
c) Receive in deposit or enroll in registration the assets of the OIC;
d) Carry out the instructions of the entity responsible for the management, save if they are
contrary to applicable legislation and constitutive documents;
e) To ensure that, in the operations concerning the assets of the ICO, the counterpart is
delivered on deadlines that are in accordance with market practice;
f) Promotes the payment to the participants of the income of the units of
participation and value of the respect ransom, refund or product of the
settlement;
g) Elaborate and maintain updated the chronological relationship of all operations
performed for the OIC;
h) To draw up monthly the discriminated inventory of the assets and liabilities of the
OIC;
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i) Scrutinize and guarantee before participants compliance with the legislation
applicable and of the constitutive documents of the OIC, in particular in the case
refers:
i) To the policy of investments;
ii) To the politics of distribution of income;
iii) To the calculation of the value, the issuance, the rescue, refund and cancellation of
registration of the units of participation;
iv) To the matter of conflict of interest.
j) Submit annually to the CMVM a report on the surveillance developed, in the
terms to be defined in regulation of the CMVM;
l) Immediately inform the entity responsible for the management of the change of the
members of the governing body.
Article 93.
Liability of the depositary
1-The depositary of OIC established in Portugal is responsible, in the general terms,
before the entity responsible for the management and the participants for any injury by
they suffered as a result of non-compliance with their obligations.
2-A liability to the participants can be invoked directly or through the
entity responsible for the management.
3-A liability of the depositary is not affected by the fact that, with the agreement of the
entity responsible for the management and upon written contract, entrust to a third party
all or part of the financial instruments at your guard.
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Article 94.
Independence
1-The management and depositary functions may not be exercised by the same entity
with respect to the same OIC.
2-The depositary, in the exercise of the respects functions, acts independently and
exclusively in the interest of the participants.
Article 95.
Replacement of the depositary
1-The constitutive documents of the OIC define the rules applicable to the replacement of the
depositary, which shall ensure the protection of the participants.
2-A The replacement of the depositary depends on authorization from the CMVM.
3-A authorisation decision is notified within 15 days of the receiving of the application
fully instructed, and becomes effective on the date of notification of decision of
dewound or after the course of that period, or at a later date indicated by the
applicant.
4-If the application is instructed in an insufficient form, the CMVM, before refusing the application,
notifies the applicant giving you the maximum period of 10 days to supply the insufficiency and
to pronounce itself as to the appreciation of the CMVM.
5-The time limit referred to in paragraph 2 shall be suspended by the effect of the notification referred to in the number
previous.
6-In the absence of a decision of the CMVM within the time limit set out in paragraph 3, the authorisation
considers itself granted.
7-The application for the replacement of the depositary is instructed with the constitutive documents
amended accordingly, and these are to be disclosed at the time when the
replacement becomes effective.
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Article 96.
Remuneration
The exercise of the activity of depositary is remunerated through a commission of
deposit.
Article 97.
Replacement of administrators
The entity responsible for the management shall immediately notify the CMVM about the
replacement of the administrators of the OIC depositories by you managed.
SECTION II
Contract between the depositary and the entity responsible for the management
Article 98.
Contract with the depositary relating to OIC established in Portugal
1-The contract between the entity responsible for the OIC management authorised in Portugal and the
depositary is subject to the written form and subject to Portuguese law, and should such a fact be
specified in the same.
2-The contract between the depositary and the entity responsible for the management of authorized OIC
in Portugal may cover more than one OIC managed by the same entity.
3-In the cases referred to in the preceding paragraph, the contract shall include the list of the OIC by it
covered.
Article 99.
Contents of the contract
1-The contract to be concluded between the depositary and the entity responsible for the management includes the
following elements relating to the services provided and the procedures to be adopted:
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a) A description of the procedures to be adopted for each type of OIC assets
entrusted to the depositary, including those related to its guard;
b) A description of the procedures to be followed when a change is carried out
constitutive documents of the OIC prospeit, distinguishing the situations in
that the depositary must be informed and those requiring their prior agreement to the
delivery of the amendment;
c) A description of the means and procedures to be used by the depositary for
transmit to the entity responsible for the management of the relevant information that this
needs to carry out its functions, including those related to the
exercise of all rights associated with financial instruments, as well as
of the means and procedures that enable the entity responsible for the management
access timely information on the accounts of the OIC;
d) A description of the means and procedures through which the depositary may
have access to all relevant information that you need for compliance
of its obligations, namely the right to request information and
consult with documents and computer systems;
e) A description of the procedures through which the depositary can inquire
about the behaviour of the entity responsible for the management and to evaluate the
quality of the information transmitted, particularly through visits
presentials;
f) A description of the procedures through which the entity responsible for the
management can analyze the performance of the depositary relatively to its
contractual obligations.
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2-When the entity responsible for the management of the OIC does not have a seat or branch in
Portugal, the contract with the depositary shall specifically regulate the flow of
information required to enable this to exercise the respective functions in
compliance with applicable legislation and the constitutive documents of the OIC.
3-In the case referred to in the preceding paragraph, the Parties may include the items relating to
to the means and procedures referred to in points (c) and (d) of paragraph 1 in a contract
autonomous.
4-The contract to be concluded between the depositary and the entity responsible for the management shall
also include the following elements relating to the exchange of information and duties in
matter of confidentiality and money laundering:
a) A list of all the information that has to be shared between the entity
responsible for the management and the depositary related to the underwriting, the rescue or
reimbursement and the cancellation of the registration of OIC participation units;
b) The confidentiality duties applicable to the Parties;
c) Information on the tasks and responsibilities of the parties concerning the
duties on the prevention of money laundering and financing
of terrorism, when applicable.
5-The duties referred to in the paragraph b ) from the previous number, are established in such a way
do not prejudice the access of the Bank of Portugal, the CMVM or authorities
competent counterparts to the relevant documents and information.
6-If the depositary or the entity responsible for the management considers the possibility of
appoint third parties to carry out their duties, the contract shall still include the
following elements:
a) The commitment of both parties to provide on a regular basis
data on subcontracted entities to carry out their duties;
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b) The commitment to, at the request of one of the parties, the other party to provide
information on the criteria used in the choice of entities
subcontractors and on the measures adopted to control the activities
carried out by these;
c) A statement explaining that the liability of the depositary is not affected
by the fact that the same has entrusted to a subcontracted entity totality
or part of the assets at your guard.
7-The contract shall still regulate the following subjects:
a) Their duration;
b) The conditions under which the contract may be changed or resolved;
c) In case of replacement of depositary, the procedure by which a
depositary transmits to the other the relevant information;
d) In cases where the parties accept to use electronic means for transmission
of part or of the totality of the information that exchange with each other, the way it is
kept the record of such information.
CHAPTER III
Commercializing entities
Article 100.
Commercializing entities
1-Can be marketers of units of participation:
a) The entities responsible for the management;
b) The depositories;
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c) Financial intermediaries registered or authorized with the CMVM for the
exercise of the placement activities in public offerings of distribution or of
prescription and transmission of orders on account of outrain;
d) Other entities as such provided for in regulation of the CMVM, by
authorization of this.
2-The marketer entities referred to in point (s) d ) of the previous number, observe
the rules imposed on financial intermediaries relating to the exercise of their activity,
specifically those for the prevention and resolution of conflicts of interest, by staying the
services responsible for marketing subject to the supervision of CMVM, nos
same terms than those middlemen.
3-Relations between the entity responsible for the management and the marketer entities
are governed by written contract.
4-The marketers respond to the participants for the damage
caused in the exercise of their activity.
5-Can further commercialize OIA participation units among the workers
employing entities or the entities that meet in relation to domain or
group with the employing entity, or the entities with whom those meet
in domain or group relation, as long as the participation in the OIA is reserved
to the workers of these entities.
Article 101.
Duties of marketizing entities
The marketers are subject to the duty to make available to the investor, in the
terms of the present regime or CMVM regulation, the information that to the effect
have been remitted to them by the entity responsible for the management.
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CHAPTER IV
Auditors
Article 102.
Auditor
1-A financial information contained in reporting documents relating to OIC
is object of audit report drawn up by auditor registered in the CMVM.
2-The auditor responsible for the issuance of the report referred to in the previous number communicates
immediately to the CMVM the facts and situations concerning the OIC, of which it takes
knowledge in the exercise of their duties, which are susceptible to:
a) Constitute infringement of legal or regulatory standards relating to the activity of the
OIC;
b) Affect the continuity of the exercise of the activity of the OIC; or
c) Determine the issuance of a qualified audit report, specifically
in the modalities of "opinion with reservations", "escuses of opinion" or " opinion
warns ".
Article 103.
Plurality and rotativity
1-A The end of acauteling susceptible situations of generating conflicts of interest among the auditors
and the OIC, the entity responsible for the management shall ensure the rotation of the auditors,
pursuant to us to define in regulation of the CMVM.
2-The OIC auditor cannot be auditor, nor belong to the network of the auditor, of the company
mother in which entity responsible for the management consolidates its accounts.
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Title III
Of the activity of the OIC
CHAPTER I
General provisions
SECTION I
Management
Article 104.
Calculation of global exposure in derivative financial instruments
1-A The managing entity calculates the overall exposure of the OIC managed in
derivative financial instruments, in one of the following ways:
a) Considering the increased exposure and leverage generated by the OIC through the
use of derivative financial instruments, including instruments
embedded derivatives; or
b) Considering the market risk of the OIC portfolio.
2-For the purposes of the preceding paragraph, the entity responsible for the management may calculate the
global exposure through an approach based on the commitments, the subject value
the risk ( value-at-risk ) or through other advanced methods of risk assessment,
as appropriate.
3-For the purposes of the preceding paragraph, it is understood by value subject to risk, a measure of the
maximum loss expected, with a certain level of confidence, during a period
specific.
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4-A the managing body responsible for the management must ensure that the selected method to measure the
global exposure is suitable, considering the investment strategy followed by the
OIC and the types and complexity of the derivative financial instruments used, well
as the respect weight in the OIC portfolio.
5-Where an OIC uses techniques and tools to increase leverage or
exposure to market risk, including repurchase agreements or grant of
securities lending, these transactions should be considered in the calculation
of the global exposure of the OIC.
6-A managing body responsible for the management calculates the global exposure in instruments
financial derivatives in the forecast periodicity for the disclosure of the value of the respects
participations.
Article 105.
Approach based on commitments
1-When the approach based on the commitments for the calculation of the exhibition is used
global, the entity responsible for the management should apply this approach to all the
positions in derivative financial instruments, including financial instruments
embedded derivatives used in both the scope of the OIC investment policy,
for effects of risk coverage, such as for effective management of the portfolio.
2-When the approach based on the commitments for the calculation of the exhibition is used
global, the entity responsible for the management must convert each position into instruments
financial derivatives at the fair value of an equivalent position in the asset underlying the
derivative financial instrument in question.
3-A the managing body responsible for the management may apply other calculation methods that are
equivalent to the standard approach based on the commitments referred to in the number
previous.
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4-A the managing body responsible for the management may consider the mechanisms for compensation and
of risk coverage when calculating the global exposure, provided that such mechanisms do not
ignore obvious and substantial risks and result in a clear reduction of exposure to the
risk.
5-Whenever the use of derivative financial instruments does not generate an exhibition
additional to the OIC, the underlying exposure does not have to be included in the calculation of the
appointments.
6-When the approach based on commitments is used, the loans of values
Securities contracted on behalf of the OIC do not have to be included in the calculation of the
global exposure.
Article 106.
Risk of counterparty
1-The risk of counterparty associated with transacted financial instruments
out of regulated market and multilateral trading system is subject to the
limits set out in Article 142.
2-When calculating the exposure of the OIC to a counterparty in accordance with the applicable limits,
the entities responsible for the management should use the positive market value of the
contract of financial instruments derivatives transacted out of market
regulated and multilateral trading system concluded with the counterparty.
3-The entities responsible for the management can compensate for the positions in instruments
financial derivatives of an ICO with the same counterparty, in the condition that they can
carry out clearing agreements with the counterparty on account of the managed ICO.
4-A compensation is only allowed in relation to derivative financial instruments
transacted out of regulated market and multilateral trading system
with the same counterparty and not in relation to other exposures that the OIC may have
with the counterparty in question.
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5-The entities responsible for the management can reduce the exposure of the OIC to a
counterparty in a transaction in derivative financial instruments transacted outside
of regulated market and multilateral trading system through acceptance
of a sufficiently liquid guarantee to be able to be sold in a speedy manner at prices
similar to their market value.
6-The entities responsible for the management shall take into consideration the guarantees provided
to the counterparty on account of the OIC when calculating the exposure to counterparty risk.
7-For the purposes of the preceding paragraph, the guarantee can only be accepted for the clearing title
for their net worth if the entity responsible for the management has powers to execute
the clearing arrangements with the counterparty on account of the OIC under management.
8-The entities responsible for the management shall calculate the concentration limits of the
issuers on the basis of the underlying exposure resulting from the use of instruments
financial derivatives in accordance with the approach based on the commitments.
9-Regarding the resulting exposure of financial instrument transactions
derivatives outside of regulated market or multilateral trading system, the
calculations should include any exposure to the counterparty risk of these transactions.
Article 107.
Calculation of the value of derivatives financial instruments transacted out of
regulated market and multilateral trading system
1-The entities responsible for the management should check that it is attributed the fair value to the
exposures of the OIC to derivative financial instruments transacted outside
regulated market and multilateral trading system.
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2-The fair value referred to in the preceding paragraph shall not depend only on prices
indicated by the counterparties of the transactions carried out outside of regulated market and
of multilateral trading system and shall fulfil the criteria referred to in paragraph 4 of the
Article 8 of Directive No 2007 /16/CE, of the European Parliament and of the Council, of 20 of
march: March 2007.
3-For the purposes of paragraph 1, the entities responsible for the management shall establish,
implement and maintain mechanisms and procedures that ensure an assessment
appropriate, transparent and fair of the OIC exposures in respect of instruments
financial derivatives transacted out of regulated market and system of
multilateral trading.
4-The entities responsible for the management must ensure that the fair value of the
derivative financial instruments transacted out of regulated market and from
multilateral trading system are subject to a proper, accurate assessment and
independent.
5-The entities responsible for the management shall comply with the requirements set out in the n.
1 of Article 308, paragraph 1 and in paragraphs 1 a) and b) of Article 308 (3)-B, all of
Code of Securities, whenever the mechanisms and procedures of
valuation of derivatives financial instruments transacted out of market
regulated and multilateral trading system involves the realization of certain
activities by third parties.
6-The establishment, implementation and maintenance of the mechanisms and procedures of
evaluation of OIC exposures in respect of derivative financial instruments
transacted out of regulated market and multilateral trading system
constitutes a specific competence of the risk management function.
7-The mechanisms and procedures for evaluating the exposures of the OIC relatively to
derivative financial instruments transacted out of regulated market and from
multilateral trading system must be properly documented.
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8-The evaluation mechanisms and procedures shall be appropriate and proportionate to the
nature and the complexity of derivatives financial instruments transacted outside
of regulated market and multilateral trading system in question
Article 108.
Report on derivative financial instruments
1-A entity responsible for the management sends annually to the CMVM, relatively to the OIC
managed, report with information that reflect a true and appropriate image of the
types of derivative financial instruments used, of the underlying risks, of the
quantitative limits and the methods chosen to calculate the risks associated with
transactions of derivative financial instruments.
2-The report provided for in the preceding paragraph shall be delivered by April 30 of the year
next to what you respect.
Article 109.
Charges and revenues
1-Constitutions OIC charges:
a) The management committee and the commission of deposit, intended to remunerate the
services provided by the entity responsible for the management and the depositary of the
OIC, respectively;
b) The transaction costs of the OIC assets;
c) The emerging costs of audits required by law or regulation of the CMVM;
d) Other expenses and charges duly documented and which are due to
legal obligations, under the conditions to be defined in regulation of the CMVM;
e) The supervision fee due to the CMVM.
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2-Whenever an OIC insights into managed OIC share units, directly
or by subcontracting, or marketed by the same entity responsible for the
management, or by entity that with that one finds in relation to domain or
group, or connected in the framework of a common management or by direct capital participation
or indirect higher than 20%, no underwriting commissions may be charged
or of rescue in the respects operations.
3-Without prejudice to the limits set out in Article 143, an OIC that provides for investing 30% or
more of its assets in OIC share units also indicates in the
constitutive documents the maximum level of management fees that may be
collected simultaneously to the OIC itself and to the remaining OIC in which it intends to invest,
specifying in its report and annual accounts the percentage of management commissions
charged to the OIC and the remaining OIC in which it has invested.
4-Constituts, inter alia, revenues of the OIC as a result of the investment or
transaction of the assets that make up them, as well as the yields of these assets, the
commissions for underwriting, rescue and transfer and the benefits provided for in Article 82.
5-The remaining rules regarding OIC revenue and charges are set out in regulation of the
CMVM.
Article 110.
Commissions for underwriting, rescue and transfer
1-Only participants can be charged to the underwriting, rescue and joint committees
of the transfer, in the conditions and according to the calculation methods set in the
constitutive documents.
2-The increase in rescue or transfer commissions or the aggravation of their
conditions can only be applied in relation to the subscribed participation units
after the entry into force of the respective amendments.
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Article 111.
Distribution of income
The distribution or reinvestment of the OIC yields takes effect on the terms
defined in the constitutive documents that predict the criteria, conditions and
periodicity of the respect distribution.
Article 112.
Valuation and dissemination
1-A OIC portfolio is valued at its fair value in accordance with the rules set out in the
constitutive documents, in the terms defined in regulation of the CMVM.
2-The value of the OIC share units is calculated and disclosed:
a) All working days for UCITS, save if the CMVM authorizes a
periodicity lower up to the limit of one month, under the conditions of underwriting and
rescue defined in the constitutive documents;
b) Monthly, at the very least, for the open OIAVM;
c) Monthly for closed OIC, with reference to the last day of the previous month,
save if the CMVM authorizes the OIC that are not OIAVM a periodicity
lower, up to a limit of 6 months.
3-The value of the units of participation is disclosed at all marketing sites
and respect means.
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Article 113.
Limits to shareholdings
1-The entities responsible for the management cannot, acting in tandem with any
person referred to in Article 304 (5) of the Securities Code or with
entities with which they maintain close relations, and with respect to the set of
OIC that they find themselves under management, carry out operations on account of these that are
susceptible to conferencing them a significant influence on any entity.
2-A entity responsible for the management cannot, with respect to the OIC set
generate, acquire shares that confirm you more than 20% of the voting rights in an entity
or to allow it to exert significant influence on its management.
3-The set of the UCITS and OIAVM managed by an entity shall not hold more than:
a) 20% of the shares without the right to vote of the same issuer;
b) 50% of the obligations of a same issuer;
c) 60% of the participation units of a same OICVM or OIAVM.
Article 114.
Veiled operations
1-Without prejudice to the provisions of Article 109 (2), the entity responsible for the management
cannot carry out on account of the OIC that manages any operations susceptible to
generate conflicts of interest with the following entities:
a) The own;
b) The heterogerated SIM;
c) Entities holding stakes in excess of 10% of the social capital or
of the voting rights of the heterogeride SIM itself;
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d) The entities that find themselves in domain or group relation with the
entity responsible for the management, or the entities with whom those if
find in relation to domain or group;
e) The entities in which the entity responsible for the management, or entity that with
that one find in domain or group relationship, hold participation
greater than 20% of the social capital or voting rights;
f) The depositary or any entity that with this one finds in one of the relationships
referred to in points b ), c ) and d );
g) The members of the social bodies of any of the entities referred to in points
previous;
h) The staff and other collaborators of any of the entities referred to in points
a ) a and );
i) The different OIC per se managed.
2-Notwithstanding the provisions of the preceding paragraph, the entity responsible for the management may,
on account of the OIC which manages, acquire or divest assets to the entities referred to in the number
previous when:
a) The transaction is carried out on regulated market or in the system of
multilateral trading and the counterparty is unknown; or
b) Obtained the prior authorisation of the CMVM, if you check the following conditions:
i) The price of the transaction, considering the costs of the same, is more
favorable that the price formed on regulated market or system of
multilateral trading or, if this does not exist, that firm offers of
entities that do not meet in domain or group relation with the
entity responsible for the management, provided that it results an unequivocal and
proven advantage for the OIC;
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ii) The absence of transactions on regulated market or system of
multilateral trading and purchase offers during the 15 days
immediately prior to the date of the divestance, as long as it resulted in a
unequivocal and proven advantage for the OIC;
iii) The financial instruments:
-Be acquired in public underwriting offer whose conditions include
the commitment that you will be presented the application for your admission to the
trading on regulated market;
-The issuer has financial instruments of the same type already admitted
in that regulated market;
-The admission is obtained at the latest within six months of the
presentation of the application;
iv) In the absence of liquid means held by the OIC and depleted the capacity of
borrowing under the terms set out in the law or in regulation of the CMVM,
the net rescue applications of units of participation exceed, in a
period of not more than five days, 10% of the overall net value of the OIC.
3-In the situation provided for in the sub-paragraph iii) of the paragraph b ) of the previous number, if the admission of the
financial instruments not to occur within the said period, these are disposed of in the 15 days
subsequent to the expiry of that period.
4-A the managing body responsible for the management may not grant credit or provide guarantees by
account of the OIC, notwithstanding the possibility of being acquired for the OIC values
securities, money market instruments or the assets referred to in points c ), and )
and f ) of Article 137 (1) not entirely carried out.
5-A the managing body responsible for the management has a duty to know the relationships provided for in this
article.
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6-A The decision on the transactions provided for in paragraph 2 (b) is notified within the period of
10 days from the date of the receiving of the application or the supplementary information which
the CMVM considers necessary.
7-In the absence of notification within the period referred to in the preceding paragraph shall be deemed
dismissed the request.
Article 115.
Non-eligible assets
1-The OIC may not hold assets issued or guaranteed by the entities referred to in paragraph 1
of the previous article in excess of 20% percent of the global net worth value.
2-A The detention of the financial instruments referred to in this article covers the title, the
usufruct, the situations confers on the holder the power to administer or dispose of the
same instruments, as well as those in which, having none of these powers, is
the real beneficiary of their fruits or may de facto have or administer them.
Article 116.
Communication about transactions
1-The members of the governing bodies and the remaining responsible for the decisions of
investment of the OIC inform the responsible entity responsible for the management over the
acquisitions and disposals of OIC share units by it managed, of shares
or of securities that give right to its acquisition, effected by you, by the
respected spouses, by people who with them find themselves in relation to addiction
economic and by societies by themselves dominated, whether the acquisitions are effected in
own name, in representation or on account of third parties, or by these per account
of those, within five working days counted from the acquisition or divestance.
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2-A entity responsible for the management sends to CMVM, within three working days counted
of the receiving respect, and in the terms set out in regulation of the CMVM, the information
received in fulfillment of the provisions of the preceding paragraph.
Article 117.
Mentions in advertising shares
1-The OIC can only be advertised after it has been authorised for its constitution.
2-Publication shares relating to OIC should be clearly identified as such, be
correct and clear and do not induce in error.
3-Any advertising shares relating to OIC should not contain claims that
either contradict or diminish the importance of the information included in the prospeetus and the
IFI.
4-Publication shares relating to OIC must still indicate the existence of a prospeal and
the availability of the IFI, as well as the location and the language in which investors can
obtain or have access to such documents.
Article 118.
Excecional situations
1-The limits to the investment provided for in Articles 142 to 144, in Article 137 (7),
in the applicable regulations and constitutive documents can be overcome
as a result of the exercise of subscription rights or rights of conversion
inherent in securities or money market instruments held by the
OIC or in alhedic cases at the will of the entity responsible for the management, in the terms
defined in regulation of the CMVM.
2-In the situations referred to in the preceding paragraph, decisions in respect of investments
have for priority objective the regularisation of the situation within the maximum period of six months,
taking into account the interest of the participants.
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3-The limits referred to in paragraph 1 may be exceeded during the first six months
of activity of the OIC.
SECTION II
Constitutive documents and information
SUBSECTION I
Key information aimed at investors
Article 119.
Key information aimed at investors
1-The entities responsible for the management, for each of the OIC per se managed,
make a succinct document available with the fundamental information aimed at the
investors, designated "fundamental information aimed at investors" or,
abbreviately, "IFI".
2-A The IFI designation is clearly mentioned in the respect document, in one of the languages to
which refers to ( a ) of Article 166 (3).
3-The IFI includes appropriate and up-to-date information on the essential characteristics of the
OIC concerned, which are provided to investors in such a way as to enable them to understand
the nature and risks inherent in the proposed investment product and, by
therefore, make informed investment decisions.
4-The IFI contains, in relation to the OIC in question, the following essential elements:
a) Their identification;
b) A brief description of the investment objectives and their policy of
investments;
c) A presentation of the previous results or, where appropriate, of the results
of the scenarios provided for;
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d) The associated costs and charges;
e) The risk profile and remuneration for investment, including guidelines
adequate and warnings about the risks inherent in investments in the OIC.
5-The essential elements contained in the IFI should be understandable for investors
without the consultation of other documents being required.
6-The IFI clearly indicates where and in what way information can be obtained
supplementary on the proposed investment, namely, where and in what way
the prospeto and the annual and semi-annual reports and accounts can be obtained free of charge and
at any time, as well as the language in which such information is to the
have the investors.
7-The IFI constitutes pre-contractual information, and shall be:
a) Correct, clear and coherent with the prospearer, may not counteract or modify
the content of this;
b) Written in a succinct mode and in non-technical language, not inducing in error and
in such a way that it can be understood by unqualified investors; and
c) Used without alteration or additions, with the exception of translation, in all
Member States in which the UCITS has notified the marketing of the
your units of participation.
Article 120.
Content and format of the IFI
1-The detailed content of the IFI is defined:
a) In Regulation (EU) No 583/2010 of July 1, when this respects the
OICVM;
b) In regulation of CMVM, in the remaining cases.
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2-The format of the IFI is fixed in regulation of the CMVM.
Article 121.
Civil liability
1-No one incurs civil liability merely by virtue of the IFI, or of its
translation, save if the same contains misleading mentions, is inaccurate or incoherent with
the prospeto.
2-The IFI should contain a clear warning about the respective regime of responsibility
civil.
Article 122.
Duty of provision of the IFI
1-The marketer entities make the IFI available to the investor with sufficient
advance in respect of the proposed subscription of OIC share units.
2-The entities responsible for the management, for each of the OIC per se managed, provide the
IFI, at the request of the same:
a) To financial intermediaries who sell and advise investments in these
OIC or in products exposed to them; and
b) To the entities responsible for the elaboration of these products.
3-Financial intermediaries who sell or advise investments in the UCITS
referred to in the previous number make available to their customers or potential customers the
IFI.
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SUBSECTION II
Prospeto, management regulation and contract of society
Article 123.
Elaboration and dissemination of the prospeto
The entity responsible for the elabora management, communicates to CMVM and publishes, for each OIC
by you managed, the prospetto and the respect changes.
Article 124.
Content of the prospeetus
1-The prospeetus includes, regardless of the assets in which the OIC unseen, the information
necessary for investors to be able to formulate an informed judgment on the
investment that is proposed to them and, among other subjects, about the risks to it inherent,
as well as a clear and easily understandable explanation of the risk profile of the OIC.
2-The prospeetus includes, among others, the information provided for in Schedule A of Annex I to
present regime and that of it is an integral part, if they do not build the documents
attachments to the same.
3-The prospeit specifies the categories of assets in which the OIC is authorized to invest and
also refers to whether the operations with financial instruments are authorized
derivatives.
4-In case the transactions with derivative financial instruments are authorised, the
prospeto includes a highlighted mention, indicating whether these operations are effectuated to
coverage effects or for the purposes of realizing investment objectives, as well as
the possible incidence of the use of the said derivatives financial instruments in the
risk profile.
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5-Should an OIC unseen, in the main title, in any category of assets defined in the
article 137 other than securities or money market instruments
or reproduce an index of stocks or debt securities under the conditions prescribed by the
article 144, includes in its prospeit and, where applicable, in all advertising actions,
a highlighted mention that draws attention to your investment policy.
6-Case, due to the composition of the portfolio or the portfolio management techniques used, be
possible that the overall net value of an ICO has a high volatility, in the
terms set out in regulation of the CMVM, the prospeit and, where applicable, all the
advertising actions, includes a highlighted mention that draws attention to this
characteristic.
7-A The request of an investor, the entity responsible for the management provides information
supplementary on the quantitative limits applicable in the risk management of the OIC,
on the methods used for the purpose and on recent developments in risks and the
income from the main categories of instruments.
8-The measures or indexes of profitability and risk of the OIC marketed in Portugal
are calculated and disclosed, in the terms defined in regulation of the CMVM.
9-The management regulation and the company contract of the SIM integrate the prospearet, to the
which are appended.
10-The documents referred to in the preceding paragraph may not be attached to the prospeetus,
provided that the investor is informed that the same is at their disposal
in the places indicated in the constitutive documents and that the same may be
sent without charge upon request.
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Article 125.
Contents of the management regulation
1-The management regulation contains the identification elements of the OIC, of the entity
responsible for the management, the depositary, the subcontractor entities and the functions that
exert, and clearly define the rights and obligations of the participants, of the entity
responsible for the management and the depositary, the conditions for the replacement of these
entities, the investment policy and the conditions of liquidation of the OIC.
2-The management regulation indicates, in particular:
a) The denomination of the OIC, which may not be at odds with the policy of
investments and income, the capital in the case of closed OIC, and the date of
constitution;
b) The denomination and seat of the entity responsible for the management, the conditions of its
replacement and identification of the functions and entities effectively
subcontractors;
c) In the case of the heterogerid SIM, the functions that are incumbent on this and the joint
with the entity responsible for the management;
d) The appellation and seat of the depositary and the conditions of its replacement;
e) The identification of marketers and means of marketing
used;
f) The investment policy of the OIC, so as to clearly identify its
objective, special nature, if it is the case, the techniques of management and the experience of the
entity responsible for the management in the use of these, the assets that may
integrate your portfolio, the level of expertise, if it exists, in sectoral terms,
geographical or by type of asset, the limits of indebtedness, highlighting
especially, in the applicable cases:
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i) The purpose pursued with the use of financial instruments
derivatives, depending on whether it is for the purposes of risk coverage or as a technique
of management, and the respect incidence in the risk profile;
ii) The identification of the index that the OIC reproduces;
iii) The identification of the entities in which the OIC provides to invest more than 35% of the
its overall net value;
iv) The special characteristics of the OIC in function of the composition of the portfolio or
of the management techniques of the same, specifically its high volatility.
g) The income distribution policy of the OIC, defined objectively by
form, in particular, to allow to check whether the policy is of capitalization or of
distribution, partial or total and, in this case, what the criteria and periodicity of
distribution;
h) The general policy of the managing body concerning the exercise of voting rights
inherent in the actions held by the OIC, if it is the case;
i) The existence of underwriting, rescue and transfer commissions between OIC
and indication of the respected values;
j) The value of the unit of participation for subscription, rescue and
reimbursement and the periodicity of disclosure of the same;
l) The conditions and modes of payment, including in kind when applicable,
particularly in the event of underwriting and rescue;
m) The identification of the units of participation, with indication of the different
categories and characteristics and the existence of voting rights of the participants, if
for the case;
n) The minimum amount chargeable by subscription;
o) The maximum period for the purpose of payment of the ransom applications;
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p) The initial value of the participation unit for the purpose of constitution of the OIC;
q) The conditions for the transfer of OIC participation units;
r) All charges borne by the OIC;
s) The value, calculation mode and conditions of collection of management commissions
and of deposit, and the maximum value of the management commissions that may be
collected simultaneously to the OIC itself and to the remaining OIC in which it intends to
invest;
t) The conditions for suspension of the underwriting and rescue operations of the units
of participation;
u) The rules and method of calculating the value of the assets of the OIC;
v) The rules for calculating the value of the units of participation, including the
moment of the day used as a reference for the calculation;
w) Summary of the policy of execution of operations and of the policy of transmission of
orders.
3-The management regulation of a closed OIC indicates as yet:
a) The number of units of participation;
b) Their duration;
c) The mention on the solicitation of admission to trading on market
regulated;
d) In the OIC with determined duration, the possibility and the conditions of your
prolongation;
e) The skills and rules of convening and operating the assemblies of
participants;
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f) The term of subscription, the prorogation criteria and the underwriting scheme
incomplete, applicable in the constitution of the OIC and the issuance of new units
of participation;
g) The existence of guarantees, provided by third parties, of repayment of the capital or of
payment of income, and the respect terms and conditions;
h) The liquidation regime of the OIC.
SUBSECTION III
Report and accounts
Article 126.
Drafting and deadlines for disclosure of the reports and accounts
1-A entity responsible for the elabora management, communicates to CMVM and publishes, for each
OIC per se managed, the following:
a) A report and annual accounts for financial year ending on December 31 preceding and
respects auditor's report;
b) A report and semiannual accounts, and respects auditor's report, covering the
six first months of the exercise.
2-A communication and publication referred to in the preceding paragraph are effected by the time limits to
follow mentioned, counted from the term of the period to which they refer:
a) Four months for the report and annual accounts;
b) Two months for the report and semiannual accounts.
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Article 127.
Contents of the reports and accounts and reports of the auditors
1-Annual and half-yearly reports and accounts must contain a balance sheet, a demonstration
of results of the exercise and respect attachments, a management report, including,
namely, the description of the activities of the exercise and the other information provided for
in scheme B of Annex I, to this scheme and which of it is an integral part, as well as
all significant information that enables investors to form, with
knowledge of cause, a judgement on the evolution of the activity and the results of the OIC.
2-Should the OIC distribute an interim yield, the report and semi-annual accounts shall
indicate the result deducted from taxes for the respective semester and amount of
income paid or payable.
3-The annual report still contains an identification and justification of the deviations occurred
in relation to the general policy for the exercise of the voting rights inherent in the shares held
by the OIC, when, in respect of the set of the managed OIC, be exceeded 1%
of the voting rights corresponding to the social capital of the issuing company.
4-In the periodic reporting documents of the OIA, whenever this is
applicable, it is still given emphasis on the overall behaviour of this and the assets that the
make up, taking into account the pursuit of their goals and their orientation
strategic.
5-In a note appended to the reports and accounts of the OIC, the entities responsible for the management
give publicity to the errors of valorisation of the OIC's participation units and the
amounts paid to the OIC and the participants with compensatory character of them
stemming.
6-The auditor's report on the reports and accounts of the OIC shall be given an opinion,
notably, about:
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a) The appropriate assessment by the entity responsible for the management of the assets
of the OIC, in particular with respect to financial instruments
transacted out of regulated market and trading system
multilateral;
b) The fulfilment of the valuation criteria set out in the documents
constitutive and the fulfilment of the duty provided for in the preceding paragraph;
c) The control of operations carried out outside the regulated market and
multilateral trading system;
d) The control of the underwriting and rescue movements of the units of
participation.
7-The auditor's report and, where appropriate, its reservations, integrate the reports and
accounts.
SUBSECTION IV
Disclosure
Article 128.
Modes and means of disclosure
1-The prospearer, the last reports and annual and half-yearly accounts are published in a medium
of large diffusion communication in Portugal and, together with the IFI, are provided
free of charge for investors in a lasting support or through a site in the
Internet.
2-It is further provided free of charge a paper copy of the documents referred to in the
previous number to the investors who request it.
3-The entities responsible for the management make available, equally, on the respective site in the
Internet an updated version of the IFI and the prospeto.
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4-A The provision of the IFI and the prospearability in lasting support other than paper or
via the Internet obeys the conditions set out in the Commission Regulation
(EU) No 583/2010, of July 1.
5-A The disclosure of the reports and accounts and the auditor's own reports can be
replaced by the disclosure of a notice with the mention that the documents if
they find available to the public at the places indicated in the prospeit and the IFI and that the
same can be sent free of charge to the participants who require it.
Article 129.
Duty of communication to the competent authorities
1-A the managing body responsible for the management sends to the information diffusion system of the
CMVM, provided for in Article 367 of the Securities Code, the documents
referred to in paragraph 1 and 3 of the previous article at the time of their disclosure, should they not be
this the chosen means of disclosure.
2-A The holding company authorised in another Member State provides the authorities
relevant Member State of the Member State of origin, should it be requested, the
prospeit and respect changes, as well as the annual and semiannual reports and accounts,
concerning authorized UCITS in Portugal.
Article 130.
Dissemination on the CMVM website on the Internet
The CMVM disseminates and maintains up-to-date on its website the legal provisions and
regulations regarding the constitution, operation and vicissitudes of the OIC, as well as
a translated version in English.
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SECTION III
Groupings, guarantees and indexes
Article 131.
Groupings and guarantees
1-Under the terms to be defined in regulation of the CMVM, groupings may be constituted
of OICVM managed by the same managing entity, intended to provide the
participants advantages in the transfer of units of participation.
2-The integral OICVM of a grouping corresponds to a type of UCITS
open, not may its units of participation be commercialized outside the
grouping.
3-UCITS groupings have a single prospeit and IFI, which indicate
mandatorily the special conditions of transfer of units of participation.
4-The previous figures are applicable, with due adaptations, to OIAVM.
5-The creation of mixed groupings of OICVM and OIAVM is not permitted.
6-Under the terms to be defined in regulation of the CMVM, it may consist of OIC that
conduct guarantees provided by third parties or that result from the configuration of your
heritage, intended for the protection of capital, of a certain income or of a
determined income profile.
Article 132.
Indexes
For the purpose of the provisions of this scheme, the indices to be reproduced, in whole or in part,
by the OIC present the following characteristics:
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a) They are sufficiently diversified, so that their composition is such that the
price movements or the trading activities relating to an asset not
improperly influence the overall performance of the index;
b) They represent a suitable reference standard in relation to the markets to which
say respect, owing to the effect:
i) The index measure the performance of a representative group of assets
underlying in a relevant and appropriate way;
ii) The index is revised or reformulated periodically to ensure that
continues to reflect the markets to which it concerns, in the function of criteria
publicly available;
c) They are published in an appropriate manner, and they shall for the purpose of:
i) Your publishing process settles on solid procedures for
collect prices, calculate and subsequently publish the value of the index,
including the method of determining the value of the assets for which the
market price is not available;
ii) Be provided, on an extended basis and in good time, relevant information
on subjects such as the methodologies of calculation and reformulation of the
indices, changes of the indices or any operational difficulties in the
provision of timely or exact information.
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CHAPTER II
Of the activity of the UCITS
SECTION I
Heritage
SUBSECTION I
Eligible assets and management
Article 133.
Securities
1-The present title shall apply to the following securities:
a) Stock and other equivalent instruments, bonds and other instruments
representative of debt, as well as any other negotiable instruments
which confirm the right to purchase these securities, provided that:
i) Present a liquidity that does not compromise the capacity of the UCITS of
satisfy the rescue requests;
ii) Appropriate information is available about them, including
periodical, exact and complete information on the value furnished
to the market or, in the case of the securities referred to in paragraph 7 of the article
137. to the UCITS;
iii) In the case of securities referred to in Article 137 (1), there are, in
relation to them, exact, reliable and periodic prices, of market or
made available by independent assessment systems of issuers;
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iv) In the case of other securities, they are the subject of periodic evaluation
on the basis of the information on the furnishing value provided by the issuer,
in appropriate investment studies, or in methodologies universally
recognized;
b) The closed OIC share units that:
i) Comply with the criteria set out in the preceding paragraph;
ii) Be subject to mechanisms of societary or equivalent government;
iii) They are managed by an entity subject to regulation directed at the protection of the
investors;
c) The financial instruments that:
i) Comply with the criteria set out in point (a);
ii) Have as underlying other assets, even though these differ from the
referred to in Article 137;
2-Considerate in the situation provided for in the paragraph a) of the previous number, save information
obtained by the entity responsible for the management leading to the different conclusion, the
securities admitted to trading or traded on a regulated market.
Article 134.
Money market instruments
1-For the purposes of this title, they are instruments of the money market the instruments
transmittable financial, usually traded on the money market, liquids and
the value of which can be determined accurately at any time, namely
Treasury tickets, certificates of deposit, commercial paper and other instruments
representative of short-term debt.
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2-Are understood as instruments of the money market normally traded in the
money market the financial instruments that have a maturity, at the
issue, equal to or less than 397 days or which dispense less than 397 days of the term of
maturity.
3-Are still considered as instruments of the money market the instruments
financial that:
a) They are subjected to periodic adjustments of profitability depending on the
money market conditions at least once in every 397 days; or
b) They have a risk profile, including credit and interest rate risks,
corresponding to that of financial instruments that have a maturity
as referred to in the preceding paragraph or are subjected to adjustments of
profitability as referred to in the preceding paragraph.
4-Are understood as liquid money market instruments the instruments
financial that can be sold with limited costs within a suitably
short, taking into account the obligation of the entity responsible for the management of satisfying the
requests for ransom.
5-Are understood as instruments of the money market whose value may be
determined with correctness at any time those for which they are
available exact and reliable evaluation systems that:
a) Allow the entity responsible for the management to calculate the net value of the unit
of OICVM participation in compliance with the value by which the
financial instrument held in the portfolio can be exchanged between parts that act
with full knowledge of cause and of free will, in the context of a
operation in which there is no relationship between the parties;
b) Assented in market data or evaluation models, including systems
based on amortized costs.
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6-It is considered that the criteria referred to in paragraphs 4 and 5 are respected in the case of
financial instruments that are usually traded on the money market,
as referred to in paragraph 1, and which are admitted to trading or negotiated in a
regulated market, in accordance with point (s) a ) of Article 137 (1), the
less that the entity responsible for the management possesses information that they conduct
to a different conclusion.
Article 135.
Derived financial instruments
1-Credit derivatives financial instruments are included in the instruments
financial derivatives referred to in points and ) of Article 137 (1) allowing for
transfer of the credit risk of an asset, as referred to in para. and ) of paragraph 1 of the
article 137, regardless of the other risks associated with that asset, when
comply with the following criteria:
a) Do not result in the delivery or transfer of assets beyond the anticipated
as admissible in Article 137, including cash;
b) Comply with the criteria applicable to derivative financial instruments
negotiated out of regulated market established in subparagraphs ii ) and iii )
of the paragraph and ) of Article 137 (1) and in paragraphs 2 and 3;
c) Your risks are properly taken into account by the process of managing
risks of the UCITS, as well as its internal control mechanisms in the
case of risk asymmetry of the information between the UCITS and the counterparty of the
derivative of credit, resulting from the possibility of access of the counterparty to
non-public information about the companies to whose assets the derivatives of
credit make reference.
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2-For the purposes of sub-paragraph iii ) of the paragraph and ) of Article 137 (1) is understood to be fair
value the amount by which a financial instrument can be exchanged or a liability
liquidated between parties that act with full knowledge of cause and free will,
in the framework of an operation in which there is no relationship between the parties.
3-For the purposes of sub-paragraph iii ) of the paragraph and ) of Article 137 (1) is understood by evaluation
reliable and verifiable assessment, by the UCITS, corresponding to fair value, as
referred to in paragraph 2, which does not depend only on the price indicated by the counterparty and which complies with
the following criteria:
a) It is based on a reliable updated market value of the instrument or, if that value
not to be available, in a value determination model that uses a
universally recognized methodology;
b) Their verification is carried out by:
i) A third party deemed appropriate, independent of the counterparty of the
derivative financial instrument traded outside of regulated market and
of multilateral trading system and with an appropriate frequency; or
ii) A service of the entity responsible for the independent management of the
department responsible for the management of the assets, properly equipped for
the effect.
4-A reference to net financial instruments excludes financial instruments
derivatives on goods.
Article 136.
Financial indexes
1-When the financial index integrates assets referred to in Article 137 (1) thereof,
composition is, at a minimum, diversified in accordance with Article 144.
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2-When the financial index integrates assets beyond those referred to in Article 137 (1), the
its composition presents a diversification equivalent to that provided for in Article 144.
3-The index should be reviewed or reformulated periodically to ensure that it continues to
reflect the markets to which it concerns, depending on publicly available criteria.
4-The underlying assets of the financial indices are sufficiently liquid, allowing for
reproduction of these by users.
5-Are derivative financial instruments on a combination of the assets referred to in
point ( and ) of Article 137 (1) those who, failing to meet the established criteria
in the preceding paragraphs and in Article 132, meet the criteria set out in the
point ( and ) of Article 137 (1) with the exception of financial indices.
Article 137.
Eligible assets
1-The portfolios of the UCITS consist of net assets that are:
a) Securities and money market instruments:
i) Admitted to trading or traded on regulated market of
Member State, in the actment of Article 4 (14) of the Directive
n. 2004 /39/CE, of the European Parliament and of the Council, of April 21 of
2004, or in another regulated market of a Member State with
regular functioning, recognized and open to the public;
ii) Admitted to trading or trading in another regulated market
of third country, with regular functioning, recognized and open to
public, as long as the choice of this market is authorized by the CMVM or
is provided for in the constitutive documents;
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b) Newly issued securities, provided that the conditions of issuance
include the commitment that the application for admission to the admission will be made
trading in one of the markets referred to in the previous point and as long as such
admission is obtained within one year from the date of issue;
c) Units of participation:
i) Of UCITS authorised under the terms of this scheme;
ii) Of other OIC, authorised or not in a Member State, provided that:
-Be OIAVM authorised under the terms of this regime;
-Be authorized under legislation that would subject them to a regime of
supervision that the CMVM considers equivalent to that provided in the present
Regime, and that the cooperation with the authorities is ensured
competent for supervision;
-Ensure participants a level of protection equivalent to what
results from the present regime, particularly with regard to segregation
of assets, contraction and grant of loans and short sales of
securities and money market instruments;
-Elaborate annual and half-yearly reports that allow an assessment of your
active and passive, as well as its revenues and operations; and
-Such OIC shall not, in the terms of the respective constitutive documents, be respected,
invest more than 10% of its assets in units of participation of others
OIC;
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d) Bank deposits to the order or term of not more than 12 months and which are
susceptible of early mobilization, together with credit institutions with headquarters
in a Member State or in a third country, provided that, in this case, subject to
prudential standards equivalent to those listed in the law of the European Union;
e) Derivative financial instruments traded on regulated markets
referred to in paragraph a ), or derivative financial instruments transacted outside
of regulated market and multilateral trading system, provided that:
i) The underlying assets are covered by the present number, instruments
financial that possesses at least one characteristic of these assets, or
are financial indices, interest rates, foreign exchange or foreign exchange in which the
OICVM can make its applications, in the terms of the documents
constitutive;
ii) The counterparties in the operations are institutions authorized and subject to
prudential supervision, in accordance with criteria defined by the legislation of the
European Union, or subject to equivalent prudential rules; and
iii) The instruments are subject to reliable and verifiable daily assessment and
may be sold, liquidated or closed at any time by your
fair value, on the initiative of the UCITS.
f) Untraded money market instruments in the markets
regulated referred to in para. a ), whose issuance or issuer is the object of
regulation for the purposes of protecting investors or saving, since
that:
i) Comply with one of the criteria set out in Article 134 (2) and (3) and
all the criteria set out in paragraphs 4 and 5 of that same article;
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ii) Appropriate information is available about them, including
information that enables an appropriate assessment of credit risks
related to the investment in such instruments, taking into account the
point ( c) of paragraph 2, and the n. paragraphs 4 and 6;
iii) Be freely transmittable.
2-Considerate included in the paragraph f ) from the previous number, when they meet the requirements
there established, the instruments of the money market:
a) Issued or guaranteed by organs of the central, regional or local administration,
or by the central bank of a Member State, by the European Central Bank,
by the European Union, by the European Investment Bank, by a third party
State, by a Member State of a federation or by an institution
international character of public character to which one or more Member States belong;
b) Issued by issuing entity of securities admitted to trading
in one of the regulated markets referred to in para. a) of the previous number;
c) Issued or guaranteed by an institution subject to prudential supervision, of
agreement with criteria defined by the legislation of the European Union, or subject to
equivalent prudential rules, provided there is:
i) Information on the issuance or the issuance programme or on the situation
legal and financial of the issuer prior to the issuance of the instrument of
money market;
ii) Update of the information referred to in the previous subparagraph on a basis
periodical and whenever a significant development occurs;
iii) Availability of reliable statistics on the issuance or the programme of
issuance or other data that allow for an appropriate assessment of the risks of
credit related to the investment in these instruments;
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d) Issued by other entities, recognized by the CMVM, provided that the
investment in these values confers on investors an equivalent protection to the
referred to in points a ), b ) and c ) and the issuer is an entity with capital and
minimum amount reserves of € 10000000 that presents and publes its
annual accounts in accordance with Directive No 78 /660/CEE, of the Council,
of July 25, 1978, and be an entity that, within a group that includes
various listed entities, specialize in group funding or be
an entity specialized in the financing of securitisation vehicles with the
which celebrates credit opening contracts.
3-For the purposes of the d ) of the preceding paragraph shall be deemed to be:
a) The securitisation vehicles are structures, in the society-like form, of trust or
contractual, created for the purposes of securitisation operations;
b) Credit opening contracts are concluded with an institution that
complies with the provisions of the paragraph c) of the previous number.
4-Regarding all the instruments of the money market covered by the point a )
of paragraph 2, with the exception of those referred to in paragraph 6 and of those issued by the Central Bank
European or by a central bank of a Member State, the appropriate information,
as referred to in sub-paragraph ii ) of the paragraph f ) of paragraph 1, consist of the information
on the issuance or the issuance programme or on the legal and financial situation of the
issuer prior to the issuance of the money market instrument.
5-A reference to the point c ) of paragraph 2 a an institution object of prudential supervision that
respect prudential rules considered by the competent authorities as being,
at least, as stringent as those provided for by the European Union law is understood
as a reference to an issuer that is the object of prudential supervision, respects
prudential rules and meets one of the following criteria:
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a) It is located in the European economic area;
b) It is located in an OECD country belonging to the Group of Ten;
c) It has, at the very least, a rating of risk;
d) It can be demonstrated, on the basis of an in-depth analysis of the issuer,
that the prudential rules that apply to it are at least as stringent
as those provided for by the law of the European Union.
6-For the purposes of the money market instruments referred to in points b ) and d ) from the
n. 2, as well as for those issued by a local or regional authority of a State-
Member or by an international public body, but which are not guaranteed by
a Member State or, in the case of a federal State which is a Member State,
by one of the members who make up the federation, the appropriate information, in
compliance with that referred to in the sub-paragraph ii ) of the paragraph f ) of paragraph 1 consist of:
a) Information on the issuance or the issuance program and on the situation
legal and financial of the issuer prior to the issuance of the market instrument
monetary;
b) Updates of the information referred to in the preceding paragraph on a periodic basis and
where a significant development occurs;
c) Verification of the information referred to in (a) by third parties duly
qualified not subject to instructions from the issuer;
d) Availability of reliable statistics on the issuance or programmes of
issuance.
7 UCITS may invest up to 10% of its global net worth in securities and
instruments of the money market other than those referred to in paragraph 1, save the
mentioned in the following number.
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8-Cannot be acquired for UCITS precious metals nor certified
representative of these.
9-SIM may acquire the movable and immovable property indispensable for the direct exercise of the
your activity.
Article 138.
Techniques and management tools
1-A the managing body responsible for the management may use techniques and tools linked to
securities and money market instruments, in the conditions and within the
limits that set out in the constitutive documents, provided that such techniques and
instruments are used for the purpose of effective portfolio management, in the terms
defined in the present regime or in regulation of the CMVM.
2-A reference to techniques and instruments related to securities and
money market instruments for the purpose of effective portfolio management is
understood as a reference to techniques and instruments that:
a) Be economically appropriate, in so far as your application presents
a good relationship between cost and effectiveness;
b) Contribute to proceed at least one of the following goals
specific:
i) Reduction of risks;
ii) Reduction of costs;
iii) Provision of capital or additional income for the UCITS with a
level of risk consistent with the risk profile of the UCITS and with the rules of
diversification of the risks set out in Article 142.
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3-The techniques and tools that meet the criteria set out in the number
previous and that they are related to money market instruments are
considered techniques and instruments related to market instruments
monetary for the purposes of effective portfolio management.
4-A The entity responsible for the management regularly communicates to the CMVM the use of the
techniques and instruments, including the type of derivative financial instruments, the
underlying risks, the quantitative limits and the methods used to calculate risks
associated with the transaction of financial instruments derived by each OICVM.
5-A global exposure of each UCITS in derivative financial instruments cannot
exceed its overall net value.
6-A exposure to which the preceding paragraph is concerned is calculated taking into account the value of the
underlying assets and the respective risks, namely, if applicable, the risk of
counterpart, the future market movements and the time available to settle the
positions.
7-Where a value furnishing or instrument of the money market incorporates
derivative financial instruments, the latter are taken into account for the purposes of the
calculation of the limits imposed on the use of derivative financial instruments.
8-Are understood as securities with incorporation of a derivative, the
financial instruments that comply with the criteria set out in Article 133 (1)
and containing an underlying asset that complies with the following criteria:
a) By virtue of this asset, some or all of the cash flows that otherwise
would be required by the furnishing value that works as a basic contract
may be changed depending on a specified interest rate, of a price
of financial instruments, of an exchange rate, of a price index or
fees, from a credit risk rating, to a credit index or other
variable, and therefore vary in a similar way to a derivative
autonomous;
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b) Their economic characteristics and risks do not have a close relationship with the
economic characteristics and the risks of the basic contract;
c) Has a significant impact on the risk profile and the determination of the price
of the furnishing value.
9-The instruments of the money market that meet one of the established criteria
in Article 134 (2) and (3) and all the criteria set out in paragraphs 4 and 5 of the same
article and containing an asset that complies with the criteria set out in the number
previous are considered money market instruments with a derivative
incorporated.
10-It is considered that a furniture value or a money market instrument will not
incorporates a derivative if it contains an element that is contractually transmittable,
regardless of the furnishing value or the money market instrument,
being that element considered a distinct financial instrument.
11-A the managing body responsible for the management uses risk management processes that
allow at any time to control and evaluate your positions on instruments
financial derivatives and the respective contribution to the overall risk profile of the portfolio, the
which allow an accurate and independent assessment of financial instruments
derivatives traded outside of regulated market and trading system
multilateral.
Article 139.
Operations outside regulated market and multilateral trading system
They are the object of special registration organised by the entity responsible for the management of the
operations on assets admitted to trading on regulated market held outside
of regulated market and multilateral trading system.
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SUBSECTION II
Limits
Article 140.
Borrowing
1-The entities responsible for the management can borrow on account of the
OICVM that they manage, with the maximum duration of 120 days, followed or interpolated, in a
period of one year and up to the limit of 10% of the overall net value of the UCITS, without
injury to the use of management techniques relating to loan and reporting of values
securities.
2-SIM may still borrow that allow for the acquisition of goods
real estate indispensable to the direct exercise of its activities up to 10% of its value
global liquid.
3-Case the constitutive documents of the SIM predict the possibility of a SIM
borrow under the n. ºs 1 and 2, the respective amounts are not allowed
surpass jointly 15% of the total of its overall net value.
4-UCITS may still acquire foreign exchange by means of triangular loans of the type
back-to-back .
Article 141.
Operations prohibited to OICVM
1-An UCITS may not acquire more than:
a) 10% of the shares without the right to vote of the same issuer;
b) 10% of the debt securities of a same issuer;
c) 25% of the units of participation of a same OICVM or OIAVM;
d) 10% of the instruments of the money market of a same issuer.
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2-The limits provided for in points b ), c ) and d ) from the previous number may not be respected
at the time of the acquisition if, at that time, the gross amount of the debt securities or
of the instruments of the money market or the net amount of securities issued not
can be calculated.
3-The provisions of paragraph 1 shall not apply in the case of securities and instruments of the
money market issued or guaranteed by a Member State, by its
local or regional authorities, by international institutions of public character to which
belong to one or more Member States or by a third country.
4-A the managing body responsible for the management cannot, on account of the UCITS:
a) Burdening by any way the assets of the UCITS, save for the realization of the
operations provided for in Articles 138 and 140;
b) Acquire any asset object of real guarantees, penhora or procedures
cautionary;
c) Check out the short sales of securities, market instruments
monetary or other instruments referred to in points c ), and ) and f ) of paragraph 1 of the
article 137;
d) Grant credits or give guarantees.
5-The provisions of the d ) of the preceding paragraph shall not preclude the acquisition of the instruments
financial referred to in para. c ) of the same number, not entirely realized.
Article 142.
Limits by entity
1-An OICVM cannot invest more than:
a) 10% of its global net worth in securities and instruments of the
money market issued by a same entity, without prejudice to the
provisions of paragraph 3;
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b) 20% of its overall net value in deposits consisting of one same
entity.
2-A OICVM exposure to counterparty risk in a transaction of instruments
derivatives outside regulated market and multilateral trading system no
may be superior to:
a) 10% of its overall net value when the counterparty is an institution of
credit with its registered office in a Member State or, if it has its
registered office in a third country, be subject to prudential standards that the
CMVM considers equivalent to those provided for in European Union law;
b) 5% of its overall net worth, in the other cases.
3-The set of the securities and instruments of the money market which, by
issuer, account for more than 5% of the overall net value of the UCITS cannot
surpass 40% of this value.
4-The limit referred to in the preceding paragraph shall not apply to deposits and transactions on
derivative financial instruments carried out outside of regulated market and
multilateral trading system when the counterparty is an institution subject to
prudential supervision.
5-The limit referred to in paragraph a ) of paragraph 1 is raised to 35% in the case of securities
and money market instruments issued or guaranteed by a Member State,
by its local or regional authorities, by a third state or by institutions
international character of public character to which one or more Member States belong.
6-The limits referred to in paragraph a ) of paragraph 1 and in paragraph 3 are, respectively, high for
25% and 80%, in the case of obligations, notably mortgages, issued by a
sedeed credit institution in a Member State, provided that such a possibility is
expressly provided for in the constitutive documents.
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7-From the conditions of issue of the obligations referred to in the preceding paragraph has to result,
namely, that the value by them represented is guaranteed by assets that cover
completely, up to the maturity of the obligations, the resulting commitments and
that are affections for privilege to the repayment of capital and payment of interest
due in case of default of the issuer.
8-Without prejudice to the provisions of paragraphs 5 and 6, an OICVM cannot accumulate a value
greater than 20% of its global net worth in securities, instruments of the
money market, deposits and exposure to derivative financial instruments
negotiated out of regulated market and multilateral trading system together
of the same entity.
9-The securities and money market instruments referred to in paragraphs 5 and 6
are not considered for application of the limit of 40% set out in paragraph 3.
10-The limits provided for in the preceding paragraphs may not be accumulated and, by
Therefore, investments in securities or market instruments
money issued by the same entity, or in deposits or derivative instruments
constituted together of this same entity under the terms of paragraphs 1 a to 7, may not exceed,
in its entirety, 35% of the assets of the UCITS.
11 UCITS can invest up to 100% of its global net worth in securities
or money market instruments issued or guaranteed by a State-
Member, by its local or regional authorities, by international institutions of
public character to which one or more Member States belong to or by a third party
State, provided that they respect at least six different emissions and that the values
belonging to each issue do not exceed 30% percent of the assets of the UCITS.
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12-The investment referred to in the preceding paragraph imposes the express identification, in the
constitutive documents and in any publication of a promotional nature, of the
issuers in which it is intended to invest more than 35% of the overall net value of the UCITS,
as well as the inclusion of a mention that evidenced the special nature of its policy
of investments.
13-The entities included in the same group for the purpose of consolidation of accounts, in the
acettion of Directive No 83 /349/CEE, of the Council, of June 13, 1983, or in
compliance with internationally recognized accounting rules, are
considered as a single entity for the purpose of calculating the predicted limits
previous numbers.
14 UCITS may invest up to 20% of its global net worth in securities and
money market instruments issued by entities that find themselves in
group relationship.
15-A CMVM sends to the European Securities and Markets Authority and the
European Commission a list of the categories of obligations referred to in paragraph 6, as well as
of the categories of issuers which, pursuant to the law and the provisions relating to
supervision, are authorised to issue bonds that meet the criteria
set out in this article. To these lists must join a note that specifies
the status of the guarantees provided.
16-In the case of investment in derivative financial instruments based on an index,
the values that integrate it do not count for the purposes of the limits referred to in this article.
Article 143.
Limits by OIC
1-An UCITS cannot invest more than 20% of its overall net worth in units of
participation of a single OIC provided for in the paragraph c ) of Article 137 (1)
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2-An UCITS cannot invest, in total, more than 30% of its overall net worth in
units of participation of other OIC, established or not in national territory,
provided for in sub-paragraph ii ) of the paragraph c) of Article 137 (1).
3-When an OICVM detains OIC share units, the assets that integrate
the latter do not count for the purposes of the limits by the entity referred to in the article
previous.
Article 144.
UCITS limits of indexes
1 UCITS can invest up to a maximum of 20% of its overall net worth in shares
or representative instruments of debt issued by the same entity, when the
goal of your investment policy for the reproduction of the composition of a
certain index of stocks or of representative debt instruments, recognized
by the CMVM.
2-Understand for reproduction of the composition of a particular stock index or of
representative instruments of debt the reproduction of the composition of the assets
underlying the index, including the use of derivatives or other techniques and
management instruments referred to in Article 138.
3-The indices mentioned in paragraph 1:
a) They have a sufficiently diversified composition respecting the limits
provided for in this Article, without prejudice to the provisions of the preceding paragraph;
b) They represent a suitable reference standard in relation to the markets to which
say respect, understood these as indexes whose supplier uses a
recognised methodology, which, in general, does not result in the exclusion of a
important issuer of the markets to which they concern; and
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c) They are publicly accessible and their supplier is independent of the UCITS that
reproduces the indexes.
4-A point c ) of the preceding paragraph does not exclude the situation in which the supplier of the index and the
OICVM are part of the same economic group, provided there are provisions
effective for the management of conflicts of interest.
5-The limit referred to in paragraph 1 shall be raised to 35%, only in relation to a single entity,
if this is justified by excecional conditions verified in the markets
regulated in which certain securities or instruments are prevalent
of the money market.
SECTION II
Main and type-type structures (master-feeder)
SUBSECTION I
General provisions
Article 145.
Scope
1-An OICVM of type feed ( feeder ) is an OICVM or a housing
autonomous patrimonial of this one which, notwithstanding the provisions of the sub-paragraph i) of the paragraph b) from the
Article 2, in Articles 137, 142 and 143 and in the c) of Article 141 (1), has been
authorized, by the CMVM and without prejudice to the provisions of Article 19, to invest at least
85% of the overall net value in units of participation of another UCITS or
autonomous heritage compartment, the main type UCITS ( master ).
2-The food-type UCITS can hold up to 15% of the overall net value in one or more
of the following elements:
a) Liquid financial instruments;
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b) Derivative financial instruments, which can only be used for the purposes of
coverage, under the terms of the point and ) of Article 137 (1), of paragraphs 2, 3 and 5 a 8
of Article 138 and Article 142;
c) Movable or immovable property indispensable to the direct pursuit of its activities,
case the food type OICVM is a SIM.
3-For the purpose of compliance with paragraphs 5 a to 8 of Article 138 and of Article 142, the
Food-type UCITS should calculate its global exposure in relation to
derivative financial instruments, combining their own direct exposure, nos
terms of the point b ) of paragraph 2, with:
a) The effective exposure of the main type UCITS to financial instruments
derivatives, proportionally to the investment of the OICVM feed in the
Main type UCITS; or
b) The maximum exposure limit of the main type OICVM to instruments
financial derivatives provided for in the constitutive documents,
proportionally to the investment of the OICVM food type in the UCITS
of main type.
4-A main type UCITS is an OICVM or a heritage bay
autonomous that:
a) Have among your participants at least one food-type UCITS;
b) Do not be a food-type UCITS;
c) Do not be a holder of units of participation of a food-type UCITS.
5-Are applicable to the main type OICVM the following exemptions:
a) Should you have at least two food-type UCITS as participants,
it is not applicable to you the obligation to obtain capital from the public,
may however do so;
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b) If you do not get capital from the public in a different Member State
of the one in which it is authorized, but there it posts one or more type UCITS
food, they are not applicable to Section III of Chapter II of Title III and the n.
1 of Article 175.
Article 146.
Procedure of authorisation
1-The food-type UCITS must be informed, within 15 days of the
presentation of the full application, of the decision of the CMVM to authorize or dismiss the
investment of the food-type OICVM in the main type UCITS.
2-A CMVM authorizes the investment in case the food-type UCITS, its
depositary and its auditor, as well as the main type UCITS, comply with all the
requirements set out in this section.
3-The application for authorisation shall be instructed with the following documents:
a) The constitutive documents of the food type OICVM and the UCITS of
main type;
b) The contract between the food-type UCITS and the main type UCITS
or the standards of internal conduct;
c) In case of conversion of OICVM already existing, the information to be provided to the
participants referred to in Article 161 (1);
d) If the main type OICVM and the power-type UCITS have
different depositaries, the contract of exchange of information between the respects
trustees;
e) If the main type OICVM and the power-type UCITS have
different auditors, the contract of exchange of information between the respects
auditors.
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4-Should the main type OICVM not be authorized in Portugal, the OICVM of type
food must also provide the CMVM with a certificate issued by the
competent authorities of the main type OICVM, attesting that the same is a
OICVM, or an autonomous heritage compartment of this, which satisfies the conditions
set out in points b ) and c ) of paragraph 4 of the previous article.
5-Documents must be provided by the food-type UCITS in Portuguese,
in a language of current use in the international financial sphere or in another language
authorized by the CMVM.
Article 147.
Provision of information and vicissitudes of the UCITS
1-The main type UCITS provides the food type OICVM, based on the
contract provided for in paragraph b ) of paragraph 3 of the previous article, all documents and
information required for the latter to comply with the requirements set out in the
present Regime.
2-The food-type UCITS is barred from investing beyond the fixed limits
in Article 143 (1) in units of participation of the main type UCITS up to the
entry into force of the agreement referred to in the preceding paragraph.
3-The contract concluded between the main type OICVM and the food type UCITS
it should be made available, upon request and free of charge, to all participants.
4-Should the main type OICVM and the feed-type UCITS be managed by the
same gestures society, the contract can be replaced by standards of conduct
internal to ensure compliance with the requirements required in this Article.
5-The main type UCITS and the food-type UCITS take measurements
suitable to coordinate the date of calculation and publication of the net value of the
respects units of participation, in order to avoid arbitrage situations.
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6-Case the main type UCITS provisionally suspending the ransom or underwriting
of your units of participation, either on your initiative, or at the request of the respective authority
competent, each of its food-type UCITS has the right to suspend
the same operations, during the same period.
7-In case of liquidation of a main type UCITS, the UCITS of food
authorized in Portugal are also settled, save if the CMVM authorizes:
a) The investment of at least 85% of the global net value of the OICVM of type
food in units of participation of another main type UCITS; or
b) The amendment of the constitutive documents in such a way as to allow the conversion of the
EICVM of food type in another type of UCITS.
8-Without prejudice to the regime provided for in Articles 157 and 158, a main type UCITS
can only be liquidated at least three months after you have informed all of your
participants and the CMVM of the respective decision.
9-In the event of a merger of a main-type UCITS with another UCITS or its spin-off
in two or more UCITS, authorized-type UCITS-type UCITS in Portugal are
settled, save if the CMVM authorizes that the food-type UCITS:
a) Maintain your status while OICVM power-type UCITS
of main type or other UCITS resulting from the merger or spin-off of the UCITS
of main type;
b) Invist at least 85% of the overall net value in units of participation
of another main type UCITS not resulting from the merger or the spin-off; or
c) Amend the constitutive documents in such a way as to convert to UCITS
that is not a food-type UCITS.
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10-A The merger and the spin-off of a main type UCITS will only produce effects if the
OICVM has provided to all its participants and to CMVM, at least 60 days
prior to the proposed date for the production of effects, the information referred to in the article
35., or equivalent information.
11-Except in the situation referred to in paragraph a ) of paragraph 9, the main type UCITS authorizes the
EICVM of food type to reacquire or refund all the respective units of
participation before the merger or spin-off of the main type OICVM produces effects.
12-A CMVM decides the applications for the authorizations provided for in paragraphs 7 and 9 on the deadline
of 15 days.
Article 148.
Contents of the contract between the main type UCITS and the type UCITS
food
1-The contract between the main type OICVM and the food type UCITS includes:
a) The form and the time when the main type UCITS provides to the UCITS of
type feeding an exemplar of your constitutive or de-
possible changes to them;
b) The form and the time when the main type UCITS informs the UCITS
of type feed on the eventual subcontracting of management functions of
investments and risk management to third-party entities;
c) If pertinent, the form and the time when the main-type UCITS
makes available to OICVM of type feed your operational documents
internal, such as your risk management process and your reports on
the fulfillment control system;
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d) The information that the main type OICVM communicates to the UCITS of
feed regarding any infractions committed by the OICVM of type
principal in relation to the legal provisions, constitutive documents or the
contract between the main type OICVM and the food type UCITS,
as well as the form and time frame in which such information is communicated;
e) If the food-type UCITS uses derivative financial instruments
for coverage purposes, the shape and the time when the OICVM of type
master provides to the OICVM of type feed information about your
effective exposure to the derivative financial instruments, so as to allow the
EICVM of food type calculate your own global exposure;
f) A declaration of the main type UCITS pledging to inform the
Power-type UCITS over any other exchange contracts of
information concluded with third-party entities and, if relevant, on the form and
the moment in which the main type UCITS makes such information available
to the OICVM of type feed.
2-In relation to the investment of the OICVM of food, the contract referred to in the number
previous includes:
a) A statement indicating the categories of OICVM participation units
of main type that are available for investment by OICVM
of type food;
b) The charges and expenses to be borne by the food-type UCITS and
details on possible discounts or setbacks by the OICVM of type
main;
c) If relevant, the terms in which any initial or subsequent transfer of
in-kind assets can be carried out by the food-type UCITS at the
Main type UCITS.
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3-In relation to the general rules of negotiation, the contract referred to in paragraph 1 shall include:
a) Coordination of periodicity and timing of the calculation of global net value and
of the publication of the values of the units of participation;
b) Coordination of the transmission of the trading orders by the OICVM of type
food, including, if applicable, the role of financial intermediaries of
interconnection or any other third entity;
c) If applicable, any mechanisms necessary to take into account the fact of a
or both UCITS are found to be admitted or traded on market
regulated or multilateral trading system;
d) If necessary, other appropriate measures to ensure compliance with the
requirements set out in Article 147 (5);
e) The basis of conversion of trading orders, in cases where the units of
participation of the food type OICVM and the main type UCITS
are denominated in different currencies;
f) The settlement cycles and payment information for the purchase or
subscribing and the rescue of main type UCITS participation units,
including, if they have been agreed between the parties, the terms in which the
Main type UCITS will be able to liquidate the rescue requests through the
transfer of in-kind assets to the food-type UCITS;
g) The procedures designed to ensure an appropriate processing of applications
of clarification and complaints from the participants;
h) In cases where the constitutive documents of the main type OICVM
grant certain rights or powers with respect to the participants, and if the
Main type UCITS opt to limit or waive the exercise of all
or of any of these rights and powers regarding the OICVM of type
food, a statement of the terms of such waiver or limitation.
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4-In relation to the situations susceptible to affect the general rules of negotiation, the contract
between the main type OICVM and the food-type UCITS, includes:
a) The form and the time at which any of the UCITS must notify the
temporary suspension and resumption of the rescue or underwriting of its units of
participation;
b) The mechanisms for the notification and resolution of errors of valorisation of the
Main type UCITS.
5-In relation to the rules applicable to the audit report, the contract between the UCITS of
main type and the food-type UCITS, includes:
a) In case the food type OICVM and the main type UCITS have the
same year accounting year, the coordination of the drafting of the respects reports
and accounts;
b) In case the food type OICVM and the main type UCITS do not have the
same accounting year, the applicable mechanisms for the OICVM of type
food can get from main type OICVM the required information
for the punctual elaboration of its reports and accounts, so as to ensure that
the lead-type UCITS auditor is in a position to present a
report up to the closing date of the accounting year of the type UCITS type
food.
6-The contract between the main type OICVM and the food type UCITS includes
still the form and the time when:
a) Main-type UCITS communicates changes or proposed changes
to your constitutive documents, should other rules apply, other than the
disclosure rules to the participants, established in the respects documents
constitutive;
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b) Main-type UCITS communicates settlement situations, merger or spin-off or
proposal in this direction;
c) Any of the UCITS communicates that it has left or will cease to comply with the
conditions that qualify you as OICVM of food type or as
Main type UCITS;
d) Any one of the UCITS communicates its intention to replace its society
gestures, depositary, auditor or any other third party mandated for functions
of management of investments or risks;
e) Other amendments shall be communicated to the rules in force that the UCITS of
main type tencione make available.
7-In relation to the choice of jurisdiction and competent venue, the OICVM of food type and
the main type OICVM should recognize that:
a) Should the food type OICVM and the main type UCITS be
authorized in the same Member State, the contract shall be subject to its legislation and
your courts are the only competent venue.
b) Should they be authorized in different Member States, the contract is
subject to the legislation of one of them and the courts of the Member State whose legislation
is the applicable are the only competent venue.
Article 149.
Rules of internal conduct and conflict of interest
1-Should the main type OICVM and the feed-type UCITS be managed by the
same entity, the contract referred to in the previous article may be replaced by rules
of internal conduct ensuring compliance with the requirements set out in paragraphs 2
a 5 to the previous article, with the exception of point (s) g) of paragraph 3.
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2-The rules referred to in the preceding paragraph include specific measures of resolution of the
conflicts of interest that may arise between the food-type UCITS and the
Main type UCITS or between the food-type UCITS and another participant
in the main type UCITS, whenever the measures implemented by the society
gestures with a view to meeting the requirements concerning conflicts of interest are not
sufficient to resolve such conflicts.
Article 150.
Mandatory information and advertising
1-In addition to the information provided for in Schedule A of Annex I, the prospeit of the OICVM of type
feed includes the following information:
a) A declaration that the UCITS is a food-type OICVM of
determined primary type UCITS and that, as such, invests
permanently 85% or more of the overall net value in units of
participation of this main type OICVM;
b) The goal and policy of investments, including the risk profile, and a
indication that it needs to if the OICVM performances of food type and the
Main type UCITS are identical, or to what extent and for what reasons
diverge, including a description of the remaining investments effectuated;
c) A brief description of the main type OICVM, your organization and your
scope and policy of investments, including the risk profile and an indication of
how the prospeto of the main type OICVM can be obtained;
d) A summary of the agreement entered into between the food-type UCITS and the
Main type UCITS or, where applicable, of the internal rules of conduct
that replace it;
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e) The form by which the participants can obtain additional information about the
Main type UCITS and the agreement concluded between the OICVM of type
feed and the main type UCITS;
f) A description of all remunerations or setbacks, arising from the
investment in main-type UCITS participation units, the post
or to the benefit of the food-type UCITS, as well as the total charges
of the food-type UCITS and the main type UCITS;
g) A description of the tax incidences for the food-type UCITS, in
relation to the investment of this in the main type OICVM.
2-The report and annual accounts of the food type UCITS includes, in addition to the information
provided for in Schedule B of Annex I to the present regime, which of it is an integral part,
a demonstration of the total charges of the food type OICVM and the UCITS of
main type.
3-The reports and annual and semi-annual accounts of the food type UCITS must indicate
the way the reports and annual and semi-annual accounts of the main type UCITS
can be obtained.
4-Authorized food type UCITS in Portugal send to CMVM the prospeto and
your possible changes, the IFI and its possible changes, and the annual reports and accounts
and semestral of the main type OICVM.
5-Food type UCITS must indicate, in all advertising actions, the
Main type UCITS in which to permanently invest 85% or more of the value
global liquid.
6-It is transmitted by the OICVM of food type to investors, at the request of these and without
charges, a paper copy of the prospetto and the annual and semi-annual reports and accounts of the
Main type UCITS.
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SUBSECTION II
Depositories and OICVM auditors of main type and food type
Article 151.
Depositories
1-The depositories of the main type UCITS and the OICVM of food type, case
be different, they conclude an information exchange contract intended to secure the
fulfillment of the duties of both.
2-Until the entry into force of the said contract, it is vetted to the OICVM of food type the
investment in main type OICVM participation units.
3-In case they comply with the requirements set out in this section, neither the depositary of the
Main type UCITS, nor can the food-type UCITS depository
be considered in violation of any rules that restrict the disclosure of
information or relating to the protection of data imposed by contract or legal provision,
regulatory or administrative.
4-A The entity responsible for the management of the UCITS of type food communicates to the
Depositary respects all information about the main type UCITS that are
necessary for the fulfillment of the duties of this.
5-The depositary of the main type UCITS authorized in Portugal informs immediately
the CMVM, the entity responsible for the management of the food type OICVM and the
depositary of this of any irregularities debited relating to the OICVM of type
main that consider having negative repercussions on the food-type UCITS.
6-The irregularities referred to in the preceding paragraph, held by the depositary of the UCITS
of a main type during the performance of their functions and which may have repercussions
denials in the OICVM type of feeding, include in particular:
a) Errors in the calculation of the overall net value of the main type OICVM;
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b) Errors in the negotiation or settlement of the purchase, underwriting or ransom of the
main type OICVM participation units carried out by the
EICVM of food type;
c) Errors in the payment or capitalization of the income resulting from the UCITS
of a main type or in the calculation of the retention of any conex tax;
d) Failure to meet the objectives, policies or investment strategies of the
Main type UCITS, as set out in the respects documents
constitutive;
e) Failure to default on investment and indebtedness limits set out in the
national legislation or in the constitutive documents.
7-The contract of exchange of information entered into between the depositary of the main UCITS
and the depository of the OICVM of food includes the following elements:
a) The identification of the documents and categories of information that must be
regularly shared between both depositories and an indication as to whether
such information or documents are automatically provided by a
depositary to the other or made available on request;
b) The form and timing, including any applicable time limits, where the
information must be transmitted by the main type UCITS depositary
to the depositary of the food type UCITS;
c) The coordination of the actions of both depositories, in relation to the issues
operational, including:
i) The calculation procedure of the overall net value of each UCITS, well
as any appropriate measure to prevent attempts to advance the
market;
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ii) The handling of the feed-type UCITS instructions regarding the
buy, subscribe, rescue of OICVM participation units of type
principal and the settlement of these transactions, as well as any mechanisms
for the transfer of assets in kind.
d) The coordination of closing procedures and presentation of accounts;
e) The information that the main type UCITS depository must communicate
to the depositary of the OICVM of food-type relatively to any
infractions committed by the main type UCITS in relation to the provisions
legal and the constitutive documents, as well as the form and time frame in which
such information shall be communicated;
f) The procedure for handling additional requests for assistance of a
depositary to the other;
g) The identification of the particular contingent situations that must be the object of
notification of a depository to the other, as well as the form and time frame for the
effect.
8-In relation to the competent jurisdiction and venue, the following requirements shall be observed:
a) In cases where the food-type UCITS and the main type UCITS
have entered into a contract in accordance with Art. 148 (7), the
law of the Member State applicable to that contract shall also apply to the Agreement
of exchange of information between both depositories, and they must recognize themselves
as the sole venue competent the courts of that Member State;
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b) In cases where the contract between the OICVM of food type and the UCITS
of main type has been replaced by internal rules of conduct, the contract
of exchange of information between the UCITS depositaries of main type and of the
Food type UCITS must establish that the applicable law will be, in
alternative, that of the Member State in which the OICVM of food type se
meets established or that of the Member State in which the UCITS of type
main one finds itself established, and it should recognize itself as the only venue
competent the courts of the Member State whose law is the applicable one.
Article 152.
Auditors
1-The auditors of the main type OICVM and the food-type UCITS, if they are
different, conclude an information exchange contract intended to ensure the
fulfillment of the duties of both.
2-Until the entry into force of the said contract, it is vetted to the OICVM of food type the
investment in main type OICVM participation units.
3-The UCITS auditor of food type takes into account, in its report, the report of the
auditor of the main type UCITS.
4-Should the food type OICVM and the main type UCITS not have the same
year accounting year, the main type UCITS auditor presents a report by
reference to the end of the exercise adopted by the food-type UCITS.
5-The UCITS auditor of food type shall, inter alia, refer in its report
any irregularities revealed in the auditor's report of the main type OICVM,
as well as the repercussions on the OICVM of food type.
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6-In case they comply with the requirements set out in this section, neither the auditor of the
Main type UCITS, nor can the feed-type UCITS auditor be
considered in violation of any rules that restrict the disclosure of
information or relating to the protection of data imposed by contract or legal provision,
regulatory or administrative.
7-The exchange contract of information includes:
a) The identification of the documents and categories of information that must be
regularly shared between both auditors;
b) Clarification as to whether the information or documents referred to in (a)
shall be automatically provided by an auditor to the other or
made available on request;
c) The form and timing, including any applicable time limits, where the
information must be transmitted by the main type OICVM auditor to the
UCITS auditor of type feed;
d) The coordination of the actions of both auditors in the closing procedures and
presentation of accounts of the OICVM respect;
e) The identification of the issues to be dealt with as irregularities revealed in the report
of the main type UCITS auditor;
f) The form and timing of which additional applications are to be dealt with
assistance from an auditor to the other, including a request for communication from
supplementary information on the irregularities disclosed in the report of the
auditor of the main type UCITS.
8-The contract for the exchange of information includes still provisions on the preparation of the
audit reports, as well as the form and timing of which the UCITS auditor
of the main type should present their audit report and the respective projects, to the
UCITS auditor of type feed.
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9-Should the food type OICVM and the main type UCITS not use the same
date of closing of accounts, the information exchange contract shall include the form and the
moment in which the main type UCITS auditor must present the report
required by the n. 4, and respect projects, to the UCITS auditor of type food.
10-In relation to the competent jurisdiction and venue of the contract for the exchange of information, it applies-
if, with due adaptations, the provisions of Article 148 (7).
SUBSECTION III
Surveillance
Article 153.
Main type OICVM surveillance
1-A entity responsible for the management of the food-type UCITS controls the activity
of the main type OICVM.
2-For the effect of the previous number, the entity responsible for the management of the OICVM of type
food may be based on the information and documents received from the entity
responsible for the management of the main type OICVM or, where applicable, of the
trustee or the auditor, save when he has reason to doubt his accuracy.
Article 154.
Imputation of pecuniary benefits
1-The commissions or other pecuniary benefits paid to the entity responsible for the management
of the food-type UCITS in the context of an investment in units of
participation of the main type UCITS revert to the food type UCITS.
2-A entity responsible for managing principal type UCITS does not charge commissions
of underwriting or rescue regarding the investment of the OICVM of type
food in your units of participation.
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Article 155.
Provision of information
1-A entity responsible for the management of the authorized main type UCITS in Portugal
informs immediately the CMVM of the identity of each of the type UCITS
food that they invest in their units of participation.
2-Case a food type UCITS established in another Member State unseen in a
Main type UCITS established in Portugal, CMVM immediately informs
competent authority of the Member State-Member of origin of the food type UCITS
on that fact.
3-It is up to the entity responsible for the management of the main type OICVM to ensure that the
entity responsible for the management of the food-type UCITS, as well as the respect
competent authority, the depositary and the OICVM's auditor of food type
have in a timely manner of all the information required under the present
regime, of the other applicable legislation and of the constitutive documents.
Article 156.
Provision of information by the competent authorities
1-Should the food type OICVM and the main type UCITS respect be
both authorized in Portugal, CMVM immediately informs the OICVM of type
feeding of any decision, measure or observation per se relative to the
non-compliance with the conditions set out in this section, as well as on
any wrongdoing communicated by the auditor, which relate to the entity
responsible for the management of the main type OICVM, the depositary or the auditor.
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2-Case a food type UCITS established in another Member State unseen in a
Main type UCITS established in Portugal, CMVM immediately informs
competent authority of the Member State-Member of origin of the UCITS food supply on
any decision, measure or observation by you made concerning the default of the
conditions set out in this section, as well as on any wrongdoing
communicated by the auditor, which relate to the entity responsible for the management of the
Main type UCITS, the depositary or the auditor.
3-Case the CMVM, as the competent authority of food type UCITS,
receive information from the nature referred to in the previous number relating to OICVM of type
principal established in another Member State, immediately informs, the OICVM of type
food.
SUBSECTION IV
Vicissitudes of the main type OICVM
Article 157.
Liquidation of the main type UCITS
1-Within the maximum period of two months from the date on which the entity responsible for
management of the main OICVM inform the entity responsible for the management of the UCITS of
food of its winding-up decision, the entity responsible for the management of the UCITS
of feeding sends the CMVM the following elements:
a) Should you intend to invest at least 85% of the overall net worth in units of
participation of another main type UCITS:
i) The application for the authorization of such investment;
ii) The application for the authorisation of the proposed amendments to the documents
constitutive;
iii) The remaining documents required pursuant to Rule 146.
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b) Should you intend to convert to another type of UCITS, the application for permission of the
proposed amendments to the constitutive documents;
c) Should it intend to be liquidated, a communication of that intention.
2-Without prejudice to the provisions of paragraph 1, if the entity responsible for the management of the UCITS
of main type has informed the entity responsible for the management of the UCITS of
type food on your settlement decision with a higher advance notice
five months in relation to the date of production of the respects effects, the entity
responsible for the management of the food-type UCITS can refer to the CMVM its
application or communication, up to three months before that date.
3-A entity responsible for the management of the communal food type UCITS
immediately to its participants of its intention to liquidation.
Article 158.
Authorization of liquidation
1-A CMVM notifies the entity responsible for the management of the OICVM of food type
of the decision on applications for permission by this submitted, within 15
days from the delivery of the elements referred to in points a ) or b ) of the Article 1 (1)
previous, the provisions of Article 20 (20) and 3, with the necessary ones, apply
adaptations.
2-A entity responsible for the management of the food-type UCITS informs the entity
responsible for the management of the main type UCITS as soon as it receives the approval of the
CMVM under the terms of paragraph 1.
3-A entity responsible for the management of the food type OICVM takes all the
measures necessary to comply with the requirements of Article 161 as soon as possible after the
concession, by the CMVM, of the necessary authorisations under subparagraph (a), paragraph 1, of the
previous article.
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4-Should the payment of the amounts regarding the liquidation of the main type OICVM be
performed prior to the date on which the entity responsible for the management of the OICVM of type
food intends to start investing in a different UCITS, or in accordance with the
your new goals and investment policy, the CMVM must grant the authorization,
upon the following conditions:
a) The entity responsible for the management of the OICVM of food type receives the
amounts referring to the settlement:
i) In cash; or
ii) Partially or fully through a transfer of assets in kind,
where the entity responsible for the management of the OICVM of type
food as well as desired and whenever the agreement between the entities
responsible for the management of the food type OICVM and the UCITS of
main type or the rules of internal conduct and the decision to liquidate the
allow.
b) Any cash held or received in accordance with the present
number can only be reinvested for the purpose of effective cash management before
of the date on which the entity responsible for the management of the OICVM of type
food start to invest in another main type UCITS or in
compliance with your new goals and investment policy.
5-Case apply to sub-paragraph ii ) of the paragraph a ) of the previous article, the OICVM of type
food can, height all the time, convert to cash any part of the assets
transferred in kind.
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Article 159.
Merger or fission of the main type UCITS
1-Within the maximum period of one month from the date on which the entity responsible for
management of the main OICVM inform the entity responsible for the management of the UCITS of
food of the information provided for in Article 147 (10), the responsible entity
by the management of the feed UCITS sends the CMVM the following elements:
a) Should you intend to continue to be a food-type OICVM of the same
Main type UCITS:
i) The application for the authorization of that intention;
ii) If applicable, the application for the authorisation of the proposed amendments to the
constitutive documents;
b) Case intending to become OICVM food type from another type UCITS
principal resulting from the merger or spin-off proposed by the entity responsible for the
management of the main type UCITS or intend to invest at least 85% of the
global net worth in units of participation of another type UCITS
principal not resulting from this merger or fission:
i) The application for the authorization of such investment;
ii) The application for the authorisation of the proposed amendments to the documents
constitutive;
iii) The remaining documents required under Article 146 (4) and (5).
c) Should you intend to convert to another type of UCITS, the application for approval of the
proposed amendments to the constitutive documents;
d) In case the food UCITS intends to be liquidated, a communication from that
intention.
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2-For the purposes of applying the points a) and b ) of paragraph 1, a food-type UCITS
continues to be a power-type OICVM of the same main type OICVM if:
a) The main type UCITS is the built-in OICVM in a merger project;
b) The main type UCITS does not suffer, while one of the resulting UCITS
of the spinoff, significant changes, considered as such by the CMVM.
3-Equally for the purpose of application of points (a) and (b) of paragraph 1, a type UCITS
food becomes OICVM of feed type of another main type UCITS
resulting from the merger or spin-off of the main type UCITS if:
a) The main type UCITS is the built-in UCITS and, due to the process
of fusion, the food-type UCITS become an OICVM participant
embedding;
b) The food-type UCITS becomes a participant of one of the UCITS
resulting from the spin-off that is significantly different from the OICVM of type
main, considered as such by the CMVM.
4-Without prejudice to the provisions of paragraph 1, if the entity responsible for the management of the UCITS
of main type has sent to the entity responsible for the management of the OICVM type
feeding the information referred to in Article 147 or equivalent information, with a
in advance more than four months in relation to the respective production date of
effects, the entity responsible for the management of the food-type UCITS can
refer to the CMVM the application or communication up to three months prior to the effective date of
merger or spin-off of the main type UCITS.
5-A entity responsible for the management of the OICVM of type communal food
immediate to its participants and the entity responsible for the management of the OICVM of type
main about their intention to liquidation.
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Article 160.
Authorization of merger or division
1-A CMVM notifies the entity responsible for the management of the OICVM of food type
of the decision on applications for permission by this submitted, within 15
days from the delivery of all the documents referred to in points a ) a c ), paragraph 1, of the
previous article, the provisions of paragraphs 2 and 3 of Article 20 being applicable, with the
necessary adaptations.
2-A entity responsible for the management of the food-type UCITS informs the entity
responsible for the management of the main type UCITS as soon as it receives the authorization of the
CMVM under the terms of paragraph 1.
3-A entity responsible for the management of the food-type UCITS takes the measures
necessary to comply with the requirements set out in the following article, after the
prescription of the necessary permits under the points b ) of paragraph 1 of the previous article.
4-In cases referred to in points b ) and c ) of paragraph 1, of the previous article, the responsible entity
by the management of the authorised food type UCITS in Portugal exercises the right to
ask for the rescue of the participation units in the main type OICVM whenever the
CMVM has not granted the authorizations required until the working day preceding the
last day in which entity responsible for the management of the food-type UCITS
may apply for the rescue of the participating units it holds in the UCITS of type
principal before the merger or fission produces effects.
5-A entity responsible for the management of the food type UCITS should equally
exercise the right referred to in the preceding paragraph by way of ensuring that it is not affected
the right of the participants to ask for the rescue of their units of participation in the
EICVM of food type in accordance with point (d) of paragraph 1 of the article
next.
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6-Before exercising the right referred to in paragraph 4, the entity responsible for the management of the
Food-type UCITS consider alternative solutions that can contribute to
prevent or reduce the costs of trading or other negative repercussions for the
participants.
7-Whenever the entity responsible for the management of the food-type UCITS ask for the
rescue of the units of participation in the main type UCITS, is made available to you:
a) The amount regarding the cash bailout;
b) The total or part of the amount regarding the rescue through a transfer in
species, whenever the entity responsible for the management of the OICVM of type
food as well as desired and that the contract between the responsible entities
by the management of the food-type UCITS and the main type UCITS o
allow.
8-Should the entity responsible for the management of the food type UCITS receive
transfers in kind, can at any time convert into cash any
part of the transferred assets.
9-A CMVM only grants the requested authorization under condition that any
cash held or received in accordance with paragraph 7 by the OICVM of type
food can only be reinvested for the purposes of its ordinary and efficient management,
before the date on which the same begins to invest in another main type UCITS, or
conform to your new goals and investment policy.
Article 161.
UCITS conversion and main type OICVM change
1-Should an OICVM in activity convert to OICVM of feed or case if
check a change to the main OICVM in which that unseen, the UCITS of
food provides all participants with the following information:
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a) A statement attests to the authorisation by the CMVM of the investment of that
UCITS in units of participation of the main type UCITS concerned;
b) The IFI concerning both the OICVM of type feed and the OICVM of type
main;
c) The date on which the food-type UCITS will begin to invest in the UCITS
of main type or, if it has already invested in the main type UCITS, the date in
that your investment should exceed the limit set out in Article 143 (1).
d) A statement that the participants have the right to ask for the rescue of their
units of participation, within 30 days, without any charges beyond
of those retained by the UCITS to cover the costs of disinvestment.
2-The right to ask for the rescue of your units of participation, without any charges
in addition to those retained by the UCITS to cover the costs of disinvestment may be
exercised from the time the food-type UCITS presents the
information referred to in the previous number.
3-The information provided for in this Article shall be provided at least 30 days before the
date referred to in para. c ) of paragraph 1.
4-In case of marketing in Portugal of authorized food type UCITS
in another Member State the information referred to in paragraph 1 shall be premised on
Portuguese or in another language accepted by the CMVM, and the translation shall be effected under the
liability of the food-type UCITS and faithfully reflect the content of the original.
5-The food-type UCITS cannot invest in participation units of the
Main type UCITS, in addition to the applicable limit in the terms of paragraph 1 of the article
143., prior to the expiry of the 30-day period referred to in paragraph 3.
6-The information provided for in paragraph 1 shall be provided in accordance with the provisions of paragraphs 3 and
4 of Article 36.
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SECTION III
Cross-border marketing
SUBSECTION I
Marketing in Portugal of foreign UCITS
Article 162.
Conditions of marketing in Portugal
1-It is condition of the marketing in Portugal of units of participation of an OICVM
authorized in another Member State which the CMVM receives, from the competent authority of the
State-Member State of origin, the following elements:
a) Letter of notification, drawn up pursuant to the provisions of the Regulation of the
Commission (EU) No 584/2010 of July 1, containing the planned modalities
for the marketing of OICVM participation units and, if applicable, the
particular conditions of marketing in Portugal including, if any
of this, information relating to the categories of units of participation;
b) Annexes to the letter of notification, specifically the updated versions of the
following documents:
i) Constitutive documents;
ii) If applicable, the last annual report and any semiannual reports;
c) Information on how the CMVM can access, by means of an electronicity, to the
documents referred to in the previous paragraphs;
d) Certificate issued by the competent authority of the Member State of origin,
obeying the provisions of the Commission Regulation (EU) No 584/2010 of 1
of July, attesting that the UCITS brings together the conditions set forth in the Directive
n. 2009 /65/CE, of the European Parliament and of the Council, of July 13 of
2009.
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2-Whenever OICVM participation units are marketed by the
respects the entity responsible for the management, the letter of notification shall expressly
mention that fact.
3-A letter of notification and respect attachments, as well as the certificate may be
provided in Portuguese, English or in another language approved by the CMVM.
Article 163.
Changes to the documents referred to in the notification procedure
1-The entities responsible for the management of UCITS authorised in another Member State
whose units of participation are marketed in Portugal must notify
immediately the CMVM of any changes to the documents referred to in paragraphs a)
and b) of paragraph 1 of the preceding Article, indicating how to access, by means of an electronic way, the
updated versions.
2-In the event of a change in the information relating to the arrangements laid down for the
marketing communicated in the letter of notification or amendment of the categories of
participation units to be commercialised, the entity responsible for the management of the UCITS
communicates in writing to the CMVM before these will produce effects.
Article 164.
Information on legal framework applicable to marketing in
Portugal
The CMVM releases on the respective website on the Internet, also in translated version for English,
complete, clear and up-to-date information on the legal, regulatory and
administrative applicable to the marketing in Portugal of units of participation of
OICVM established in another Member State.
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Article 165.
Conditions for payment to participants in Portugal
The entities responsible for the management of UCITS authorised in another Member State
whose units of participation are commercialized in Portugal adopt, among others, the
necessary measures, to ensure in national territory the payments to the participants,
specifically those relating to underwriting and rescue operations of the units of
participation and the dissemination of information.
Article 166.
Equal treatment of investors
1-The entities responsible for the management of UCITS marketing their units
of participation in Portugal discloses on national territory the information and
documents that should be disclosed in the Member State where the UCITS was
authorized.
2-The information and documents referred to in the preceding paragraph shall be disclosed in the
terms applicable to the national UCITS, and may be disclosed in Portuguese, English
or in another language approved by the CMVM.
3-The information and documents referred to in the preceding paragraph are disclosed in the terms
applicable to national UCITS, with the following specificities:
a) The IFI, in Portuguese or in another language approved by the CMVM;
b) The prospetto and the annual and half-yearly reports and accounts, in Portuguese, English or
in another language approved by the CMVM.
4-A The translation of the information and the documents to which the preceding paragraph is referred is
effected under the responsibility of the entities responsible for the management of the UCITS and
should faithfully reflect the content of the original information.
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5-The requirements set out in the preceding paragraphs are also applicable to the possible
changes to the information and documents referred to therein.
6-A frequency of the publication of the subscription and rescue prices of the units of
participation of UCITS obeys the legal, regulatory and
administrative of the respective Member State-Member of origin.
Article 167.
Designation of foreign UCITS in Portugal
For the purpose of the exercise of its activities in Portugal, foreign UCITS may
use in your designation, the same reference to your legal form that you use in your
Member state of origin.
SUBSECTION II
Marketing abroad of Portuguese UCITS
Article 168.
Conditions of marketing abroad
1-A marketing in another Member State of OICVM participation units
authorized in Portugal is preceded by submission to CMVM of elaborate notification letter
in accordance with the provisions of Commission Regulation (EU) No 584/2010 of July 1,
containing information on the planned modalities for the marketing of
units of participation of the UCITS in the host Member State, including, if
for case, information relating to the categories of units of participation.
2-Whenever OICVM participation units are commercialized by the entity
responsible for the management, the letter of notification must expressly mention that.
3-The UCITS must append to the notification letter an updated version of the following
documents:
a) Constitutive documents;
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b) If applicable, the last annual report and eventual semiannual reports.
4-The UCITS shall also inform the CMVM about the manner in which the authority
competent from the host Member State may access, by means of an electronicity, to the
documents referred to in the preceding paragraph.
5-A CMVM verifies the compliance and completeness of the documentation presented by the
OICVM.
6-Within 10 days of the date of receipt of the letter of notification and the
full documentation predicted in the previous numbers, the CMVM transmits this
documentation to the competent authorities of the Member State in which the UCITS is
proposes to commercialize its units of participation by attaching to the documentation a
certificate, obeying the provisions of the Commission Regulation (EU) No 584/2010,
of July 1, attesting that the UCITS brings together the conditions set out in the Directive
n. 2009 /65/CE, of the European Parliament and of the Council of July 13, 2009.
7-After the transmission of the documentation, the CMVM notifies that fact to the UCITS.
8-UCITS may access the market of the host Member State as of the date
of this notification.
9-A letter of notification and the certificate referred to in the preceding paragraphs are produced
in the language of current use in the international financial sphere.
Article 169.
Update of information
1-A entity responsible for the management of authorized UCITS in Portugal that commercialize
units of participation in another Member State notifies the competent authorities
of the host Member State of any changes to the documents referred to
in paragraph 3 of the preceding Article, indicating how to access, by means of an electronic way, the versions
updated.
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2-In the event of a change in the information relating to the arrangements laid down for the
marketing communicated in the letter of notification or amendment of the categories of
shares to be commercialized, the entity responsible for the management of the UCITS authorized in
Portugal communicates them in writing to the competent authorities of the Member State of
host before these will produce effects.
3-A entity responsible for the management of authorized UCITS in Portugal that commercialize
the units of participation in another Member State notifies, cumulatively to the
communication provided for in Article 17 (5), the competent authorities of the State-
Host member of the suspension of underwriting and rescue operations.
CHAPTER III
From the activity of the OIA
Article 170.
Heritage and operation
1-The OIAVM invests in the assets referred to in subsection I, section I, chapter II of Title III.
2-The OIA that is not OIAVM invests:
a) A minimum of 30% percent of the respective global net worth in assets other than those
mentioned in the preceding paragraph, as long as they are durable goods and have
determinable value;
b) A maximum of 25% percent of the global net worth value in real estate assets.
3-For the purposes of the b ) from the previous number, consider themselves real estate assets, in addition to the
real estate, the holdings in real estate investment bodies and the issued shares
by real estate societies.
4-The OIA unequivocally identifies the investment policy and suits its designation
the same.
5-The constitutive documents of the OIA concretize, inter alia:
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a) The type of assets that can integrate your wallet;
b) The respects rules of operation, specifically the conditions of
subscription and rescue or reimbursement, the existence and competence of committees
advisory or investments and external advisors;
c) The limits of investment, ensuring portfolio diversification in
to be in line with the risk allocation principle set out in paragraph 1 (a)
of Article 2, as a function of the overall net value of the OIA:
i) By asset or entity;
ii) From loan operations and reporting of financial instruments;
iii) From operations on derivative financial instruments, including derivatives
about goods;
iv) From short selling on financial instruments and the conditions to which
is found subject to its achievement;
d) The maximum borrowing limits.
6-A CMVM may refuse certain types of assets for the constitution of an OIA,
whenever the protection of investors and the regular operation of the market o
impose, specifically because of a lack of transparency regarding the markets of
transaction of the same, the valuation of these or the OIA participation units.
7-Investment in real estate assets becomes subject to the rules applicable to the bodies of
real estate investment, in the terms to be defined in regulation of CMVM.
8-In the absence of the definition of the limits of the investment policy, the limits apply
set out in subsection II of section I of Chapter II of Title III.
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Article 171.
Information
The managing body informs the participants, with a minimum annual periodicity, in
appropriate terms to their knowledge, from the evolution of the risk and profitability of the OIA,
including a description of the conditioned respects and any relevant facts,
with impact on the value of the OIA heritage.
Article 172.
Marketing in Portugal of foreign OIA
The marketing together of unskilled investors in Portugal of units of
foreign OIA participation is subject to authorisation from the CMVM, in the defined terms
in regulation of the CMVM.
Article 173.
Marketing abroad of Portuguese OIA
The marketing abroad to unskilled investors of units of
participation of authorized OIA in Portugal is preceded by communication to the CMVM, in the
terms defined in regulation of the CMVM.
Title IV
From supervision, cooperation and regulation
Article 174.
Supervision
1-A The supervision of the provisions of this regime shall compete with the CMVM, safeguarded the
competencies of the Bank of Portugal in the matter of prudential supervision of entities
gestures.
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2-The provisions of the preceding paragraph shall be without prejudice to the competence of the CMVM to, in
excective circumstances, susceptible to disrupting the normal functioning of the OIC,
determine to the OIC and respect entity responsible for the management, depositary or entity
marketing the fulfillment of duties additional to those provided for in the present
scheme, with a view to acautelate the legitimate interests of the participants.
3-In addition to the provisions laid down in the applicable law as to the exercise of the
supervision activity, the CMVM has powers to allow auditors or experts to
carrying out checks and investigations.
Article 175.
Supervision of UCITS
1-The Bank of Portugal and the CMVM, as the competent authorities of the State-
Member of origin of the UCITS, have exclusive powers to take action against that
UCITS in case of violation of legal, regulatory or administrative provisions
or of rules provided for by the respective constitutive documents, with the exception of
rules relating to requirements set out in Articles 165 and 166.
2-Any decision to revoke the authorization or any other serious measure taken
against the UCITS, or any suspension of the issuance, of the rescue of the respective units
of participation that is imposed upon it, shall be communicated without delay by the CMVM to the
authorities of the UCITS host Member States and the authorities
competent from the Member State of origin of the entity responsible for the management of the
OICVM.
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3-If the Bank of Portugal and the CMVM, as the competent authorities of the State-
UCITS host member, have clear and demonstrable reasons to believe
that the UCITS whose units of participation are traded on its territory
infringe the obligations arising from legal provisions approved under the terms of
Directive No 2009 /65/CE, of the European Parliament and of the Council of July 13 of
2009, and are not competent to act, transmit these findings to the authorities
competent from the OICVM source Member State, so that these can act as
appropriate measures.
4-If, notwithstanding the measures taken by the competent authorities of the State-
Member of origin of the UCITS, following the communication provided for in the number
previous, or by virtue of the unsuitable or extemporaneous character of these measures, the
UCITS continue to act in a manner detrimental to the interests of investors, the CMVM
proceeds from one of the following modes:
a) After informing the authorities of the Member State of origin of the UCITS, take
the measures that prove necessary to protect the interests of the
investors, including the possibility of preventing the UCITS in cause of
continue to commercialize the units of participation in national territory; or
b) If necessary, refer the matter to the European Values Authority
Securities and Markets, which may act in the exercise of their competences.
5-A CMVM notifies the European Commission and the European Values Authority
Securities and Markets of the measures taken under paragraph (a) of the number
previous.
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Article 176.
Sanctionatory regime
1-In respect of the subjects subject to the supervision of CMVM provided for in this
Regime, the regime, of a substantive and procedural nature, is applicable for the
ilocytes of mere social ordering in the Securities Code.
2-In respect of the subjects subject to the supervision of the Bank of Portugal provided for in the
present Regime, the regime, of a substantive and procedural nature, is applicable
for the illicit of mere social ordering in the General Regime of Credit Institutions and
Financial Societies.
Article 177.
Cooperation, duty of secrecy and exchange of information
Without prejudice to the provisions on duty of secrecy laid down in the legislation in force, if
an OIC, managing entity or depositary has been declared insolvent or its
forced liquidation has been ordered judicially, the confidential information that does not
involve third parties implicated in attempts to recover from that society can be
disclosed in the context of legal proceedings of a civil or commercial nature.
Article 178.
Regulation
Without prejudice to the competences of the Bank of Portugal, it is incumbent on the CMVM to regulate the
provisions of this scheme, inter alia, as to the following subjects:
a) Of the notion and conditions of operation of OIC, specifically in what
respects to:
i) Typology of the OIC;
ii) OIC with heritage or guaranteed income and guarantee scheme, well
as an investment policy of the UCITS of indices;
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iii) Groupings of OIC;
iv) Autonomous OIC heritage compartments;
v) Rules relating to the creation of categories of units of participation;
vi) Rules applicable to investment in real estate assets and real estate;
vii) Re-acquisition of units of participation by the OIC;
b) From the management activity of the OIC, specifically with respect to:
i) Subcontracting of functions understood in the management activity of OIC;
ii) Management techniques and instruments, including loan operations and
reporting of securities and use of financial instruments
derivatives in the management of the assets of the OIC;
iii) Evaluation of the assets of the OIC and calculation of the value of the units of
participation;
iv) Definition of assessment criteria of the value of volatility.
v) Registration of operations, on account of the OIC, on assets admitted to the
trading on regulated market held out of market
regulated or multilateral trading system;
vi) Compensation of participants as a result of errors, irregularities,
or other events;
vii) Revenues and charges of the OIC and the entities responsible for the management;
viii) Affection of revenue and income paid to the managing entity or other
entities as a result of the exercise of the activity of that;
ix) Criteria of size, nature and complexity of activities and services
provided by the managing body and the managed OIC;
x) Requirements for plurality and rotation of the auditors;
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xi) Exceeding of limits on investment in cases alheds to the will of the
entity responsible for the management;
xii) Borrowing limits;
c) Of the information, specifically with respect to:
i) Documents instrucing applications for authorisation and approval of OIC;
ii) Form and content of the IFI;
iii) Contents of the annual report of the depositary on the audit
developed;
iv) Reporting duties to the public, the participants, the
CMVM, the managing entities of markets and trading systems
multilateral, by the managing entities, depositories and entities
marketers or third party service providers and by these to each other;
v) Communication by the members of the administration bodies and too much
responsible for the investment decisions of the OIC on transactions;
vi) Accounting of the OIC;
vii) Terms and conditions in which the OIC may make public, under any
form, measures or indexes of profitability and risk of the OIC and the rules to
that obeys the calculation of these measures or indexes;
viii) Provision of information to the CMVM on compensation of the participants in
consequence of errors, irregularities, or other events;
ix) Terms applicable to the communication of transactions by the entities
responsible for the management of the CMVM;
x) Exercise of voting rights;
xi) Information for statistical purposes;
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d) From the marketing of units of participation and conditions of admission to the
negotiation, specifically with respect to:
i) Forecasting of other commercializing entities, duties of entities
commercializers, the conditions to which they are subject, the minimum content of the
marketing contract, the requirements relating to the different means of
marketing and rules relating to underwriting and rescue or reimbursement;
ii) Marketing in Portugal of OIA participation units
authorized abroad;
iii) Conditions for the acquisition of units of participation of an OIC by its
depositary.
iv) Payments in kind to the OIC or the participants;
v) Conditions of admission and negotiation of the OIC participation units
on regulated market and multilateral trading system.
e) Of the vicissitudes of the OIC, specifically with respect to:
i) Significant modification of the policy of investments, of the policy of
income distribution and calculation term or disclosure of the value
of the units of participation;
ii) Division and transformation of OIC;
iii) Formalities and deadlines for dissolution and liquidation of OIC, requirements of the
liquidators, contents of the settlement accounts and the respective report of the
auditor and forms of release of the duty to pay the proceeds of the settlement;
iv) Conditions of suspension of underwriting and rescue of units of
participation.
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ANNEX I
(referred to in Article 124 (2), Art. 127 (1) and paragraphs 1 and 2 of the article
150.)
SCHEME A
1. Information concerning the
investment fund
1. Information concerning the
gestures society, including
an indication as to whether the
gestures society is
domiciled in a State-
Member other than the
State-Member of origin
of the UCITS
1. Information concerning the
investment society
1.1. Name 1.1. Name or
social denomination, shape
legal, registered office and
central administration if this
is different from the head office
statuary
1.1. Name or denomination
social, legal form, headquarters
statuary and administration
central if this is different from the
registered office
1.2. Date of the constitution of the
investment fund.
Indication of duration, if it is
limited
1.2. Date of the constitution
of the society. Indication of the
duration, if it is limited
1.2. Date of the constitution of the
society. Indication of duration,
if it is limited
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1.3. If the society manages
other funds from
investment, indicate these
other funds
1.3. If the society of
investment has different
heritage compartments
autonomous, indicate these others
heritage compartments
autonomous.
1.4. Indication of the place where
whether it can obtain the regulation of
management, if it is not attached, and
the periodic reports
1.4. Indication of the place where
if you can get the documents
constitutive, if they are not
appended, and the reports
periodicals
1.5. Succinct indications
relating to the tax regime
applicable to the fund of
investment, if they have
interest to the participant.
Indication of the existence of
retentions at the source effectuated
on profits and more-worthies
paid by the common fund of
investment to participants
1.5. Succinct indications
relating to the applicable tax regime
to society, if they have an interest
for the participant. Indications of the
existence of retentions at the source
effected on the profits and more-
-values paid by the society to the
participants
1.6. Closing date of the accounts
and frequency of distributions
1.6. Date of closing of the accounts
and frequency of distributions
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1.7. Identity of people
in charge of the verification of the
financial information referred to
in Article 102 para.
1.7. Identity of people
in charge of the verification of the
accounting data referred to
in Article 73 para.
1.8. Identity and functions
in the society of the members
of the administration bodies,
of direction and surveillance.
Mention of the main
activities exerted by these
people outside of society,
as long as they are significant
relatively to the latter
1.8. Identity and functions in the
society of the members of the
organs of administration, of
direction and surveillance. Mention
of the main activities
exerted by these people outside
of the society, as long as they are
significant relatively to this
last
1.9. Amount of capital
subscribed with indication of the
capital realized
1.9. Capital
1.10. Mention of nature and the
main characteristics of the
units of participation, with,
notably, the following
indications:
1.10. Mention of nature and the
main characteristics of the
actions, with, inter alia, the
following indications:
nature of the right (real, from
credit or other) that the
social part represents
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original or certified titles
representative of these
securities, registration in registration
or in account,
original or certified titles
representative of these
securities, registration in registration
or in account,
characteristics of the units of
participation: nominals, or
to the bearer. Indication of the
values eventually
predicted
characteristics of the shares:
nominals, or the bearer.
Indication of values
eventually predicted
description of voting rights
of the participants, if it exists
description of voting rights
of the participants
circumstances in which the
settlement of the fund of
investment can be
decided and modalities of the
settlement, namely,
as to the rights of the
participants
circumstances in which the
liquidation of the OIC may
be decided and trames of the
settlement, namely,
as to the rights of the
participants
1.11. Possible indication of the
exchanges or markets in which
the units of participation are
quoted or negotiated
1.11. Possible indication of the
exchanges or markets in which
shares are quoted or
negotiated
1.12. Modalities and conditions
of subscribing to the units of
participation
1.12. Modalities and conditions
of subscribing to the shares
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1.13. Modalities and conditions
of rescue of the units of
participation and cases in which it can
be suspended
1.13. Modalities and conditions
of rescue of the shares and cases in
that can be suspended. If the
investment society has
different compartments
autonomous patrimonial, indicate
the modalities of passage of
a heritage compartment
autonomous to another to which the
investors can appeal,
well as the commissions
applicable in these cases
1.14. Description of the rules that
regulate the determination and the
affectation of profits
1.14. Description of the rules that
regulate the determination and the
affectation of profits
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1.15. Description of the objectives
of investment from the fund
common investment
including the goals
financial (for example:
search for more-worth in capital
or of profits), of the policy of
investment (for example:
specialization in certain areas
geographic or sectors
industrial), limits of this policy
of investment and indication of the
techniques and instruments or of the
powers in the matter of
susceptible loans from
be used in the management of the
common investment funds
1.15. Description of the objectives
of investments from society
including the goals
financial (for example:
search for more-worth in capital
or of profits), of the policy of
investment (for example:
specialization in certain areas
geographic or sectors
industrial), limits of this policy
of investment and indication of the
techniques and instruments or of the
powers in the matter of
susceptible loans from
be used in the management of the
society
1.16. Rules for the assessment
of the assets
1.16. Rules for the assessment
of the assets
1.17. Determination of prices
of underwriting and rescue or
reimbursement of the units of
participation, in particular:
1.17. Determination of prices
of underwriting of rescue or
refund of the shares, in
special:
method and frequency of the calculation
of these prices,
method and frequency of the calculation
of these prices,
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indication of the relative charges
to underwriting and operations operations
rescue of the units of
participation
indication of the relative charges
to underwriting and operations operations
rescue of the shares
indication relative to the means,
sites and frequency with which these
prices are published
indication of the means, places and
frequency with which these prices
are publicados1
1.18. Indication concerning the
mode, the amount and the calculation
of the remuneration in charge of the
common investment fund and
for the benefit of society
gestures, the depositary or the
third parties and of the reimbursements by the
common investment fund,
of all expenses, to society
gestures, to the depository or to
third parties
1.18. Indication concerning the
mode and calculation of the
remunerations payable by the
society to its leaders and
members of the organs of
administration, direction and de
supervision, the depositary or the
third parties and the reimbursements
by the society of all
the expenditure, to its leaders,
to the depositary or to third parties
1
2. Information relating to the depositary:
2.1. Name or social reason, legal form, registered office and central administration if it is
different from the registered office.
2.2. Main activity.
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3. Indications on consultancy firms or on investment advisors
external, provided that the resource to its services is provided for by the contract and
remunerated by the assets of the UCITS:
3.1. Identity or social reason of the firm or name of the consultant.
3.2. Elements of the contract with the managing company or the investment company
susceptible to interest the participants, except for those relating to remunerations.
3.3. Other significant activities.
4. Information on the measures taken to effect the payments to the participants, the
requisition or the reimbursement of the units of participation as well as the diffusion of the
information regarding the UCITS. This information shall, in any case, be
given in the Member State where the UCITS is established. In addition, when the
units of participation are marketed in another Member State, the
information referred to above will be provided in respect of this State-
Member and included in the prospeit in it published.
5. Other information relating to investments:
5.1. Historical evolution of OICVM results (if applicable)-this information
may be included in the prospetto or to it apensas.
5.2. Profile of the type of investor to which the UCITS is headed.
6. Information of economic character:
6.1. Any expenses or commissions, other than the charges referred to in point 1.17,
establishing a distinction between those supported by the participant and those paid with the
assets of the UCITS.
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SCHEME B
Information to be entered in the periodic reports
I. Demonstration of heritage
securities,
bank balances,
other assets,
total assets,
passive,
net value of inventory.
II. Number of participation units in circulation
III. Net worth by social share
IV. Portfolio titles distinguishing between:
a) The securities admitted to the official quotation of a stock exchange;
b) Securities traded on another regulated market;
c) The newly issued securities, referred to in para. b ) of paragraph 1
of Article 137;
d) The other securities referred to in Article 137 (7) of the Article;
and reparty according to the most appropriate criteria, taking into account the policy of
investment of the UCITS (for example: second economic, geographical criteria,
by foreign exchange, etc.), as a percentage of the net asset; it is appropriate to indicate, for each
one of the values referred to above, its share relatively to the total
of the assets of the UCITS.
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Indication of movements occurring in the composition of the securities in portfolio in the
course of the reference period.
V. Indication of movements occurring in the assets of the UCITS in the course of the
reference period, including the following data:
income from investment,
other income,
management costs,
deposit costs,
other charges, fees and taxes,
net profit,
distributed and reinvested profits,
increase or decrease in the capital account,
the most valuable or least valuable investments,
any other change that affects the assets and liabilities of the UCITS,
the trading costs supported by an OICVM associated with the transactions
relative to the elements of your wallet.
VI. Comparative table for the last three financial years and including for each
exercise, at the end of this:
the net value of global inventory,
the net value of inventory by social part.
VII. Indication, by category of operations, in the acetation of Article 138, carried out by the
OICVM in the course of the reference period, of the amount of the commitments
which hence arise.
