Further to our earlier legal update on mandatory notifications to Luxembourg's financial regulator, the Commission de Surveillance du Secteur Financier ("CSSF") in the context of Brexit1, the CSSF has issued another press release2on this subject, in light of the impending Brexit deadline.
In its latest press release, the CSSF included two separate communications addressed to different categories of UK Managers of Luxembourg alternative investment funds ("AIFs"). The press release expressly states that it applies to all AIFs managed by UK managers, irrespective of whether or not the AIF is regulated under a Luxembourg sectorial (or 'product') law ("UK Managers").
The first communication is addressed to UK Managers who have not submitted a notification to the CSSF through its dedicated Brexit portal (the "Notification") in advance of the 15 September 2019 deadline (the "First Communication"). The second communication is addressed to UK Managers who have submitted a Notification in advance of the 15 September 2019 deadline (the "Second Communication"). A cheat sheet can be found on page three of this update.
UK Managers – Notification Not Submitted
In the First Communication, the CSSF reminds UK Managers who have not submitted a Notification that they will not be entitled to continue providing their services in Luxembourg under the relevant passport regime during the transitional period (the "Transitional Period") foreseen by the Brexit Laws. As such, from 1 November 2019, each of these UK Managers will be considered as a third-country manager ("TCM") and will lose the benefit of their current passporting rights if a hard Brexit occurs on 31 October 2019 (the "Brexit Date").
UK Managers who wish to continue providing services (as a TCM) to AIFs they currently manage and whose direct and indirect investors are Professional Investors are required to seek the approval of these Professional Investors before the Brexit Date.
Approval of Professional Investors
Professional Investors must approve the UK Manager's redesignation as a TCM in accordance with the conditions to amend the articles of association or limited partnership agreement as set out in the AIF's constitutive documents. In the absence of such a provision, the relevant provisions of the law of 10 August 1915 on commercial companies will apply. When communicating with Professional Investors on this, UK Managers should clearly indicate the possible outcomes of the vote and their potential consequences.
Documents to be provided to the CSSF
In the event the Professional Investors of an AIF have approved the UK Manager's redesignation as a TCM in respect of the AIF, the UK Manager must provide the CSSF, by email to firstname.lastname@example.org, with the following documents (the "Documents") before 31 October 2019, save in the case of exceptional circumstances:
- a duly signed confirmation from the UK Manager that all direct and indirect investors in the AIF qualify as Professional Investors; and
- a copy of the appropriate, duly signed resolution(s) evidencing the approval of the Professional Investors.
Breach of Applicable Luxembourg Requirements
UK Managers who have not submitted a Notification through the dedicated Brexit portal or have not provided a copy of the Documents to the CSSF will be regarded by the CSSF as operating in breach of applicable requirements as of the date of a hard Brexit. Furthermore, the CSSF has reserved the right to publish a list of these UK Managers.
UK Managers - Notification Submitted
The CSSF has set out the same procedure in the Second Communication which is aimed at UK Managers seeking the approval of Professional Investors for the UK Manager to act as a TCM following a hard Brexit, despite the fact that the UK Manager has already submitted a Notification to the CSSF in respect of the UK Managers' intention to continue providing services in Luxembourg for the duration of the Transitional Period.
Documents to be provided to the CSSF
However, in addition to providing the Documents, such UK Managers must also provide a duly signed confirmation from the UK Manager confirming that the Notification should be rescinded and specifying the Notification number, the list of AIFs in respect of which the Notification should be disregarded and the list of AIFs in respect of which the Notification is still valid, if any.
Withdrawal of Notification
The Second Communication also provides that, where a UK Manager has decided to so seek the approval of Professional Investors (which must be obtained by 31 October 2019), the UK Manager may withdraw its Notification to the CSSF through the dedicated Brexit portal and should do so prior to seeking the approval of the Professional Investors. The UK manager will not benefit from the Transitional Period if it opts to continue providing services as a TCM and withdraws the Notification.
Assumption of Hard Brexit
The CSSF also noted that the foregoing is based on the assumption that a hard Brexit will occur on 31 October 2019 and that future legislative or regulatory modifications of the third country regime in its current form are not precluded by this press release or the communications.
Transitional Period ("TP")