SCANNING MAY 2018
European Regulatory Watch Newsletter
AML/CFT - Council adopts 5AMLD
The Regulation (EU) 2015/847 on information accompanying transfers of funds (the "Regulation", available here) and the Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (the "4AMLD", available here) apply since 26 June 2017.
On 5 July 2016, the European Commission ("Commission") published its proposal to amend the 4AMLD (COM(2016) 450 final – the "Commission Proposal", available here).
On 20 December 2017, EU ambassadors confirmed the political agreement reached between the Council Presidency and the European Parliament ("Parliament") on strengthening 4AMLD rules (the "Agreement", available here). The Agreement represents the 5th update to the EU's anti-money laundering directive ("5AMLD") and should be partly a response to the terrorist attacks of 2015 and 2016 in Paris and Brussels, as well as the Panama paper leaks.
On 19 April 2018, based on the Agreement, the Parliament voted at 1st reading on a directive proposal amending the 4AMLD (the "Parliament Text", available here). In this context, the Parliament Text focuses on enhancing transparency in various areas. For further details, pease refer to our SCANNING edition n°23 of April 2018.
On 14 May 2018, based on the Agreement and the Parliament Text, the Council of the EU adopted a directive proposal amending the 4AMLD (the "Council Text").
As a reminder, the main changes introduced by the 5AMLD involve:
- Broadening access to information on beneficial ownership, improving transparency in the ownership of companies and trusts;
- Addressing risks linked to prepaid cards and virtual currencies;
- Cooperation between FIUs; and
- Improved checks on transactions involving high-risk third countries.
- The Council Text is available here.
The final version of the 5AMLD should be published in the Official Journal of the EU ("OJEU") shortly.
5AMLD will enter into force 3 days after its publication in the Official Journal of the EU. MS will then have 18 months to transpose the new rules into national law (20 months for setting up beneficial ownership registers for trusts and similar legal arrangements).
Company Law - Commission proposes 2 amending Directives on digital tools and cross-border operations
The Directive (EU) 2017/1132 of the European Parliament and of the Council relating to certain aspects of company law entered into force on 20 July 2017 (the "Directive 2017/1132", available here). The main purpose of the Directive 2017/1132 is to codify 6 directives in relation to limited liability companies (i.e. Council Directives 82/891/EEC and 89/666/EEC, and Directives 2005/56/EC, 2009/101/EC, 2011/35/EU and 2012/30/EU), in order to make EU company law more reader-friendly and to reduce the risk of future inconsistencies. It does not involve any change to the substance of these directives.
Concerning cross-border corporate mobility, the existing EU legal framework is fragmented and provides rules only for cross-border mergers of companies, while cross-border divisions and conversions are subject to national rules (if any) and to case law from the Court of Justice of the EU.
With regards to the use of digital tools and processes, the current EU legislation provides only for limited use of such tools and, in particular, there are no provisions on the online registration of companies. While the European Commission’s ("Commission") proposal on the establishment of a "Single Digital Gateway" (available here) covers the general registration of business activity via online means, the constitution of limited liability companies is carved out from the present proposal because it necessitates a comprehensive approach to be addressed in the company law acquis.
On 25 April 2018, the Commission published 2 proposals for a directive amending the Directive 2017/1132 (collectively the "Proposals") regarding:
- The use of digital tools and processes in company law (COM(2018) 239 final - the "Directive on Digital Tools"); and
- Cross-border conversions, mergers and divisions (COM(2018) 241 final - the "Directive on Cross-Border Operations").
Overall, the objective of the Directive on Digital Tools is to ensure the smooth functioning of the EU Single Market for the whole duration of a company’s life-cycle, when in contact with authorities concerning company and branch registration and filing of information. The limited liability companies that fall under the scope of the Directive on Digital Tools (e.g. for Luxembourg the "société à responsabilité limitée") are specified in a new annex to the Directive 2017/1132 ("Annex"). In particular, the Directive on Digital Tools includes the following measures:
- Introducing rules on fully online registration of companies and branches and filing of company documents.
- Safeguards for electronic identification are laid down at EU level;
- EU Member States ("MS") have the possibility to require physical presence, on a case-by-case basis, when there is a genuine suspicion of fraud;
- MS may require the involvement of notaries or lawyers as a part of the online registration process. However, such involvement should not prevent the completion of the registration procedure in its entirety online; and
- MS may refuse the appointment of a person as a director of a company or a branch, who is currently "disqualified" from acting as a director in another MS.
- Supporting the "once-only" principle at EU level - Company information shall be submitted only once and sent electronically (i) by the business register to the national gazette (only if the MS requires publication in the national gazette), and (ii) by the business register of the company to the business register of the branch in another MS.
- Adding more information to the set of company data provided free of charge by all business registers
- The set of free data should now include: details of the company website (where applicable), the legal status of the company, the object of the company, the number of employees of the company (where this information is available in the company’s financial statements as required by national law), names of any persons who can act on behalf of the company and information on any branches opened by the company in another MS; and
- MS may make further information and documents available free of charge.
Besides, the objective of the Directive on Cross-Border Operations is to provide specific and comprehensive procedures for cross-border conversions, divisions and mergers to foster cross-border mobility in the EU, while offering company stakeholders adequate protection in order to safeguard the fairness of the EU Single Market. In this context, the Directive on Cross-Border Operations highlights the following Commission policy options:
- Providing harmonised conditions, under which cross-border conversions and divisions can be carried out, the verification of them and applicable law.
- The scope of application of the Directive on Cross-Border Operations is limited to private and public limited liability companies;
- MS shall ensure that the competent authority of the departure MS shall not authorise the cross-border conversion (respectively the cross-border division) where it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or minority members; and
- For medium and large companies, an independent expert shall be appointed to provide the factual elements for the assessment by the competent authority of the departure MS.
- Applying existing rules for cross-border mergers concerning employee information, consultation and participation, to cross-border divisions and conversions (with certain modifications).
- The management or administrative organ of the company shall draw up a report on the impact of the cross-border operation on the safeguarding of employment relationships and the situation of employees in cross-border mergers, divisions and conversions; and
- Specific rules concerning employee participation in the company’s management or supervisory organs in cross-border conversions and divisions should apply; In case of subsequent restructurings, the company will have to preserve the introduced employees’ participation regime at least for 3 years.
- Introducing harmonised rules for the protection of minority shareholders at EU level in the context of cross-border mergers, divisions and conversions.
- The management or administrative organ of each of the merging companies shall draw up a report for their members explaining the implications of the cross-border merger on the future business and the management’s strategic plan, as well as the implications of the cross-border merger for members (e.g. explaining the share exchange ratio). Companies will have the option to waive such requirement, in the event that all the members of the merging companies agree;
- An exit right is established for those members that oppose the cross-border merger (in exchange for adequate compensation); and
- MS may introduce additional protective measures.
- Introducing harmonised rules for the protection of creditors at EU level in the context of cross-border mergers, divisions and conversions.
- MS may require that companies seeking to effect a cross-border operation should make a declaration stating that the operation will not affect its ability to satisfy the obligations towards third parties and that the creditors will not be prejudiced;
- Creditors shall have the right to apply to the competent administrative or judicial authority to grant them adequate protection; and
- MS may introduce additional protective measures.
The Directive on Cross-Border Operations is available here.
The FAQ document on the Proposals is available here.
The Proposals will be submitted to the European Parliament and the Council of the EU for their consideration and final adoption.
The final version of the two directives will enter into force on the 20th day following that of its publication in the Official Journal of the EU.
MS will then have 24 months to transpose such directives into their national legislation.
EMIR - ESAs consult on amendments to RTS on the clearing obligation and risk mitigation techniques for OTC derivatives not cleared
The Commission delegated regulation (EU) 2016/2251 supplementing Regulation (EU) No 648/2012 ("EMIR", available here), with regard to regulatory technical standards ("RTS") for risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty ("CCP"), entered into force on 4 January 2017 (the "DR 2016/2251", available here).
The Regulation (EU) 2017/2402 of the European Parliament and of the Council laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised ("STS") securitisation entered into force on 17 January 2018 and shall apply as from 1 January 2019 (the "Securitisation Regulation", available here).
Against this background, the Securitisation Regulation amends EMIR to ensure consistency of treatment between derivatives associated with covered bonds and derivatives associated with securitisations, in relation to the clearing obligation and the margin requirements on non-centrally cleared OTC derivatives. In particular, Article 42 of the Securitisation Regulation amends Articles 4 and 11(15) of EMIR, by giving the European Supervisory Authorities ("ESAs") the following mandates ("Mandates"):
- The ESAs shall draft RTS specifying criteria for establishing which arrangements under covered bonds or securitisations adequately mitigate counterparty risk and thus the conditions to benefit from an exemption from the clearing obligation; and
- The ESAs shall draft RTS to determine the level and type of collateral required with respect to OTC derivative contracts that are concluded by covered bond entities in connection with a covered bond, or by a securitisation special purpose entity ("SSPE") in connection with a STS securitisation, meeting the conditions of Article 4(5) of EMIR, taking into account any impediments faced in exchanging collateral with respect to existing collateral arrangements under the covered bond or securitisation.
On 4 May 2018, based on the Mandates, the ESAs published the following two joint consultation papers to amend EMIR RTS on the clearing obligation and risk mitigation techniques for OTC derivatives not cleared (altogether the "Consultation Papers"):
- Consultation paper on amendments to the EMIR clearing obligation under the Securitisation Regulation ("JC 2018 14", available here);
- The ESAs suggest mirroring for securitisation the conditions applicable in the case of covered bonds, excluding certain conditions that are assessed only relevant for covered bonds (e.g. the ESAs clarify that the waiver of the pari passu rank should only apply to covered bonds and that the pari passu ranking should apply with respect to the most senior bondholders); and
- Article 2 of the draft RTS (as attached under Appendix III t0 JC 2018 14) clarifies which arrangements under the securitisation mitigate counterparty credit risk when the conditions of Article 4(5) of EMIR are also met.
- Consultation paper on draft RTS amending the DR 2016/2251 under Article 11(15) of EMIR in the context of the STS securitisation under the Securitisation Regulation ("JC 2018 15", available here).
- The proposed new Article 30a of the DR 2016/2251 extends the special provisions adopted for covered bonds on the level and type of collateral required with respect to OTC derivative contracts, to those derivative contracts that are concluded by a SSPE in connection with a STS securitisation.
The Consultation Papers should be read in conjunction. Comments on the Consultation Papers shall be submitted to the ESAs by 15 June 2018.
Based on the feedback received, the ESAs will finalise the Draft RTS and submit them to the European Commission for endorsement in the form of delegated regulations by 18 July 2018.
GDPR - Art. 29 WP issues position paper on derogations from the obligation to maintain records of processing activities under Art. 30(5) of GDPR
The Directive 95/46/EC of the European Parliament and of the Council of the EU on the protection of individuals with regard to the processing of personal data and on the free movement of such data entered into force on 13 December 1995 and was transposed in EU Member States ("MS") by 24 October 1998 ("DPD", available here).
The Regulation (EU) 2016/679 of the Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing the DPD entered into force on 24 May 2016 and will apply as from 25 May 2018 ("GDPR", available here).
Article 30(5) of GDPR provides that the obligation to keep a record of processing activities does not apply ‘to an enterprise or an organisation employing fewer than 250 persons unless the processing it carries out is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data as referred to in Article 9(1) or personal data relating to criminal convictions and offences referred to in Article 10’.
Article 29 of DPD sets out composition and purpose of the Article 29 Data Protection Working Party ("Art. 29 WP"), which is an independent European advisory body on data protection and privacy. It promotes the consistent application of the DPD. The Art. 29 WP includes a representative from the data protection authority of each MS, the European Data Protection Supervisor (the "EDPS") and the European Commission, which also provides its secretariat. Under GDPR, the European Data Protection Board (the "EDPB") will replace the Art. 29 WP.
On 23 April 2018, the Art. 29 WP issued a position paper on the derogations from the obligation to maintain records of processing activities pursuant to Article 30(5) of GDPR (the "Position Paper").
In the Position Paper, the Art. 29 WP underlines that the occurrence of any of the 3 derogations triggers the obligation to maintain the record of processing activities. Hence, data controllers or processors who find themselves in the position of either carrying out (i) processing likely to result in a risk (not just high risks) to the rights of the data subjects, or (ii) processing personal data on a non-occasional basis, or (iii) processing special categories of data under Article 9(1) of GDPR or data relating to criminal convictions under Article 10 of GDPR are obliged to maintain the record of processing activities. However, such organisations with less than 250 employees need only to maintain records of processing for the types of processing mentioned by Article 30(5) of GDPR.
The Position Paper is available here.
The Art. 29 WP encourages national supervisory authorities to support small and medium-sized enterprises ("SMEs") by providing tools to facilitate the set up and management of records of processing activities (e.g. establishing a simplified that can be used by SMEs to keep records of processing activities not covered by the derogation under Article 30(5) of GDPR).
GDPR will apply as from 25 May 2018.
MiFID II/MiFID - ESMA launches bond liquidity system
The MiFID II Directive became applicable on 3 January 2018 introducing, amongst others, pre- and post-trade transparency requirements for equity and non-equity instruments, including for bonds. Post-trade, MiFID II requires real-time publication of the price and quantity of trades in liquid bonds. It is possible to defer the publication of post-trade reports if the instrument does not have a liquid market, or if the transaction size is above large-in-scale thresholds ("LIS"), or above a size specific to the instrument ("SSTI").
On 2 May 2018, the ESMA published its first liquidity assessment for bonds subject to the pre- and post-trade requirements of the MiFID II and MiFIR.
ESMA’s assessment of the European bond market for the first quarter of 2018 found 220 bonds (out of 71,000 for which the assessment was executed) to be sufficiently liquid to be subject to MiFID II’s real-time transparency requirements.
The ESMA liquidity assessment for bonds is based on a quarterly assessment of quantitative liquidity criteria, such as the daily average trading activity (trades and notional amounts) and number of days traded per quarter. The quality of the ESMA’s assessment depends on the data submitted to the ESMA: the data received so far, for 1Q18, is not fully complete for most instruments. These data completeness and quality issues result in a lower number of liquid instruments identified compared to the ESMA’s earlier transitional transparency calculations.
The ESMA’s Financial Instruments Transparency System ("FITRS") is available here.
The ESMA will update its bond market liquidity assessments quarterly. However, additional data and corrections submitted to the ESMA may result in further updates within each quarter, published in FITRS (which shall be applicable the day following publication).
The transparency requirements for bonds deemed liquid today will apply from 16 May 2018 to 15 August 2018, the date from which the next quarterly assessment, to be published on 1 August 2018, will become applicable. The transitional liquidity assessment for bond instruments (except ETCs and ETNs) will cease to apply from 16 May 2018.
MMF - Template for reporting information regarding MMF published in OJEU
The Regulation (EU) 2017/1131 of the European Parliament (the "Parliament") and the Council of the EU (the "Council") on money market funds ("MMF") entered into force on 20 July 2017 and shall apply from 21 July 2018 (the "MMF Regulation", available here). It intends to make MMF more resilient and to preserve the integrity and stability of the EU internal market.
Article 37 of the MMF Regulation obliges, for each MMF managed, the manager of the MMF to report information to the competent authority ("CA") of the MMF, at least on a quarterly basis. The frequency of reporting is annual in the case of a MMF whose assets under management in total do not exceed EUR 100 million.
Information to be reported shall include, among other: (i) type of characteristics of the MMF; (ii) portfolio indicators such as the total value of assets, NAV, WAM, WAL, maturity breakdown, liquidity and yield; (iii) results of stress tests and, if applicable, the proposed action plan; (iv) information on the assets held in the portfolio of the MMF and (v) information on the liabilities of the MMF.
According to Article 37(4) of the MMF Regulation, the ESMA is mandated to develop draft implementing technical standards ("ITS") to establish a reporting template for the information which managers of MMF are required to send to the CA of the MMF.
On 24 May 2017, the ESMA published a consultation paper (ESMA34-49-82 - the "CP", available here) containing various MMF Regulation related proposals (under different policy tools). Among other, the CP provided for consultation the draft ITS concerning reporting template for the information which managers of MMF are required to send to the CA of the MMF, including on the characteristics, portfolio indicators, assets, and liabilities of the MMF. Stakeholder responses to the CP could be provided by 7 August 2017.
On 13 November 2017, the ESMA published its final report including among other the final draft ITS (in Annex III) with regard to the template to be used by managers of MMF when reporting to CAs as stipulated by Article 37 of the MMF Regulation (ESMA34-49-103 - the "Final Report on Draft ITS", available here). The final draft ITS were submitted it to the European Commission (the "Commission") for endorsement.
The Final Report on Draft ITS provided feedback on the CP (the ESMA had received 18 responses from asset managers and their associations, investor representatives, a public authority and an association of professional investors).
With respect to the establishment of a reporting template, the ESMA highlighted in the Final Report on Draft RTS that it has considered the timing of implementation of a corresponding database. The ESMA confirmed that managers would need to send their 1st quarterly reports mentioned in Article 37 of the MMF Regulation to national CAs in October/November 2019 (and not in July 2018). In addition, it stated that there would be no requirement to retroactively provide data for period prior to this reporting starting date. The ESMA also informed that it will start working on the guidelines and information technology guidance so that managers of MMFs have the necessary information to fill in the template.
On 15 May 2018, the Commission implementing regulation (EU) 2018/708 (the "Delegated Regulation 2018/708") laying down ITS with regard to the template to be used by managers of MMFs when reporting to CAs as stipulated by Article 37 of the MMF Regulation was published in the Official Journal of the EU (the "OJEU").
Article 1 of the Delegated Regulation 2018/708 states that MMF shall use the template in the Annex to it when reporting to the CA of a particular MMF.
The Delegated Regulation 2018/708 is available here.
The Delegated Regulation 2018/708 shall enter into force on 4 June 2018 (the 20th day following that of its publication in the OJEU). It shall apply from 21 July 2018.
AML/CFT - Further legislative steps on Bill 7217 ( Effective beneficiaries register – so called “REBECO”)
The Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing applies since 26 June 2017 ("4AMLD", available here).
On 18 February 2018, the Luxembourg Law of 13 January 2018 resulting from the adopted Bill 7128 (available here in French only) and mostly transposing 4AMLD provisions entered into force ("the 4AMLD Transposition Law", available here in French only).
In particular, in order to transpose Articles 30 and 31 of 4AMLD, the Luxembourg Government submitted the following bills to the Luxembourg Parliament for adoption on 6 December 2017:
- The bill 7216 establishing a register of "express" trusts ("Bill 7216", available here in French only);
- The bill 7217 relating to the register of information on beneficial owners of companies and other legal entities (i.e. "REBECO" or "Registre des bénéficiaires effectifs") and their obligations in relation to their beneficial owner(s) ("Bill 7217", available here in French only).
On 26 April 2018, five Luxembourg judicial authorities opinions (from the "Cour supérieure de Justice", the "Parquet de Luxembourg et de Diekirch", the "Tribunal d’arrondissement de et à Luxembourg", the "Tribunal d’arrondissement de et à Diekirch" and the "Parquet Général") in relation to the Bill 7217 were transmitted to the Luxembourg Parliament (7217/08 - the "Opinions").
In particular, the Opinions comment the provisions of the Bill 7217 concerning (i) the access (and consequences resulting from access) to the REBECO for the judicial authorities, (ii) the information contained in the REBECO, and (iii) criminal law provisions (mostly Articles 23 to 25 of the Bill 7217).
The Opinions are available here (only in French).
The Bill 7217 is still under discussion at the Luxembourg Parliament.
CSDR - Parliament votes at 1st reading on Bill 7165
The Regulation (EU) No 909/2014 on improving securities settlement in the EU and on central securities depositories ("CSDs") entered into force on 17 September 2014 ("CSDR", available here).
In accordance with Article 11(1) of CSDR, each EU Member State shall designate the competent authority responsible for carrying out the duties under CSDR for the authorisation and supervision of CSDs established in its territory and shall inform the ESMA thereof.
On 21 July 2017, the ESMA published its updated list of competent authorities under Article 11 of CSDR (ESMA70-708036281-159 - the "List", available here). As indicated in the List, Luxembourg has not yet provided information in this regard.
On 9 August 2017, the Luxembourg Minister of Finance submitted the bill 7165 implementing certain obligations of CSDR to the Luxembourg Parliament (the "Bill 7165", available here only in French). Without prejudice to the relevant missions of the ‘Banque Centrale du Luxembourg’ (e.g. under Article 12 of CSDR), the Bill 7165 designates the CSSF for carrying out the duties under CSDR for the authorisation and supervision of CSDs established in Luxembourg. In this context, the Bill 7165 defines the CSSF’s powers and penalties applicable to infringements of the relevant CSDR provisions.
On 20 February 2018, the Luxembourg Conseil d’état ("CE") published its first opinion on the Bill 7165 (7165/02 - the "CE Opinion 1", available here only in French). On 24 April 2018, the CE issued its additional opinion on the Bill 7165 (7165/05 - the "CE Opinion 2", available here only in French). In the CE Opinion 2, the CE did not make any further formal objections to the Bill 7165.
On 4 May 2018, the Luxembourg Finance and Budget Commission published its report on the Bill 7165 (7165/06 - the "Report", available here only in French).
On 15 May 2018, the Luxembourg Parliament voted at first reading on the Bill 7165, and the CE was requested to waive the second constitutional vote.
The legislative steps in relation to the Bill 7165 as amended are available here (only in French).
The final version of the Bill 7165 should be published in the Luxembourg Memorial A shortly and shall enter into force on the 4th day following that of its publication.
Financial Services - CSSF launches new e-Desk portal – online issuance of residence certificate
Until 14 May 2018, the CSSF had an email procedure for requesting residence certificates for Luxembourg UCITS, Part II UCIs, SIFs, SICARs, Investment Fund Managers ("IFMs"), and securitisation undertakings, and UCITS and AIFMD/ESMA attestations for non-EU countries.
On 15 May 2018, the CSSF launched a new online tool, named eDesk, which allows the fund industry to submit requests for the "online issuance of residence certificates for Luxembourg investment funds, IFMs, and securitisation undertakings, and UCITS and AIFMD/ESMA attestations for non-EU countries" (the "Communiqué").
An e-Desk request can be submitted in English, French and German, and consists of the following four sections:
- Input of requester information;
- Input of entity details;
- Input of certificate details (information on the recipient(s) of the document and the reason for the request); and
- Validation of the request (including an overview of the information collected).
The documents issued in PDF include a digital signature by the CSSF based on an SSL certificate issued by the company Luxtrust - the Luxembourg certification authority for digital signatures. The CSSF’s public certificate allows verifying the validity of the signature on the signed documents.
The Communiqué is available here.
The eDesk tool is available here.
The eDesk user guide is available here.
The CSSF highlights that it is not yet possible to request the following certificates through the eDesk application form:
- UCITS/ESMA attestation if requested in the purpose of marketing their units in an EU Member State other than their home Member State; and
- AIFM/ESMA attestation (pursuant to Articles 32 and 33 of the Directive 2011/61/EU on alternative investment fund managers).
For the moment, requests for those certificates have to be submitted through the secured channels (e-file or SOFIE) by using the appropriate procedures.
Any request regarding funds removed from the official list shall be sent by email to firstname.lastname@example.org.
The functionalities of the eDesk tool will be developed in the future.
GDPD/GDPR - Further legislative steps (Bill 7184)
The Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data shall apply as from 25 May 2018 ("GDPR", available here).
The Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data shall be transposed into national law by 6 May 2018 ("GDPD", available here).
On 10 August 2017, the Luxembourg Minister of Justice submitted the bill 7168 transposing certain provisions of GDPD to the Luxembourg Parliament (the "Bill 7168", available here only in French). The Bill 7168 is still under discussion at the Luxembourg Parliament.
On 12 September 2017, the Luxembourg Minister for Communications and Media submitted the bill 7184 entitled the ‘Law dd/mm/yyyy establishing the National Commission for Data Protection and the general data protection regime’ to the Luxembourg Parliament (the "Bill 7184", available here only in French).
On 6 March 2018, the Luxembourg Commission for Higher Education, Research, Media, Communications and Space adopted one amendment to the Bill 7184 (the "Document 7184/09", available here only in French).
On 8 March 2018, the Luxembourg Minister for Communications and Media adopted a set of 35 amendments to the Bill 7184 and published the corresponding consolidated version of the Bill 7184 (the "Document 7184/10", available here only in French).
On 30 March 2018, based mostly on the Document 7184/09 and the Document 7184/10, the Luxembourg Conseil d’État issued its opinion on the Bill 7184 (N° CE: 52.422 - the "CE Opinion", available here only in French).
On 27 April 2018, the Association of the Luxembourg Fund Industry ("ALFI") published the first issue of its Q&A document on GDPR (only available here to ALFI members).
In May 2018, the following opinions on the Bill 7184 were published on the Luxembourg Parliament’s website (altogether the "Opinions", available here only in French):
- Additional opinion of the National Commission for Data Protection (the "CNPD"), in which it recommends the repeal of Article L. 261-1 of the Luxembourg Labour Code, as modified by Article 71 of the Bill 7184 (the "Document 7184/19");
- Opinion of the Luxembourg Notaries’ Chamber on Article 18(a) of the Bill 7184, having regard to the professional secrecy obligations of their members (the "Document 7184/20"); and
- Additional opinion of the Luxembourg Superior Court of Justice on the Bill 7184 (the "Document 7184/21").
On 15 May 2018, the Luxembourg Government published a set of 2 amendments to the Bill 7184 (N° 7184/22 - the "Amendments"), as follows:
- Revamping of the Article 71 of the Bill 7184 to reassert its intention to provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context; and
- Introduction of the new Article 78b of the Bill 7184 to clarify that the relevant article of the Luxembourg Labour Code will only apply for new processing of data in the employment context after the entry into force of the present law. However, the Luxembourg Government notes that "all systems that have been put in place ("tout dispositif en place") shall be compliant with the GDPR provisions as from 25 May 2018.
The Amendments are available here (only in French).
Taking into account the Opinions and Amendments, the Bill 7184 is still under discussion at the Luxembourg Parliament.
On 4 May 2018, the CNPD published a press release entitled "Closing of the public register as of 25 May 2018" (available here only in French). The CNPD highlights that there is no guarantee that processing notifications or applications for authorisation submitted after 4 May 2018 can still be processed in due time. Interested parties will be informed of the outcome of their respective notifications and requests for authorisation. As of 25 May 2018, it will no longer be possible to modify existing declarations, to terminate them or to consult them.
MiFID II/MiFIR - CSSF Q&A update
The Directive 2014/65/EU ("MiFID II", available here) and the Regulation (EU) 600/2014 ("MiFIR", available here) apply since 3 January 2018. Article 11(1) of MiFIR provides that competent authorities shall be able to authorise market operators and investment firms operating a trading venue to provide for deferred publication of the details of transactions based on the size or type of the transaction.
Against this background, the Commission delegated regulation (EU) 2017/583 supplementing MiFIR with regard to regulatory technical standards ("RTS") on transparency requirements for trading venues and investment firms in respect of bonds, structured finance products, emission allowances and derivatives entered into force on 20 April 2017 and apply since 3 January 2018 (the "Regulation 2017/583", available here). In particular, the Regulation 2017/583 specifies the conditions under which waivers from pre-trade transparency and deferrals from post-trade transparency may be granted by competent authorities.
In Luxembourg, the last version of the CSSF questions and answers’ document on the implementation of MiFID II/MiFIR is dated 5 December 2017 (the "Q&A").
On 15 May 2018, the CSSF updated the Q&A, by adding a fourth section entitled "questions relating to post-trade transparency under MiFIR" (the "Updated Q&A").
In this context, the CSSF highlights that it currently authorises the deferred publication of the details of transactions in non-equity instruments by (i) trading venues and (ii) investment firms performing transactions outside of a trading venue in accordance with Articles 11 and 21 (4) of MiFIR and the Regulation 2017/583.
As regards deferrals for trading venues, market operators and investment firms operating a trading venue shall request the CSSF’s approval prior to making use of the present deferred publication regime in accordance with Article 11 (1) in fine of MiFIR by sending an email to email@example.com. The email shall include the following information:
- The specific arrangements for deferral;
- The reasons for deferral;
- How the relevant requirements in MiFIR and Regulation 2017/583 are met;
- The date on which the deferral is intended to take effect;
- The classes of financial instruments the deferral would apply to; and
- The name and contact details of the applicant.
As regards deferrals for investment firms that perform transactions outside trading venues, such investment firms which intend to make use of the present deferral shall notify the CSSF thereof by sending an email to mifid2(at)cssf.lu. In addition, the CSSF notes that the postponed publication only concerns the disclosure requirement and not the transaction reporting under Article 26 of MiFIR to the CSSF (i.e. this reporting obligation continues to apply in full).
The CSSF will evaluate the application of post-trade transparency deferrals under MiFIR in light of the market developments on a yearly basis and reserves the right to reassess its position regarding deferrals.
MiFID II/MiFIR - Parliament votes at first reading on transposition Bill 7157
On 20 April 2017, the Commission delegated directive (EU) 2017/593 supplementing MiFID II with regards to safeguarding of financial instruments and funds belonging to clients, product governance obligations and the rules applicable to the provision or reception of fees, commissions or any monetary or non-monetary benefits entered into force (the "Delegated Directive", available here).
On 3 July 2017, the Luxembourg bill 7157 was transmitted to the Luxembourg Parliament for adoption (the "Bill 7157", available here only in French). In this context, the Bill 7157 transposes MiFID II and Article 6 of the Delegated Directive (entitled ‘Inappropriate use of title transfer collateral arrangements’), implements MiFIR, and modifies inter alia the following Luxembourg laws:
- The law of 5 April 1993 as amended on the financial sector (the "LSF", available here);
- The law of 23 December 1998 on the establishment of the CSSF (the "CSSF Law", available here);
- The law of 15 March 2016 on OTC derivatives, central counterparties, trade repositories amending laws related to the financial sector (available here only in French);
- The Bill 7157 would repeal the law of 13 July 2007 relating to the markets in financial instruments (the "2007 Law", available here).
On 25 January 2018, the European Commission ("Commission") issued a reasoned opinion, in which it requests several Member States, including Luxembourg, to fully implement MiFID II and the Delegated Directive into their national framework (the "Reasoned Opinion", available here).
On 20 February 2018, the Luxembourg Conseil d'État ("CE") issued its first opinion on the Bill 7157 (the "CE Opinion 1", available here only in French).
On 5 March 2018, the law of 27 February 2018 on interchange fees and amending several laws relating to financial services, including the LSF and the CSSF Law, entered into force (the "Amending Law", available here only in French).
On 30 March 2018, based most notably on the CE Opinion and the Amending Law, the Luxembourg Finance and Budget Commission published a letter, which contains 35 amendments to the Bill 7157 and which is addressed to the President of the CE (the "Letter", available here only in French).
On 8 May 2018, the CE issued a second opinion on the Bill 7157 (the "CE Opinion 2", available here only in French).
On 15 May 2018, the Luxembourg Parliament voted at first reading on the Bill 7157, and the CE was requested to waive the second constitutional vote.
The legislative steps in relation to the Bill 7157 as amended are available here (only in French).
The final version of the Bill 7157 should be published in the Luxembourg Memorial A shortly and shall enter into force on the 4th day following that of its publication. The 2007 Law shall be repealed as from this entry into force date.
SFTR - Parliament votes at first reading on Bill 7194
The Regulation (EU) 2015/2365 on transparency of securities financing transactions ("SFTs") and of reuse, and amending the Regulation (EU) No 648/2012 ("EMIR", available here), applies since 12 January 2016, subject to certain transitional provisions ("SFTR", available here). SFTR increases the transparency of SFTs as follows:
- All SFTs, except those concluded with central banks, shall be reported to central databases known as trade repositories;
- Information on the use of SFTs by investment funds shall be disclosed to investors in the regular reports and pre-investment documents issued by the funds; and
- Minimum transparency conditions shall be met when collateral is reused, such as disclosure of the risks and the obligation to acquire prior consent.
On 10 October 2017, the Luxembourg Minister of Finance submitted the bill 7194 implementing certain provisions of SFTR to the Luxembourg Parliament (the "Bill 7194", available here only in French). With reference to Article 16 of SFTR, the CSSF and the Commissariat aux Assurances ("CAA") shall have the necessary powers of control and investigation for the exercise of their respective tasks, within the limits defined by SFTR.
On 20 December 2017, the opinion from the Luxembourg Chamber of Commerce on the Bill 7194 was published on the Luxembourg Parliament’s website (N° 7194/01 - the "Chamber Opinion", available here only in French).
On 24 April 2018, the Luxembourg Conseil d’état ("CE") issued its opinion on the Bill 7194 (N° CE: 52.445 - the "CE Opinion", available here only in French). In this context, the CE expressed no formal objections to the Bill 7194 and suggested that some wording should be harmonised with the relevant ones of the Law of 23 December 2016 on market abuse.
On 4 May 2018, the Luxembourg Finance and Budget Commission published its report on the Bill 7194 (N° 7194/03 - the "Report", available here only in French).
On 15 May 2018, the Luxembourg Parliament voted at first reading on the Bill 7194, and the CE was requested to waive the second constitutional vote.
The legislative steps in relation to the Bill 7194 are available here (only in French).
The final version of the Bill 7194 should be published in the Luxembourg Memorial A shortly and shall enter into force on the 4th day following that of its publication.
Non-Regulated AIF - BCL issues circular 2018/241 on new reporting
The Regulation (EU) No 1073/2013 of the European Central Bank of 18 October 2013 concerning statistics on the assets and liabilities of investment funds (recast) applies since 1 January 2015 (the "Regulation ECB/2013/38", available here). It defines the statistical standards according to which investment funds shall report information on their assets and liabilities to the national central banks ("NCBs", e.g. in Luxembourg the "Banque centrale du Luxembourg" or "BCL").
Against this background, the joint circular BCL 2014/237 - CSSF 14/588 on modification of the statistical data collection for money markets funds and non-MMF investment funds addresses all regulated investment funds, i.e. funds that must be authorised by the CSSF (the "Joint Circular", available here). However, the Regulation ECB/2013/38 also addresses non-regulated alternative investment funds ("AIFs"). Due to the recent development of such non-regulated AIFs (e.g. reserved alternative investment funds or "RAIFs"), the BCL considers that the data collection has become necessary "in order to comply with the coverage of the entirety of investment funds" as required by the Regulation ECB/2013/38.
Moreover, the Regulation ECB/2013/38 is complemented by the "Guidelines ECB/2014/15" on monetary and financial statistics (available here), which set out the procedures to be followed by the BCL when reporting investment fund statistics to the ECB. Further information is provided in the non-legally binding ECB manual on investment fund statistics (the "Manual", available here).
On 24 May 2018, the BCL published on its website the circular 2018/241 informing non-regulated AIFs of a new statistical data collection pursuant to the Regulation ECB/2013/38 and the Guidelines ECB/2014/15 (the "Circular 2018/241").
In the Circular 2018/241, the BCL highlights the following points:
- In order for the BCL to complete the list with information on non-regulated AIFs pursuant to the Guidelines ECB/2014/15, "every fund must fill in a form and submit it to the BCL. This transmission must include the latest balance sheet available";
- In order to complete the "identifying data of non-regulated AIFs", they must provide the BCL with additional data within a week starting from their first day of activities, whether they expect to be subject to or exempt from the obligation to submit the statistical reporting;
- The BCL may grant non-regulated AIFs a derogation from their monthly and quarterly reporting obligations if the total assets of non-regulated AIFs remain below a fixed threshold. For funds that include several compartments, the total assets taken into account are those of all compartments. The initial threshold is fixed at EUR 500 million; and
- The non-regulated AIFs that benefit from a derogation must submit their annual balance sheet to the BCL within 15 days after the certification of the annual accounts.
The new data collection will be implemented as a two-step process:
- The transmission of the filled-in form about the identifying data available on the BCL's website (the "Form", available here in English and here in French) and of the latest available balance sheet before 31 May 2018 by email to the following address: reporting.opc(at)bcl.lu.
- For those funds not exempted by the BCL, the transmission of the quarterly report S 2.13 "Quarterly statistical balance sheet for non-MMF investment funds", of the monthly security-by-security report for the September 2018 reference period must be submitted before 26 October 2018. If applicable, the monthly report S 1.6 "Information on valuation effects on the balance sheet of non-MMF investment funds" for the October 2018 reference period must be submitted before 29 November 2018.
If needed, the BCL will adjust the initial threshold (i.e. EUR 500 million) by means of a circular letter.
Queries about the implementation of the Circular 2018/241 can be sent by email to the following BCL address: reporting.opc(at)bcl.lu.
Your Regulatory Watch Team
FSMA Newsletter - Evaluation of ML/FT risks
On the basis of the directive (EU) 2015/849 (art. 14, 15 §4) on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (ML/FT), the Joint Committee of the European Supervisory Authorities published, on the 4th January, 2018, the final version of the Risk Factors Guidelines. These Guidelines are intended to assist the entities listed by the law of 18th September 2017 (art. 5, §1, 11° to 20°), which have an obligation to analyse the ML/FT risks to which they are exposed and to take the appropriate preventive measures in respect of the risks identified. In this context, the FSMA published a newsletter dated April 2018, synthesizing these guidelines.
In order to analyse these risks, the listed entities have to follow a four-step process: 1) conducting a global analysis of the risks, identifying several risk factors, which may increase or decrease the ML/FT risks; 2) defining an appropriate organizational framework; 3) conducting an individual evaluation of the risks related to each customer; 4) applying due diligence measures. For further details, please consult the FSMA newsletter on its website.
The FSMA expects the listed entities to carry out, by 30 June, a general risk assessment within them with a view to implementing effective mechanisms to fight against ML/FT.
Audit Committee / approved Auditor of Management Companies of UCITS and public AIF mission scope
A Royal decree, published on 15th April 2018, modified the article 10 of the Royal decree dated 12th November 2012 relating to Management companies of UCITS and the article 167 of the Royal decree dated 25th February 2017 relating to Management companies of public AIF. This Royal decree contains new provisions regulating the mission scope of the Audit Committee of Management Companies, and the mission scope of the Auditor approved by the Management Companies exempted from nomination of an Audit Committee.
The mission scope of the Audit Committee includes, at least, the duties listed by the article 526bis §4 of the Belgian Companies Code. The Audit Committee shall report to the Management body of the Management Company at least twice a year, when the directors establish the annual financial statement and the periodic reports. In the same way, the approved Auditor is in charge of the missions provided by the article 526bis §6, subparagraphs 1 and 2 of the same code.
These new regulations apply to the financial year starting after the publication of this decree.
Ending of the online registration to the Privacy Commission obligation
The GDPR regulation ([EU] 2016/679) entering into force on 25th May 2018, the registration obligation to the Belgian Commission for the Protection of Privacy (the “Privacy Commission”) has been withdrawn and the Public register removed.
Since the 1st of May, the Privacy Commission is no longer accepting any new requests of registration and has handled only the ongoing requests up to the 25th of May.
The Privacy Commission might issue further guidance about internal register of the data treatment activities that is required according to the GDPR.
Financial Services - IOSCO and BCBS issue capital treatment and criteria for identifying STC short-term securitisations
The Basel Committee on Banking Supervision and the International Organization of Securities Commissions ("IOSCO") lead a global level task force on the obstacles to securitisation. Its main task is to develop criteria to identify simple, transparent and comparable ("STC") securitisation instruments.
On 11 December 2014, BCBS published the Basel III Document on revisions to the securitisation framework (the "2014 Framework", available here). The work on the 2014 Framework had formed part of the BCBS's agenda to reform regulatory standards for banks and create a more resilient banking sector. In particular, it aimed to address a number of shortcomings in the Basel II securitisation framework, revealed in the financial crisis, and to strengthen the capital standards for securitisation exposures held in the banking book.
On 23 July 2015, BCBS and IOSCO issued a set of global criteria for identifying STC securitisations, and associated regulatory capital treatment which applied only to term securitisations excluding from their scope short-term securitisations and more specifically asset-backed commercial paper ("ABCP") conduits/programmes (the "2015 STC Criteria"), available here).
From 10 November 2015 to 5 February 2015, BCBS consulted on the proposed capital treatment for STC securitisations (the "2015 Consultation", available here, with received comments here). Following the 2015 Consultation, on 11 July 2016, BCBS published amended 2014 Framework (the "2016 Framework", available here). It built on the 2015 STC Criteria and also set out additional criteria for differentiating the capital treatment of STC securitisations from that of other securitisation transactions. Compared to the 2015 Consultation, the final standard scaled down the risk weights for STC securitisation exposures, and reduced the risk weight floor for senior exposures.
From 6 July 2017 to 5 October 2017, BCBS and IOSCO consulted on criteria for identifying STC short-term securitisations in order to help the parties to such transactions to evaluate the risks of a particular securitisation across similar products and to assist investors with their conduct of due diligence on securitisations (the "2017 Consultation on STC Short-term Securitisations Criteria", available here). This document took into account the characteristics of ABCP conduits.
From 6 July 2017 to 5 October 2017, BCBS consulted also on capital treatment for STC short-term securitisations which was consistent with the 2016 Framework (the "2017 Consultation on Capital Treatment", available here).
On 14 May 2018, BCBS and IOSCO issued the criteria for identifying STC short-term securitisations (the "2018 STC Short-term Securitisations Criteria") and the BCBS issued the standard on capital treatment for STC short-term securitisations (the "2018 Standard on Capital Treatment ").
2018 STC Short-term Securitisations Criteria:
- Maintain and build on the principles in the 2015 STC Criteria aiming to assist the financial industry in its development of STC short-term securitisations.
- Incorporate feedback collected to 2017 Consultation on STC Short-term Securitisations Criteria. Changes made include clarifying that the criteria for identifying SCT short-term securitisations do not automatically exclude equipment leases and auto loan and lease securitisations from the short-term STC framework.
- Take account of the characteristics of ABCP conduits, such as: (i) short maturity of the commercial paper issued, (ii) different forms of programme structures and (iii) existence of multiple forms of liquidity and credit support facilities.
- Do not serve as a substitute for investor due diligence, are non-binding and non-exhaustive.
The 2018 Standard on Capital Treatment sets out how the short-term STC criteria could be incorporated into the regulatory capital framework for banks.
The 2018 STC Short-term Securitisations Criteria are available here.
The 2018 Standard on Capital Treatment is available here.
Interested parties may complement the 2018 STC Short-term Securitisations Criteria with additional and/or more detailed criteria based on specific needs and applications.
LUXEMBOURG — Double Tax Treaty - ALFI releases its opinion on the new convention between France and Luxembourg
The current Double Tax Treaty ("DTT") between Luxembourg and France was signed on 1 April 1958 and therefore it was not anymore in line with the recent international developments.
Both country expressed the envy to implement the new approaches developed at international level during the OECD/G20 BEPS project which are now reflected in the 2017 version of the OECD Model Tax Convention ("the 2017 OECD Model") and in the Multilateral Convention to Implement tax treaty related measures ("the MLI"), signed by both Luxembourg and France in June 2017.
Recently, on 28 March 2018, the Luxembourg and French Government signed a new DTT together with an accompanying Protocol.
On 24 April 2018, the Association of the Luxembourg Fund Industry ("ALFI") provided its opinion on the new DTT and its accompanying Protocol. Among several points, the ALFI raised the following:
- Regarding the limited access to the DTT for investment funds (i.e. the access is only granted for dividends and interests), the ALFI calls for the introduction of clarifications. Besides, according to the ALFI, an additional guidance would be welcome in relation to the proportional calculation, such as the frequency of checks to be performed, potential statistical approach and/or any other relevant guidance.
- The new DTT introduces a Principal Purpose Test ("PPT") in its article 28 which is a general anti-avoidance clause in conformity with the OECD recommendations. In that respect, the ALFI understands that investment fund structures implemented in accordance with the PPT of article 28 should be considered as meeting the requirement of this PPT without being subject to additional requirements.
- The new DTT also adopts rules addressing artificial avoidance of Permanent Establishment Status through commissionaire arrangement and similar strategies. The ALFI highlighted that this provision may also apply in the context of investment funds and management companies that perform activities in France via local agents.
- Finally, the new DTT introduces a new provision on income and gains from immovable properties held through investment vehicles which distributes most of its income annually and whose income or gains from immovable properties are exempt from tax. This new provision will, according to the ALFI, increase in some instances the amount of tax withheld versus the current situation.
The link is available here.
The impacts of the tax treaty are to be assessed as several questions were raised on the applicability of this treaty within the fund’s industry.
LUXEMBOURG — List of Non-cooperative Jurisdictions in Tax Matters - Defensive measures issued by the Luxembourg tax authorities
On 5 December 2017, the ECOFIN Council published its conclusions on the EU common list of non-cooperative jurisdictions in tax matters, also referred to as the "blacklist". This initiative forms part of the EU’s broader agenda on furthering tax transparency, fair taxation and the implementation of anti-BEPS measures with the dual aim of raising the level of good global governance and tackling tax fraud, evasion and avoidance.
On 7 May 2018, the Luxembourg tax authorities have released the circular L.G. -A n° 64 in relation to defensive measures that will apply to transactions entered into by Luxembourg companies with associated entreprises located in such jurisdictions.
As from fiscal year 2018, Luxembourg companies are required to indicate in their tax return whether they have performed any transaction with related parties located in the non-cooperative jurisdictions listed in the EU list. The list to take into account for such exercise will be the list updated as at the end of the financial year of the Luxembourg concerned entity.
Upon request, the details of said transactions would need to be provided to the Luxembourg tax authorities. The latter may notably requires the total amount and statement of related income and expenses linked to those transactions as well as a recapitulative of all receivables and debts with such related parties.
An enhanced audit will take place if the company performed any transaction with related parties located in the non-cooperative jurisdictions listed in the EU list.
The link is available here (only available in French).
Companies will have to comply with the provisions of the newly issued circular. A consolidated version of the list further to any change adopted by the EU Council will be published on the Luxembourg tax authorities’ website.