REGULATORY CLIENT UPDATE / MARCH 2023

REGULATORY CLIENT UPDATE / MARCH 2023

Highlights:

ELTIF 2 will enter into force on 9 April 2023: Regulation (EU) 2023/606 of the European Parliament and of the Council of 15 March 2023 amending the initial ELTIF Regulation (EU) 2015/760 has been published in the Official Journal of the European Union.

The amended ELTIF Regulation sets out the requirements pertaining to the investment policies and operating conditions of ELTIF, as well as the scope of eligible investment assets, the portfolio composition and diversification requirements and the borrowing of cash and other fund rules.

Luxembourg Market Update: new platform for fund data management

Nearly half (49%) of Europe-focused private capital funding was for Luxembourg-domiciled vehicles in 2022, compared with 33% in 2018, 42% in 2019 and 53% in 2021. Private equity is the dominant asset class among Luxembourg-domiciled alternative funds, but the share of private debt and infrastructure vehicles is increasing.

Regulatory Developments in and beyond Luxembourg:

10 February 2023: Wolfsberg Group releases new questionnaires

The Wolfsberg Group, an association composed of 13 global banks, announced the release of version 1.4 of the Correspondent Banking Due Diligence Questionnaire (“CBDDQ”) and version 1.2 of the Financial Crime Compliance Questionnaire (“FCCQ”), along with updated supporting guidance, glossary and FAQs documents.

7 March 2023: Amendment of SFDR RTS

The Luxembourg tax authority (Administration de l’Enregistrement, des Domaine et de la TVA – “AED”), which supervises unregulated funds in respect of their AML/CFT obligations, released an updated version of its guide on professional obligations of reserved alternative investment funds (RAIF) with regard to AML/CFT oversight.

Some of the changes include:

1. the list of documents that a RAIF should obtain when entering into a non-face-to-face business relationship (removing, for instance, the obligation to obtain the social security card);
2. the list of information that a RAIF should obtain when entering a business relationship to conduct a transaction for professional purposes (e.g. adding the requirement to obtain the extract from the register of beneficial owners or register of fiducies and trusts but removing the obligation to obtain the national identification number);
3. the list of circumstances that require automatic enhanced due diligence (e.g. removing clients residing in a third country but keeping, as per the provisions of the AML Act, situations involving high risk countries).

RAIFs are advised to review the updated guide and ensure alignment with their AML/CFT policies and procedures.

8 March 2023: Amendment of SFDR RTS

The CSSF has informed Financial Market Participants (FMPs) about the release of an amended SFDR RTS which went into force on 20 February 2023. The amended SFDR RTS introduce precontractual and periodic transparency requirements in relation to Taxonomy aligned fossil gas and nuclear energy related activities for financial products disclosing under Articles 8 and 9 of SFDR.

9 March 2023: Publication of the CSSF working paper “Liquidity Stress Test for Luxembourg Investment Funds: Time to Liquidation Approach”

The CSSF presents in this working paper a liquidity stress testing framework applicable to Luxembourg investment funds. The key characteristics of this liquidity stress testing framework are the following:

1. the estimation of a time to liquidation at the security level, whereby a dynamic dimension is integrated in the assessment of the fund portfolio liquidity;
2. a dual impact shock, by which shocks hit both the liability side with two types of shocks (redemption shocks derived from a macroeconomic model and from the distribution of historical redemptions) and the asset side (application of different levels of haircut to the liquidity of assets); and
3. a macroprudential perspective with the assessment of 1) the contagion risk via the estimation of the price impact of first-round sales and 2) an amplification risk via the estimation of potential second-round redemptions.

17 March 2023: Publication of a new notification template for critical ICT outsourcing

The CSSF has released a new notification template to be used by In-Scope Entities to notify the CSSF of critical or important ICT outsourcing arrangements in accordance with points 59 and 60 of Circular CSSF 22/806 on outsourcing arrangements.

This template replaces the previous template (“Notification for outsourcing of material IT activities”). Specific attention has been paid to align the terminology and structure of the template to Circular CSSF 22/806.

The notification periods and communication channels remain unchanged.

20 March 2023: Revised ELTIF Regulation published in the Official Journal of the EU

The amendments to Regulation (EU) 2015/760 on European long-term investment funds (ELTIF 2) have been published in the Official Journal of the European Union.

ELTIFs that are already authorised under the current ELTIF Regulation have until 11 January 2029 to comply with ELTIF 2, unless they do not raise additional capital, in which case they shall be deemed to comply with the revised regulation.

ELTIFs authorised before 10 January 2024 may choose to be subject to ELTIF 2 if they notify their national competent authority. In Luxembourg, ELTIFs can therefore be authorised under ELTIF 2 from its entry into force as of 9 April 2023.

As a reminder, in 2015, the ELTIF Regulation introduced a new type of alternative investment fund that has the unique advantage of being able to market its units/shares/interests across the European Economic Area to both professional and retail investors. Despite this major advantage, the number of ELTIF setups, as well as the amount of money raised by ELTIFs did not take off due to constraints under the ELTIF Regulation, mainly relating to eligible assets and diversification rules as well as rules relating to the distribution to retail investors.

Those barriers to the success of ELTIFs will be lifted by ELTIF 2, and in particular with the following amendments:

• Broader scope of eligible assets with the inclusion for instance of listed companies with a market capitalization of up to EUR 1.5 billion, FinTech companies, simple, transparent and standardised securitisations (STS) and green bonds;
• Broader definition of what constitutes a "real asset", which is now simply "an asset that has an intrinsic value due to its substance and properties", thus increasing significantly the type of real assets in which an ELTIF can invest;
• Possibility to adopt a fund-of-fund strategy or to set up a master-feeder structure;
• More flexible portfolio composition with a larger portion of liquid assets and less strict diversification rules ;
• Exemption of the diversification and concentration rule requirements for ELTIFs marketed to professional investors only;
• Clarification that ELTIFs can invest the majority of their assets in investments located in third countries;
• Possibility to conduct minority co-investments through intermediary entities, including special purpose vehicles, securitization or aggregator vehicles, and holding companies;
• Removal for retail investors of both the minimum investment amount of EUR 10,000 and the limit of investments in ELTIFs to 10% of their portfolio;
• While the suitability test for retail investors is still required, there is no longer an obligation to provide investment advice, and with the possibility for a retail investor to bypass a negative conclusion to that test by giving express consent to proceed with the transaction; and
• A MIFID II license is no longer required for AIFMs that market themselves the ELTIFs which they manage to retail investors (without investment advice).

It is likely that regulatory technical standards (RTS) will be published for public consultation in the coming weeks. These RTS will bring further clarification on the provisions relating to the redemption of units or shares of ELTIFs.

24 March 2023: CSSF communiqué on SFDR data collection exercise

The CSSF has released a communiqué on an SFDR data collection exercise on precontractual disclosures in relation to SFDR and the Taxonomy Regulation. It applies to all IFMs. The objective of the data collection exercise is to collect information contained in precontractual disclosure documents/templates. A user guide providing clarifications on the content and the format of the information to be reported as well as technical details on the data collection process is available.

After the initial declaration, IFMs remain responsible to ensure that the information provided is being kept up-to-date; in case of changes to the precontractual documents/templates, IFMs and IORPs 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.

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/