In brief

On 27 July and 6 September 2022, the Commission de surveillance du secteur financier (CSSF) released a communiqué and a communication in relation to Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial services sector (SFDR) and the upcoming date of application of Commission Delegated Regulation (EU) 2022/1288 of 6 April 2022 supplementing SFDR (SFDR RTS).

The CSSF outlined the deadline of 1 January 2023.

Specific updates of UCITS and AIFs pre-contractual (prospectus/issuing documents) and periodic documents (annual reports) are referred to and the CSSF created an accelerated procedure for the submission of updated pre-contractual documents with templates of confirmation letter that should accompany the filing of a prospectus/issuing documents.

Practitioners may benefit from an accelerated examination if changes of prospectus/issuing documents are limited to the insertion of the pre-contractual disclosure templates foreseen in annex II and/or III of SFDR RTS.

This accelerated examination is available until 31 October 2022. Any transmission following the said process after that date will only be considered on a best-effort basis by the CSSF.

For further information on what this development might mean for you and assistance to fill in the confirmation letter, please get in touch with your usual Baker McKenzie contact.

In depth

Introduction of an accelerated procedure for the submission of UCITS and AIFs updated pre-contractual documents

By 1 January 2023, the SFDR RTS requires financial market participants to present, for financial products subject to Articles 8 and 9 of the SFDR, pre-contractual and periodic disclosure information in the format of the templates set out in the annexes of the SFDR RTS.

The SFDR RTS further outlines mandatory website product disclosure requirements applicable to financial market participants through the requirement of a separate website section.

Investment fund managers are required to submit the updated pre-contractual documents by 31 October 2022 at the latest. Any submissions received after 31 October 2022 will only be considered on a best-effort basis by the CSSF to deliver the visa stamp on the revised documentation before 1 January 2023.

To permit the accelerated examination and visa stamp procedure, the following conditions must be met:

  1. The changes made to the pre-contractual documents must be limited to the insertion of the templates according to the annexes of the SFDR RTS.
  2. The updated prospectus must be filed with the RTS confirmation letter duly filled in and signed by the authorized persons.
  3. Any other amendments that are not related to the SFDR RTS must be minor, be of editorial nature and not entail a material change for investors.

Templates for the RTS confirmation letter are available on the CSSF's website for UCITS via the following link and for AIFs via this link.

Procedure to benefit from the accelerated procedure

The CSSF further clarified the sequential process that must be followed to benefit from the accelerated examination.

  1. The application for the examination must contain the updated pre-contractual document in track changes and the RTS confirmation letter.
  2. The CSSF may return comments to the applicant with a request for clarification.
  3. Once completed and approved, the CSSF will inform the applicant that the examination phase has ended and invite them to upload a clean PDF version of the approved prospectus for a visa stamp.

Additional guidance regarding the filing of periodic reports

In its communiqué dated 27 July 2022, the CSSF also provided guidance regarding the filing of periodic reports.

Annual reports, issued as from 1 January 2023, must comply with the product disclosure requirements in periodic reports provided by the SFDR and the SFDR RTS, including the information to be presented in an annex to the annual reports by using the mandatory templates.

The CSSF also highlighted that Luxembourg domiciled UCITS management companies and authorized AIFMs have to ensure that the annual reports of UCITS and AIFs domiciled in other jurisdictions that they manage are compliant with the above mentioned periodic disclosure requirements.