CSSF SFDR/ Sustainable Finance Related Developments March/April 2023

CSSF Data Collection Exercise Relating to Certain SFDR Disclosures, CSSF SFDR FAQ Update and CSSF’s Supervisory Priorities in the Area of Sustainable Finance

CSSF Data Collection Exercise Relating to Certain SFDR Disclosures

Background

European regulators have begun reviewing documentation and other information in connection with implementation of the EU’s Sustainable Finance Disclosure Regulation (SFDR)¹ and the Taxonomy Regulation (RTS).² On 27 July 2022, Luxembourg’s financial markets supervisory authority, the Commission de surveillance du secteur financier (CSSF), issued a communication³ (the July Communication) to the investment fund industry following the publication of the RTS announcing its intention to launch “in the near future” a “data collection exercise to digitally collect the information contained in the precontractual and periodic disclosure templates covering also AIFs managed by a Luxembourg based AIFM which were not concerned by the filing procedure outlined above” (i.e., covering any AIFs not under its supervision and managed by a Luxembourg based alternative investment fund manager (AIFM)).

First Data Collection Exercise – February 2023

The CSSF made good on this warning with a communication⁴ on 1 February 2023 setting out the details of a data collection exercise in relation to any Luxembourg domiciled financial market participants (as defined in SDFR, FMPs), managing UCITS or AIFs. This included AIFs regardless of whether they are CSSF supervised or not. The data collection exercise focused only on the obligations of the FMP under SFDR (i.e., firm level obligations under articles 3, 4 and 5 of SFDR), as opposed to the AIF or UCITS product content of any “precontractual and periodic disclosure templates” mentioned in the July Communication. The deadline for in-scope entities to submit their completed questionnaires was 2 March 2023.

March 2023 Developments – Second Data Collection Exercise

On 24 March 2023, the CSSF took its data collection and review process one step further – using information gathered in the February 2023 data collection exercise, the CSSF issued a communication⁵ announcing the launch of a second data collection exercise, this time relating to precontractual product disclosure information (i.e., any information to be published under article 6(3) of SFDR) for products managed by FMPs. The FMPs and their products in-scope for this second data collection exercise are:

a) UCITS management companies, based in Luxembourg or in another EU Member State, in relation to all Luxembourg-domiciled UCITS they manage;

b) authorised AIFMs, based in Luxembourg, in relation to all Luxembourg-domiciled regulated and unregulated AIFs (including ELTIFs)⁶ they manage;

c) authorised AIFMs, based in another EU Member State, in relation to all Luxembourg-domiciled regulated AIFs, as well as Luxembourg-domiciled unregulated AIFs (only when they qualify as ELTIFs) they manage (meaning that any other Luxembourg-domiciled unregulated AIFs will not be caught by this exercise and the relevant AIFM is not required to respond to this data request);

d) registered AIFMs, subject to Article 3(3) of the 2013 Law, based in Luxembourg or in another EU Member State, in relation to all Luxembourg-domiciled regulated AIFs they manage; and

e) IORPs⁷, subject to the Luxembourg Law of 13 July 2005.

The deadline for all in-scope FMPs to submit the report in respect of this second data collection exercise is 15 June 2023. The data collection exercise appears to cover all FPs listed above, regardless of their SFDR classification and relates to all pre-contractual disclosures under article 6(3) of SFDR (i.e., in respect of disclosures made pursuant to articles 6(1), 8 or 9 of SFDR).

The CSSF specifically states that entities not in-scope of AIFMD⁸ (referring to these as FMPs under SFDR) may voluntarily participate in the data collection exercise.

The CSSF also states that investment fund managers (IFMs, i.e., FMPs who manage UCITS or AIFs) and IORPs remain responsible for ensuring that the information provided in the initial declaration⁹ is kept up to date. In particular if there are changes¹⁰ to the precontractual documents/templates, IFMs and IORPs must update the data reported to the CSSF under the data collection exercise.

The CSSF has prepared a user guide providing clarifications on the content and the format of the information to be reported, as well as technical details on the data collection process.

The CSSF’s March 2023 communication notes that the current data collection exercise will be extended in the near future to collect information contained in the principal adverse impact (PAI) statements and the periodic reports made using the disclosure templates. The CSSF will provide further details on timing and practical proceeding of this extended data collection at a later stage.

This is a significant move by the CSSF meaning that it will be receiving data that it will not have had cause to review before and drawing a broader category of FMP into the data collection exercise.

CSSF SFDR FAQ Updated March 2023

As discussed in our previous OnPoint,¹¹ in December 2022 the CSSF published an FAQ seeking to clarify certain items under SFDR.

On 13 March 2023, the CSSF updated the FAQ¹² to include new questions relating to (1) use of ESG and/or sustainability related terminology in fund names, and whether there are there any ESG and/or sustainability related considerations that FMPs need to take into account in relation to fund names; (2) the methodology used to define sustainable investments; and (3) efficient portfolio management techniques and whether techniques used for hedging purposes fall within the “remaining portion” of the investment portfolio of funds disclosing under article 9 of SFDR.

CSSF Supervisory Priorities in the Area of Sustainable Finance

On 6 April 2023, the CSSF published a communication¹³ setting out its supervisory priorities in the area of sustainable finance across a number of sectors.¹⁴ Set out below are the priorities relating specifically to the asset management industry.

The CSSF states that it will continue to monitor IFMs’ compliance with the sustainability-related provisions as set out in SFDR, the RTS and Taxonomy Regulation. In so doing, the CSSF reiterates that it will take due consideration of the principles and guidance laid down in ESMA’s Supervisory Briefing on Sustainability risks and disclosures in the area of investment management¹⁵ published on 31 May 2022 (the Supervisory Briefing). The CSSF will also integrate any additional regulatory developments on the topic (e.g., any developments arising out of ESMA’s ongoing work on Guidelines on funds’ names using ESG or sustainability related terms)¹⁶ in its supervisory approach.

The CSSF will focus on the following priority areas in accordance with a risk-based approach:

a) Organisational arrangements of IFMs, including the integration of sustainability risks by financial market participants – The CSSF expects IFMs’ organisational arrangements to take due account of the integration of sustainability risks, notably in terms of human resources and governance, investment decision or advice processes, remuneration and risk management processes and policies and management of conflicts of interest as required under SFDR. The verification of the integration of those provisions in the IFMs’ organisational arrangements will remain an integral part of the CSSF supervisory approach.

b) Verification of the compliance of pre-contractual and periodic disclosures – The CSSF will continue to assess the compliance of pre-contractual and periodic disclosures of investment funds with the SFDR regulatory provisions.

c) Verification of the consistency of information in fund documentation and marketing material – The CSSF will continue to assess and verify that sustainability-related disclosures made are consistent across the fund documentation and marketing material.

d) Verification of the compliance of product website disclosures – The CSSF will continue to verify that IFMs comply with their obligations relating to the publication and maintenance on their website of SFDR related information for the investment funds they manage.

e) Portfolio analysis – In line with the requirements of the Supervisory Briefing, the CSSF will undertake supervisory actions to ensure that portfolio holdings reflect the name, the investment objective, the strategy, and the characteristic displayed in the documentation to investors.

The CSSF also makes specific reference to the data collection exercises discussed in the first part of this OnPoint, as well as referencing its dedicated SFDR FAQ also mentioned above and other CSSF Communiqués on SFDR that it has published to provide additional guidance and clarifications to the industry. The CSSF notes that it will continue to provide similar clarifications to the investment fund industry as need may be.

Footnotes

1) Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial services sector (SFDR), as amended by Regulation (EU) 2020/852 on the establishment of a framework to facilitate sustainable investment (Taxonomy Regulation).

2)The RTS being Commission Delegated Regulation (EU) 2022/1288 of 6 April 2022 supplementing Regulation (EU) 2019/2088 of the European Parliament and of the Council with regard to regulatory technical standards specifying the details of the content and presentation of the information in relation to the principle of ‘do no significant harm’, specifying the content, methodologies and presentation of information in relation to sustainability indicators and adverse sustainability impacts, and the content and presentation of the information in relation to the promotion of environmental or social characteristics and sustainable investment objectives in pre-contractual documents, on websites and in periodic reports, as amended from time to time.

3) The CSSF’s July 2022 communication is available here.

4) The CSSF’s February 2023 communication is available here. 

5) The CSSF’s March 2023 communication is available here.

6) European Long Term Investment Funds under Regulation (EU) 2015/760, as amended.

7) Institutions for Occupational Retirement Provision under Directive 2016/2341/EU.

8) i.e.,  (i) “group AIFMs” under article 3 (1) of AIFMD and (ii) entities, which by their nature are outside of the scope of application AIFMD within the meaning of article 2 (2).

9) i.e., information filed with the CSSF as required by the RTS before 1 January 2023.

10) The RTS were amended to include disclosures relating to nuclear and gas energy activities with the changes taking effect from 20 February 2023. The effect of this is that the disclosures made using the disclosure templates in the original RTS and that were submitted to the CSSF before 20 February 2023 will need to be updated to reflect the changes to the RTS and related templates.

11) Our OnPoint is available here.

12) The updated CSSF SFDR FAQ are available here.

13) The CSSF setting out its supervisory priorities in the area of sustainable finance is available here.

14) The publication relates to credit institutions, the asset management industry and investment firms, issuers of instruments listed on a stock exchange and also covers a statement on the CSSF’s role in international cooperation in sustainable finance and specifically on supervisory exercises at the initiative of the European authorities.

15) ESMA’s supervisory briefing is available here.

16) The consultation is available here.