With less than 100 days until the UK definitely leaves the European Union, it is worth reflecting on the practical impact of Brexit on the relationship between the UK and Luxembourg in the asset management and fund industry.
London and Luxembourg are long-standing partners. With 17.1% of AUM, UK asset managers represent the second largest group of initiators of Luxembourg funds. These investment funds (UCITS and AIFs) benefit from European marketing passports. They are distributed in the EU at large, including the UK, and beyond.
The UK is in fact a very important distribution market, with Luxembourg clearly a leader among overseas funds. Roughly 25% of funds distributed in the UK are overseas funds. As at 31 December 2019, there were 8,862 funds/sub-funds distributed in the UK. From this total, 4,341 are Luxembourg-domiciled, which thus represents 49% of all overseas funds registered in the UK.
The vast majority of UK asset managers (HSBC, Invesco, Schroders, Aberdeen, M&G, just to name a few) have established their own UCITS management company or AIFM in Luxembourg. This was already the case before Brexit, but some additional 30 firms have in the meantime set up their own operation in Luxembourg. This allows them to benefit from the European management passport once the UK will have left the EU. This was a logical move when considering that the UCITS Directive and AIFMD feature both a “product” passport, meaning the investment funds themselves, and a “management” passport for UCITS management companies and AIFMs managing these funds.
Another possible way of retaining access to distribution in the EU is to set up the fund in Luxembourg while appointing a third-party management company, should the UK asset manager not have its own operation in the EU.
By far and large, ALFI’s feedback from its members is that virtually all firms have taken the necessary steps to anticipate a hard Brexit: either setting up presence for those few that needed a presence in the EU as just mentioned, or re-domiciling UK funds to Luxembourg, and making the necessary adjustments in the allocation of assets.
Unlike in other segments of the financial sector such as the clearing of derivatives, trading venues or CSDs, the concept of equivalence plays little if no role when it comes to the management and marketing of EU and non-EU funds. Indeed, the UCITS directive and the AIFMD already offered pre-Brexit a relatively clear framework.
The impact on UK and Luxembourg
What does this mean in practice for UK funds? Any fund that is not a UCITS is by definition and from a European perspective an AIF. Those UK-domiciled UCITS will lose their UCITS label. They will qualify as non-EU AIFs as from 1 January 2021. They may still be marketed to European investors subject to the conditions set out in the AIFMD, which are obviously more restrictive. Non-EU AIFs can indeed only be placed subject to the terms of the National Private Placement Regimes, if any, of each individual EU Member State. They will no longer benefit from a marketing passport as the AIFMD 3rd country passport has not been activated.
And for Luxembourg? Any Luxembourg UCITS that is today marketed in the UK will similarly no longer be viewed by the UK as a UCITS from 2021 onwards. That said, there is wide consensus among policymakers and asset managers that it is key, from an investor choice’s perspective, to keep the UK market open to overseas funds, especially when considering that UCITS are retail products with a high degree of investor protection. Today, most money market funds and ETFs marketed in the UK are overseas funds, almost invariably domiciled in Luxembourg or Dublin.
To avoid any disruption, the UK government and the FCA implemented a Temporary Permissions Regime (TPR) which enables relevant firms and funds which passport into the UK, to continue operating in the UK when the passporting regime ceases to exist on 31 December 2020. All Luxembourg investment funds registered for distribution have made use of the TPR mechanism.
The TPR is obviously a short-term facility to bridge the gap until new legislation is passed and effectively implemented in the UK. It is expected that this will take two or three more years from now.
2021 and beyond
From January 2021 onwards, the UK will become a 3rd country. The legislator may impose additional requirements on overseas funds like this is currently the case with EU funds distributed in other 3rd countries such as Switzerland, Hong Kong etc.
The UK Government (HM Treasury) launched a Public Consultation on the Overseas Funds Regime (OFR) post Brexit, to which ALFI responded in early May. ALFI generally agrees on the approach taken, in particular the concepts of outcomes-based equivalence set out in this Consultation. The main challenge for overseas funds will obviously lie in the additional requirements (such as the requirement to comply with FCA PS18/8 on the Assessment of Value) that the UK legislator, being no longer bound by EU legislation, may impose on overseas funds. It may trigger additional costs hence each overseas fund will need to weigh the costs and benefit of continuing marketing in the UK.
Delegating management
A major point of attention in the relationship between the UK and the EU post Brexit is the delegation of portfolio management. Delegation is explicitly permitted in the UCITS Directive and AIFMD. Cooperation agreements between EU Member States and third countries must be in place in case of delegation, which will be the case.
The designation of delegates in and outside the EU is subject to strict requirements of initial and ongoing due diligence, and oversight of delegates. A framework with the required protections and safeguards is already in place. As a result, there is a wide consensus in the industry that they are no reasonable grounds to revisit the delegation framework in the context of the reviews of the AIFMD and UCITS Directive.
Por Gabriela Huerta
Por Funds Society, Madrid