HM Treasury and the FCA jointly published a Roadmap on May 1, 2024, for implementing the Overseas Funds Regime (the OFR). This follows on from the FCA’s December 2023 Consultation Paper on Implementing the OFR (see our previous article FCA consults on implementing the Overseas Funds Regime).

 Who does this affect?

• Operators of EEA UCITS funds (excluding money market funds (MMFs)) that either are within the Temporary Marketing Permissions Regime (TMPR), or who wish to market to UK retail investors.
• UK Distributors of non-UK UCITS funds (excluding MMFs) with a UK retail client base.

 Key points

• During Q2 of 2024, the UK Government intends to extend the TMPR to December 2026 meaning that funds recognized under the TMPR can still be promoted to UK retail customers until the year end of 2026. 
• The FCA will publish a policy statement setting out its final rules for the OFR, which are anticipated to take effect in July 2024.
• For funds that are new to the UK market (for example on-TMPR funds), fund operators can expect to make their OFR recognition application as soon as the gateway opens in September 2024. 
• Each fund operator under the TMPR will be allocated (in alphabetical order of fund operator names) a three-month landing slot in which they will be invited to apply for OFR recognition from October 2024 for TMPR standalone funds; and November 2024 for TMPR umbrella funds, with final landing slots set to close in September 2026. Helpfully, the FCA has set out a schedule of the landing slots on its website which gives fund operators advance notice of when they should expect to receive their landing slots.

Background

The TMPR allows EEA UCITS within that regime to continue marketing their funds to UK retail investors with “UK recognized” status. The TMPR was set to end in December 2025 – but this will now be extended to December 2026.

Once operationalized, the OFR will redefine how non-UK domiciled funds can be marketed to UK retail investors, based on the principles of equivalence. The UK Government has determined that EEA states, including EU member states, are deemed equivalent under the OFR. This decision, which will be formalized by secondary legislation (expected during Q2, of 2024), applies to EEA UCITS however excludes UCITS funds authorized as MMFs on the basis that these funds are subject to separate ongoing regulatory development. 

The UK Government currently has no plans to impose additional UK requirements on the assessed funds as part of this equivalence determination, which will indeed simplify the process to market into the UK.

In line with the principles outlined in the Guidance Document for the UK’s Equivalence Framework for Financial Services, the UK will continuously monitor this equivalence decision, taking into account regulatory changes in both the UK and the EEA.

Roadmap: Application Process

Completed applications, together with an application fee, must be made online using the FCA Connect system.  There will be 3 application forms to choose from:

• Application to recognize a stand-alone collective investment scheme under s271A FSMA.
• Application to recognize an umbrella collective investment scheme under s271A FSMA.
• Application to add a new sub-fund(s) to an umbrella collective investment scheme already recognized under s271A FSMA.

The FCA will decide the outcome of complete applications within two months of receipt.

For funds currently within the TMPR, the FCA will allocate three-month landing slots to transition from the TMPR to the OFR – fund operators must make their application at any time during the allocated landing slot, but not later. If a fund operator fails to secure its assigned landing slot, it will be taken out of the TMPR, losing its status as a recognised scheme. Consequently, it cannot be marketed to UK retail investors until it successfully reapplies under the OFR and regains recognition.

Until then, the fund operator and UK distributors would need to ensure compliance with the financial promotion regime. This implies that if a fund meets its allocated landing slot, it will remain in the TMPR and can continue marketing to UK retail investors.

With the final landing slot set to close in September 2026, we expect that the FCA will have considered all OFR applications by the same date on which the TMPR is set to end, in December 2026. As MMFs fall outside of OFR, they can continue to market under the TMPR.

SDR

As things stand, funds under the OFR fall outside the UK Sustainability Disclosure Requirements (SDR), however the UK Government intends to consult on potentially extending SDR to EEA UCITS recognised under the OFR – the FCA is expected to consult in H2 of 2024 with any associated decisions expected to take effect during H2 2025.

While the FCA is supportive of alignment and compatibility between SDR and the EU’s Sustainable Finance Disclosure Regulation (SFDR), there nonetheless is the risk of divergence, particularly as the UK’s starting point for SDR differs from that of SFDR.

Next steps

Following the publication of the Roadmap, fund operators recognized under the TMPR should ensure that their contact details held by the FCA are up to date so that they receive their landing slots promptly. TMPR fund operators should also familiarize themselves with the planned allocation of the landing slots on the FCA’s website to avoid missing the deadline for applications.

Contacts: Karagh Gilliatt and Aidan Campbell are partners in the Financial Services & Products team; Pippa Tasker is a partner in the Financial Services team; Sanaa Akhtar is an associate in the Financial Services Regulation team; Laura Houët is a partner in the Financial Services and Products team and co-head of ESG; and Lucy Pywell is a senior associate in the Financial Markets and Pensions team, CMS.