REGULATORY CLIENT UPDATE / SEPTEMBER 2022
Highlights:
The CSSF issued a further communication regarding that the confirmation letter that will have to accompany the filing of the prospectus/issuing document of funds subject to Articles 8 and 9 of SFDR. Please note that the website link allowing investors to find a financial product’s sustainability features will have to be provided to the CSSF along with the updated fund documents. The deadline for submission is end of October.
Luxembourg Market Update:
The number of new Reserved Alternative Investment Funds established in Luxembourg increased to 278 in the first half of this year, up 36% from the 205 set up in the same period of 2021, according to data from the Luxembourg Business Registry. A record 417 RAIFs were created in 2021, 39% more than the previous year's 364, according to analysis conducted by Investment Officer Luxembourg of filings. The total number of RAIFs stood at 1,931 as of June 30, despite a dip in new funds created following Russia’s invasion of Ukraine. The regime, which does not require authorisation from the CSSF, is particularly favoured for infrastructure and real estate investments, master-feeder structures and impact funds.
Luxembourg’s financial regulator imposed €4.3m in fines on industry members last year, down from €6m in 2020, when the volume was skewed by a single €4.6m penalty against Banque Internationale à Luxembourg, but a sixfold increase since 2018. A total of 28 investment fund managers were disciplined for various rule breaches, including five fined between €5,000 and €10,000 for late submission of a questionnaire on money laundering. Franklin Templeton received a €261,000 penalty for AML compliance failings, while JPMorgan Asset Management (Europe) was fined €173,500 because its risk management system provided incomplete or incorrect information to the CSSF.
Regulatory Developments in and beyond Luxembourg:
24 August 2022: New notification template for delegating critical or important tasks related to UCI administration
The CSSF 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.
The template shall be used by entities in scope of Circular CSSF 22/811 and, where applicable, Circular CSSF 22/806, to notify the CSSF in advance in the following cases:
(a) planned, new critical or important outsourcing arrangements;
(b) material changes to existing critical or important outsourcing arrangements; and
(c) changes to outsourcing arrangements that lead to an outsourced function becoming critical or important.
IFMs are subject to Circular CSSF 22/811, especially point 100, when outsourcing a critical or an important function relating to operational tasks of administration of UCIs. However, IFMs are not in scope of Circular CSSF 22/806 when outsourcing critical or important functions other than ICT. In consequence, IFMs should only fill out sections 1, 2, 3, 4.1-4.4, 5, 6.1-6.4, 7, 8, 9 and 11, where applicable, of the template.
25 August 2022: CSSF FAQ on the AML/CFT RC REPORT and MMFR User Guide
The CSSF has updated its FAQ on the AML/CFT RC REPORT. On 30 August 2022, the CSSF also updated the document User Guide concerning reporting under Art. 37 of the MMFR. The purpose of this document is to provide IFMs with an explanation on recurring problems encountered with the MMFR reporting. This updated User Guide displays a new structure of the topics being addressed by grouping the Q&As in thematic sections. It also integrates new Q&As, in particular in relation to the reporting of the stress test results following some recurrent issues identified in the data reported to the CSSF.
6 September 2022: CSSF publishes Communiqué on SFDR RTS confirmation letter
The CSSF has published a Communication about the SFDR RTS which is related to the confirmation letter published on 27 July 2022 which should accompany the filing of a prospectus/issuing document to support the update on sustainability-related disclosures with regard to the SFDR RTS. This confirmation letter is available on the website of the CSSF for UCITS under the following link and for AIFs under this link.
The communication covers the following points:
Reminder of the deadline of 1 January 2023 for specific updates of UCITS and AIFs precontractual and periodic documents
The SFDR RTS requires financial market participants to present by 1 January 2023, for financial products subject to Articles 8 and 9 of SFDR, precontractual and periodic disclosure information in the format of templates set out in the annexes of the SFDR RTS. The SFDR RTS further outlines the mandatory website product disclosure requirements applicable to financial market participants through the requirement of a separate website section titled, ’Sustainability-related disclosures’.
The Taxonomy Regulation (TR) requires financial market participants for financial products subject to Articles 8 and 9 of SFDR to provide transparency in precontractual documents and periodic reports with regard to the environmental objectives referred to in the TR.
Filing of updated precontractual documents and periodic reports with the CSSF in view of the upcoming entry into force of the SFDR RTS
The CSSF expects to receive the updated precontractual documents by 31 October 2022 at the latest. The CSSF will give priority for visa-stamping to those issuing documents/prospectuses of UCITS/AIFs for which updates are limited to reflect only the sustainability related disclosure changes referred to under Section 1 above. Provided that submissions made following the filing procedure set out below are complete, compliant and received by the CSSF by 31 October 2022, the CSSF will endeavour to release the visa stamp prior to 31 December 2022.
In this context, financial market participants will need to follow the below procedure:
Each duly updated UCITS prospectus, including only the sustainability related disclosure changes, should be filed for visa stamp with an accompanying RTS confirmation letter. A template of the said RTS confirmation letter will be made available shortly as an update to the present communication. Each CSSF authorised AIF which, on the basis of Article 6(3) of SFDR, is obliged or intends to publish the precontractual disclosure templates in an annex to its issuing document/prospectus shall submit the issuing document/prospectus to the CSSF within the set deadline. The updated precontractual documents for visa stamping shall be filed electronically with the CSSF in accordance with the provisions set out in Circular CSSF 19/708 relating to the electronic transmission of documents to the CSSF1.
Periodic reports
Annual reports of UCITS and AIFs issued as from 1 January 2023, whether these AIFs are managed by a registered or authorised AIFM, shall comply with the product disclosure requirements in periodic reports laid down in article 11 of SFDR and further clarified by the SFDR RTS, including the information to be presented in an annex to the annual reports by using the mandatory templates.
For the UCITS and regulated AIFs (UCIs subject to part II of the 2010 Law, Specialised Investment Funds, Investment companies in Risk capital) domiciled in Luxembourg, the annual reports of these funds, including the required product disclosures in periodic reports referred to above, shall be filed electronically with the CSSF in accordance with Circular CSSF 19/708 relating to the electronic transmission of documents to the CSSF.
The CSSF also highlights that Luxembourg domiciled UCITS management companies and authorised AIFMs have to ensure that the annual reports of UCITS and AIFs they manage and which are domiciled in other jurisdictions than Luxembourg have to comply with the periodic disclosure requirements laid down in the SFDR and SFDR RTS.
Additional guidance
The CSSF expects to receive a dedicated precontractual and periodic disclosure template per sub-fund/compartment. The precontractual and periodic disclosure templates shall not be amended except as foreseen under Article 2 of the SFDR RTS, i.e. the size and font type of characters and the colours. In case a financial market participant deems sections of the precontractual or periodic template not to be relevant for a given fund or sub-fund/compartment, those sections shall still be maintained in the precontractual and periodic disclosure template and shown as being not applicable. The CSSF expects financial market participants to present the required precontractual and periodic disclosure information exclusively in the dedicated templates, except for those disclosure items which are required under SFDR and not foreseen to be disclosed in the aforementioned templates.
Financial market participants are further informed that the European Supervisory Authorities plans to publish on their websites Word versions of the mandatory disclosure templates.
8 September 2022: Communication regarding the pre-marketing notifications
Following the publication of Circular CSSF 22/810 on 12 May 2022 and the introduction of the new eDesk module on 1 July 2022 regarding the marketing notification and de-notification procedures, the following supervised entities must send pre-marketing notifications exclusively via the eDesk Portal as of 15 September 2022:
The eDesk Portal can be accessed here: https://edesk.apps.cssf.lu/edesk-dashboard/dashboard/getstarted.
Additional information and instructions are also provided through the dedicated user guide: User guide – eDesk – ePassporting module.
8 September 2022: Annual CSSF Report 2021
The report gives a comprehensive overview of the CSSF’s activities and initiatives in 2021.
20 September 2022: CSSF FAQ on marketing communications
The CSSF has issued an FAQ titled “Cross Border Distribution of Funds – Guidance on marketing communications.” The key takeaways are:
The CSSF FAQ confirms that the following investment fund managers (IFMs) fall within the scope of Article 4:
Moreover, it confirms that Article 4 applies to all types of funds, whether regulated or unregulated, irrespective of their nationality and whether they are solely distributed in their home country or (also) on a cross-border basis. The term “investors and potential investors” shall also be broadly interpreted, coving both existing and prospective investors in a (sub-)fund.
Furthermore, the CSSF reminds that IFMs shall assess, based on Article 4 and the list of examples provided in the ESMA Guidelines, whether a document or advertising should qualify as MC.
The CSSF finally clarified that article 4 of the CBDF Regulation shall not apply to:
As a useful reminder, Circular 22/795 specifically excluded registered AIFMs from the scope of Article 4.
The IFM shall adopt measures allowing the identification of MCs and shall, through its senior management and/or its internal control functions, be involved in the process of preparation and validation of MCs. Such involvement concretely means that:
A risk-based approach, approved by the senior management of the IFM, may be introduced as part of the validation process of MCs and the use of committees at group level can also be envisaged.
The CSSF also mentions that the use of a robust automated system and/or relevant tools (e.g. data rooms, CRM tools) may serve as useful support.
In terms of delegation, the IFM must perform an adequate oversight of the delegate(s) to which some or all task related to the preparation of MCs are being delegated.
The IFM shall also amend its marketing procedure, as referred to under point 520 of Circular 18/678, to include, inter alia, the identification process of a document as an MC and process for ensuring compliance with Article 4.
The CSSF finally confirms that any non-compliance with the requirements of Article 4 or the ESMA Guidelines shall be considered as a breach (e.g. mistakenly promoting a high return or not including a proper disclaimer that a communication is an MC according to the CBDF Regulation).
There is no periodic reporting to the CSSF, but the IFMs shall provide upon request the following information in relation to the fund(s) they have under management:
IFMs shall be able to link this information to the relevant (sub-)fund(s) and identify which information relates to ESG and the application of article 13 of Regulation (EU) 2019/2088 (SFDR) and the ESMA supervisory briefing on sustainability risks and disclosures in the area of investment management.
Moreover, IFMs may be required by the CSSF to provide a copy or reproduction of any MC without delay.
The CSSF confirmed that IFMs with a MiFID top-up license shall equally provide upon request all the above-mentioned information with respect to funds for which they perform discretionary portfolio management and investment advice services.
23 September 2022: ESMA guidelines on MiFID II suitability requirements
ESMA has published its Final Report on Guidelines on certain aspects of the MiFID II suitability requirements. The main amendments introduced to the MIFID II Delegated Regulation and reflected in the guidelines on the topic of sustainability are:
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/
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