REGULATORY CLIENT UPDATE / AUGUST 2022

REGULATORY CLIENT UPDATE / AUGUST 2022

Highlights:

Recent amendments to the Luxembourg AML/CFT legal framework: A series of amendments were introduced to the 2004 AML Law and the RFT Law of 2020 (i.e. the law creating a register of fiducies and trusts) to clarify the obligations of in-scope professionals.

Luxembourg Market Update:

Credit rating agency DBRS Morningstar has maintained its AAA sovereign credit rating for Luxembourg, following the example of Fitch Ratings and S&P Global. According to Morningstar, the top rating reflects the country’s strong public finances, competitive economy and stable political institutions. Finance minister Yuriko Backes says that the announcement confirms the wisdom of the government's responsible fiscal policy and measures taken to strengthen the resilience of the economy.

The aggregate assets of Luxembourg-domiciled investment funds – UCITS and Part II funds, SIFs and SICARs – continued to decline in June, totalling €5.17trn at the end of the month, down from €5.37trn a month earlier, according to financial regulator CSSF. It says June's €198.2bn decline in assets stemmed from net outflows of €24.43bn and a drop of €172.80bn in the market value of funds’ investments. The volume of net assets as of June 30 was 5.79% lower than 12 months earlier.

Regulatory Developments in and beyond Luxembourg:

8 July 2022: ESMA presents the results of the 2021 CSA on MiFID II product governance requirements

ESMA has published the results of the 2021 Common Supervisory Action (CSA) on product governance requirements under MiFID II (Directive 2014/65/EU). The findings cover topics from the target market definition and its translation into a compatible distribution strategy, to the scenario analysis and the charging structure analysis as required under Article 9(10) and Article 9(12) of the MiFID II Delegated Directive, to the review of products as well as the exchange of information between manufacturers and distributors.

ESMA states that local regulators will undertake follow-up actions on individual cases, where needed, to ensure that regulatory breaches as well as other shortcomings or weaknesses identified are remedied. 

8 July 2022: ESMA publishes report on penalties and measures imposed under the UCITS Directive in 2021

ESMA has released its annual report on penalties and measures imposed under the UCITS Directive in 2021. Overall, 12 local regulators imposed a total of 61 penalties; the total aggregated value of financial penalties imposed amounted to EUR 38,784,536, with an amount of EUR 37,120,000 imposed by a single local regulator (France). Eight local regulators imposed a total of 64 measures, with one single local regulator (Liechtenstein) that used 35 measures. Luxembourg issued 7 penalties under the UCITS Directive for EUR 666,800 in total. 15 local regulators did not impose any sanction (penalty or measure) during the reference period. 

20 July 2022: Updated ESMA Q&As on the application of the AIFMD and of the UCITS Directive

ESMA issued updates of its Q&A on the Application of the AIFMD and its Q&A on the Application of the UCITS Directive by ESMA. The topics addressed, mainly reconciliation by depositaries and marketing, are the same in both Q&As (Sections VI and VIII in the AIFMD Q&As, Sections X and XIII in the UCITS Q&As). 

20 July 2022: The European Banking Authority published the Guidelines on the role and responsibilities of the AML/CFT compliance officer

The EBA has issued guidelines specifying the role, tasks and responsibilities of the AML/CFT compliance officer, the management body and senior manager in charge of AML/CFT compliance as well as internal policies, controls and procedures. Of note:

• Governance: clarification of the role of the management body in its management function and the role of the management body in its supervisory function;
• Proportionality: proportionality criteria for the appointment of a separate AML/CFT compliance officer;
• Assessment: assessment prior to the appointment, by the credit or financial institutions, of the suitability, skills and expertise that the AML/CFT compliance officer should possess;
• Tasks and responsibilities: clarification of expectations regarding the role, tasks and responsibilities of the AML/CFT compliance officer and management (including the member of the management body who will be responsible for implementing the AML/CFT obligations). 

How these guidelines will be integrated into Luxembourg rules has not been determined yet. 

22 July 2022: CSSF Regulation No 22-04 – equivalence of certain third countries

CSSF Regulation No 22-04 amends CSSF Regulation No 20-02 on the equivalence of certain third countries with respect to supervision and authorisation rules for the purpose of providing investment services or performing investment activities and ancillary services by third-country firms. For the purposes of the second subparagraph of Article 32-1(1) of the Law of 5 April 1993 on the financial sector, two third countries, i.e. the People’s Republic of China and Australia, have been added on the list of third countries and territories considered as applying equivalent supervision and authorisation rules as those laid down in the Law of 5 April 1993.

22 July 2022: Clarifications on the reports foreseen by Circular 21/790

The CSSF has issued a communiqué containing additional clarifications on the completion and submission of the reports foreseen by Circular 21/790 in the “CICERO” (Collective Investment Sector Reporting Tool) module on the eDesk platform. With regard to the organisation of the operational processes for the completion of the self-assessment questionnaire (“SAQ”) and of its submission, the communiqué confirms that different options are available (including the automatic access for authorised users in case of reliance on a service provider or the investment fund manager by “dirigeants” of UCIs. Regardless of the operational model chosen, dirigeants have to perform a formalised review and validation of the content of the SAQ before its submission to the CSSF.  More details on the steps to be followed for providing access of authorised user(s) to the reports of regulated UCIs in the CICERO module are also given in this communication. 

25 July 2022: Publication of final SFDR RTS in the Official Journal of the European Union

The final text of the regulatory technical standards for SFDR was published in the Official Journal of the European Union.

The RTS specify the details of the content and presentation of the information in relation to the principle of “do no significant harm”, the content, methodologies and presentation of information in relation to sustainability indicators and adverse sustainability impacts, and the content and presentation of the information in relation to the promotion of environmental or social characteristics and sustainable investment objectives in pre-contractual documents, on websites and in periodic reports.

The Regulation will apply from 1 January 2023. 

27 July 2022: CSSF issues Communiqué on requirements according to SFDR and SFDR RTS

The CSSF has published a Communiqué  to the investment fund industry on regulatory requirements in relation to SFDR and upcoming entry into force of SFDR Level 2 provisions. The CSSF reminds in particular of the deadline of 1 January 2023 for specific updates of UCITS and AIFs precontractual and periodic documents. Submissions to the CSSF should be made prior to 31 October in order to ensure approval ahead of the deadline. In addition, the Communiqué contains further information on

• The filing of updated precontractual documents and periodic reports;
• Regulatory developments;
• An upcoming data collection exercise. 

28 July 2022: CSSF Regulation No 22-05 of 27 July 2022 – amendment CSSF Regulation No 10-04 of 20 December 2010

CSSF Regulation No 22-05 amends CSSF Regulation No 10-04 by adding, among other points, provisions with respect to sustainability risk and sustainability factors (in French only).

28 July 2022: ESAs release first annual report on voluntary disclosure of principal adverse impact under SFDR

The ESAs have issued the first annual report on the extent of voluntary disclosure of principal adverse impact as foreseen by art. 18 of the Sustainable Finance Disclosure Regulation (SFDR; Regulation (EU) 2019/2088). In the report, the ESAs provide a preliminary, indicative and non-exhaustive overview of examples for best and less good practices. The information is based on a survey of local regulators.

The report further contains recommendations for local regulators to ensure appropriate supervision of financial market participants’ practices, such as running regular surveys in their own market to determine whether supervisory entities comply with Article 4 SFDR disclosures. 

12 August 2022: Law of 29 July 2022 amending the 2004 AML Law and the RFT Law of 2020

The Law of 29 July 2022 amends, among others, the AML Law of 12 November 2004. The following amendments to the AML/CFT Law are noteworthy:

1. the terminology in Articles 1 and 2 has been adapted in order to replace the existing undefined terminology with “business relationship” which is defined in point (13) of Article 1 as “a business, professional or commercial relationship which is connected with the professional activities of the institutions and persons covered by this law and which is expected, at the time when the contact is established, to have an element of duration.”
2. A new letter (e) has been added in point (12) of Article 2(1), in order to widen the scope of the AML/CFT Law which is applicable now also to persons acting as depositary of bearer shares. Article 3(2a) has been amended so as to stress that the obligation to identify customers and beneficial owners is always applicable irrespective of the professionals’ risk assessment. 
3. The addition made in Article 3(4) links the professionals’ obligation to consult the Beneficial Owner Register and the Register of fiducies and trusts, when verifying the identity of the beneficial owners before entering into a business relationship or when executing a transaction, with the professionals’ obligation to report to the manager of the Beneficial Owner Register or to the AED, respectively, so as to detect the existence of erroneous data or the absence of all or part of the data in the register, or the failure of a registration, modification or deletion of data. In addition, professionals must proceed in a similar manner in the framework of ongoing due diligence of the business relationship. The objective of the amendment in Article 3-2(4) is to further clarify the scope of application of the enhanced due diligence measures regarding politically exposed persons (PEPs) by explicitly including persons purporting to act on behalf of or for customers among the persons to take into account.
4. The new paragraphs 8 and 9 of Article 9-2a further specify the CSSF’s cooperation with foreign counterpart authorities.

The coordinated version of the AML/CFT Law is available at: https://www.cssf.lu/en/Document/law-of-12-november-2004/

Regarding the modifications of the “RFT Law”, the aim here is to keep and make available for AML/CFT purposes information relating to fiducies and trusts. According to the RFT Law, these include legal arrangements that are similar in structure or function to fiducies and trusts when it enables a person to create legal relationships that place assets under the control of a third party for the benefit of a beneficiary or for a specified purpose and when it has the following characteristics:

1. the assets placed under the control of the third party constitute a separate estate and do not form part of the estate of the third party;
2. the title to the assets placed under the control of the third party stands in the name of the third party or of another person on behalf of the third party;
3. the third party is vested with the power and the duty, in respect of which he or she is accountable, to administer, manage or dispose of the assets placed under his or her control in accordance with the terms of the legal arrangement and the special rules imposed upon him or her by law.

It should also be stressed that professionals who act as relevant trustee or fiduciaire have legal obligations to inform the Register of fiducies and trusts or to provide information to competent authorities or to the Register of fiducies and trusts, under penalty of administrative sanctions foreseen by the RFT Law. The Law of 29 July 2020 has now, via two amendments, specified that the reasonable delay laid down in Articles 2(2) and 3(1) of the RFT Law shall be understood as one month maximum. 

The coordinated version of the RFT Law is available at: https://www.cssf.lu/en/Document/law-of-10-july-2020/. The Law is available at: https://legilux.public.lu/eli/etat/leg/loi/2022/07/29/a429/jo.

24 August 2022: New notification template for delegating critical or important tasks related to UCI administration 

The CSSF has published a notification template to be used as of 24 August 2022 by entities in scope of Circular CSSF 22/811 when delegating a critical or important operational task relating to UCI administration, in accordance with point 100 of Circular CSSF 22/811. The template replaces the previous application form “Application in case of outsourcing of administration tasks for UCI.”

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/