On 22 December 2021, the Luxembourg financial sector authority, the Commission de Surveillance du Secteur Financier (the “CSSF”), published three sectoral circulars (CSSF Circulars 21/788, 21/789 and 21/790) which aim at improving the risk-based supervision both for prudential and anti-money laundering and counter terrorism financing (“AML/CFT”) purposes.
What about their scope?
- CSSF Circular 21/788 (the “First Circular”) will apply to all Luxembourg alternative investment fund managers (“AIFMs”) including registered AIFMs and all Luxembourg investment funds supervised by the CSSF for AML purposes and which have not appointed an AIFM.
- CSSF Circular 21/789 (the “Second Circular”) will apply to all investment fund managers (including AIFMs), alternative investment funds that have not appointed an external manager and investment companies with variable capital which have not designated a management company.
- CSSF Circular 21/790 (the “Third Circular”) will apply to regulated undertakings for collective investment (UCITS, UCIs subject to part II of the law of 17 December 2010, SIFs and SICARs) (the “UCIs”).
What will change?
The First Circular adds an external report dedicated to AML/CFT that will have to be drawn up by the réviseur d’entreprises agréé (“REA”) in charge of auditing the annual accounts of the entity in scope. This report will need to cover two specific sections: (i) a section concerning the corroboration of answers given in the context of the CSSF annual AML/CFT online survey and (ii) another section dedicated to sample testing or specific work to be performed by the REA in its capacity as AML/CFT expert.
The Second and Third Circulars introduce annual self-assessment questionnaires in the form published on the eDesk portal which will have to be completed by the entities in their respective scope. Part of these questionnaires will have to be reviewed each year by the REA which will be required to produce a separate report thereon. Further, these circulars clarify some of the regulatory requirements applicable to the management letter to be prepared by the REA of an investment fund manager.
In addition, the Third Circular requires entities in scope to communicate certain additional information in case the REA issues a modified audit opinion in the context of the statutory audit.
When will this become applicable?
The First and Second Circulars will have to be complied with for the first time for the financial year ending on or after 31 December 2021 and results of all these reports will have to be transmitted via eDesk portal. Regarding the Second Circular and with respect to its first reports, an exceptional period of six months (instead of four) following the end of the financial year will be offered to complete the reports.
Regarding the Third Circular, it will first become applicable with respect to UCIs that have a financial year ending on 30 June 2022 and specific deadlines for reporting via eDesk will apply depending on the type of UCI being regulated.
Be prepared and familiarize yourselves with these new requirements! The new modules are already available on the eDesk platform.
Hogan Lovells (Luxembourg) LLP is registered with the Luxembourg bar.
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