Amid the ongoing COVID-19 crisis, the Luxembourg authorities continue to update their guidelines regularly to tackle disruption and uncertainty caused by the pandemic. To help you digest the avalanche of information and stay up to date, we have compiled a snapshot of the measures adopted by Luxembourg’s financial regulator, Commission de Surveillance du Secteur Financier (CSSF), by the Luxembourg Trade and Companies Register, also known as Registre de Commerce et des Sociétés (RCS), and by the Luxembourg Central Bank.
Luxembourg Trade and Companies Register
On 27 March 2020, the Luxembourg authorities released draft bill 7541 to grant the possibility to prorogue or postpone the deposit and publication of annual accounts in derogation to the applicable rules without being liable for fines for not approving and/or not filing their documents in accordance with the usual procedures foreseen in the law.
In the normal scenario, Luxembourg-based entities must approve their annual accounts, consolidated annual accounts and related documents within six months after their closing, file them with the RCS and publicly release them with the Recueil Electronique des Sociétés et Associations (RESA) within one month following their approval (maximum seven months after their closing).
Due to the COVID-19 pandemic, the Luxembourg authorities have temporarily granted a prolongation of three months for those timeframes. More specifically, Luxembourg-based entities closing their books on 31 December 2019 now have until 30 September 2020 to approve them and until 31 October 2020 at the latest to release them. For the filing of the 2019 financial year annual accounts, concerned entities will benefit from filing their financial data with the Luxembourg RCS at the standard fee of €19 (excluding VAT and excluding registration fees and the CNC administrative tax).
Recently, the CSSF issued a series of updated Q&As covering temporary measures granted to supervised firms (i.e. Part II, SIF and SICAR), which are discussed in sub-sections 1 and 2 below. On 9 April 2020, they further instructed in-scope investment fund managers (IFMs) to issue a weekly questionnaire, as detailed in the below sub-section 3.
1. Annual reports
On 30 March 2020, the CSSF decided that the deadlines for submission of a list of documents may be exceptionally extended, upon reasonable request, to be sent by email to the usual contact person at the CSSF.
Submission on time is still encouraged, however, where the submission can be made within the usual timeframe without compromising the quality of the reporting and in line with the health rules to contain the spread of COVID-19.
Among the list of 12 documents stated in Question 11 of the CSSF Q&A for which an extension may be requested, we draw your attention to the following three:
- The audit report and the audited annual accounts (usually submitted one month after the ordinary general meeting and at the latest six months after the closing of records)
- The management report (usually submitted one month after the ordinary general meeting and at the latest six months after the closing of records)
- The recovery plans for which the submission dates are set individually in feedback letters.
The CSSF specifically insists that it must be informed of a request for extension before the expiry of the submission deadline laid down in the regulations.
2. Periodical reports
On 2 April 2020, the CSSF stated that the deadlines for the documents listed below may be extended provided that the CSSF is informed thereof. The communication to the CSSF must only be made by email and exclusively to the address [email protected].
Again, submission on time remains encouraged, where the submission can be made within the usual timeframe without compromising the quality of the reporting and in line with the health rules to contain the spread of COVID-19.
Among the list of 17 documents stated in Question 7 of the CSSF Q&A for which an extension may be requested, we draw your attention to the following five:
- The quarterly reporting G.2.1. (management companies subject to Chapters 15 and 16, AIFMs) on the basis of Circular CSSF 15/633 to be submitted to the CSSF within 20 calendar days following the end of the preceding month – This deadline may be extended to 40 calendar days following the end of the preceding month
- The management letter on the basis of Circular CSSF 02/81 to be submitted to the CSSF within four months (for UCITS) or six months (for non-UCITS) as from the reference date – An additional period of three months may be granted
- The semi-annual reporting K3.1 (SICAR) on the basis of Circular CSSF 08/376 to be submitted within 45 calendar days following the reference date – This reporting may be suspended until further notice
- The management letter to be submitted by IFMs within the month following the ordinary general meeting that approved the annual accounts and at the latest seven months after the closing date of the IFM’s financial year – An additional period of one month may be granted
- The quarterly reporting of authorised AIFMs with the list of managed alternative investment funds (AIFs) – This deadline is extended until 30 June 2020.
3. Weekly questionnaire
In-scope IFMs must issue a weekly questionnaire containing weekly updates on financial data (total net assets, subscriptions and redemptions) as well as an update on governance arrangements in relation to the activities performed by IFMs. Specifically, IFMs established in Luxembourg or in other European/non-European countries and managing at least one UCITS, AIF and/or any other undertaking for collective investment (UCI), in view of the specific circumstances and risks to which these companies are exposed to during the current period of market turbulence.
The CSSF requests provision of the weekly questionnaire by Wednesday close of business (COB) of the following week at the latest. For example, the first questionnaire, covering the week from 13 to 17 April 2020, must be submitted to the CSSF by Wednesday 22 April 2020 COB. The following questionnaire, covering the week from 20 to 24 April 2020, is due by COB on Wednesday 29 April 2020, and so on.
The process repeats for the subsequent weekly questionnaires until further notice from the CSSF. In order to support IFMs and to ensure a secured exchange platform, the response questionnaire shall be submitted by the IFM through the CSSF eDesk portal. For that purpose, the IFM must have an eDesk account with a LuxTrust authentication.
In-scope IFMs are as follows:
- Management companies established in Luxembourg and authorised either under Chapter 15 or Chapter 16 of the 2010 Law only, OR authorised/registered under both the 2010 Law and the 2013 Law
- Alternative investment fund managers (AIFMs) established in Luxembourg and authorised under the 2013 Law only
- Investment companies established in Luxembourg that did not designate a management company within the meaning of Article 27 of the 2010 Law
- Internally managed AIFs established in Luxembourg within the meaning of point (b) of Article 4(1) of the 2013 Law;
- Luxembourg branches of UCITS management companies or AIFMs established in an EU country other than Luxembourg and managing LU UCITS, LU regulated or non-regulated AIFs and/or any other LU UCI (not qualifying as an AIF)
- UCITS management companies established in an EU country other than Luxembourg
- Authorised AIFMs established in an EU country other than Luxembourg
- Non-EU AIFMs.
Out of scope of the weekly IFM questionnaire are:
- Registered AIFMs (with the exception of those mentioned above)
- IFMs referred to in Chapter 18 of the 2010 Law
- Any other UCI established in Luxembourg that has not designated an LU or EU UCITS management company or is not managed by a LU, EU or non-EU AIFM
- IFMs that act as delegated portfolio manager (hence not as an IFM per se) of an UCITS, UCI or AIF
- The activities of discretionary portfolio management provided by IFMs.
Luxembourg Central Bank
The regulatory reporting deadlines covering regulated funds, securitisation vehicles with total assets over €70 million and unregulated AIFs with total assets over €500 million are set by the European Central Bank (ECB) and thereafter implemented by each local EU central bank.
As of the date of this COVID-19 measures update, the ECB released a specific communication to its reporting agents on the collection of statistical information in the context of COVID-19. More specifically, the ECB and the national central banks acknowledge that the coronavirus pandemic poses considerable and diverse challenges to reporting agents across the euro area and the EU, such as the unavailability of staff for health reasons, restrictions on movement and the closing down of some sectors of the economy. The continuity and quality of statistical information reporting may be challenged by the exceptional circumstances surrounding the performance of day-to-day operations underlying the statistical reporting.
The ECB therefore invites the national central banks and reporting agents to find pragmatic solutions within the existing legal framework to keep data reporting within limits that are manageable for reporting agents, while maintaining the quality of the statistical information at a level that is fit for purpose. According to the ECB, measures to facilitate proportionality in the reporting of statistical information could, under the current circumstances, include reducing less important quality checks and related interactions necessary to ensure that the statistical information remains fit for purpose. In case of difficulties of reporting, reporting agents should contact their national central banks and the ECB, as appropriate, and they will be offered assistance.