The Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier (CSSF), issued on 5 May 2015 circular 15/612 (Circular) regarding the information to be submitted to the CSSF by alternative investment fund managers (AIFMs) in relation to: (i) unregulated1 alternative investment funds (AIFs) established in Luxembourg, another European Union (EU) Member State or a third country; and/or (ii) regulated AIFs established outside of the EU.
Applicability and Purpose of the Circular
The Circular is applicable to registered2 AIFMs as well as authorised3 AIFMs.
The Circular does not apply to regulated AIFs established in another EU Member State and which are managed by a Luxembourg AIFM, as the AIFM is already required to notify the CSSF in accordance with the procedure set out in the Law.
Rationale for the Circular
In its capacity as the Luxembourg supervisory authority, the CSSF is required to know at all times which AIFs are managed by Luxembourg AIFMs, and then forward this information to the European Securities and Markets Authority (ESMA) in order for ESMA to update the European register of AIFMs.
To comply with this obligation, the CSSF has relied thus far on the information provided to it by the AIFMs pursuant to the Law and the Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012. However, the information furnished to the CSSF was not sufficient, as it did not include any data as regards unregulated AIFs or regulated non-EU AIFs that are managed by a Luxembourg AIFM.
Therefore, the CSSF issued the Circular, which provides that a Luxembourg AIFM must inform the CSSF of any AIF(s) that it manages which had not been indicated to the CSSF at the time of the AIFM’s registration or authorization – regardless of whether such AIF(s) are regulated or unregulated or established outside of the EU.
Information to be Submitted to the CSSF
The information to be provided to the CSSF is to be set forth in a specific form, which is annexed to the Circular.
Timing for the Transmission of the Information
Pursuant to the Circular, an AIFM must inform the CSSF within 10 business days after the date on which it has started to manage the AIF in question. In that respect, the CSSF considers such date to be at the latest the date of signing or the effective date of the AIFM agreement entered into between the AIFM and the particular AIF, it being understood that the AIF may not have yet been launched.
The AIFM must also inform the CSSF when it ceases to manage an AIF as referred to in the Circular. This notification needs to be made within 10 business days after the termination of the mandate.