REGULATORY CLIENT UPDATE / APRIL 2023
Highlights:
The CSSF has published a Communiqué on the next steps of their data collection exercise on sustainability-related information in precontractual product disclosures in accordance with SFDR, SFDR RTS and the Taxonomy Regulation. The CSSF has published a user guide containing clarifications on the content and the format of the information to be reported. Technical details on the data collection process are available as well. The deadline for submission of the initial report is 15 June 2023 (note that the eDesk portal will be available as of 2 May).
Luxembourg Market Update:
The aggregate assets of Luxembourg-domiciled investment funds – UCITS and Part II funds, SIFs and SICARs – amounted to €5,164bn at the end of February, a decrease of 0.53% from €5,192bn a month earlier and significantly below the industry’s peak of €5,859bn in December 2021, according to the CSSF. While net inflows amounted to €2.69bn, the value of financial market assets declined by €30.37bn. The volume of net assets has fallen by 6.87% over the past 12 months, while the number of fund structures domiciled in the grand duchy decreased slightly from 3,353 to 3,348 during February, including 2,189 umbrella funds and 13,109 sub-funds.
Regulatory Developments in and beyond Luxembourg:
13 March 2023: CSSF updates SFDR FAQ
The CSSF has issued an update of their FAQ on SFDR. The update contains questions and answers regarding the following topics:
16 March 2023: CSSF updates CBDF FAQ on notification procedures
The CSSF has published an updated version of its FAQ on the Cross Border Distribution of Funds (CBDF) notification procedures.
The following questions were modified:
24 March 2023: CSSF launches SFDR, SFDR RTS, and TR data collection exercise
The CSSF has published a Communiqué on the next steps of their data collection exercise on sustainability-related information in precontractual product disclosures in accordance with SFDR, SFDR RTS and the Taxonomy Regulation.
The CSSF has published a user guide containing clarifications on the content and the format of the information to be reported. Technical details on the data collection process are available as well.
After the initial declaration, IFMs remain responsible to ensure that the information provided is being kept up to date; for example in case of changes to the precontractual documents/templates, IFMs must update the data reported under the SFDR data collection by transmitting subsequent declarations.
The deadline for submission of the initial report is 15 June 2023.
27 March 2023: ESMA updates guidance on product governance
The European Securities and Markets Authority (ESMA) has issued its Final Report on Guidelines on MiFID II product governance guidelines.
The update covers in particular:
28 March 2023: ESAs disclose editable versions of SFDR RTS Templates
The European Supervisory Authorities EBA, EIOPA, ESMA (ESAs) have published editable versions of the templates contained in the SFDR RTS. The editable versions were published for the convenience of financial market participants preparing the financial product disclosures referred to in Articles 8 and 9 of SFDR.
28 March 2023: EC AML package – European Parliament finalises its position
The European Parliament has announced that it had finalised and adopted its proposed amendments to the three draft texts of the so-called EC AML package. The package aims to strengthen the EU’s anti-money laundering (AML) and counter-terrorism financing (CTF) framework. The following elements of the EP’s amendments are noteworthy:
28 March 2023: CSSF press release on the quality of transaction reports received under Article 26 of MiFIR
The CSSF has issued a press release informing all reporting entities on the lack quality and completeness campaigns that the CSSF conducted during the year 2022 as well as to announce the priorities for 2023. The CSSF stresses that five years after the entry into application of MiFIR, and considering the continuous efforts undertaken vis-à-vis Investment Firms to improve the quality of transaction reporting, notably through the four-year programme of individual quality and completeness campaigns and the implementation of the Quarterly Analytical Summaries, Investment Firms are expected to be fully compliant with their obligations under Article 26 of MiFIR by now. Therefore, the CSSF will adopt a more rigorous approach to enforcement of violations under Article 26 of MiFIR, being the logical continuation of its continuous data quality efforts over the recent years. The CSSF started with an approach that first focused on systematic corrections to improve the quality of future transaction reports, then strengthened the requirements for back reporting. In 2022, the CSSF imposed for the first time an administrative sanction on an Investment Firm for non-compliance with its transaction reporting obligations and intends to make increased use of its sanctioning powers for non-compliance with Article 26 of MiFIR going forward.
In this regard, the CSSF stresses that a proactive approach by Investment Firms, including notably the timely submission of error notification forms to the CSSF and the swift implementation of remedial actions, will be taken into account by the CSSF when deciding on the nature and severeness of potential enforcement measures to be pronounced in case of non-compliance with the transaction reporting obligations.
3 April 2023: DORA - CSSF compliance preparation survey
The CSSF has sent a Digital Operational Resilience Act (DORA) compliance preparation survey to a number of IFMs to be completed by 15 June. For each of the five DORA pillars, the CSSF survey asks whether the IFM has conducted a gap analysis, enquires about the gaps identified and asks whether mitigation plans are already in place or intended to be put in place, as well as the planned timeline for implementation. The CSSF also requests IFMs to self-assess their level of DORA readiness.
In force since 16 January 2023, DORA creates a regulatory framework on digital operational resilience whereby European financial entities are required to ensure they can withstand, respond to, and recover from all types of ICT-related disruptions and threats. DORA deals with a wide range of operational resilience topics, divided into 5 pillars:
The DORA rules will become fully applicable as from 17 January 2025. The designated European Supervisory Authorities are currently developing technical standards with which financial entities must comply, whilst national competent authorities will oversee compliance and enforce the regime as required.
3 April 2023: CSSF communication on Liability Driven Investment Funds
In the light of the volatility in yields associated with UK Gilts back in September 2022 and its associated impact on Liability Driven Investment (LDI) Funds, the CSSF informed the market that it has engaged with the alternative investment fund managers managing LDI Funds denominated in GBP to improve the resilience of these funds, in close cooperation with other relevant UK and EU authorities. On 30 November 2022, following a series of interactions with the Central Bank of Ireland (CBI – Ireland) and the European Securities and Markets Authority (ESMA), the CSSF published in this respect a communication to inform that it issued a letter to relevant investment fund managers on measures to be taken in relation to the management of GBP LDI Funds.
In this context, the CSSF notes the Bank of England staff paper published on 29 March 2023 regarding its recommendation and explainer on liability driven investment (LDI) minimum resilience.
While the CSSF continues to engage with alternative investment fund managers and relevant authorities in order to ensure that the structure of LDI Funds provides on an ongoing basis for a resilient set-up, it would like to remind that pending the outcome of this ongoing follow-up work, it expects at the current juncture, investment fund managers managing LDI Funds denominated in GBP to maintain the Yield Buffer in the region of 300-400 basis points as build up following the September 2022 episode.
The CSSF also expects from alternative investment fund managers of LDI Funds denominated in other currencies to maintain a sufficient level of resilience enabling them to absorb severe but plausible market shocks.
6 April 2023: CSSF inspections will include focus on sustainability risks
The CSSF has announced its supervisory priorities in the area of sustainable finance stating that these will include plans to conduct inspections later this year or in early 2024 focussing on climate-related and environmental risks. The regulator says investment firms and banks will be assessed on compliance with EU sustainability rules, including disclosures under the Sustainable Finance Disclosure Regulation. The CSSF also plans to target with between 15 and 20 small-size banks and national branches with a self-assessment of climate-related and environmental risks.
18 April 2023: FAQ on the revised long form report framework introduced by Circulars CSSF 22/821 and 22/827
The CSSF has published FAQs on the revised long form report framework introduced by Circulars CSSF 22/821 and 22/827. Since the publication of Circulars CSSF 22/821 and 22/827, the CSSF has received questions from credit institutions and branches of credit institutions to which the revised framework applies. As some of the questions received may be of interest for other entities as well, the CSSF has decided to make these questions and answers public.
18 April 2023: Update of the Appendix to Circular CSSF 19/708 – Electronic transmission of documents to the CSSF
The CSSF has updated the list documents to be submitted in accordance with Circular CSSF 19/708 relating to the electronic transmission of documents to the CSSF. The list of the documents includes inter alia: prospectus, management regulations, annual report, risk management report or compliance report and contains a specific nomenclature to be used for each type of document.
20 April 2023: Publications related to SFDR, SFDR RTS, and TR
The CSSF has issued a Communiqué to draw attention to recent publications made by the European Supervisory Authorities in respect of SFDR, the SFDR RTS, and the Taxonomy Regulation. These include:
For further information, please contact:
Tobias Ettlin
m: +352 691 111 931
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/
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