REGULATORY CLIENT UPDATE / JULY 2023
The CSSF has announced another annual data collection exercise related to the Sustainable Finance Disclosure Regulation (SFDR) disclosures in periodic reports under Article 8 or Article 9 of SFDR. For periodic reports issued between 1 January 2023 and 31 December 2023, the deadline is 31 January 2024. For periodic reports issued as from 1 January 2024 onwards, the deadline will be one month after the legal deadline to publish the annual report to investors.
Luxembourg Market Update:
The aggregate assets of Luxembourg-domiciled investment funds – UCITS and Part II funds, SIFs and SICARs – totalled €5,162bn at the end of May, an increase of 0.46% from €5,139bn a month earlier but significantly down from the industry’s peak of €5,859bn in December 2021, according to the CSSF. Net inflows amounted to €23.5m, while the value of funds’ financial market assets increased by €34.6bn. The net assets of Luxembourg funds have fallen by 3.82% over the past 12 months, the regulator says, noting that the number of fund structures domiciled in the grand duchy remained at 3,341, including 2,186 umbrella funds comprising a total of 13,071 sub-funds.
More than half (51%) of investment funds classified under article 9 of the EU’s Sustainable Finance Disclosure Regulation were domiciled in Luxembourg at the end of last year, along with 34% of article 8 funds, according to the European Fund and Asset Management Association (EFAMA). The aggregate assets of article 8 funds increased to €6.4trn, accounting for 45% of the UCITS and alternative investment fund market. EFAMA notes that the volume and aggregate value of article 8 funds were boosted by the reclassification of 400 article 6 funds, the downgrading of 348 article 9 funds and the launch of 302 new article 8 funds.
Regulatory Developments in and beyond Luxembourg:
14 June 2023: ESMA: update of Q&A documents on AIFMD and UCITS Directive
29 June 2023: Financial Action Task Force: Final report on Luxembourg adopted
The plenary of the Financial Action Task Force (FATF) has adopted the evaluation report based on its 2022 assessment and to Luxembourg. The FATF assessed Luxembourg not only for technical compliance, but also the effectiveness of the implementation of AML standards. The report states that "Luxembourg has reached a high level of technical compliance with the FATF's requirements and its AML/CFT regime is delivering good results."
This adoption marks the penultimate stage of Luxembourg's evaluation process under the FATF's fourth round of AML evaluations.
The final report, which will include an in-depth analysis of the AML/CFT system and recommendations for further improving it, will be published at the end of the summer.
30 June 2023: New CSSF mandatory data collection on SFDR disclosures in periodic reports
The CSSF has published a communiqué to announce a new annual data collection on Sustainable Finance Disclosure Regulation (SFDR) disclosures in periodic reports for certain Luxembourg funds (or sub-funds) disclosing under Article 8 or Article 9 of SFDR. This follows two previous data collections (a CSSF data collection applicable to investment fund managers (IFMs) on regulatory requirements in relation to SFDR, and a CSSF data collection applicable to IFMs on pre-contractual disclosures in relation to SFDR and the Taxonomy Regulation). The data collection aims to digitally capture information contained in the SFDR disclosures in periodic reports and on the largest investments made by each fund during its reference period. The CSSF plans to extend the data collection to principal adverse impact (PAI) statements in the future.
The data must be submitted for all funds in scope having a financial year-end on or after 30 September 2022 according to the following deadlines:
The data must be submitted via (i) a simple storage service protocol (S3) which is already available; or (ii) eDesk that will be available from 30 November 2023, which requires a manual input for each fund.
3 July 2023: ESMA report on marketing requirements and marketing communications
ESMA published its second report on marketing requirements and marketing communications under the Regulation on cross-border distribution of funds. In this report, ESMA provides an overview of the marketing requirements across Member States, and analyses the effects of national laws, regulations and administrative provisions governing the marketing communications for investment funds. The report is based on responses provided by National Competent Authorities (NCAs) to two questionnaires issued by ESMA.
The key findings are the following:
6 July 2023: Regulation on Markets in Crypto-Assets (MiCA) and Regulation on information accompanying transfers of funds and crypto-assets
The CSSF has published a communiqué on the Markets in Crypto-Assets Regulation (MiCA or MICAR) and the Regulation on information accompanying transfers of funds and certain crypto-assets.
With MiCA (Regulation (EU) 2023/1114), the European Union is adopting a harmonised regulatory framework for the crypto-asset market which applies to both traditional institutions of the financial sector and new players emerging in the crypto ecosystem that are engaged in the issuance, offer to the public and admission to trading of crypto-assets or that provide services related to crypto-assets in the EU. These institutions must meet a set of specific requirements to benefit from a regulated status recognised at Union level, thereby permitting the passporting of these services across the EU market.
By adopting MiCA, the EU aims to bring legal certainty to the crypto-asset ecosystem and support innovation while safeguarding consumer protection, markets integrity and financial stability.
MiCA will come into full application from 30 December 2024, except for Titles III and IV (the framework for asset-referenced tokens (ART) and e-money tokens (EMT) issuers) which will apply from 30 June 2024.
11 July 2023: Luxembourg Parliament approves law upgrading the Luxembourg Investment Fund Toolbox
The Luxembourg Parliament has voted in favour of a new law improving and upgrading the Luxembourg investment fund toolbox, which is likely to increase the attractiveness and competitiveness of the Luxembourg financial centre.
By modernising the Luxembourg investment fund toolbox, the Law increases in particular structuring options and flexibilities for democratised private asset vehicles, including Part II funds and RAIFs. It also introduces certain targeted modifications, adjustments and harmonisation of the UCI, SIF, SICAR, RAIF and AIFM Laws, including certain amendments to and new exemptions from the subscription tax. The law will go into effect in August 2023.
Amongst other amendments, the law includes the following:
18 July 2023: CSSF feedback report on ESMA Common Supervisory Action on valuation
In January 2022, the European Securities and Markets Authority (“ESMA”) had launched a Common Supervisory Action (“CSA”) with national competent authorities (“NCAs”) on valuation of Undertakings for Collective Investment in Transferable Securities (“UCITS”) and open-ended alternative investment funds (“AIFs”).
In addition, in the context of the Russia-Ukraine crisis, the CSSF conducted a separate but related supervisory exercise targeting specifically the valuation practices adopted by a panel of Investment Fund Managers (“IFMs”) during that episode which caused affected assets to become illiquid/non-tradeable because of the crisis as well as due to the restrictive measures taken by the EU and other countries.
ESMA has published the results of the CSA on Valuation at European level in a final report on the 2022 CSA on valuation including the feedback and findings of all EU/EEA NCAs (including the CSSF) participating in this exercise.
ESMA reported that most NCAs considered that there was an overall satisfactory level of compliance of the sample of IFMs with the applicable regulatory requirements. However, the CSA on Valuation also showed shortcomings and vulnerabilities.
In this context, based on the ESMA report on the CSA on Valuation and the assessment of the CSSF of this CSA on valuation, the CSSF would like to inform market participants about the publication of the report “CSSF Feedback Report – ESMA Common Supervisory Action on Valuation” which presents the main observations and related recommendations for improvements in view of the applicable regulatory requirements.
The CSSF asks all IFMs managing UCITS and/or AIFs to conduct a comprehensive assessment of their valuation framework in relation to the ESMA and CSSF reports and to take, if applicable, the necessary corrective measures by 31 December 2023.
20 July 2023: EU Reaches Provisional Agreement on AIFMD II
The European Parliament and EU member states have reached agreement on revisions to the Alternative Investment Fund Managers Directive, intended to ease investor access to strategies such as private equity, hedge funds, private debt and real estate. Managers of funds domiciled in or marketed in the EU will be required to disclose more information on their investments in the US, UK and other non-EU countries, but delegation rules for asset managers outside the union who manage EU funds have not been tightened, as Luxembourg and Ireland had at one time feared. Liquidity and leverage requirements for debt-issuing funds have also been introduced, with leverage set at 175% of investments for funds that permit redemptions before the underlying loans have been repaid and 300% for those that do not.
26 July 2023: CSSF publishes Circular CSSF 23/839 updating Circular CSSF 21/789 on self-assessment questionnaires
The CSSF has published Circular CSSF 23/839 updating Circular CSSF 21/789 on the self-assessment questionnaire (SAQ) submitted annually by investment fund managers. Language regarding “information to be spontaneously transmitted by IFMs to the CSSF in case the auditor issues a modified audit opinion (…)” has been removed.
For further information, please contact:
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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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