The Financial Services Compliance and Regulation practice of Kroll, provides updates from the French financial regulator, Autorité des marchés financiers (AMF) and Luxembourg’s Commission de Surveillance du Secteur Financier (CSSF) for asset managers during Q2 2021.
The AMF Published 2019 Key Figures of Asset Management Activities
As part of the monitoring of the third-party asset management sector, the AMF published key figures related to the sector annually.
In 2019, the number of live management companies reached 657, its highest level so far, and the number of authorization withdrawals remained low (21 withdrawals in 2019).
The amount of assets under management of companies has increased by almost €440 billion (bn) compared to 2018.
The revenue generated by portfolio management companies amounted to €16,200 million (mn) at the end of 2019, and the operating expenses reached a level of €12,954 mn in 2019.
With regards to the control system of management companies, the number of staff dedicated to the compliance and internal control function of the French asset management industry has increased compared to previous years.
As of December 31, 2019, the total amount of equity reported by management companies has reached €5.4 bn. At the same time, 27 of them had a capital shortfall under the applicable regulatory requirements. For these companies, immediate remedial measures were required (capital increase, setting up of Tier 2 capital, etc.).
Reform of the socially responsible investment label
With the aim to modernize the socially responsible investment (SRI) label and to take into account the many developments in the responsible investment market in France and Europe, the Minister of Economy and the Secretary of State for Social, Solidarity and Responsible Economy have initiated a consultation among professionals in Paris on the evolution of the governance of the SRI label.
This consultation follows the conclusions of the assessment and outlook analysis of the SRI label submitted by the General Inspectorate of Finance (IGF) in January 2021 that stresses the need to strengthen the requirements of the label. Read the article here.
The AMF's response to the European Commission's public consultation on the Central Securities Depositories Regulation review
On 8 December 2020, the European Commission launched a review of the European Regulation CSDR. For that purpose, it has published a public consultation paper composed of eight main themes.
The AMF and the Bank of France jointly responded to this public consultation and recommend the following:
The AMF publishes the results of a new series of thematic inspections of the cyber security systems and processes of asset management companies
After a first inspection in December 2019, the AMF published the results of a new thematic short inspection SPOT on the systems and processes put in place by five asset management firms to address cyber security.
The regulator’s focus points are:
The good practices observed by the AMF include the appointment of a dedicated manager from the executive committee to handle cyber security topics, regular awareness-rising campaigns for employees and including cyber risks into risk mapping and control plans.
Moreover, the AMF highlights the importance of elaborating on sensitive data/critical systems classification and mapping prior to the formalization of a cyber security strategy. Read the article here.
The Commission de Surveillance du Secteur Financier publishes governance and security requirements for supervised entities to perform tasks or activities through telework
The Commission de Surveillance du Secteur Financier (CSSF) published a circular 21/769 that defines the governance and security requirements for supervised firms that implement telework solutions. This circular applies under normal general working conditions. It does not apply under pandemic situations.
The circular mentions the need to define a telework policy defining the framework and limits in which telework can be authorized.
In addition, regarding internal controls, the supervised entities must carry out a risk analysis to assess risks inherent to the implementation of telework, in particular the following risks: operational, legal, compliance and those related to information and communication technology (ICT).
Companies must also take the necessary measures to ensure that the level of residual risk remains acceptable.
The circular also includes requirements related to ICT and security risks.
The AMF Enforcement Committee fines the management company Efigest Conseil and its directors for breaches of their professional obligations
In its decision of April 12, the committee issued a reprimand to Efigest Conseil. It also imposed a €50,000 fine and a reprimand on Jean-Noel Vignon and a €30,000 fine and a warning on Sylvain Bruley, the company’s directors at the time of the events.
The identified breaches include:
Read the article here.
The AMF amends its doctrine on fees and commissions
The AMF has amended the provisions of its position-recommendation DOC-2013-10 on incentives and remuneration fees regarding the distribution and management under the mandate of financial instruments.
The changes made include:
Read the article here.
The AMF Enforcement Committee fines the management company Gestys SA and its directors for breaches of their professional obligations
The AMF Enforcement Committee pronounced against the management company Gestys SA and the chairman of its management board, Jean-Laurent Bruel, a financial fine of €50,000 with a reprimand.
The identified breaches include:
Read the article here.
The European Commission makes a proposal for a new directive on the disclosure of sustainability information by companies
The Corporate Sustainability Reporting Directive (CSRD) proposal published by the European Commission would amend the current reporting requirements NRFD. This new directive aims to:
Sustainable Finance and EU Taxonomy: The European Commission takes further steps to channel money towards sustainable activities
The European Commission has adopted a set of measures to help improve the flow of money towards sustainable activities across the EU.
These measures include:
Read the article here.
Digital assets service providers – cyber security requirements
Instruction DOC-2019-24 specifies the cybersecurity requirements that digital asset service providers must meet in order to ensure the resilience and security of their information systems.
The requirements include:
The AMF updates its Doctrine and General Regulation with regards to the new provisions of the Commercial Code
Since January 1, 2021, the Commercial Code contains a new Chapter X grouping together all the provisions specific to listed companies. To consider the change in the numbering of articles of the Commercial Code resulting from this reform, the AMF has updated its Doctrine.
The update includes minor changes in the references to articles of the Commercial Code whose numbering has been changed by the order and the decree.
In addition, an update of articles 221-1, 222-3, 222-9, 223-38, 231-19, 231-41, 231-54, 233-1 and 241-1 of the general regulations of the AMF is in the process.
Read the article here.
€600,000 fine for Corum Asset Management for breaches of its professional obligations
The AMF’s Enforcement Committee imposed a financial fine of €600,000 against Corum Asset Management for the following reasons:
Read the article here.
The AMF specifies the certification conditions for organizations
The AMF has published instruction DOC 2021-03 specifying the conditions for certification by the AMF of a training organization in order to provide the AMF sustainable finance exam.
The instruction specifies the characteristics of the examination, the operating rules of the common examination bases and certification request procedures.
The exam in sustainable finance is aimed at retail professionals wishing to have a general knowledge of the institutional and economic framework of sustainable finance to understand the essential concepts and the methodologies used.
Packaged Retail Investment and Insurance-Based Products regulation, clarification for closed funds
As per the Commission Delegated Regulation (EU) 2017/653 of March 8, 2017, the key information document (KID) must contain up-to-date information, allowing investors to make informed decisions if the product remains “available” to retail investors. This requirement is imposed "over the life of the product in question where it remains accessible to retail investors."
Therefore, when a Packaged Retail Investment and Insurance-Based Products regulation (PRIIP) is closed for subscriptions to non-professional investors, within the meaning of the multilateral interchange fees (MiF) directive after an initial subscription period and no structured secondary market is organized by or on behalf of the producer, the said PRIIP should no longer be considered accessible or "made available" to retail investors. In this case, the initiator would no longer have the obligation to update the existing KID.
Source: Response from the AMF - Asset Management Department to AFG - France Invest Joint Letter
The AMF specified in its instruction DOC-2016-01, the information on the identity of the head of the depository function of Undertakings for the Collective Investment in Transferable Securities (UCITS) and alternative investment funds (AIFs). The instruction has been amended to include a form that the depository must send to the AMF to declare the person responsible for the depository function.
For depositories whose program of activity has been approved or sent before May 4, 2021, this form must be sent to the AMF within three months, i.e., before August 4, 2021.
In addition, in the event of a change in the head of the depository function, the form must be sent to the AMF within 30 days of the appointment of the new head, along with his curriculum vitae.
Moreover, the depository regime had undergone some modifications, following the approval of the modifications to the AMF general regulations on March 29, 2021. In particular, the articles relating to the procedures for exercising control over the regularity of the decisions for UCITS and AIFs, the duties of the depository of AIFs, the terms of custody of assets and the sections relating to the depositories of securitization undertakings.
Read the article here.
The AMF publishes a study on the fees and performance of marketed funds incorporating an extra-financial approach
The AMF published a study that sheds light on the costs and performance of funds marketed in France, incorporating an extra-financial approach between 2012 and 2018. The results of the analysis highlight the fact that the net performance of funds integrating an extra-financial dimension are not significantly different from those of classic funds, while the units of funds taking into account extra-financial criteria tend to be less expensive than their equivalent without an extra-financial approach. Several hypotheses explaining this result are presented (proactive policy of management companies, lower management fees, etc.)
Association Française des Sociétés de Placement Immobilier (ASPIM) publishes a study on SRI Labelling practices of real estate funds
The ASPIM and OID, with the support of Novethic Market Data, have joined forces to draw up an initial assessment and identify the first trends in SRI labeling in real estate.
According to this study, 6% of the global real estate AIF funds were labeled in 2020. Most of these funds have adopted a best-in-progress strategy.
Management companies that label their funds are required to publish several documents, either publicly on their website (for retail funds) or directly to investors.
The study raises the difficulties encountered by real estate funds for collecting environmental, social and governance (ESG) information. Indeed, ESG data is often fragmented between different actors such as owners, tenants, operators and suppliers. In addition, the lack of a database makes it difficult to set up a quality control process.
The SRI label repository does not currently provide any details on the level of data reliability expected in the audit. A working group has been launched to publish an SRI Label Audit Guide for real estate funds.
The AMF publishes its findings on liquidity management in UCITS
The AMF published a summary of the practices observed in the French market, during a supervision exercise, coordinated by the European Securities and Markets Authority (ESMA), relating to liquidity risk management in UCITS.
The objective of this exercise is to ensure that the practices of management companies always comply with regulations and allow investors’ redemption requests to be honored.
The AMF has focused its attention on the following topics:
The ESMA publishes guidelines on funds’ marketing communications
The ESMA published its final report on its guidelines under the regulation on cross-border distribution of funds. The guidelines specify the requirements that fund marketing communications must meet. Thus, marketing documents must:
Read the article here.
The AMF publishes a guide and new letter templates to unit and shareholders of collective investment undertakings
The AMF updated its doctrine to specify the content and formalization of information letters to unitholders or shareholders of UCITS, retail investment funds, funds of alternative funds and professional investment funds, employee-savings funds, private equity funds, real estate collective investment undertakings and professional real estate collective investment undertakings.
The AMF has also published a guide to writing letters to approved UCIs unitholders, stressing the need to maintain clear and concise language to make it easier for investors to understand the content.
Authorized collective investment management companies will have to comply with this new standard framework from September 1.
The ESMA has updated its Q&A on a series of topics
The ESMA has updated the Q&A on the following topics:
Read the article here.
Cross-border distribution of undertakings for collective investment – Cross Border Distribution of Funds Directive
The EU 2019/1160 directive (“Directive”) aimed to facilitate the cross-border distribution of collective investment funds by reducing regulatory barriers to cross-border distribution, identified as the national provisions that the member states have taken in terms of marketing, regulatory fees, distribution infrastructure and passport notification procedures.
This Directive will modify both the UCITS and AIFM directives. Therefore, it will be necessary to modify the national texts transposing these directives and to adapt the monetary and financial code to the modifications made by the regulation.
Impacts of the transposition of the EU cross-border distribution of funds (CBFD) directive:
This directive should be transposed before August 2, 2021.
Global Derivative Trading GmbH sanctioned by the AMF for breach of its professional obligations
The AMF’s Enforcement Committee imposed a fine of €1,200,000 against GDT, the German management company, and a fine of the same amount against Thorsten Wagner, its CEO, for having, between July 1 and October 13, 2015, committed a breach of price manipulation due to orders placed on French sovereign bond futures contract. Read the article here.
The ESMA specifies the method for calculating performance fees
The ESMA published its AIFMD and UCITS Q&A update as of end of May. These updates included details on the method of calculating outperformance fees.
To comply with paragraph 40 of the guidelines on performance fees, the ESMA specifies that it should be ensured that any underperformance is brought forward for a minimum period of five years before a performance fee becomes payable.
If the fund has outperformed the benchmark index, the fund manager should be able to crystallize the performance fees.
These details invalidate certain aspects of the AFG method. Consequently, the document resulting from the AFG working group "Commissions de superformance”(CSP) - paragraph 40 ESMA guidelines" of November 2020 is no longer relevant.
Compliance function requirements: The AMF integrates the ESMA’s guidelines
The AMF published its position DOC-2021-04 replacing position DOC-2012-17 to integrate the ESMA's guidelines on certain aspects of MiFID II relating to the requirements of the compliance function.
The new ESMA guidelines provide details on the following points:
These guidelines are applicable to investment firms, credit institutions and portfolio management companies in the context of the provision of investment services or related services.
The AMF’s Enforcement Committee issues a sanction against Arkea Direct Bank
The AMF’s Enforcement Committee imposed a €220,000 fine against Arkea Direct Bank for the following reasons:
Read the article here.
The AMF amends its general regulations and updates its doctrine on digital asset service providers
The AMF has introduced a new article in its general regulations that defines the conditions under which a service on digital assets is provided in France.
Thus, a digital asset service is provided in France when it is provided by a digital asset service provider with facilities in France or at the initiative of the digital asset service provider to resident or established customers in France.
In addition, the AMF has updated its doctrine relating to the regulations applicable to digital asset service providers:
Publication of the decree implementing article 29 of the Energie Climat law
The decree implementing article 29 of the Energie Climat law was published in the Official Journal on May 27, 2021, and entered into force the day after its publication.
This decree provides details on the information to be published about the means implemented to contribute to the energy and ecological transition and disclosure obligations on the strategy of investors to comply with the provisions of the Paris Agreement and international agreements resulting from Conference of parties of the United Nations (COPs) on biodiversity.
In addition, the decree specifies the formats and methods of publication of this information on the website of the management companies and in the annual and half-yearly reports.
The AMF updates its General Regulation and Doctrine on employee investment undertakings
The AMF has amended its general regulations and its policy to consider the impact of the PACTE law on the retirement savings scheme.
Changes to the Doctrine include:
Regarding the general regulations, article 424-3 has been amended to give the possibility of subscription of employee investment undertakings units by insurers in addition to employees. Moreover, article 322-73 has been amended to exempt retirement savings schemes in the form of insurance contracts from compliance with the provisions of the AMF general regulations relating to account-keeping of the employee savings scheme.
First use of SFTR reporting data
The AMF has published an analysis of the securities financing transactions market, using data from SFTR reporting.
As a reminder, the content of the SFTR reporting is included in the Delegated Regulation 2019/356 of December 13, 2018, and its appendix. It is broken down into four tables of data on: counterparties, loan and collateral, margins and the reuse of collateral.
These data constitute a source of additional information that is quite useful for the AMF in carrying out its missions of detecting potential dysfunctions or market abuse and analysing risks.
A first analysis by the AMF on the volume and amounts declared by the type of product shows the preponderance of repo and buy-sell back operations. Banks and credit institutions contribute to the most declarations on repo and securities lending and borrowing. Investment funds represent a small part (2% to 3%) of the amounts declared.
New quarterly reporting to the AMF on investment rule violations and compensation
Following the decree of March 29, 2021, approving the AMF general regulations, the AMF has implemented two new reports for the control and monitoring of the activity of management companies.
The first report covers investment rule violations and compensation paid by portfolio management companies. The data is transmitted to the AMF via the ROSA system, either by direct entry or by importing a file in the Excel format. This reporting must be carried out quarterly and is expected within 30 days of the end of the quarter. The first reporting will therefore be required by October 31, 2021.
The second report is incumbent on the depositories on investment rule violations and on the centralizers on subscriptions in the funds. This report will be carried out at the request of the AMF.
Liquidity contracts – the AMF’s decision to update accepted market practice
The AMF notified the ESMA and the competent European authorities on March 31, 2021, of its intention to introduce a accepted market practice (AMP) relating to liquidity contracts that will replace the accepted market practice in place since January 2019.
On May 31, the ESMA published a negative opinion on this practice, deeming it incompatible with Market Abuse Regulations and the ESMA's opinion on the Points for Convergence of 2017. The ESMA raised several concerns, in particular the absence of position limits and the presence of volume and resources that are significantly higher than the recommended limits.
Following an in-depth review of the ESMA's opinion, the AMF published an explanatory note on June 23, detailing the reasons for its decision to introduce the amended AMP and why the modified AMP does not threaten market confidence, given certain stricter provisions that the AMF has taken to regulate liquidity contracts in light of the ESMA’s recommendations.
The ESMA publishes its Annual statistical report on the AIF sector
On April 8, the ESMA published its third annual statistical report on the AIF sector covering the 2019 period.
In 2019, the AIF market reached €6.8 trillion in net asset value (NAV) (+15% compared to 2018) due to the launch of new funds and positive valuation effects. As part of the AIF universe:
As per the statistical report, the main risk is a mismatch between the potential liquidity of the assets and the redemption time frame offered to investors, especially for fund of funds and real estate funds.
CSSF publishes Circular CSSF 21/769 on governance and security requirements for Supervised Entities to perform tasks or activities through Telework
On April 9, the CSSF published the Circular 21/769 (“Circular”) on governance and security requirements for Supervised Entities to perform tasks or activities through Telework.
The Circular defines the governance and security requirements with regards to the Telework solutions under normal working conditions. Therefore, the Circular does not apply under pandemic situations or in case of other exceptional circumstances having a comparable impact on the general working conditions.
Companies under the supervision of the CSSF must, among others:
Furthermore, the Circular highlights that:
The Circular will be effective from September 30, 2021.
CSSF applied the ESMA guidelines on the reporting under Articles 4 and 12 SFTR
On April 13, the CSSF published a Circular CSSF 21/770 (“Circular”) on the ESMA guidelines on the reporting under Articles 4 and 12 SFTR. The purpose of the Circular is the application in the Luxembourg framework of the ESMA guidelines on the reporting under Articles 4 and 12 SFTR, amending among others:
The circular applies from April13, 2021.
The ESMA publishes its Annual statistical report on the cost and performance of EU retail investment products
On April 14, the ESMA published its third annual statistical report on the cost and performance of the EU retail investment products.
As part of the EU investment products offered to retail investors, the UCITS market is the largest with €11 trillion in NAV (+ €9 trillion compared to 2018). The ESMA highlighted that the main challenge for UCITS funds remains the costs impacting the outcome for the investors. The ESMA provided the following example: “A 10-year retail investment of €10,000 in a hypothetical portfolio of equity, bond or mixed assets funds provided a value of €21,813 declining to €18,616 net of costs.”
The two other types of investment products offered to retail investors are:
The CSSF applied the ESMA guidelines on disclosure requirements under the Prospectus Regulation
On April 20, the CSSF published the Circular 21/771 (“Circular”) on application of the ESMA guidelines on disclosure requirements under the prospectus regulation. The purpose of the Circular is the application in the Luxembourg framework of the ESMA on disclosure requirements under the prospectus regulation.
The Circular applies from May 5, 2021.
The European Commission adopts Delegated Regulation and Annex correcting Delegated Regulation (EU) 2017/565 supplementing MiFID II
On April 21, the European Commission adopted the Delegated Regulation correcting Delegated Regulation (EU) 2017/565, supplementing MiFID II as regards organizational requirements and operating conditions for investment firms.
The Delegated Regulation amends Article 1(1) (subject-matter and scope) and corrects errors appearing on several cross-references in the Annex 1 (record-keeping), sections:
The Delegated Regulation will come into force on the 20th day following its publication in the Official Journal of the European Union.
Read the article here.
The ESMA updates its Q&A on the Prospectus Regulation
On May 5, the ESMA published the updated Q&A on the Prospectus Regulation.
Compared to the March 2021 version, the below listed topics were updated:
Read the article here.
The ALFI publishes its AML/CFT guidelines for Luxembourg-regulated and supervised entities
On May 20, the Association of Luxembourg Funds Industry (ALFI) published the AML/CFT guidelines. The guidelines aim to provide the best practices and recommendations on the fight against money laundering and terrorist financing in the Luxembourg’s investment fund industry. The guidelines outline the roles, responsibilities and obligations for market participants (such as investment funds, investment fund managers, fund administrators or portfolio managers) with respect to the current Luxembourg and international regulatory framework.
Due diligence measures are one of the key aspects in the fight against money laundering and terrorist financing and the ALFI guidelines provide details on measures to be taken depending on the counterparty, i.e., delegates, customer/investors and asset types (shares, derivatives, private estate, real estate).
To publish the AML/CFT guidelines, the ALFI worked jointly with the Luxembourg Bankers' Association (ABBL), Association Luxembourgeoise des Compliance Officers (ALCO), Luxembourg Private Equity and Venture Capital Association (LPEA) and Real Estate Association of Luxembourg (LuxReal). The document is available to ALFI’s members only.
Chamber of Deputies discuss the Bill of Law amending the Law of 22 March 2004 on securitization
On May 21, the Bill of Law amending the law of March 22, 2004 on securitization was presented to the Chamber of Deputies. The Bill of Law aims to provide a greater flexibility for certain securitization vehicles to benefit from the opportunities presented by active management, which will enhance the attractivity for collateralized loan obligations (CLO) structures.
Furthermore, the Bill of Law will allow securities vehicles to be established as tax transparent partnerships such as a common limited partnership or a special limited partnership and not only as a securitization fund or as a company.
Publication of the Law of 20 May 2021, amending the Law of 5 April 1993, on the financial sector and transposing the CRD V Directive
The Law of 20 May 2021 (“Law”) was published in the official journal, amending the Law of April 5, 1993, on the financial sector and transposing the CRD V Directive.
In its press release dated June 18, 2021, the CSSF draws the public's attention to the below listed developments under/in connection with the Law:
The above mentioned amendments came into force on May 25, 2021, except for the inclusion of the new Articles 59–13ter and 59–13quater of the LFS and the amendment of Article 59–14, paragraph 1 of the LFS, which entered into force on January 1, 2022, as mentioned in Article 108 of the Law.
CSSF – revised FAQ concerning the Luxembourg Law of December 17, 2010, relating to undertakings for collective investment, and the Luxembourg Law of July 12, 2013, on alternative investment fund managers
On June 10, the CSSF published the version 11 of the FAQ concerning the Luxembourg law of December 17 , 2010, relating to undertakings for collective investment. Compared to the November 2020 version, the CSSF added a new section 10. Application of MiFID to Luxembourg investment fund managers (IFMs) to clarify under what circumstances and to what extent MiFID applies to IFMs, their third-party delegates and their investment advisers.
The revised FAQ provides answers to the following questions (non-exhaustive list):
IFMs are expected to comply with the FAQ as soon as possible and by December 31, 2021, at the latest, considering the best interests of investors.
In addition, the CSSF highly suggests that IFMs should perform a gap analysis of their current organization model to assess:
CSSF - Circular CSSF 21/773 on the Management of Climate-related and Environmental Risks
On June 21, the CSSF published Circular CSSF 21/773 (“Circular”), a new guidance on the management of climate-related and environmental risks. The Circular applies to all credit institutions designated as less significant institutions under the single supervisory mechanism and to all branches of non-EU credit institutions. Companies in scope are expected to consider and integrate climate-related and environmental risk into their operations.
The Circular is applicable as of June 21, 2021.
The CSSF publishes FAQ on AML/CFT Market Entry Form for Investment Fund Managers and Investment Funds
On June 21, the CSSF published the first version of the FAQ on AML/CFT market entry form for investment fund managers and investment funds.
The FAQ provides clarifications on how and when an AML/CFT market entry form must be submitted to the CSSF and the information to provide regarding, among others, the shareholding structure of the investment fund manager or the approval of several sub-funds of an investment fund. The CSSF reminds market participants that an AML/CFT market entry form must be submitted for the following purposes:
Since February 15, 2021, investment funds and investment fund managers must fill out and submit the AML/CFT market entry form through CSSF portal eDesk.
The Importance of Purposeful Anti-Money Laundering Controls
The Division of Examinations’ Review of ESG Investing
Financial Stability Board Publishes Peer Review of UK Remuneration Regime
FCA Bans and Fines Financial Adviser £68,300 for Lacking Honesty and Integrity
FCA Business Plan 2021/22
Compliance, Culture and Evolving Regulatory Expectations
Changes to UK MiFID’s Conduct
Regulation for a Different World
FCA Fines Sapien Capital Ltd. for Serious Financial Crime Control Failings in Relation to Cum/Ex Trading
The Rise in Scams and the Threat to a Legitimate Financial Services Industry
All Reporting Firms Moved to FCA’s New Data Collection Platform Regdata
FCA Charges Ian Hudson with Fraudulent Trading and Carrying on Regulated Activities Without Authorisation
Temporary Registration Regime Extended for Cryptoasset Businesses
The FCA and the Bank of England Encourage Market Participants in a Switch to SOFR in U.S. Dollar
Building a Regulatory Environment for the Future
FCA Review Finds Weaknesses in Some “Host” Authorized Fund Management Firms’ Governance and Operations
PRA and FCA Publish Policy Statement on Bilateral Margin Requirements for Uncleared Derivatives
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