Decree No. 244 / 2013 Coll.

Decree on the further modification of certain rules of the Investment Companies and Investment Funds Act

Valid Order Effective from 19.08.2013
244
DECLARATION
of 24 July 2013
on the adaptation of certain rules of the Investment Companies and Investment Funds Act
The Czech National Bank sets out, pursuant to § 20 (5), § 22 (6), § 30 (5), § 47 (5), § 49 (4), § 58 (3), § 196 (2), § 234 (6), § 238 (4), § 291 (3), § 389 (3), § 405 (3), § 478 and § 638 (3) of Act No. 240 / 2013 Coll., on investment companies and investment funds:

ČÁST PRVNÍ

BASIC PROVISIONS
§ 1
Subject matter
This decree implements the relevant European Unionregulations (1), following the directly applicable European UnionRegulations (2) and more detailed provisions
(a) requirements for the qualitative criteria of the management and control system of the manager and administrator of the investment fund or of the foreign investment fund to the extent not covered by the directly applicable regulation of the European Union implementing Directive of the European Parliament and of the Council governing the AIFM of the AIF (2), pursuant to paragraphs 20 (5) and 47 (5) of the Investment Companies and Investment Funds Act (hereinafter referred to as "the Act");
(b) requirements for qualitative criteria of procedures, rules, principles and obligations within the framework of the rules of conduct of the manager and administrator of the investment fund or of the foreign investment fund, to the extent that the European Union law directly implementing the Directive of the European Parliament and of the Council governing the managers of the AIF (2) does not regulate the directly applicable European Union Regulation, pursuant to Articles 22 (6) and 49 (4) of the Act;
(c) requirements for the content, provision and publication of certain documents pursuant to § 234 (7), § 238 (4), § 291 (3), § 389 (3), § 405 (3), § 478 and § 638 (3) of the Act; and
(d) rules for determining the amount of capital pursuant to § 30 (5) and § 58 (3) of the Act.
§ 2
Definition of terms
For the purposes of this decree:
(a) identification data
1. the name, the name, the surname, the date of birth, the birth number, if any, the address of the residence or, where applicable, the registered office, if different from the address of the residence, the identification number of the person, if assigned, if any, by a natural person; and
2. the business name, registered office and identification number of the person, if assigned, if any,
(b) an information system of a functional unit ensuring the acquisition, processing, transmission, sharing and storage of information in whatever form;
(c) the supervisory board, the audit board, the management board in the exercise of its powers of control or any other body having similar powers of control, depending on the legal form of the legal entity in question;
(d) an organisational body, a group of persons or a person responsible for carrying out a particular activity of the manager or administrator of the investment fund or of the foreign investment fund, including the authority or committee of that manager or administrator, if established;
(e) operational risk risk of loss due to deficiencies or failures in internal processes, human factor or systems of the manager or administrator of the investment fund or foreign investment fund or the influence of the external environment, including the risk of legal and documentation and risks arising from shortcomings or failures of the rules for trading, settlement and valuation of assets and debts of the investment fund or foreign investment fund;
(f) risk of concentration risk of loss arising from a significant concentration of exposures, in particular to one person or group of connected economic persons (3), or to a group of persons where the likelihood of their failure is dependent on a common risk factor, in particular the same type of economic sector or part thereof, geographical area, part of the financial market, type of equity value or issuer of an investment instrument;
(g) the risk of insufficient liquidity risk of loss of ability to meet financial obligations at the time when they become due, including the risk that the asset value of the assets held by an investment fund or a foreign investment fund cannot be sold or compensated with limited costs and within a reasonably short period of time, thereby jeopardising the ability of the investment fund or foreign investment fund to purchase units or investment shares or comparable securities or book-entry securities issued by a foreign investment fund;
(h) the counterparty's risk of loss arising from the default of the counterparty before the final settlement of the transaction;
(i) by the managing authority, the statutory authority, the management board in the exercise of its powers of management or any other body having similar management responsibilities, depending on the legal form of the legal person in question;
(j) the market risk risk of loss resulting from changes in market prices, interest rates and exchange rates, including the risk arising from fluctuations in the market value of assets held by an investment fund or a foreign investment fund, which is due to changes in market variables, in particular interest rates, exchange rates, market prices of participating securities and commodities or the creditworthiness of the issuer of the investment instrument;
(k) recognised by the standard recognised and best practices used in the performance of financial market activities, in particular the recommendations issued by the European Securities and Markets Authority (ESMA), the European Commission or the International Organisation of Securities Commissions (IOSCO);
(l) the sustainability risk of the sustainability risk referred to in Article 2 (22) of Regulation (EU) 2019 / 208817 of the European Parliament and of the Council;
(m) sustainability factors for sustainability factors referred to in Article 2 (24) of Regulation (EU) 2019 / 2088.

ČÁST DRUHÁ

MANAGEMENT AND CONTROL SYSTEMS OF THE EMPLOYERS AND MANAGEMENT OF THE INVESTMENT FUND OR THE FOREIGN INVESTMENT FUND

HLAVA I

MANAGEMENT AND CONTROL SYSTEMS OF THE EMPLOYERS AND MANAGEMENT OF THE STANDARD FUND OR THE FOREIGN STANDARD FUND

Díl 1

General requirements
§ 3
Basic requirements for the control and control system
[K § 20 (1) (a) and § 47 (1) (a) of the Act]
(1) The manager and administrator of a standard fund or foreign investment fund comparable to the standard fund (hereinafter referred to as the "foreign standard fund") shall ensure that the requirements set out for the management and control system and procedures of that manager and administrator for their implementation and in the performance of other activities are reflected in the organisational rules and other internal rules of that manager and administrator. The manager and administrator of the standard fund or foreign standard fund shall establish a procedure for the adoption, modification, implementation and application of internal rules.
(2) The manager and administrator of a standard fund or a foreign standard fund shall reflect in its internal rules the general guidelines of ESMA and the recognised standards adopted by it, unless their specific provisions are contrary to the regulatory requirements. The manager and administrator shall regularly verify that the internal rules and standards which they have chosen remain up-to-date and proportionate to the nature, scale and complexity of the activities carried out.
(3) The manager and administrator of the standard fund or foreign standard fund shall ensure that all approval and decision-making processes and control activities, including related internal rules, can be reconstructed. In order to ensure this requirement, the information storage system established, maintained and applied as part of its information system by the manager and administrator of the standard fund or foreign standard fund is also used.
§ 4
Ensuring the performance of individual activities by another person
[K § 20 (1) (a) and § 47 (1) (a) of the Act]
(1) The manager and administrator of the standard fund or foreign standard fund shall ensure that, in the context of the entrustment of another activity which does not include the management and administration of the IF or foreign standard fund,
(a) the activities entrusted to another are in accordance with the relevant legislation, the Statute of the Standard Fund and a comparable external standard fund document and internal rules;
(b) the fulfilment of the information obligations to the Czech National Bank is not restricted, the exercise of supervision, including, where appropriate, the control of matters subject to supervision by others, and the auditing of the accounts and other verifications provided for by law;
(c) the conditions for the proper and prudent exercise of the business of that manager and administrator are not jeopardised;
(d) the rights of shareholders or members of the standard fund or foreign standard fund are not compromised; and
(e) rules are laid down for the control of activities which are the subject of another's mandate, including, where appropriate, the control of the facts relating to the delegation of another directly to it.
(2) Where the manager and administrator of a standard fund or foreign standard fund has entrusted a different performance of an individual activity that does not include the management and administration of an investment fund or foreign standard fund, Sections 24 (2) and 51 (2) of the Act shall apply mutatis mutandis.
§ 5
Organisation of the activity
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
The manager and administrator of a standard fund or a foreign standard fund shall establish the working capacity of the organisational units in such a way as to promote the proper and prudent performance of the activity and to enable effective communication and cooperation at all levels.
§ 6
Management of conflicts of interest and incompatibility of functions
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
(1) The manager and administrator of the standard fund or standard investment fund shall ensure that:
(a) identify in due time the areas of conflicts of interest and the areas of their possible formation, including conflicts of interest which may arise as a result of taking into account the risks related to sustainability in the management and control system, the risk management system and the internal control system;
(b) organisational bodies at all levels of management and organisation shall lay down the powers, responsibilities and responsibilities in such a way as to avoid a potential conflict of interest;
(c) compliance with procedures for identifying and managing conflicts of interest (Sections 26 to 28); and
(d) the area of conflict of interest and the area of its possible establishment subject to continuous independent monitoring.
(2) The manager of a standard fund or a foreign standard fund shall manage the assets of a standard fund or a foreign standard fund independently
(a) settlement of transactions negotiated on financial markets;
(b) checking the conformity of transaction data agreed on financial markets with the actual situation and the removal of irregularities detected (reclassification);
(c) risk management;
(d) the approval and control of compliance with risk management limits; and
(e) the creation of quantitative and qualitative information on the risks reported to the operator's control or management authority.
(3) Where the manager of a standard fund or a foreign standard fund also manages a standard fund or a foreign standard fund, irrespective of the management of the assets and risk management of those funds also:
(a) approve procedures for the valuation of the assets and debts of those funds;
(b) appreciates the assets and debts of those funds; and
(c) calculate the current value of the security or book-entry security issued by those funds.
(4) The administrator of the standard fund or foreign standard fund shall carry out risk management independently of the activities referred to in paragraph 3 (a) to (c).
(5) The manager of a standard fund or foreign standard fund shall ensure, up to the level of the managing authority, the separation of the powers associated with managing the assets of the standard fund or foreign standard fund from those associated with risk management and settlement and settlement and settlement of transactions agreed on financial markets.
(6) The manager and administrator of the standard fund or foreign standard fund will ensure adequate independence of internal control in view of the nature, object and importance of the control and the avoidance of conflicts of interest in ensuring all control mechanisms, including compliance function; the internal audit function shall be independent of all activities related to the management and administration of the Funds.
§ 7
Inspection body
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
(1) The manager and administrator of the standard fund or foreign standard fund shall ensure that its supervisory authority:
(a) oversee and evaluate at least annually the effectiveness, consistency and adequacy of the management and control system;
(b) regularly discuss matters relating to the business strategy of that manager and administrator;
(c) regularly discuss the direction of the risks to which the manager or administrator is or might be exposed;
(d) participate in the direction, planning and evaluation of internal audit and compliance activities (§ 18); and
(e) give prior comments on the proposal of the managing authority of the manager and administrator of the standard fund or of the foreign standard fund to be entrusted to a natural or legal person by the performance of the risk management function, internal audit or compliance function and on the proposal for their appeal; where the performance of a risk management function, internal audit function or compliance function is provided by more than one natural person within the manager and administrator, the supervisory authority shall comment only on the proposal for delegation or removal of the head of the organisation body concerned.
(2) The manager of a standard fund or foreign standard fund shall ensure that its supervisory authority regularly negotiates on matters relating to the investment strategy of the standard fund or foreign standard fund and the risk management to which the standard fund or foreign standard fund is or may be exposed.
(3) Where the management and control system of the operator of the standard fund or of the foreign standard fund forms part of the remuneration system [Paragraph 665 (3) (b) of the Act], that manager shall ensure that its supervisory authority approves and regularly evaluates the remuneration system of persons whose activities in the course of the performance of their employment, profession or function have a significant impact on the risks that the manager or the manager of the standard fund or foreign standard fund may be exposed to, and at their level, unless this is the responsibility of the management authority. The detailed definition of certain remuneration requirements is set out in Annex 1 to this Decree.
Managing authority
§ 8
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
The manager and administrator of the standard fund or foreign standard fund shall ensure that its managing authority ensures the establishment and evaluation of the management and control system and the continued maintenance of its functionality and efficiency. In order to meet this requirement, the manager and administrator of the standard fund or foreign standard fund shall proceed in such a way that the managing authority always ensures:
(a) compliance of the management and control system with the legislation;
(b) the adequacy of information and effective communication in the performance of the activities of the manager and administrator of the standard fund or foreign standard fund;
(c) establishing an overall strategy, including sufficiently specific assumptions, principles and objectives for its implementation;
(d) the functioning of the internal control system;
(e) establishing principles for personnel equipment, including principles for the selection, remuneration, evaluation and motivation of persons by which the manager and administrator of the standard fund or foreign standard fund carry out their activities;
(f) the identification of the knowledge and experience requirements of persons by which the manager and administrator of the standard fund or foreign standard fund carry out their activities, and the way in which to demonstrate the required knowledge and experience and the way in which to verify that the knowledge and experience of such persons remain proportionate to the nature, complexity and scope of the activities they carry out;
(g) laying down rules which formulate ethical principles and the envisaged models of conduct and conduct of persons by which the manager and administrator of the standard fund or foreign standard fund carry out and enforce their activities;
(h) the application of sound operating procedures and management procedures which lead to the avoidance of undesirable activities, in particular:
1. prioritisation of short-term results and objectives that are inconsistent with the implementation of the overall strategy;
2. a remuneration scheme which is disproportionately dependent on short-term performance; or
3. procedures which allow misuse of resources or concealing deficiencies;
(i) laying down requirements to ensure that, in compliance with the rules of conduct laid down in Article 22 (1) of the Act, workers and persons responsible for carrying out an individual activity, which includes management, take into account:
1. sustainability risks; and
2. the main adverse effects of investment decisions on sustainability factors, provided that the manager and administrator of an investment fund or foreign investment fund publishes and maintains declarations of due diligence policies in relation to those impacts pursuant to Article 4 (1) (a) or Article 4 (3) and (4) of Regulation (EU) 2019 / 2088 of the European Parliament and of the Council;
(j) laying down rules which, for the purpose of fulfilling the obligations under points (e) to (g), contain a procedure for procuring the necessary resources and expertise to take effective account of sustainability risks.
§ 9
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
(1) The manager and administrator of the standard fund or foreign standard fund ensure that its governing body:
(a) approve and regularly evaluate:
1. business strategy,
2. organisational arrangements,
3. Capital and capital adequacy strategy,
4. an information system development strategy;
5. risk management strategy,
6. the principles of the internal control system, including those to avoid a potential conflict of interest and compliance principles;
7. Security principles including security principles for the information system; and
8. the strategic and periodic internal audit plan,
(b) oversee the implementation of its approved strategies and principles;
(c) evaluate the regular reports and the exceptional findings in due time, including the information submitted to it by the auditor (5) or the supervisory authorities; on the basis of those evaluations, that managing authority shall take adequate measures to be taken without undue delay;
(d) regularly discuss matters relating to the management and control system and, at least once a year, evaluate the effectiveness, consistency and adequacy of the management and control system and ensure that any measures are taken to remedy the deficiencies thus identified; and
(e) take into account the risks related to sustainability in the performance of the following activities:
1. the approval, implementation and evaluation of investment policy, investment strategies and system of limits;
2. ongoing checks on compliance with the legislation referred to in Article 18;
3. ensuring the essential requirements laid down for the management and control system pursuant to § 3 (1) and (2);
4. ensuring the requirements of the risk management system under Sections 14 and 15.
(2) The manager of a standard fund or foreign standard fund shall ensure that its managing authority approves and regularly evaluates:
(a) the investment strategy of the standard fund or foreign standard fund; and
(b) the system of limits used by that operator, in particular in relation to the standard fund or foreign standard fund, to limit risks, in which case market, operational, concentration, counterparties and liquidity shortages.
§ 10
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
The manager and administrator of the standard fund or foreign standard fund shall further ensure that its management body ensures in particular:
(a) the implementation of approved strategies and principles and of the manager and administrator of the standard fund or foreign standard fund, including ensuring the development of procedures for their implementation and day-to-day management of that manager and administrator;
(b) maintaining a functional and effective organisational structure, including separation of incompatible functions and avoiding potential conflicts of interest; and
(c) the establishment, maintenance and application of a functioning and effective system for the acquisition, use and storage of information.
Information and communication
§ 11
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
(1) The manager and administrator of the standard fund or foreign standard fund shall ensure that the relevant organisational bodies have up-to-date, reliable and comprehensive information available for their decision-making and other specified activities.
(2) The manager and administrator of the standard fund or foreign standard fund shall ensure that its managing authority is informed without undue delay of any facts that could significantly adversely affect the financial situation of that manager and administrator.
(3) The manager of a standard fund or foreign standard fund shall ensure that its managing authority is informed without undue delay of any facts which could significantly adversely affect the financial situation of the standard fund or foreign standard fund, including the effects of changes in the internal or external environment.
(4) The manager of a standard fund or a foreign standard fund shall ensure that its managing authority is informed at least once a year of:
(a) compliance with the investment method of the standard fund or foreign standard fund;
(b) the degree of risk taken and any actual or anticipated breach of their limits;
(c) compliance with capital requirements (Sections 29 to 32 of the Act).
§ 12
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
(1) Manager and administrator of the standard fund or foreign standard fund
(a) lay down the conditions for the access of persons with whom they carry out their activities, the information system and the data recorded therein, the scope of access rights and the process for determining them, including the manner in which they decide on the extent of access rights of individual persons and their changes;
(b) lay down the conditions under which data relating to the transactions and services carried out will be stored in the information system and their permitted adjustments, the conditions for handling such data and ensuring that their original content and modifications are easily detected;
(c) ensure protection of the information system from damage and from access and interference by unauthorised persons; in the event of damage to the information system, ensure that the data are reconstructed.
(2) The manager of a standard fund or a foreign standard fund keeps data from the information system so that the Czech National Bank can easily reconstruct all key stages of the processing of each transaction in the management of the assets of the standard fund or foreign standard fund and determine their original content before repairs or changes.
§ 13
Provision of information for supervisory purposes
[Articles 20 (1) (b) and 47 (1) (b) of the Law]
(1) The manager and administrator of a standard fund or foreign standard fund shall establish and maintain a system for the creation, control and provision of information to the Czech National Bank in such a way as to provide information up to date, reliably and comprehensively.
(2) The manager and administrator of the standard fund or foreign standard fund shall establish, maintain and apply internal control mechanisms to ensure the completeness and correctness of all calculations, data, reports and other information provided to the Czech National Bank on a regular basis or at its request.
(3) The manager and administrator of the standard fund or foreign standard fund ensure that the process of creating and providing information to the Czech National Bank pursuant to paragraph 2 is reconstructable for at least five years.
§ 14
Basic requirements for the risk management system
[K § 20 (1) (c) and § 47 (1) (c) of the Act]
(1) The manager and administrator of the standard fund or foreign standard fund shall ensure that risks are identified in such a way as to ensure that all activities, and at all management and organisational levels, are carried out and allow the detection of new, previously unidentified risks.
(2) The manager and administrator of the standard fund or foreign standard fund shall ensure that the risk management system provides an undistorted picture of the level of risk taken.
(3) The manager and administrator of the standard fund or foreign standard fund in risk management takes into account all relevant risks, including risks relating to sustainability, and the risk factors to which the manager, administrator, standard fund and foreign standard fund are or may be exposed. Risk management shall take into account internal and external factors, including the business strategy of the operator and administrator, the investment strategy of the standard fund or foreign standard fund, the effects of the economic environment and the cycle and the effects of the regulatory environment. Risk management shall take into account the quantitative and qualitative aspects of risks, the real possibilities for their management and the costs and revenues resulting from risk management.
§ 15
Risk management strategy
[K § 20 (1) (c) and § 47 (1) (c) of the Act]
(1) The manager and administrator of the standard fund or foreign standard fund shall, in particular, establish in their risk management strategy:
(a) the definition of the risks to which the manager, the standard fund managed by him and the foreign standard fund are or may be exposed and that administrator;
(b) principles for assessing the significance of risks in terms of their management;
(c) the principles of risk management,
(d) risk management methods;
(e) its accepted level of risk, in the case of the manager of the standard fund or foreign standard fund, as well as the risk profile of the funds managed;
(f) the principles for the establishment and modification of the contingency plan in the event of liquidity shortages;
(g) principles for the definition of permissible assets, currencies, states, geographical areas, markets and counterparties; and
(h) the principles governing the reporting and management of risks to the managing authority and the supervisory authority.
(2) The manager and administrator of the standard fund or foreign standard fund shall ensure that all persons carrying out their activities whose activities have an impact on risk management are familiar with the strategy to the extent necessary and comply with this strategy and the resulting procedures and limits.
(3) The manager and administrator of the standard fund or foreign standard fund will ensure that the Czech National Bank is notified without undue delay of any substantial changes to the risk management system.
§ 16
Risk management
[K § 20 (1) (c) of the Act]
(1) In risk management, the provider of the standard fund
(a) establish risk measurement procedures in such a way that risks and their impact on the risk profile of the standard fund are accurately measured on the basis of credible and reliable data not solely based on external ratings or their mechanical acceptance, and that risk measurement procedures are properly documented; where this is proportionate to the nature, scale or complexity of the risks to be taken, it shall use advanced procedures for risk measurement, including the value at risk method (VaR);
(b) carry out regular back-testing to check the validity of risk measurement methods;
(c) carry out regular stress testing and analysis of scenarios of possible developments in order to capture the risks arising from possible changes in market conditions which could have a negative impact on the standard fund;
(d) establish, maintain and apply a documented risk limitation system for each standard fund, taking into account all the risks that may be essential to the standard fund and in accordance with the risk profile of the standard fund;
(e) ensure that the current level of risk is consistent with the risk limitation limit system; and
(f) establish, implement and maintain appropriate procedures to ensure timely corrective measures in the event of actual or anticipated breach of the risk limits of the standard fund.
(2) The manager of a standard collective investment fund applies such liquidity risk management procedures to ensure that the fund is able at any time to purchase units under Section 131 of the Act and investment shares under Section 163 (2) of the Act. The manager of the standard fund shall carry out stress testing to assess the liquidity risk of that investment fund in exceptional circumstances.
(3) The manager of the standard fund shall ensure that the method of investment and the risk profile of that fund are appropriate in terms of liquidity to the buy-in rules laid down in the fund's or statutes.
(4) When managing the risks of a foreign standard fund, its manager shall proceed mutatis mutandis in accordance with paragraph 1. When managing the risks of a foreign standard fund comparable to an open holding fund or a share company with variable capital, their manager shall act mutatis mutandis in accordance with paragraphs 2 and 3.
§ 17
Essential requirements for internal control
[K § 20 (1) (d) (1) and § 47 (1) (d) (1) of the Law]

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Regulation Information

CitationDecree No. 244 / 2013 Coll., on further modification of certain rules of the Act on Investment Companies and Investment Funds
Regulation TypeOrder
Author-
CollectionCode of Laws
Date of Promulgation19.08.2013
Effective from19.08.2013
Effective until-
Status Valid
Legal Areas: Securities Finance
The regulation text is for informational purposes only.
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