Financial Services Quarterly Report - Second Quarter 2013: Developments in the Luxembourg Financial Sector

more+
less-
Explore:  AIFMD EU

Luxembourg bill 6471 transposing the EU Alternative Investment Fund Managers Directive (the  “AIFMD”  into Luxembourg law is now close to being adopted by the Luxembourg parliament. The bill goes beyond the mere implementation of the AIFMD into Luxembourg law, in particular by reforming the regime of Luxembourg limited partnerships. The  Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier (the “CSSF”), has also recently taken steps to ensure the smooth transposition of the AIFMD into Luxembourg law. In another development, Luxembourg enacted a new law on dematerialised securities on 6 April 2013. Henceforth, Luxembourg companies and Luxembourg investment funds (including SICAVs, SICAFs, SICARs and FCPs) will be able to issue equity or debt securities in dematerialised form. These developments are discussed below.


Luxembourg Bill Implementing the AIFMD Close to Adoption; CSSF Releases AIFM Application Forms and Signs AIFMD Cooperation Arrangements

A process that started on 24 August 2012, when the Luxembourg government proposed bill 6471 (the “Bill”) transposing the AIFMD into Luxembourg law, is nearing its conclusion. The Bill is now close to being adopted by the Luxembourg parliament.

On 18 June 2013, the CSSF released on its website various templates to be used when filing the application to be authorised as an AIFM in Luxembourg, as well as Frequently Asked Questions (“FAQs”) to highlight key aspects of AIFMD regulations from a Luxembourg point of view.

Further, on 31 May 2013, the CSSF announced that it had signed 34 AIFMD cooperation arrangements, with jurisdictions including the United States, Hong Kong, Switzerland, BVI, Cayman Islands, Jersey and Guernsey.

This discussion deals first, and in large part, with the Bill.

The Bill goes beyond the mere implementation of the AIFMD into Luxembourg law. It reforms the regime of Luxembourg limited partnerships and it provides some additional changes to the legal framework applicable to Part II UCIs – that is, undertakings for collective investments that can be freely marketed to all types of investors (including retail investors), but which do not fulfil the conditions required to be met to be authorised as UCITS (for instance, restrictions on eligible assets and investment restrictions) – and SICARs (i.e., investment companies investing in so-called risk capital).

The Bill can be split into two parts:

  • Chapters 1 to 11 form an entirely new law establishing the legal regime for a Luxembourg alternative investment fund manager or “AIFM” (the “AIFM Law”) and conditions to be fulfilled when managing and marketing alternative investment funds or “AIFs” in Luxembourg.
  • Chapter 12 of the Bill amends several existing Luxembourg laws by adjusting and enhancing the different legal regimes to which a Luxembourg AIF may be subject.

Luxembourg AIFMs and Other Luxembourg Management Companies

The AIFM Law establishes rules as regards the authorisation, scope of activities and transparency requirements to which a Luxembourg AIFM is subject. The AIFM Law closely replicates provisions of the AIFMD and does not seek to “gold-plate” the AIFMD.

A Luxembourg corporate AIF (for instance, a corporate SIF or a SICAR) that does not appoint an external AIFM will be required to be authorised as an internally managed AIF and meet in principle the same conditions as an external AIFM.

A Luxembourg AIFM providing portfolio management and risk management before 22 July 2013 has until 22 July 2014 to submit an application to the CSSF to be authorised as an AIFM. During this transitional period, such a Luxembourg AIFM can continue to manage and market AIFs created before or after 22 July 2013 under the current regime – the relevant AIF has to comply with the AIFMD regime when the Luxembourg AIFM is authorised as an AIFM. When authorised as an AIFM, the Luxembourg AIFM will be able to benefit from the pan-European marketing passport that is seen as a key benefit of becoming authorised as an AIFM.

Alongside the creation of the Luxembourg AIFM, several provisions applicable to existing Luxembourg management companies will be amended by the Bill:

  • Management companies under Chapter 15 of the UCI Law1 – that are management companies allowed to manage UCITS – can apply to become AIFMs, but as a result of becoming AIFMs they will not need to file duplicate information and documents that are already available to the CSSF.
  • Management companies under Chapter 16 of the UCI Law will in the future only manage non-UCITS and structures that are not caught by the AIFMD (unless the management company appoints a duly authorised AIFM to manage such an AIF) so that they can operate without having to comply with the requirements of the AIFMD. It will be open to such management companies to provide, on an ancillary basis, investment management and advisory services, safe-keeping and administration of units of undertakings for collective investment and reception and transmission of orders with respect to financial instruments.

Luxembourg AIFs

There will be three types of regulated AIFs under Luxembourg law:2 Part II UCIs, SIFs (i.e., specialised investment funds) and SICARs. Any Luxembourg AIF benefiting from the transitional provisions must submit to the CSSF by 1 April 2014 at the latest a file containing information as regards its compliance with the AIFMD by 22 July 2014.

Part II UCIs

A Part II UCI will in principle always be an AIF within the meaning of the AIFM Law. If the AUM of a Part II UCI is below the AUM thresholds set out in AIFMD, the Part II UCI can opt to be outside of the scope of the AIFMD but will need to comply with provisions relating to the appointment of the depositary and the valuation of assets in the same way as a Part II UCI falling within the scope of the AIFMD.

The following additional amendments have been introduced in relation to Part II UCIs:

  • The annual report of a Part II UCI must be submitted within six months after the end of the relevant accounting year (instead of four months, as is currently the case) and the semi-annual report must be submitted within three months after the end of the semi-annual period (instead of the current two months); and
  • No French or German translation of the notarial deed of the articles of incorporation of a corporate Part II UCI will need to be published – the articles of incorporation can be drafted solely in English.

SIFs

The SIF Law3 will be split into two parts:

  • Part I of the SIF Law will set out common rules applicable to all SIFs, which replicate to a large extent the current regime applicable to SIFs; and
  • Part II of the SIF Law will set out additional rules for those SIFs that will fall within the scope of the AIFMD by cross-referring to the AIFM Law.

This will have as a consequence that a SIF covered by an exemption set out in the AIFMD (e.g., a SIF entirely dedicated to the wealth management of a family or an internally managed SIF with AUM below the AUM thresholds set out in the AIFMD) will be governed solely by Part I of the SIF Law. While such a SIF must entrust the safe-keeping of its assets to a depositary, the more stringent provisions under the AIFMD will not need to be applied.

SICARs

The same approach has been adopted for the SICAR Law,4 which will be split into Part I, setting general rules applicable to all SICARs, including those which are outside of scope of the AIFMD, and Part II, providing additional rules for those SICARs falling within the scope of the AIFMD.

As for Part II UCIs and SIFs, no French or German translation of the articles of incorporation will be required for publication purposes.

Impact on Luxembourg Depositaries

Luxembourg will be abandoning the strict requirement for depositaries of Part II UCIs, SIFs and SICARs to be credit institutions. Besides credit institutions, investment firms under the Financial Sector Law5 can also be appointed as a depositary of any Part II UCI, SIF or SICAR, including those that are outside of the scope of the AIFMD, provided that the investment firm complies with additional conditions mainly related to the level of their own funds.

The Financial Sector Law will also provide a new licensing regime for depositaries servicing AIFs that are mainly invested in assets other than financial instruments that can be held in safe-custody, so long as the AIFs do not allow their investors to request the redemption of their shares/units for at least five years following investment. These depositaries, which need not be authorised as a credit institution or an investment firm, will need to be approved and subject to the prudential supervision of the CSSF. They must have a sound administration and organisational structure and a minimum capital of €500,000. Luxembourg fund administrators, among others, are expected to apply for this authorisation to enable them to be entrusted with the safe-keeping of assets of closed-ended SIFs and SICARs invested in non-financial assets (e.g., private equity and real estate).

Depositaries servicing AIFs within the scope of the AIFMD will need to provide cash monitoring, safe-keeping and oversight duties in accordance with the AIFMD. When providing safe-keeping services for financial instruments held in custody, the depositary is subject to strict liability (that is, the depositary has the burden of proof with respect to the discharge of its liability when assets are lost). Depositaries servicing AIFs outside of the scope of the AIFMD will continue to be subject to the current Luxembourg depositary regime, which is mainly contractually determined in accordance with the regulatory practice of the CSSF. Safe-keeping the assets of an AIF is then an obligation of means of the depositary (that is, the AIFM or internally managed AIF has in principle the burden of proof with respect to the depositary’s liability when assets are lost).

Marketing in Luxembourg

The AIFM Law establishes marketing rules for an AIFM established in an EEA6 member state, or established in a third country if the AIFM contemplates marketing an EEA AIF or a non-EEA AIF in the Grand Duchy of Luxembourg.

Offering of an EEA AIF by an EEA AIFM

Alongside the AIFMD marketing passport (which applies to professional investors only), it will also be possible to market AIFs that fall within the AIFMD to retail investors in Luxembourg outside the AIFMD marketing passport regime, provided that the AIF is subject to:

  • regulation offering investors a level of protection at least equivalent to that applicable to a Luxembourg AIF marketed to retail investors; and
  • supervision of the AIF considered by the CSSF as at least equivalent to the supervision of a Luxembourg AIF marketed to retail investors.

Additionally, a cooperation arrangement between the CSSF and the supervisory authority of the relevant AIF must be in place. The AIFM Law requires the CSSF to adopt implementing measures on marketing of AIFs to retail investors by way of regulation.

Offering of a Non-EU AIF by an EEA AIFM and Offering of an EEA AIF or Non-EEA AIF by a Non-EEA AIFM

Luxembourg will not impose stricter rules on the marketing of AIFs that will be unable to benefit from the AIFMD marketing passport immediately after 22 July 2013 than the rules imposed on EEA AIFMs wishing to make use of the marketing passport.

An EEA AIFM will be able to use the Luxembourg private placement regime7 to market a non-EEA AIF to professional investors in Luxembourg, provided that:

  • The AIFM fulfills all requirements under the AIFMD, excluding the depositary provisions that are replaced by a “depositary lite” regime;
  • Appropriate cooperation arrangements are in place between the supervisory authority of the AIFM and that of the non-EEA AIF — the Bill clarifies that the CSSF is considered as the competent authority of the AIFM when the marketing is made in Luxembourg through a Luxembourg AIFM; and
  • The non-EEA AIF is not located in a Financial Action Task Force (“FATF”) non-cooperative country.

A non-EEA AIFM will be able to use the Luxembourg private placement regime to market a non-EEA AIF to professional investors in Luxembourg, provided that:

  • The non-EEA AIFM complies with the transparency requirements and controlling interest provisions set out in the AIFMD.
  • Appropriate cooperation arrangements are in place between the CSSF and the supervisory authority of the non-EEA AIFM and the supervisory authority of the non-EEA AIF; and
  • The non-EEA AIF is not located in a FATF non-cooperative country.

Offering of a Non-Luxembourg AIF that Does Not Fall Within the Scope of the AIFMD

Units of an open-ended non-Luxembourg AIF that falls outside the scope of the AIFMD can likely be sold to retail investors8 in Luxembourg subject to the approval of the CSSF which will, among other considerations, assess whether such open-ended AIF is subject in its home jurisdiction to permanent regulatory supervision, with the purpose of establishing whether there is adequate investor protection.

The Bill is silent on the marketing of units of closed-ended non-Luxembourg AIFs exempted from the scope of the AIFMD. Marketing of these AIFs remains subject to the requirements of the EU-level Prospectus Directive and the exemptions set out in that directive.

Reverse Solicitation

The Bill does not contain specific rules or guidance that market participants may find helpful in relation to “reverse solicitation”. This concept will be assessed in practice by the CSSF on a case-by-case basis.

Reform of Luxembourg Limited Partnerships

Prior to the adoption of the Bill, two forms of Luxembourg limited partnershipswere recognised under Luxembourg law, each of these having a separate legal personality:

  • the common limited partnership (société en commandite simple or “SCS”), which is an “intuitu personae”10 company issuing partnership interests that are in general not freely transferable; and
  • the corporate partnership limited by shares (société en commandite par actions or “SCA”), which is a joint-stock company whose capital is represented by shares in principle freely transferable.

The Bill amends existing Luxembourg companies legislation, among other laws, to introduce a third form of limited partnership, namely the special limited partnership (société en commandite special or “SCSp”), which is an intuitu personae company but, unlike the SCS, does not have a legal personality and consequently is fully transparent from a corporate and tax perspective. The SCSp adopts many of the principles seen in limited partnerships under common law jurisdictions such as England, Cayman Islands and Guernsey. For instance, the SCSp offers the ability for investors to have both capital and loan accounts and can make it easier, through the use of contractual investor excuse provisions, to allow certain investors to be treated as not having invested in certain of the SCSp’s investments.

The SIF Law and the SICAR Law will be amended to permit the organisation of SIFs and SICARs in SCSp form.

From a tax perspective, the concept of carried interest will be clarified in the Income Tax Law,11 by distinguishing between:

  • carried interest as an incentive right not attached to a share or unit, and which will be considered as miscellaneous income to be taxed in principle at the marginal income tax rate; and
  • carried interest attached to a share or unit, which qualifies as capital gain for tax purposes (and which is exempted from income tax if it is realised after a minimum holding period of six months and if the participation does not exceed 10% of the issuer’s capital).

Additionally, a favourable tax regime will be created for the carried interest paid to Luxembourg tax residents employed by an AIFM subject to certain conditions.

Recent Steps Taken by the CSSF to Ensure Smooth Transposition of the AIFMD into Luxembourg Law

The CSSF did not wait for the enactment of the Bill into law prior to releasing AIFMD application forms and FAQs on its website. The templates and FAQs (which are only available in English) are available at http://www.cssf.lu/fileadmin/files/Publications/Communiques/Communiques_2013/CP_1325_
AIFMD_Guidance_180613.pdf
.

Further to ESMA’s approval of cooperation arrangements with 34 non-EEA supervisory authorities, the CSSF has signed separate cooperation arrangements with each of these authorities. The list of supervisory authorities with whom the CSSF has entered into cooperation arrangements is available at http://www.cssf.lu/fileadmin/files/Publications/Communiques/Communiques_2013/
CP_1323_34_MOUS_EN.pdf
.

The execution of these cooperation arrangements enables management companies to engage in the following activities, among others:

  • Marketing in Luxembourg of non-EEA AIFs under the Luxembourg private placement regime, as described above; and
  • Delegation of portfolio management to an investment manager located outside of the EEA, provided that other conditions for delegation under the AIFMD are fulfilled (e.g., the investment manager must be authorised to manage a portfolio and subject to prudential supervision in its home jurisdiction).

Conclusion

The implementation of the AIFMD into Luxembourg law is almost complete and the deadline of 22 July 2013 will certainly be met. The implementation is built on a pragmatic approach – without going beyond the already detailed requirements set under the AIFMD but enhancing, where possible, the legal framework applicable to managers, funds and service providers in Luxembourg.

Footnotes

1 The law of 17 December 2010 on undertakings for collective investment, as amended.

2 A Luxembourg non-regulated company can in principle qualify as an AIF within the meaning of the AIFM Law. It will, however, not be allowed to actively raise funds from third-party investors beyond the “small circle of persons” as considered by the CSSF.

3 The law of 13 February 2007 on specialised investment funds, as amended.

4 The law of 15 June 2004 on investment companies in risk capital, as amended.

5 The Luxembourg law of 5 April 1993 on the financial sector, as amended.

6 Iceland, Liechtenstein and Norway are assimilated to EU member states within the limits of the EEA treaty.

7 The Luxembourg private placement regime that is referenced here is based on articles 36 and 42 of the AIFMD, which are replicated in the Bill without additional conditions.

8 Article 100 of the revised UCI Law is silent on marketing to professional investors in Luxembourg. A conservative approach would be to consider that the same rules will be applied to professional investors when marketing in Luxembourg is made beyond the Luxembourg private placement regime discussed above.

9 A separate DechertOnPoint will be published on the reform of the Luxembourg limited partnership regime.

10 Luxembourg corporate law generally distinguishes between joint-stock companies (sociétés de capitaux), where creditors’ claims are in principle limited to the company’s capital, and “intuitu personae” companies (société de personnes), where creditors may extend their claims to some or all shareholders/partners of the company.

11 The Luxembourg law of 4 December 1967 on income tax, as amended.

Luxembourg Law of 6 April 2013 on Dematerialised Securities

Luxembourg enacted a new law on dematerialised securities (the “Law”) on 6 April 2013. Henceforth, Luxembourg companies and Luxembourg investment funds (including SICAVs,1 SICAFs,2 SICARs3 and FCPs4) will be able to issue equity or debt securities in dematerialised form. Although some kind of “dematerialisation of securities” had already existed in practice (through holding and registration techniques), the Law finally creates a legal framework to permit the issuance of dematerialised securities.

Issue of or Conversion into Dematerialised Securities

Dematerialised securities constitute a new form of securities, in addition to registered and bearer securities. The Law defines securities as (i) any equity securities issued by Luxembourg public companies (sociétés par actions, including corporate funds such as SICAVs, SICAFs and SICARs), including shares, rights to subscribe, founders’ shares or units of common funds (FCPs), and (ii) any debt securities governed by Luxembourg law.

Securities issued by Luxembourg private limited companies (sociétés à responsabilité limitée – SARLs) are excluded from the scope of the Law.

Dematerialised securities of the same type that are listed on a stock exchange or an MTF must be registered at all times in the same issue account (compte d’émission) held by one securities settlement system (organisme de liquidation) (e.g., Clearstream Banking S.A., VP Lux S.à r.l., or Lux CSD S.A.). Unlisted dematerialised securities of the same type must be registered at all times in one issue account held by one securities settlement system or central account keeper (teneur de compte central). Both the securities settlement system and the central account keeper must be authorised by the Luxembourg supervisory authority, the CSSF.

In order to issue securities in dematerialised form, an issuer must (i) draft or amend its articles of incorporation or its management regulations (in case of an FCP) so as to authorise issuance in such form; (ii) arrange for the registration of the dematerialised securities of the same type with one securities settlement system or one central account keeper; and (iii) publish in a newspaper and on its website (if any) the denomination and address of the securities settlement system or the central account keeper (the issuer must publish an extract in the Luxembourg Official Gazette indicating the details of the securities settlement system or the central account keeper).

An issuer may also decide to convert its existing securities into dematerialised securities either on an optional or a compulsory basis. In addition to the requirements described above in relation to the issue of dematerialised securities, an issuer that intends to convert existing securities must specify, in its articles of incorporation or in its management regulations, the securities which are covered by the conversion, and, in the event of a compulsory conversion, the minimum conversion period (which may not be less than two years) and the sanctions that will be applicable if the securities have not been registered for dematerialisation within the minimum conversion period.

Bearer securities are converted into dematerialised securities when their holder registers them in a securities account with a settlement system, central account keeper or account keeper. The issuer (or the settlement system or central account keeper, duly mandated) will destroy the physical bearer securities upon receipt.

Registered securities will be converted by registration into a securities account in the name of their holder as soon as the holder provides the securities account details to the issuer.

The voting rights and distribution rights will automatically be suspended for securities that have not been converted by the end of the conversion period. Holders of such securities will not be admitted to any general meeting.5

Securities that have not been converted by the holder may, after a minimum of two years following the issuer’s decision to convert such securities, be converted by the issuer and registered in a securities account opened in the name of the issuer. If specifically provided for by its articles of incorporation or management regulations, the issuer may offer the securities that have not been converted for sale, subject to the conditions set forth in the Law, but only after eight years following the decision to convert.

Transfer of Dematerialised Securities

Dematerialised securities may be held in one or more securities accounts and then transferred by book-entry between securities accounts as provided for by the law of 1 August 2001 on the circulation of securities (the “Law of 2001”) and the Law.

Amendment of Existing Laws

The Law amended a number of existing laws, including: (i) the Law of 2001; (ii) the law of 10 August 1915 on commercial companies (the “Law of 1915”); and (iii) the law of 5 April 1993 on the financial sector (the “Law of 1993”).

The Law of 2001

The Law aligns the Law of 2001 to a large extent with the Unidroit Convention on substantive rules for intermediated securities (the “Unidroit Convention”),6 mainly to: determine the exercise of voting rights; increase the protection of account holders in the event of insolvency of the account keeper; and authorise the attachment of securities held in the securities account.

The Law is also in line with the recent work of the European Commission to prepare a draft directive on legal certainty of securities holdings and transactions (commonly known as the “securities law directive”).

The Law of 1915

The Law of 1915 has been adapted to reflect (among other provisions) that:

  • Dematerialised shares will be registered into a securities account with a securities settlement system, a central account keeper or an account keeper; transfers of shares will be made by book-entry between securities accounts.
  • The register of shares of the issuer must indicate any conversion of registered shares into dematerialised shares.
  • Owners of dematerialised securities may attend general meetings and exercise their voting rights only if they owned such dematerialised securities at midnight Luxembourg time on the 14th day preceding the meeting.

The Law of 1993

The Law introduces the possibility of obtaining a license as a central account keeper – a new category of professional of the financial sector (professional du secteur financier) – under the Law of 1993. It can be noted that the Law specifies that only Luxembourg credit institutions or investments firms, or Luxembourg branches of credit institutions or investments firms that are authorised in another EU Member State, may obtain approval as a central account keeper, subject to complying with the conditions set forth in the Law.

Conclusion

The Law constitutes a major step forward in the Luxembourg legal framework and provides legal certainty with respect to the issue and circulation of securities of companies and investment funds. It enables a complete dematerialisation of shares, from their issuance to their transfer, and replaces the prior de facto dematerialisation which had created unsatisfactory results since the securities had to be issued in bearer or registered form.

Footnotes

Sociétés d’investissement à capital variable.

Sociétés d’investissement à capital fixe.

Sociétés d’investissement à capital à risque.

4 Fonds commun de placement.

5 An FCP is a contractual fund that does not have any legal personality apart from its management company. An FCP does not hold general meetings, unless its Management Regulations specifically provide for the holding of meetings of unitholders.

6 Unidroit Convention on substantive rules for intermediated securities, signed in Geneva on 9 October 2009.