CSSF Updates

European Commission Adopted a Delegated Regulation That Amends the List of High-Risk Third Countries With Strategic Anti-Money Laundering (AML) and Counter-Terrorist Financing (CTF) Deficiencies

January 7, 2022

The European Commission adopted the Delegated Regulation amending the list of high-risk third countries with strategic AML/CTF deficiencies set out in Delegated Regulation (EU) 2016/1675. 

The new Delegation Regulation brought the below changes: 

• Burkina Faso, Cayman Islands, Haiti, Jordan, Mali, Morocco, the Philippines, Senegal and South Sudan are added to the list of third countries with strategic AML and CTF deficiencies.
• The Bahamas, Botswana, Ghana, Iraq and Mauritius are removed from the list of countries with strategic AML and CTF deficiencies.

The 23 jurisdictions identified by the EU as having strategic AML/CFT deficiencies are Afghanistan, Barbados, Burkina Faso, Cambodia, Cayman Islands, Haiti, Jamaica, Jordan, Mali, Morocco, Myanmar, Nicaragua, Pakistan, Panama, the Philippines, Senegal, South Sudan, Syria, Trinidad and Tobago, Uganda, Vanuatu, Yemen and Zimbabwe.

On February 21, 2022, the Delegated Regulation (EU) 2022/229 of January 7, 2022, amending the list of high-risk third countries with strategic AML/CTF deficiencies set out in Delegated Regulation (EU) 2016/1675 was published in the Official Journal of the EU. 

The Delegated Regulation (EU) 2022/229 of January 7, 2022, amending the list of high-risk third countries with strategic AML/CTF deficiencies set out in Delegated Regulation (EU) 2016/1675 will enter into force on March 13, 2022 (i.e., on the twentieth day following the publication in the Official Journal).

To be noted:

• Albania and Malta are in the FATF gray list and not in the EU list.
• Vanuatu is in the EU list and not in the FATF gray list.

Read the full article here.

CSSF—2021 Survey Related to the Fight Against Money Laundering and Terrorist Financing

January 27, 2022

The CSSF published a Circular letter related to the annual survey on the fight against money laundering and terrorist financing (“MF/TF”). The survey will be launched on February 15, 2022. The purpose of the annual survey is to collect standardized key information concerning ML/TF risks and the implementation of the measure to mitigate them. For the year 2021, the survey covered, among others, the following items:

• The general information on the investment fund managers, including the composition of the conduction officers, the compliance function and the UBO.
• The tasks performed as designated investment fund manager such as the fund administration or transfer agency or portfolio management or risk management.
• The tasks performed by the investment fund manager by delegation such as fund administration, transfer agency, portfolio management or marketing.
• The domiciliation services.
• The investment fund manager ML/TF inherent risks, including the number of investment fund initiators and the types and number of investment funds under management.
• The existence of branches/subsidiaries within the investment fund managers.
• The ongoing monitoring and cooperation with the authorities.
• The investment fund manager ML/TF mitigation effectiveness, including the risk-based approach or the AML training to the staff.

Compared to the previous questionnaire, the CSSF added new questions such as:

• Whether the AIFM provides to investment funds that are impacted by TFS (only UN, EU, LU lists)
• The name screening processes (screening against UN, EU, LU lists, positive hits)
• The number of suspicious transactions
• The use of AML/CFT procedures from another party

The 2021 ML/FT Survey must be submitted through the CSSF eDesk module between February 15 and April 15, 2021, by either the compliance officer in charge of the control of compliance with the professional obligations (“RC”) or the person responsible for compliance with the professional obligations (“RR”).

Read the full article here. 

Circular CSSF 22/795—Application of The ESMA Guidelines on Marketing Communications (ESMA34-45-1272) Under the Regulation on Facilitating the Cross-Border Distribution of Collective Investment Undertakings 

January 31, 2022 

The CSSF published the Circular CSSF 22/795 on ESMA Guidelines on marketing communications under the Regulation on facilitating the cross-border distribution of collective investment undertakings. The purpose of the Circular is the application in the Luxembourg framework of the ESMA Guidelines on marketing communications. 

The guidelines apply to UCITS and/or AIFs Investment Fund Managers, European venture capital funds (“EUVECAs”) managers and European social entrepreneurship funds (“EUSEFs”) managers.

Examples of documents that may be considered marketing communications:

• Messages advertising for a UCITS or an AIF in paper or electronic formats such as factsheets, advertisements or video presentation
• Messages broadcasted on any social media platform when such messages refer to any characteristics of a UCITS or an AIF, including the name of the UCITS or the AIF
• Marketing material addressed individually to investors or potential investors
• Documents or presentations made available to the public on a website or at the premises of the investment fund manager or distributor

Examples of documents that should not be considered as marketing communications:

• Legal and regulatory documentation such as prospectus, KIID or financial statements.
• Corporate communications such as dividend announcements or organizational changes.
• Short messages broadcast online
• Information or communication issued in the context of pre-marketing.

Furthermore, marketing communications should include a disclaimer such as “This is a marketing communication. Please refer to the (prospectus of the [UCITS/AIF/EuSEF/EuVECA]/Information document of the [AIF/EuSEF/EuVECA] and to the [KIID/KID][delete as applicable]) before making any final investment decisions.”

This Circular applies as of February 2, 2022.

Read the full article here.