The Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier (CSSF), and the Luxembourg government recently have taken measures to prepare for Brexit. In other developments, the Law of the Register of Beneficial Owners is now effective and Luxembourg has enacted a law that enables securities accounts to be held through blockchains and other digital ledgers. These developments are discussed below.
Brexit Mitigation Measures
During the first quarter of 2019, the CSSF and the Luxembourg government have taken a number of measures to prepare the Luxembourg financial market for the more-than-likely event of a “no-deal” Brexit. These include: an MoU on delegation; a law granting a 21-month grandfathering period for financial services in a no-deal Brexit scenario; and a law granting a 12-month grace period to cure Brexit-caused breaches of investment restrictions.
MoU and TPR
In its press release of 25 January 2019 (CSSF Press Release), the CSSF reiterated to market participants that Luxembourg management companies and AIFMs can delegate portfolio management to UK portfolio managers in a post-Brexit UK, provided that: (i) the relevant portfolio managers are authorised or registered for the purpose of asset management; (ii) the portfolio managers are subject to the prudential supervision of the UK Financial Conduct Authority (FCA); and (iii) cooperation is ensured between the CSSF and the FCA.
One week later, ESMA issued a press release to announce that a multi-lateral memorandum of understanding (MoU) had been adopted among the EEA supervisory authorities and the FCA covering supervisory cooperation, enforcement and information exchange between the EEA supervisory authorities and the FCA. The MoU, which is similar to those concluded with supervisory authorities in countries outside of the EEA, among other matters enables Luxembourg management companies and AIFMs to delegate portfolio management to UK portfolio managers in the event of a no-deal Brexit, provided the UK portfolio manager continues to fulfil the requirements mentioned in the CSSF Press Release.
The CSSF Press Release also indicates that Luxembourg financial institutions, including management companies and AIFMs that passport activities to the UK, may, upon notification to the FCA, continue to passport those activities post-Brexit under the UK temporary permission regime (TPR), provided the notification was initially given before 28 March 2019. The FCA subsequently extended the notification window until 11 April 2019. After this deadline, the FCA will not accept such notification, and therefore the activities can no longer be passported to the UK. A Luxembourg financial institution relying on the TPR must inform the CSSF of the notification made by the financial institution, promptly following submission of such notification to the FCA.1
Hard Brexit Grandfathering Law for Financial Services
At the end of January, the Luxembourg government submitted to the Parliament a bill of law2 granting the CSSF and the CAA3 the power to allow UK financial service providers to continue rendering certain services in Luxembourg for a period of up to 21 months after the date when the UK withdraws from the EU in a no-deal Brexit scenario.4 The State Council did not raise a formal objection to the bill, but rather offered a number of technical observations.5 A slightly revised version of the bill, which took into account most of the technical comments from the State Council, was approved by the Parliament on 27 March 2019 (Brexit Financial Services Law).6
The Brexit Financial Services Law allows UK-based banks and investment firms to continue servicing their existing Luxembourg clients during the transitional period. The law also creates the basis for UK-based AIFMs and UCITS management companies to continue to manage their existing Luxembourg funds during the transitional period. However, the Brexit Financial Services Law does not recognise the passport by operation of law. Instead, financial institutions will need to follow a yet-to-be-determined regulatory process, pursuant to which the CSSF and the CAA will decide on a case-by-case-basis whether to continue to recognise the passporting of the relevant financial services as to which they received notification prior to the withdrawal date.
12-Month Grace Period to Mitigate Brexit-Caused Breaches of Investment Restrictions
On 28 March 2019, the Luxembourg Parliament approved another Brexit-related bill of law (Brexit UCI Law).7 The Brexit UCI Law addresses certain Brexit-related matters affecting Luxembourg-regulated undertakings for collective investment (UCIs) – namely, UCITS, Part II UCIs and SIFs (collectively, CSSF-Regulated UCIs).8 SICARs and RAIFs, as well as Luxembourg AIFs that are not governed by one of the Luxembourg product laws,9 do not fall within the scope of the Brexit UCI Law.
At such time as the UK is no longer an EEA Member State, a Luxembourg UCI that has any UK assets would passively breach its investment restrictions if: (i) its contractual investment restrictions refer to the UK as an EEA Member State; or (ii) it is subject to legal provisions (e.g., the UCI Law) that waive some restrictions for EEA Member State investments.
The Brexit UCI Law addresses this issue by granting CSSF-Regulated UCIs 12 months to bring their portfolios into compliance (which is compulsory for a UCITS for instance to comply with the UCI Law)10 or to amend their legal documents accordingly. This would provide a temporary interpretation that mitigates violations of article 49(2) of the UCI Law (which provides that a passive breach must be remedied as a priority) and CSSF Circular 02/7711 (which provides that such a breach be corrected promptly). The Brexit UCI Law essentially interprets “priority” and “promptly” to be “within a maximum timeframe of 12 months” and with the instruction that UCIs subject to the UCI Law must take remedial actions “as soon as possible”. For SICARs, RAIFs and other Luxembourg AIFs that are not subject to the product laws, breaches of investment restrictions caused by Brexit must be resolved in accordance with the provisions of the entity’s legal documents, without a grace period.
It should be noted that the Brexit UCI Law would not affect any contractual-based claims of investors. However, such claimants would need to demonstrate that they have suffered a damage caused by the breach.
Contrary to the Brexit Financial Services Law (which will only have effect in the case of a no-deal Brexit), the Brexit UCI Law will also be effective as of the withdrawal date of the UK if a deal has been agreed between the UK and the EU.
Marketing UK UCITS in Luxembourg
The EEA-wide passporting system for UCITS is tied to the fund rather than the manager. The Brexit UCI Law provides two scenarios for UK UCITS authorised under the UCITS Directive that have marketed their units in Luxembourg before the exit date.
Where their management company was authorised by the UK authorities before the exit date, the UCITS, by operation of law, will be allowed to market their units to retail investors for a period of 12 months following the exit date.
Where their management company is an EEA-27 UCITS management company, it must be authorised as an AIFM – the UCITS would be considered as a “third country” AIF after the withdrawal, and the manager would act as an AIFM and no longer as a UCITS management company.12 The Brexit UCI Bill creates a legal fiction that the manager has notified the CSSF of this marketing.
March 2019 Effectiveness of Law on the Register of Beneficial Owners (RBE Law)
The RBE Law13 became effective on 1 March 2019. Luxembourg entities within the scope of this law will have until 31 August 2019 to file the necessary information with the RBE regarding their beneficial owners.14
Within the first quarter of 2019, the government and the public body responsible for setting up the RBE issued additional guidance as to the format of information to be provided and the process to be followed for the submission of, and consultation regarding, this information.15
For further information regarding the RBE Law, please refer to Dechert OnPoint, Luxembourg Register of Beneficial Owners Has Arrived.
Legislative Measure Enables Holding of Securities through Blockchains and Other Digital Ledgers
Luxembourg has enacted a new law16 that enables securities accounts to be held within or through secured electronic registration devices, including digital ledgers such as blockchains. Related amendments have been made to the Luxembourg Securities Law17 to (among other matters) confirm that the use of electronic registration devices does not have an impact on the fungibility of securities or the validity and enforceability of the security granted under the Financial Collateral Arrangements Law.18