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FAQs


Disclosure duties relating to complex financial products and marketing of unit-linked insurance plans (CMVM Regulation No. 2/2012)

  1. Does CMVM Regulation No. 2/2012 apply to a CFP that is subscribed by a number that is less than five retail investors residing or with a business in Portugal?
  2. Should the unit quantitative criterion of €100,000 as envisaged in Article 2/4 of CMVM Regulation No. 2/2012 take place only on initial acquisition or transaction?
  3. Is the marketing entity responsible for drafting the CFP's KIID that is issued by a third party?
  4. In the case of marketing by telephone, does the marketing entity keep on file the KIIDs with the fields completed by hand, signed and dated with the date and time by the investor?
  5. Is it acceptable for a KIID in black and white to be delivered to the investor?
  6. What is the colour of the warning symbol assigned to a CFP with guaranteed capital on maturity but with no income guaranteed?
  7. Is the financial intermediary where the CFP is registered or deposited, (the custodian entity), required to provide the investor with the final information document set out in Article 20 of CMVM Regulation No. 2/2012, (reasons for termination and the amounts of repayment financial flows)?
  8. May the handwritten statement as required by Article 28/2 of the CMVM Regulation No. 2/2012 be included in the subscription form?
  9. Can the documents relating to the marketing of the CFP be scanned in black and white for the purpose of complying with the duty to archive?
  10. Does the CMVM Regulation No. 2/2012 apply to any of the Special Investment Funds (SIF) established or authorised before this Regulation came into force?
  11. What are the relevant criteria or characteristics for a CIU to be regarded as a CFP?
  12. How should the KIID be drawn up when unit-linked multifunds are at issue?

 

1. Does CMVM Regulation No. 2/2012 apply to a CFP that is subscribed by a number that is less than five retail investors residing or with a business in Portugal?  

Whether the Regulation is applicable depends on the number and status of the persons to whom the offer is directed and not the actual number of investors that subscribe to the CFP.

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2. Should the unit quantitative criterion of €100,000 as envisaged in Article 2/4 of CMVM Regulation No. 2/2012 take place only on initial acquisition or transaction? 

The unit quantitative criterion of €100,000 relates to the minimum amount of the CFP's acquisition or transaction, notwithstanding the possibility of additional low-value funds or payments.

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3. Is the marketing entity responsible for drafting the CFP's KIID that is issued by a third party? 

The marketing entity is responsible for the preliminary provision of the KIID to investors and may provide a KIID drawn up by said entity or a third party. In any event, the marketing entity is responsible for ensuring that the information made available to investors, including the KIIDs, complies with the legal requirements.

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4. In the case of marketing by telephone, does the marketing entity keep on file the KIIDs with the fields completed by hand, signed and dated with the date and time by the investor?  

No. Nevertheless, the marketing entity should ensure that the recording includes a clear and unambiguous statement by the investor as follows “I have taken note of the warnings” and “I received a copy of KIID before subscription”, or “I received a copy of KIID before the initial transaction”, where applicable, notwithstanding any other long-lasting medium that complies with the requirements of Article 7 of CMVM Regulation No. 2/2012.

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5. Is it acceptable for a KIID in black and white to be delivered to the investor?  

No. The marketing entity should provide the investor with a KIID that includes a warning symbol in colour, notwithstanding the possibility of using different techniques which will enable compliance with said requirement.

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6. What is the colour of the warning symbol assigned to a CFP with guaranteed capital on maturity but with no income guaranteed? 

Yellow is the colour of the warning symbol assigned to a product with guaranteed capital but no guaranteed return.

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7. Is the financial intermediary where the CFP is registered or deposited, (custodian entity), required to provide the investor with the final information document set out in Article 20 of CMVM Regulation No. 2/2012, (reasons for termination and the amounts of repayment financial flows)? 

The financial intermediary where the CFP is registered or deposited is responsible for providing the investor with the final information document envisaged in Article 20 of CMVM Regulation No. 2/2012, when said duty does not apply to the management entity or the marketing entity. Accordingly, said intermediary should ensure that it has the necessary mechanisms for the compliance thereof.

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8. May the handwritten statement as required by Article 28/2 of the CMVM Regulation No. 2/2012 be included in the subscription form?  

The statement handwritten and signed by the investor as envisaged in Article 28/2 of CMVM Regulation No. 2/2012 concerning knowledge of the product's suitability that said investor purports to subscribe can be incorporated in the subscription form, provided that it is placed in a different and separate place from the warning notices envisaged in Article 314/2 & /3 of the Portuguese Securities Code. 

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9. Can the documents relating to the CFP's marketing be scanned in black and white for the purpose of complying with the duty to archive? 

Taking this context into account, the marketing entity is responsible for deciding the necessity for requiring proof of receipt by the investor for the documents legally required.

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10. Does the CMVM Regulation No. 2/2012 apply to any of the Special Investment Funds (SIF) established or authorised before this Regulation came into force? 

No. The classification of a SIF as CFPs is carried out prior to approval of the formation thereof and therefore shall only apply to those non-harmonised CIUs that are established after the Regulation comes into force.

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11. What are the relevant criteria or characteristics for a CIU to be regarded as a CFP?

The non-harmonised structured CIU are generally considered to be CFP, except if after analysis the CMVM is of the opinion that this is not warranted.

Pursuant to Article 36 of Commission Regulation (EU) No. 583/2010 of 1 July 2010, "structured UCITS shall be understood as UCITS which provide investors, at certain predetermined dates, with algorithm-based payoffs that are linked to the performance, or to the realisation of price changes or other conditions, of financial assets, indices or reference portfolios or UCITS with similar features".

The remaining non-harmonised CIU may be further classified as CFP if, on a case-by-case basis, the CMVM is of the opinion that this is substantiated in light of the respective complexities same exhibits.

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12. How should the KIID be drawn up when unit-linked multifunds are at issue?   

As these are unit-linked multifund complex financial products, that with specific marketing features provide the investor with the possibility of investing in more than one "autonomous fund", with different investment and risk policies and therefore with different warning symbol levels and different specific warnings, the marketing entity shall draw up one KIID for each "autonomous fund".

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