REGULATORY CLIENT UPDATE / JUNE 2022
Reserved Alternative Investment Funds (“RAIFs”) are a specific category of investment vehicles in Luxembourg indirectly regulated via their regulated Alternative Investment Fund Manager (“AIFM”). Recently, the Luxembourg government – Administration de l’Enregistrement, des Domaines et de la TVA (“AED”) published a guide to provide RAIFs with a better understanding of regulatory expectations regarding Anti-Money Laundering and the Counter Financing of Terrorism (“AML/CFT”) obligations applicable to RAIFs.
The guide is divided in three major sections, which aim to cover:
The guide also includes ways, means and sanctions and a list of templates.
Luxembourg Market Update:
The aggregate assets under management overseen by Luxembourg management companies amounted to €5.3trn at the end of last year, a 22% increase from €4.16trn in December 2020, according to a report by PwC Luxembourg. Although 13 new licences were issued to ManCos last year, the total number of businesses in the sector fell from 314 to 305 due to mergers. The authors of the study also report that employment in the sector increased by 7% to around 6,600 people last year.
Regulatory Developments in and beyond Luxembourg:
22 April 2022: CSSF publishes Circular CSSF 22/807 amending Circular CSSF 12/552 (only in French)
The purpose of the circular is to implement several guidelines from the European Supervisory Authorities by amending Circular CSSF 12/552. The guidelines are the following: EBA Guidelines on internal governance (EBA/GL/2021/05), joint ESMA and EBA guidelines on the assessment of the suitability of members of the management body (ESMA35-36-2319, EBA/GL/2021/06) and ESMA guidelines on certain aspects of MiFID II compliance function requirements (ESMA35-36-1952). Furthermore, additional amendments were made in order to adapt or specify certain sections of Circular CSSF 12/552. These amendments concern notably the responsibilities of the compliance function with respect to AML/CFT; the annual summary report of the compliance function; and outsourcing requirements.
12 May 2022: CSSF publishes Circular CSSF 22/810 on notification procedures
The purpose of the circular is to inform Luxembourg UCIs and investment fund managers that the CSSF will phase in the notification and de-notification procedures for pre-marketing and cross-border marketing on the eDesk portal.
16 May 2022: CSSF publishes Circular CSSF 22/811 – UCI administrators
The circular clarifies the activity of UCI administrators by specifying the principles of sound governance and the CSSF requirements on internal organisation and good practice applicable to them. To that effect, the circular will apply to the entities acting as UCI administrator for regulated and non-regulated UCIs whether or not established in Luxembourg.
25 May 2022: European Commission publishes answers to ESAs questions on SFDR and Taxonomy Regulation
31 May 2022: ESMA final report concerning costs and fees in funds
ESMA has published its final report on costs and fees for investment funds, based on the Common Supervisory Action (CSA) conducted in 2021 by national competent authorities.
The findings include:
On the topic of investor compensation, ESMA stresses the importance of ensuring that investors are adequately compensated in all cases where they were charged with undue costs or fees, and also in cases where there were calculation errors that resulted in a financial detriment for investors.
31 May 2022: ESMA supervisory briefing on sustainability risks and disclosures
The briefing content includes:
Consistency of sustainability-related disclosures:
The ESMA Supervisory Briefing recommends that NCAs check that the sustainability related disclosures are consistent across the fund documentation and the marketing material.
Consideration of PAI by Article 9 products:
NCAs could reasonably expect Article 9 products to consider PAI as referred to in SFDR Article 7 on the basis that Article 9 products should only be making sustainable investments, and this involves applying the ‘do no significant harm’ test (which requires the disclosure of how the PAI indicators have been taken into account). However, the ESMA Supervisory Briefing does state that such consideration is not mandatory.
Guidance on SFDR disclosures
Fund names must not be misleading
‘ESG’, ‘green’, ‘sustainable’, ‘social’, ‘ethical’, ‘impact’ or any other ESG-related terms should only be used in the fund name when the evidence of sustainability characteristics are reflected fairly and consistently in the fund’s investment objectives and policy and its strategy, as described in the fund documentation. Article 8 Products that do not make any sustainable investments are advised not to use the terms ‘sustainable’ or ‘sustainability’ in their name to avoid confusing investors. Words such as ‘impact’ or ‘impact investing’ should only be used for funds whose investments are made with the intention to generate positive, measurable social and environmental impact. Funds that are tracking an index should use ESG-related terms only if the index is itself ESG-focused.
Guidance for sustainable investment policy, objectives, and strategy
Sustainable objectives or characteristics should be clearly identified and general terms such as ‘the fund pursues ESG objectives’ without further explanation should be avoided. It should be stated how the investment strategy is linked to the sustainable objectives.
Integration of sustainability risks by AIFMs
The ESMA Supervisory Briefing contains a reminder that AIFMs – regardless of whether they offer sustainable funds – are required from 1 August 2022 to integrate sustainability risks in their portfolio and risk management processes and overall governance structure.
2 June 2022: the ESAs’ clarifications on the draft regulatory technical standards (RTS) under SFDR
The ESA Clarifications focus on the following key areas of the Final Reports: PAI disclosures, disclosures for direct and indirect investments in pre-contractual and periodic disclosures, financial product disclosures, “do not significantly harm” (DNSH) disclosures.
10 June 2022: AED's AML guidelines for RAIFs
As the relevant supervisory authority, the AED released the Guide to RAIFs in meeting their professional obligations in AML/CFT matters. The Guide is informational, and describes the minimum AML/CFT obligations that RAIFs must meet. The Guide provides useful general information around AML/CFT (definitions, summary of professional obligations, etc.), in addition to practical examples and checklists.
Relevant existing materials have been fully integrated into the Guide, including forms, contact details and guidance on the AML questionnaire to be submitted to the AED. It is thus a very useful tool.
The Guide only applies to RAIFs; it does not apply to other types of unregulated funds. Unregulated funds that are not subject to a product law remain subject to the AML Law, and must comply with their obligations under it.
20 June 2022: Communication regarding the introduction of a new eDesk module – ePassporting
Following the publication of Circular CSSF 22/810 on 12 May 2022, the CSSF informs the following supervised entities that they must comply with the marketing notification and de-notification procedures, including any updates, which will be exclusively available via the eDesk Portal as of 1 July 2022:
a) Luxembourg AIFMs wishing to:
b) Luxembourg AIFMs wishing to:
c) Managers of Luxembourg EuVECAs or EuSEFs wishing to market in Luxembourg or another Member State in accordance with Article 16(1) of Regulation (EU) No 345/2013 or Article 17(1) of Regulation (EU) No 346/2013 respectively.
For the avoidance of doubt, the AIFMs mentioned under point a. and b. also include Luxembourg AIFMs of European long-term investment funds (“ELTIFs”) that wish to (de-) notify arrangements for marketing of units or shares of ELTIFs in accordance with Articles 29, 29-1, 30 and 30-1 of the AIFM Law respectively.
The eDesk Portal can be accessed at the following address: https://edesk.apps.cssf.lu/edesk-dashboard/dashboard/getstarted.
The list of procedures concerned is published and updated on the home page of the eDesk Portal and should be regularly checked by the relevant entities.
Additional information and instructions in the form of user guide is also provided by following this link: User guide – eDesk – ePassporting module.
For further information, please contact:
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/
We operate around the principle that if our people have a stake in the business, they will do a better job for our clients. We have a committed and stable team, as they see the benefit of long-term value creation through building long-standing relationships. We build value for clients, and their end customer.
You can have the best technology and the most efficient processes in the world, but if you don’t have the people to operate them, your business is worth very little. Thus, our biggest asset is our team of professional and passionate experts.
We operate next generation technology through a combination of in-house, and best in market solutions to deliver an impeccable service and use technology to excel in both service delivery and efficiency.
We delight in valued long-term partnerships with clients, team, industry partners and our stakeholders. We aim to work with clients who share our belief in the importance of building strong partnerships over time.