REGULATORY CLIENT UPDATE / APRIL 2024

REGULATORY CLIENT UPDATE / April 2024

Highlights:

The CSSF has published Circular CSSF 24/856 on investor protection in the event of a NAV calculation error, non-compliance with investment rules and other errors. It will be applicable as of 1 January 2025.

Luxembourg Market Update:

Luxembourg remains the leading domicile in Europe for funds aligned with environmental, social impact and governance factors, accounting for 45.7% of the aggregate assets of funds categorised under article 8 of the EU’s Sustainable Finance Disclosure Regulation and 60.8% of assets  for article 9 funds, according to PwC Luxembourg. The professional services firm notes that the volume of assets held by article 8 and 9 funds increased by €1trn last year to €6.2trn, and forecasts that the total will increase to more than €9trn by 2027.

The number of discrete reserved alternative investment funds (RAIF) launched in Luxembourg has fallen from 41 in December to 32 in January and 20 in February, reflecting a growing trend toward establishing sub-funds within an umbrella structure, according to data from financial regulator CSSF. More than 600 RAIFs and their sub-funds were launched in Luxembourg last year, and nearly 1,000 RAIF sub-funds have been domiciled in the grand duchy since 2016.

Regulatory Developments in and beyond Luxembourg:

13 March 2024: EC adopts three RTS under DORA

The European Commission (EC) has adopted three Regulatory Technical Standards (RTS) under the Digital Operational Resilience Act (DORA). These RTS are part of the first batch of DORA level 2 policy mandates on which ESAs consulted over the summer of 2023 and cover the following:

• RTS on ICT Risk Management Framework and Simplified ICT Risk Management Framework;
• RTS on the criteria for the classification of ICT-related incidents;
• RTS on the policy on ICT services provided by ICT third-party providers.

This adoption follows the ESAs submission of the final drafts to the EC on 17 January, 2024. The most significant amendment made by the EC to this final draft was the revision of the articles concerning the proportionality principle in the RTSs on the ICT risk management framework and on the policy on ICT services. This revision aimed to comprehensively reflect Article 4 of DORA.

As next step, the European Parliament and the Council of the EU will review and adopt these acts. The adopted acts currently do not include the ITS setting the templates for the Register of Information. The EC is expected to adopt this final draft ITS in the coming weeks.

15 March 2024: PRIIPs: updated ESA Q&A

The European Supervisory Authorities (ESAs) have published an updated version of their Q&A document on Packaged Retail and Insurance-based Investment Products. The following questions have been added:

• Q12 on page 9: clarification on the term “PRIIPs open to subscription”;
• Q7, 8, 9 on pages 15 ff.: clarification on the difference between a “benchmark” and a “proxy” as used in the PRIIPs Delegated Regulation; on whether the “What is this product” section duplicates the requirement in the RTS Article 6 ; on whether Article 2 5(b) relates to market circumstances or client specific circumstances with regard to PRIIP manufacturers being able to unilaterally cancel or redeem a product;
• Q20, 21 on page 25: clarification on the range of data to use when making the SRI calculation, and on whether “synthetic” proxies are considered appropriate in accordance with PRIIPs RTS Annex II and IV;
• Q5 on page 36: clarification on whether currency risk is applicable to investment funds and at which level this should be determined;
• Q23 on page 44: clarification on whether the KID must disclose cost and scenario information about 1 year and half the RHP, in cases where investors cannot exit a PRIIP before the end of the RHP;
• Q8 on page 47: clarification on whether information on past performance must be published no later than 35 business days after 31 December each year;
• Q12 on page 81: clarification on whether the cost disclosed in table 1 (“costs over time”) and table 2 (“total cost”) must be aligned for year 1.

25 March 2024: ESMA publishes its third consultation package under MiCA

The European Securities and Market Authority (ESMA) has published the remaining consultation documents pertaining to the third package of proposed rules and guidelines under the Market in Crypto Assets regulation (MiCA). This ESMA consultation runs until 25 June and covers four sets of proposed rules and guidelines:

• Detection and reporting of suspected market abuse in crypto-assets;
• Policies and procedures for crypto-asset transfer services;
• Suitability requirements for certain crypto-asset services and format of the periodic statement for portfolio management;
• CT operational resilience for certain entities under MiCA.

This consultation marks the completion of the third pack of level 2 regulations under MiCA. It follows the release of two Consultations Papers by ESMA on 29 January 2024, covering guidelines related to reverse solicitation and the classification of crypto-assets as financial instruments. The consultation period closed on 25 April.

25 March 2024: ESMA publishes first rules on crypto-asset service providers under MiCA

ESMA has issued the Final Report on the first proposed rules on crypto-asset service providers under the Market in Crypto Assets (MiCA).

The report includes rules covering:

• Information required for the authorisation of crypto-asset service providers (CASPs);
• Information required where financial entities notify their intent to provide crypto-asset services;
• Information required for the assessment of intended acquisition of a qualifying holding in a CASP;
• How CASPs should address complaints.

As the next step of this regulatory process, ESMA has submitted the final report to the EC, following the regulatory agenda for the entry into force of MiCA Level 2 measures.

29 March 2024: New CSSF Circular on NAV calculation errors and investment breaches

The CSSF has published Circular CSSF 24/856 on investor protection in the event of a NAV calculation error, non-compliance with investment rules and other errors. The new circular replaces Circular CSSF 02/77 and will be applicable as of 1 January 2025. The new circular applies to UCITS, Part II Funds, SIFs and SICARs. Therefore, the rules will apply to UCITS, Part II Funds and SIFs that qualify as MMFs, as well as to Part II funds, SIFs and SICARs that qualify as ELTIFs, EuVECA, or EuSEF. The Circular also applies to unregulated alternative investment funds (including RAIFs) when they qualify as MMF, ELTIF, EuVECA, or EuSEF where the CSSF is the competent authority in accordance with the applicable regulations.

The new circular aims at providing guidelines to fund professionals in case of errors at the level of a UCI, besides clarifying and extending the scope of application following the regulatory and industry developments of the past years and the role and responsibilities of the various stakeholders concerned. In particular, concerning NAV calculation errors, the circular gives further precisions as to the concept of significant NAV calculation error, and the new tolerance thresholds applicable for the different types of UCIs (including those applicable to Part II UCIs and ELTIFs whose units/shares may be held by investors other than professional or well-informed investors) and possible derogations thereto. It also details correction procedures to be implemented and outlines how to determine the financial impact of the errors. It is to be noted that closed-ended funds are not subject to the obligation of notification of NAV calculation errors to the CSSF.

With regard to investment rules, the circular distinguishes between active and passive breaches and addresses the correction procedures as well as the different methods for the determination of the financial impact of non-compliance with these rules. Passive breaches are not subject to the same corrective measures as active breaches. In specific circumstances, the applicable regime for non-UCITS investing in less liquid assets may be adapted in the interest of investor protection. Passive breaches also do not require notification to the CSSF.

Besides NAV errors and non-compliance with investment rules, the circular also covers other errors, such as fees not paid in accordance with the UCI's sales documents, the incorrect application of swing pricing, the incorrect application of cut-off rules and the erroneous accounting allocation of operations linked to investments.

The text of the new circular includes specific sections dedicated to compliance with investment rules between two NAVs (Intra-day breaches), the specificities of compensation to investors in case of presence of financial intermediaries (including information to be provided to such investors via the prospectus or other channels in case such prospectus is not required or cannot be updated before the entry into force of the Circular), and the intervention of external auditors. In particular, the Circular provides for detailed rules regarding the external auditor’s separate and special report.

3 April 2024: CSSF updates FAQs on AIFMD and UCITS

The CSSF has published an updated FAQ covering the Luxembourg Law of 12 July 2013 on alternative investment fund managers (version 22) as well as the Luxembourg Law of 17 December 2010 relating to undertakings for collective investment (version 18).

17 April 2024: CSSF announces voluntary dry run exercise for the collection of the registers of information required by DORA

Under the Digital Operation Resilience Act (DORA) and starting from 2025, financial entities will have to maintain registers of information regarding their use of ICT third-party service providers. In this context, the CSSF would like to draw the attention to the announcement by the European Supervisory Authorities (EBA, EIOPA and ESMA – the ESAs) of the voluntary exercise for the collection of the registers of information of contractual arrangements on the use of ICT third-party service providers by the financial entities serving as preparation for the implementation and reporting of registers of information under DORA.

In this dry run exercise, the registers of information will be collected from participating financial entities through their competent authorities who will, in turn, provide those to the ESAs.

The press releases made by EBA and ESMA are available online at the following links:

• ESAs to run voluntary dry run exercise to prepare industry for the next stage of DORA implementation | European Banking Authority (europa.eu)
• ESAs to run voluntary dry run exercise to prepare industry for the next stage of DORA implementation (europa.eu)

The CSSF would like to underline the key elements of the ESAs announcements:

• To provide more information regarding the dry run exercise, the ESAs invite financial entities to take part in an introductory workshop on 30 April 2024 from 10 am to 12 pm. This workshop will be held virtually and the deadline for registration is 25 April 2024 using the following link. A dedicated factsheet is also available for more information.
• The ad-hoc data collection is expected to be launched in May 2024 with the financial entities expecting to submit their registers of information to the ESAs through their competent authorities between 1 July and 30 August.
• Financial entities participating in the dry run will receive support from the ESAs to: (1) build their register of information in the format as close as possible to the steady-state reporting from 2025, (2) test the reporting process, (3) address data quality issues, and (4) improve internal processes and quality of their registers of information.
• As part of the exercise, the ESAs will provide feedback on data quality to financial entities participating, return cleaned files with their register of information, organise workshops and respond to frequently asked questions.

The CSSF invites the supervised entities to consider their participation to this exercise, being a good opportunity to test their readiness concerning the implementation and reporting of registers of information under DORA. The CSSF therefore encourages the supervised entities that are considering to participate:

• To register to the ESAs workshop to be able to gain further information and ask any questions before deciding if they volunteer or not for this exercise.
• To inform the CSSF of their wish to participate to the exercise by sending an email to the following email address: ictrisksupervision@cssf.lu by 17 May 2024. The email must specify the exact name of the entity and its CSSF code.

29 April 2024: CSSF publishes Communiqué on new SFTR and EMIR procedures

Following the entry into force of the EMIR Refit regulation on April 29, 2024, the CSSF now enables financial and non-financial counterparties to complete and submit the “EMIR – notification form and request for intragroup exemption” and “SFTR – notification form” procedures either through eDesk or by using an API solution based on the submission of a structured exchange file via the S3 protocol. The “EMIR – notification form and request for intragroup exemption” procedure includes the following notifications and exemption requests:

• Notification by FC and NFC exceeding or ceasing to exceed the clearing threshold (Articles 4a and 10 of EMIR).
• Notification by FC for outstanding disputes.
• Information by NFC and RAIFs.
• Notification on Data Quality issues and other errors or omissions (Article 9 of the ITS on reporting).
• Notification for intragroup exemption from the central clearing (Article 4(2) of EMIR).
• Notification for intragroup exemption from collateral exchange (Articles 11(6) to 11(10) of EMIR).
• Notification for intragroup exemption from reporting (Article 9(1) of EMIR).

The “SFTR – notification form” procedure includes the following notification:

• Notification on Data Quality issues and other errors or omissions.

A user guide on EMIR and SFTR procedures details the submission modalities for eDesk and API. The webforms and Excel files previously available for this data collection are no longer accessible and have been replaced by these new eDesk procedures. For further information related to the different forms, please visit the dedicated pages on the CSSF website on EMIR and SFTR.

For further information, please contact:

Tobias Ettlin

m: +352 691 111 931

tobias.ettlin@one-gs.com

Disclaimer: This regulatory update has been prepared for clients of ONE group solutions and its subsidiaries for informational purposes and is not intended to be relied upon as professional advice. Please visit: https://www.one-gs.com/