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CSSF publishes requirements for SFDR compliance for UCITS and AIFs and fast track notification procedure

  • Luxembourg
  • Financial services and markets regulation
  • Investment funds and asset management
  • Financial services

19-01-2021

On 16 December 2020, the CSSF published a Communication on regulatory requirements and fast track procedure in relation to Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial services sector (the “Communication”) applicable to investment fund managers (“IFMs”) of undertakings for collective investment in transferable securities and alternative investment funds.  The Regulation on sustainability-related disclosures is known as the “SFDR”.

SFDR Application

The CSSF reminded IFMs that although the regulatory technical standards (commonly known as “level 2 principles”) have not yet been published the SFDR implementation dates remain the same. IFMs, investment adviser and other market participants, will need to comply with high-level obligations introduced by the SFDR by 10 March 2021.

UCITS and AIFs disclosures

In accordance with the SFDR, the CSSF requires:

(a)  UCITS IFMs to amend prospectuses; and

(b)  AIF IFMs to inform their investors in accordance with disclosure requirements of Article 23 of Directive 2011/61/EU, to:

Sustainability risk integration (Article 6 SFDR)

Either explain how sustainability risks are integrated into an IFM’s investment decisions and to what extent such risks are likely to impact returns of the relevant fund under management, or provide an explanation of why sustainability risks are not relevant.

Adverse impacts of investment decisions (Article 7(2) SFDR)

Either explain the adverse impacts of the fund’s investment decisions on sustainability factors or provide an explanation why such adverse impacts are not considered.

Specific disclosures for funds promoting environmental or social objectives (Article 8 SFDR)

If a fund promotes environmental and/or social objectives:

  • how those social and/or environmental objectives will be met; and
  • if an index has been designated as a reference benchmark, the methodology used for the calculation of the index and whether and how this index is consistent with the objectives.

Specific disclosures for funds with sustainable investment as an objective (Article 9 SFDR)

If a fund has sustainable investment as its objective and an index has been designated as a reference benchmark:

  • how the designated index is aligned with that objective, and
  • why such index differs from a broad market index.

If the objective of a fund is to reduce carbon emissions, disclosures must include information on how the fund will achieve the long‐term global warming objectives of the Paris Agreement.

IFM disclosures

IFMs must assess their own compliance with SFDR requirements. Their websites must have up to date information on:

  • policies on the integration of sustainability risks in their investment decision‐making process (article 3(1) SFDR);
  • principal adverse impacts of investment decisions on sustainability factors (article 4(1) or 4(2) SFDR); and
  • for funds promoting environmental and social objectives or having sustainable investments as an objective, the information required by article 10 SFDR.

CSSF’s Fast Track Notification Procedure

Since 16 December 2020, the CSSF has offered a specific SFDR fast track procedure to facilitate the submission of prospectus and issuing document updates related to the SFDR.

Who is in scope?

UCITS management companies must submit a prospectus updated for each Luxembourg UCITS they manage.

AIFMs updating the prospectuses and issuing documents of Luxembourg regulated AIFs[1] under their management.

Fast track procedure - conditions

In order to benefit from the CSSF’s fast track procedure the following requirements must be complied with:

  • the prospectus or issuing document updated for SFDR must be accompanied by a confirmation letter in the approved template available on the CSSF website.
  • the prospectus or issuing document may only be updated for SFDR.  Any non-SFDR updates to the investment policy and restrictions are considered material under CSSF Circular 14/591 and are not eligible for the fast track procedure.

Fast track procedure - submission

Which documents?

  • an updated prospectus or issuing document
  • an updated prospectus or issuing document showing a comparison against the last version approved by the CSSF
  • a completed and signed confirmation letter
  • if applicable, a notice informing investors of the fund about changes to the prospectus or issuing document

Who can submit?

A professional duly mandated to do so, including various persons linked to the fund or the IFM and their representatives or advisors.  

How?

Electronically using e-file or SOFIE channels in accordance with CSSF Circular 19/708.

When?

From 16 December 2020 until 28 February 2021.

Approval

Upon acceptance by the CSSF, the prospectus or issuing document will be visa stamped and returned through e-file or SOFIE channel.  Unsatisfactory filing will result in a notice sent though e-file or SOFIE requesting new filing to be made.

How Eversheds Sutherland can help

We are able to advise on SFDR compliance across the board - from unregulated and regulated investment fund vehicles, to AIFMs and Management Companies. Whether you need assistance drafting specific SFDR disclosures, or obtaining related regulatory approvals from the Luxembourg Financial Supervisory Authority, please get in touch.


[1] AIFs qualifying as Part II UCIs under the Luxembourg law of 17 December 2010 or as specialized investment funds under the Luxembourg law of 13 February 2007.