Decree No. 269 / 2004 Coll.
Decree on the formalities and annexes of applications pursuant to Act No. 189 / 2004 Coll., on collective investment
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Order
Effective from 01.05.2004
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269
DECLARATION
of 7 April 2004
on the formalities and annexes of applications pursuant to Act No. 189 / 2004 Coll., on collective investment
According to Section 139 (i) in conjunction with § 58 (3), § 61, § 63 (2), § 65, § 66 (2), § 67 (2), § 68 (2), § 71 (4), § 72 (2), § 96 (2), § 100 (3) and § 101 (3) of Act No 189 / 2004 Coll., on Collective Investment, (hereinafter referred to as "the Act"):
BASIC PROVISIONS
Subject matter
This decree regulates the particulars and annexes of the requests referred to in § 139 (i) of the Act.
Definition of terms
(1) For the purposes of this decree, evidence of the educational attainment shall be understood as a university diploma, together with a certificate of state examination, a certificate of discharge, a diploma of graduate of higher education, a diploma of graduation or another similar document issued by the competent educational institution in the Czech Republic, a certificate of recognition of education or part thereof in the Czech Republic issued under a special legislation, 1) or other written evidence which is credible
(a) the name and type or type of educational institution (university, non-university, higher education, etc.),
(b) the proper completion of the study programme;
(c) the duration of the study programme; and
(d) the content of the study programme.
(2) For the purposes of this decree, documents for assessing the credibility of a person:
(a) a document similar to the extract from the Register of Penalties, not more than 3 months old, issued by a foreign State to which a natural person is a citizen, as well as by a foreign State in which a natural person has remained continuously for more than 6 months in the last 5 years; If the documents are not issued by the competent State, the foreign natural person shall replace them with an honest declaration of his integrity within the meaning of the Commercial Business Act, 2)
(b) a copy of the documents relating to:
1. the opening of criminal proceedings against the person under consideration;
2. the opening of an administrative, criminal or similar procedure against the person under consideration, provided that a financial penalty of at least CZK 20,000 or an activity ban can be imposed for the infringement of the legal obligation for which the proceedings are conducted; and
3. the opening of civil proceedings or arbitration proceedings against the person under consideration in the last 5 years in respect of his or her financial market activity or may seriously jeopardise the financial situation of the person concerned;
where applicable, a copy of the decision in a case bearing a clause of legal authority which has been issued in the proceedings referred to in points 1, 2 or 3; or an affidavit of the person under consideration stating that it is not known that it is with or has been conducted;
(c) a copy of the decisions by which the court or administrative authority refused to grant consent to the choice, appointment or provision of the person under consideration for reasons relating to its credibility, where such choice, appointment or provision necessarily requires such consent or has withdrawn such consent; or an affidavit stating that the court or administrative authority has not refused to consent to the choice, appointment or provision of the person under consideration for reasons relating to its credibility,
(d) if, in the last 10 years, the property of the person under consideration has been declared bankrupt, such bankruptcy cancelled, compensation granted, the compulsory settlement confirmed or the application for bankruptcy for the property of the person under assessment has been rejected or the insolvency application for the debtor's lack of assets has been rejected or a decision on bankruptcy has been given in respect of the person under examination, including copies of the corresponding decisions; or an affidavit stating that such a fact has not occurred; This also applies to a legal person whose statutory body or supervisory body is, or has been, an assessed person, unless the legal effects of the decision occurred prior to the establishment of the function of the person under consideration in that legal person,
(e) a copy of the decision to suspend or withdraw the authorisation of the person under consideration to carry out the business on grounds relating to its credibility; or an affidavit stating that the person under consideration has not been suspended or revoked for reasons relating to his or her credibility;
(f) a copy of the decision to exclude the person under consideration from the professional association, chamber or association, including abroad, to reject the application for admission to that community of the person under consideration and to impose disciplinary penalties within such a community, if it has been issued in the last 10 years and is related to the financial market of the person under consideration; or an affidavit stating that such a fact has not occurred,
(g) an affidavit by the person under consideration that it has not been limited to its legal capacity; and
(h) information on other facts which may affect the assessment of the person under consideration in terms of his or her credibility and the documents available to him or her.
(3) Where the person under consideration is a foreign person, for the purposes of this decree, evidence of credibility assessment, in addition to the documents referred to in paragraph 2, shall also mean confirmation by the competent authority of the financial market surveillance in the State of residence or permanent residence of that person that no administrative proceedings have been conducted against him for a serious or repeated infringement of the legal obligation. The certificate shall also apply to legal persons in which the natural person assessed is, or has been, a statutory body or a member of a statutory or supervisory body, except where administrative proceedings have been conducted for acts which have taken place prior to the establishment of the function of the person under consideration. If the confirmation referred to in the first and second sentences cannot be obtained because the competent supervisory authority refuses to issue them, the person to be heard shall make a declaration on his own behalf. If several authorities exercise supervision of the financial market in the State of residence or residence of the foreign person under consideration, the confirmation of the authority whose jurisdiction is closest to that of the Czech National Bank as capital market supervisor will suffice.
(4) For the purposes of this decree, an extract from the Commercial Register in the case of a legal person established abroad shall be understood as a authentic instrument proving at least the existence of a legal person and its registration, legal form and name. Where that instrument does not contain an indication of the address of the registered office, statutory bodies or the manner in which a foreign legal person is acting, such an indication shall be supported by other evidence. Where the statutory body of a foreign legal person is another legal person, it is also necessary to provide evidence of an extract from the commercial register of the legal person which is the statutory body.
General provisions on particulars and annexes of applications
(1) The application shall be submitted in the Czech language and shall contain the procedural requirements laid down in the general rules on administrative procedure (4) and those laid down in this Decree.
(2) The application must always contain details of the applicant (5).
(3) Where the applicant is a legal person, the application shall also be accompanied by proof that the person to whom the applicant is acting in respect of the application is entitled to act on his behalf. Where the applicant is represented, the application shall also contain details of the person (5) of the representative and the application shall be accompanied by a document proving the authorised representative to act on behalf of the representative.
(4) The authenticity of the signature of the applicant by proxy or similar instrument, which shall be submitted as a document referred to in paragraph 3, shall be officially verified; that does not apply to the power of attorney.
(5) The original documents or copies of which conformity with the original is officially verified shall be submitted as annexes to the application; This does not apply if this decree expressly states that a copy of the document is to be annexed to the application.
(6) A foreign authentic instrument must be accompanied by a higher verification of the documents (superlegalized) or by an appendage in accordance with the relevant international agreement, (6) unless otherwise declared by the international treaty, which the Czech Republic is bound by. 7) This does not apply to a public instrument issued by the Administration of a Foreign State with which the Czech National Bank has a cooperation agreement; the list of these authorities shall be published by the Czech National Bank in a way that allows remote access.
(7) Where the nature of the case precludes the submission of an annex to the application required by this Order, the applicant shall state that fact in the application and, if the reasons are not apparent, shall give further reasons for not submitting the annex and shall provide adequate evidence.
(8) Instead of submitting the prescribed annex, the applicant may refer to the supporting document submitted to the Czech National Bank in the last 3 years which complies with the requirements laid down for that annex; the application must identify it accurately.
(9) The application shall contain a list of all the annexes, indicating which provision of this Order is covered by the Annex. If an annex consists of several documents, the list shall include a list of such documents.
(10) The application shall be accompanied by proof of payment of the administrative fee. 8)
INVESTMENT COMPANY
Forms of application for authorisation to operate an investment company
(K § 61 of the Act)
(1) The elements of the application for authorisation to operate an investment company are:
(a) the design of the investment company's trading firm;
(b) an indication of the applicant's capital and equity, number, nominal value, form and form of the applicant's shares;
(c) details of all activities for which the applicant requests authorisation; and
(d) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
(2) According to the scope of the activities for which the applicant applies for authorisation, the requirements of the application are further:
(a) a proposal to which extent and in relation to which investment instruments the investment firm intends to provide business of the management of the client's assets;
(b) a proposal on the extent to which an investment company will provide custody and management services for securities issued by the collective investment fund; and
(c) the proposal to which extent the investment firm will provide investment advice on the investment instrument.
Annexes to the application for authorisation to operate an investment company
(K § 61 of the Act)
(1) The applicant shall add to the application referred to in Article 4:
(a) the founding documents of the applicant, as amended;
(b) an extract from the commercial register of the applicant who is not more than 3 months old and copies of the applications for registration in the commercial register which were not completed at the date of the application;
(c) proof of the applicant's actual registered office;
(d) evidence of the applicant's origin of the capital and of its repayment and a declaration of honour that the applicant is unaware of the facts which may affect the transparency and integrity of the capital; where equity capital is used other than own resources, the applicant shall also attach proof of the origin of the funds of the provider of such resources, unless that provider is a bank authorised to act as a bank, issued by the Office of the Member State of the Organisation for Economic Cooperation and Development,
(e) a list of the managers of the investment firm with details of those persons, specifying their functions, indicating the powers associated with those functions and the annexes referred to in Article 11 for each such person; in the case of managers other than a member of a statutory body, the Executive Director or a public limited-liability agent, or the person to whom the powers have been delegated, a list of such persons shall be attached, stating the facts on the basis of which they will actually manage the investment company and the annexes referred to in Article 11 for each such person,
(f) a list of persons having a qualifying participation in an investment company, including graphically displayed relationships between such persons, with details of such persons, indicating the amount of the share or other form of participation in the investment company and the annexes referred to in Article 13 for each such person;
(g) a list of persons closely linked to the investment company, indicating the details of those persons, indicating the means of interconnection and indicating the facts which could impede the supervision of the investment company;
(h) the business plan actually intended and realistic for the first three years of activity, within the scope of the financial statements data under another legal provision (8a), together with a comment on its individual items, which in particular contains the basic bases on which the business plan is based;
(i) a proposal for the organisational and management structure of the investment company, indicating at least:
1. the scope, responsibilities and responsibilities of management staff, their substitutability and control of each activity; and
2. the activity of the various organisational units, the framework number and the working capacity of the individual staff members, their substitutability and the requirements for the qualification of such staff members;
(j) draft rules on prudent entrepreneurship and rules on the organisation of the internal operation of an investment company under the special legislation 8b);
(k) rules on financial risk management methods, namely the measurement, monitoring and management of the risk of portfolios of collective investment funds, taking into account how the service is provided; and
(l) the list of investment intermediaries, (9) from which the investment firm intends to accept orders relating to units, or a declaration of honour that it will not use the services of investment intermediaries.
(2) Where an activity related to collective investment by an applicant or an activity performed as a service under Article 15 (2) of the Act is provided by a person different from an investment company, the applicant shall, in respect of each person providing such an activity:
(a) details of the person responsible for carrying out such an activity;
(b) proof that the person is authorised to carry out the activity pursued;
(c) documents proving the experience of its managers in carrying out such an activity; and
(d) the draft contract on the basis of which the activity is to be pursued.
(3) In proportion to the scope of the services provided by the investment company, the applicant shall attach evidence of:
(a) technical and programming means for keeping records of an investment company;
(b) ensuring a direct link with the depositary, including its written commitment to carry out the activities of the depositary, or other persons, as appropriate, to carry out trade in or record-keeping of the assets of the collective investment fund;
(c) the provision of direct or intermediary links with the settlement agents of investment vehicles;
(d) accounting systems;
(e) systems for communication with customers;
(f) technical equipment to ensure the operation of an investment company, unless they are connected under another provision of this Order; and
(g) the equipment of the investment firm by an electronic information system that allows the recording of all data provided for by the legislation and the fund rules, indicates in the output information the data provided for by the law, automatically records the time of input of the data and allows the reproduction of data in paper form.
(4) Where an applicant intends to provide services via the Internet, it shall also include evidence that:
(a) verification of identity (authentication) and customer access to the Internet address (URL address) will be ensured before each service is provided;
(b) the Internet address (URL address) shall be secured against unauthorised access;
(c) the publication of the update of the information at the website (URL address) will be kept secure; and
(d) compliance with market manipulation obligations shall be ensured where the investment firm's electronic information system allows the transfer of orders to the market without physical confirmation by the broker.
(5) If the applicant intends to manage the client's assets under contracts with customers under Paragraph 15 (3) of the Act, if the investment instrument is part of the client's assets, it shall also include:
(a) the business plan of the investment firm in the field of the provision of that activity, the scope of its provision in relation to individual investment instruments;
(b) rules on methods of managing financial risks, namely the measurement, monitoring and management of the risk of client portfolios and portfolios of collective investment funds, taking into account the way in which the service is provided;
(c) a description of the staffing and organisational arrangements for the performance of this activity;
(d) information on the portfolio of managers and other persons who will participate in the management of individual portfolios, with evidence of their structured professional CVs, evidence of educational attainment and other qualifications, indicating their professional experience and the way in which they will participate;
(e) evidence of material security for the performance of that activity;
(f) rules on the development of investment strategies for customers, the possibility of their changes and the ability of customers to influence such strategies;
(g) rules on the method of making decisions on individual orders for disposals of investment instruments in the client portfolio, the implementation of these instructions, the control of the process of making and implementing these instructions, indicating the ability of the customer to intervene in the design or implementation of individual orders;
(h) the identification of the information sources to be used in this activity;
(i) the rules governing the manner, content and frequency of communication with the customer;
(j) the rules for determining the remuneration of an investment company for the provision of such an activity;
(k) rules on the internal control of an investment company in relation to the provision of such an activity; and
(l) the model management contract on the basis of which the activity will be provided, including the terms and conditions governing the provision of that activity to customers.
(6) If the applicant intends to hide and manage securities issued by the collective investment fund under Paragraph 15 (4) (a) of the Act, it shall also:
(a) an investment firm's business plan in the field of carrying out this activity, indicating the extent of its provision in relation to each investment instrument;
(b) documents relating to the organisation and staffing of this activity, mutatis mutandis, to the documents referred to in paragraph 5 (c) and (d); and
(c) evidence of material assumptions for the performance of this activity.
(7) If, pursuant to Article 15 (4) (b) of the Act, an applicant intends to provide investment advice on an investment instrument, it shall also:
(a) an investment firm's business plan for the provision of such an activity, the scope of its provision in relation to individual investment instruments; and
(b) evidence of staff ensuring that this activity is provided adequately to the documents referred to in paragraph 5 (c) and (d).
(8) The applicant shall provide evidence of compliance with the material, personnel and organisational conditions for the performance of the investment company's activities with regard to the extent of the activities it intends to carry out.
Forms of application for withdrawal of an authorisation to operate an investment company
(Paragraph 63 (2) of the Law)
The details of the application for withdrawal of an authorisation to operate an investment company shall be:
(a) the reasons for which the authorisation is sought; and
(b) an affidavit by the applicant stating that the particulars given in the application and its annexes are true, up to date and complete.
Annexes to the application for withdrawal of an authorisation to operate an investment company
(Paragraph 63 (2) of the Law)
(1) The applicant shall add to the application referred to in Article 6:
(a) the accounts of the investment company drawn up on the last day of the calendar month preceding the submission of the application pursuant to Article 6;
(b) a list of all mutual funds whose management has been terminated by the applicant prior to the application pursuant to Article 6;
(c) evidence that the holding fund listed under (b) has been transferred to the management of another investment company, merged or merged with the holding fund managed by another investment company;
(d) evidence of liquidation of the assets of the cancelled holding fund listed under (b); where the cancellation of the holding fund has obviously not taken place in the context of the preparation for the cancellation of the investment company and the liquidation of that holding fund has been properly completed at least 2 years before the application for withdrawal of the authorisation pursuant to Article 6 has been submitted, it shall be sufficient to submit an affidavit to the applicant that the holding fund has been liquidated in accordance with the legislation;
(e) a list of all customers for which the investment firm has carried out collective investment activities, or has provided services pursuant to § 15 (3) and (4) of the Act, prior to the submission of an application under § 6, unless the execution of that activity is manifestly not in connection with the preparation for the cancellation of the investment firm and the commitments to such customers have been settled at least 1 year before the application for withdrawal pursuant to § 6,
(f) evidence that the investment firm has settled its obligations towards the customers listed under (e); and
(g) an affidavit stating that the investment company does not manage any collective investment fund at the date of application.
(2) Evidence of liquidation of the assets of the cancelled holding fund referred to in paragraph 1 (d) is:
(a) a report on the execution of the liquidation of the cancelled holding fund with details of the opening of the liquidation, the time and manner of sale of the assets in the holding fund, taking into account the professional care incurred in the sale of the assets and the proceeds from the sale of the assets after the settlement of the claims and liabilities arising from the management of the holding fund and the date on which the claims and liabilities arising from the management of the holding fund were settled;
(b) exceptional accounts drawn up on the date of the cancellation of the holding fund;
(c) a list of claims and liabilities arising from the management of the assets in the mutual fund to be settled in the context of the liquidation, with details of their settlement;
(d) a list of shareholders of the cancelled holding fund with details of the payment of the shares after the claims and liabilities arising from the management of the holding fund and details of the shares deposited in the custody;
(e) proof of the composition of the shares referred to in (d) in the judicial custody or proof that the unrecovered shares have been surrendered to the State where they belong to the State pursuant to Paragraph 99 (4) of the Act; and
(f) the summary and characteristics of the complaints addressed to the investment company's shareholders and the summary and characteristics of the actions in connection with the liquidation of the holding fund.
INVESTMENT FUNDS
Forms of application for authorisation to operate the IF
(K § 65 of the Act)
The details of the application for authorisation to operate the IF shall be:
(a) the design of the investment fund's trading firm;
(b) an indication of the future actual seat of the IF;
(c) information on the proposed amount of the capital of the investment fund, the number, nominal value, form and form of the investment fund's shares;
(d) the list of collective investment activities to be provided separately by the IF and the list of collective investment activities to be provided by another person to the IF;
(e) indication (5) of an investment company which will manage the assets of an investment fund in the case of an application for authorisation to operate an investment fund whose assets will be managed by an investment company;
(f) the period for which authorisation is to be granted; and
(g) an affidavit from the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the application for authorisation to operate the IF
(K § 65 of the Act)
The application referred to in Article 8 shall be accompanied by:
(a) the fund's instruments of incorporation, as amended;
(b) extracts from the business register of founders not more than 3 months old and copies of applications for registration in the business register which were not completed at the date of the application;
(c) evidence of the origin of the capital of the investment fund and of its repayment and of the declarations of honour that the founders are unaware of the facts which may affect the transparency and integrity of the capital; where equity capital is used other than own resources, the applicant shall also attach proof of the origin of the funds of the provider of such resources, unless that provider is a bank authorised to act as a bank, issued by the Office of the Member State of the Organisation for Economic Cooperation and Development,
(d) a list of the managers of the IF with details of those persons, specifying their functions, indicating the powers associated with those functions and the annexes referred to in Article 11 for each such person; in the case of managers other than a member of a statutory body, the Executive Director or a public limited-liability agent, or the person to whom the powers have been delegated, a list of such persons shall be attached, stating the facts on the basis of which they will actually manage the investment fund and the annexes referred to in Article 11 for each such person,
(e) a list of persons who will have qualified participation in the Investment Fund, including graphically displayed relationships between such persons, with details of such persons, indicating the amount of the share or other form of participation in the Investment Fund and the annexes referred to in Article 13 for all such persons;
(f) a list of persons who will be closely linked to the Investment Fund, indicating the details of those persons and indicating how they are connected and the facts which could impede the exercise of supervision of the Investment Fund;
(g) the investment fund's business plan, which is actually planned and realistic for the first three years of activity, in the scope of the financial statements data under another legislative act (8a), together with a commentary on its individual items, which in particular contains the basic bases on which the business plan is based;
(h) a description of the organisational and management structure of the IF, indicating at least:
1. the scope, responsibilities and responsibilities of management staff, their substitutability and control of each activity; and
2. the activity of the various organisational units, the framework number and the working capacity of the individual staff members, their substitutability and the requirements for the qualification of such staff members;
(i) draft rules on prudent entrepreneurship and the rules on the internal operation of the investment fund within the meaning of special legislation8b;
(j) a proposal for the Statute of the Investment Fund;
(k) the draft depositary contract, together with the written commitment of the depositary to conclude the contract, or future contract concluded with the bank that will carry out the activity of the depositary for the IF;
(l) a draft contract on the basis of which some of the IF's activities will be carried out by another person, (10) together with details of the persons to whom those activities will be contracted, including documents demonstrating the experience of their managers with the collective investment method referred to in the IF Statute; and
(m) the particulars and documents as appropriate in accordance with Article 5 (2) and (3).
Annexes to the application for authorisation to operate an investment fund whose assets will be managed by an investment company
(K § 65 of the Act)
The application referred to in Article 8 shall be accompanied by:
(a) the Annexes referred to in Article 9 (a) to (c), (j), (k);
(b) a contract for the management of the assets of an investment fund, concluded pursuant to Article 17 of the Act, or a draft of that agreement, together with the written promise of the investment company to conclude that contract;
(c) an investment firm's business plan covering a brief description of the strategy for the following 3 years;
(d) an investment fund's actual intended and realistic business plan for the first three years of its activity, within the scope of the financial statements data under another legal act (8a), together with a comment on its individual items, which in particular contains the basic bases on which the business plan is based;
(e) a list of the managers of the IF with details of those persons, specifying their functions and indicating the powers associated with those functions;
(f) the confirmation by the investment company that the investment fund's assets will have the knowledge, experience and credibility required to manage the investment fund;
(g) a list of persons having qualifying holdings in the IF, including graphically illustrated relationships between such persons, with details of such persons;
(h) a list of persons closely linked to the IF, including data on such persons; and
(i) evidence of compliance with the investment firm's material, personnel and organisational assumptions for the management of the investment fund, mutatis mutandis, pursuant to Articles 5 (1) (i) to (k) and 5 (2) and (3).
COMMON PROVISIONS FOR INVESTMENT COMPANIES AND INVESTMENT FUNDS
Forms of application for prior consent to perform the function of head of the investment firm or investment fund
(Paragraph 72 (2) of the Law)
The particulars of the application for prior consent to the performance of the post of head of the investment firm or investment fund shall be:
(a) the information relating to the investment company or investment fund of which the manager is concerned;
(b) an indication of the function to which the person to be chosen or appointed is to be considered; and
(c) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the application for prior consent to perform the function of head of the investment firm or investment fund
(Paragraph 72 (2) of the Law)
The application referred to in Article 10 shall be accompanied by:
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Regulation Information
| Citation | Decree No. 269 / 2004 Coll., on the formalities and annexes of applications under Act No. 189 / 2004 Coll., on collective investment |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.04.2004 |
|---|---|
| Effective from | 01.05.2004 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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