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CSSF updates Q&A on AIFMD implementation law

March 2014 - Finance. Legal Developments by Chevalier & Sciales .

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Luxembourg's Financial Sector Supervisory Authority has published on March 17 an update to its Frequently Asked Questions document on the grand duchy's law of July 12, 2013 implementing the European Union's Alternative Investment Fund Managers Directive, as well as the European Commission's Level 2 regulation on implementation of the AIFMD. The CSSF says the FAQ document, which is now in its sixth version in nine months, is designed to highlight certain key aspects of the AIFMD rules from a Luxembourg perspective and is primarily aimed at alternative funds and managers established in the grand duchy.

 

It should be read in conjunction with the Q&A document published by the European Securities and Markets Authority at http://www.esma.europa.eu/page/Investment-management-0, which was most recently revised on February 17. The European Commission has also published answers to questions regarding the transposition of the AIFMD, which is published at http://ec.europa.eu/yqol/index.cfm?fuseaction=legislation.show&lid=9.

The FAQs include the scope of the law, the authorisation and registration regimes applicable to alternative managers, delegation requirements, entry into force of the law and transitional provisions, the scope of authorised managers' activities, depositary aspects, the application of the AIFMD passport to Luxembourg managers and funds as well as for foreign managers marketing in Luxembourg, reporting, valuation, transaction costs and co-operation agreements signed by the CSSF with non-EU regulators.

The new elements added in the latest versions of the FAQs concern reporting requirements. The CSSF says managers authorised between July 22, 2013 and June 30 this year must submit their first reporting statement, for the period starting July 1, by the end of October for those subject to quarterly reporting, or by the end of January 2015 for those reporting half-yearly and annually, or 15 days later in the case of fund of funds managers. They also have the option to report for periods before July 1.

Alternative managers authorised between July 1 and 22 must submit their first reporting, for the period from October 1 to December 31, by January 31, 2015 or February 15 for funds of funds, whatever their reporting frequency.

Registered managers of alternative funds with assets below the AIFMD authorisation threshold that have received confirmation of their registration in 2013 must report for 2014 by January 31, 2015, or February 15 for funds of funds. They too can report for earlier periods if applicable, if they choose.

Managers registered in 2014 must begin reporting as of the quarter following registration for a period up to the end of the calendar year (2015 in the case of managers registered in the fourth quarter), and file their report by the end of the following January, or February 15 for funds of funds.

Other points covered by the CSSF:
• Managers taking advantage of the transitional provisions may report in advance of their authorisation, but must obtain identifiers for reporting purposes from the CSSF in advance.
• The only acceptable language for all AIFMD reporting is English. Reporting must use channels accepted by the CSSF, for now e-file and SOFIE.
• Authorised managers must ensure an annual report based in conformity with article 20(2) of the 2013 law is made available for all funds whose managers were authorised before the end of the fund's financial year, including managers authorised during 2013 for the 2013 financial year. Annual reports must comply with the naming conventions and format set out in CSSF circulars 11/509 and 08/371.
• Annual reports must include a balance sheet or a statement of assets and liabilities, and an income and expenditure account for the financial year. Managers must comply with the requirements under scheme B of Luxembourg's 2010 funds law for part II funds, in the appendix to the 2007 SIF law where applicable, and article 104 of the AIFMD Level II regulation.

  • The CSSF will require managers to provide all information indicated in Article 24(5) of ESMA's Opinion on Reporting.

• The reporting requirements also apply to non-EU managers that are managing Luxembourg-domiciled alternative funds (irrespective of where the funds are marketed, even if this is exclusively outside the EU) or marketing either EU or non-EU funds in Luxembourg, during the "transitional period" before they obtain access to the marketing passport, expected in 2015
• Non-EU managers should in principle take the date of CSSF approval for marketing in Luxembourg as the start date for their AIFMD reporting requirements, with the same reporting frequency and reporting periods as those applicable to Luxembourg managers. This does not apply to non-Luxembourg funds that were marketed in the grand duchy by non-EU managers under the existing Luxembourg placement rules before July 22, 2013.

The CSSF FAQs can be consulted at http://www.cssf.lu/fileadmin/files/AIFM/FAQ_AIFMD.pdf.

 

Olivier Sciales

 

Chevalier & Sciales  

 

Partner, Avocat Ă  la Cour

Route de Thionville 51

2611 Luxembourg 

 

Office: + 352 26 25 90 30

Fax: +352 26 25 83 88

 

Email: oliviersciales@cs-avocats.lu
website: http://www.cs-avocats.lu/ 

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