Authorisation procedure and legal requirements

A pension fund is authorised only if the CSSF has approved its articles of association, the pension rules and the technical note of the pension scheme(s) managed by the pension fund. Moreover, the persons are required to meet the legal conditions of professional standing and professional competence and experience, the choice of the custodian and, where appropriate, the asset managers and liability managers.

 

 

Authorisation requirements

Approval of pension rules and technical note

Each pension fund must draw up pension rules which describe the characteristics of the pension scheme(s) operated by the pension fund and whose minimum content is indicated in Article 69 of the Law. Each pension scheme shall also be the subject of a technical note whose minimum content is indicated in Article 70 of the Law.

 

The articles of association may provide for several sets of pension rules to exist within a pension fund. For pension funds with multiple compartments, the articles of association may also provide for each compartment to have one or more sets of pension rules. When the pension fund operates several pension schemes or operates one scheme for several sponsoring undertakings, the articles of association may also provide that the pension rules consist of a common general part supplemented by specific rules.

Authorisation of pension funds' executives

Article 53(5) of the Law provides that the pension fund must notify the supervisory authority of the identity of the members of its administrative, management and supervisory bodies. These members must substantiate their professional integrity. Professional integrity shall be assessed on the basis of the legal history and all elements likely to establish that the persons concerned are of good repute and can thus provide all the assurances associated with irreproachable business conduct.

 

The pension fund must effectively be operated by honourable persons who either have the requisite professional qualifications and experience themselves or who employ advisors who have such professional qualifications and experience.

Administrative and accounting organisation

Each pension fund must have have a good administrative and accounting organisation and appropriate internal auditing procedures. In this context, the Law provides that the pension fund’s central administration must be situated in Luxembourg.

 

Where a pension fund chooses not to delegate the administrative and accounting functions, it must provide the CSSF with the required information to prove that it has the necessary qualitative and quantitative ressources and infrastructure to fulfil its functions.

 

Similarly, where a pension fund chooses to manage itself assets and/or liabilities, it must provide the CSSF with this information to prove that it has the means to perform these tasks.

Choice of custodian

The custodian of SEPCAVs and ASSEPs must be established in Luxembourg or in another EU Member State and must have been duly authorised as a custodian of assets in accordance with Directive 93/22/EEC or Directive 2000/12/EC or be authorised as a custodian in accordance with Directive 85/611/EEC.

 

In the case of a pension fund with multiple compartments, the Law provides for the possibility, in the articles of association, for a custodian to be appointed for each compartment provided that a compartment's assets relate solely to the members' rights held in that compartment and the rights of creditors whose debt arose as a result of the creation, operation or liquidation of that compartment.

Auditing by a "réviseur d’entreprises agréé" (approved statutory auditor)

Pension funds must have the accounting information in their annual reports verified by a réviseur d'entreprises agréé (approved statutory auditor).

Choice of asset manager

The articles of association may provide for the delegation of the asset management to one or more asset managers established in Luxembourg or another EU Member State which are duly authorised to carry out investment portfolio management in accordance with Directives 85/611/EEC, 93/22/EEC, 2000/12/EC, 2002/83/EC, 2003/41/EC and 2011/61/EC. With respect to Directive 2009/138/EC, only direct life insurance undertakings are concerned.

 

The Law also provides that delegation may also be granted to foreign professionals of non-Community origin provided that, in their home country, they are subject to permanent supervision by a supervisory authority provided for by law with the aim of ensuring investor protection. Such foreign professionals of non-Community origin must be specifically authorised by the CSSF on the basis of criteria relating to competence, integrity and financial soundness, the terms of which are set out in the Grand-ducal Regulation of 20 Septembre 2005.

Choice of liability manager

The articles of association may provide for the delegation of the liability management to one or more liability managers. The CSSF must give its consent for the appointment or dismissal of an asset manager. It assesses the asset manager's ability to assume its task on the basis of its size, its financial capacity, its organisation and, more generally, the compatibility of its business with the pension fund's object.

 

Grand-ducal regulation of 20 September 2005 specifies the criteria of competence, good repute and financial soundness required for the authorisation of asset managers of institutions for occupational retirement provision in the form of pension savings companies with variable capital (SEPCAV) and pension savings associations (ASSEP).

Cross-border activities

SEPCAVs and ASSEPs may, under a European passport regime, accept sponsorship from sponsoring undertakings established in other Member States. Where SEPCAVs and ASSEPs wish to manage pension schemes for sponsoring undertakings established in other EU Member States, they must notify the CSSF of its intention in accordance with Article 97 of the Law.

Procedure to be followed

Documents to be attached to the authorisation file

The authorisation application must be accompanied by all the data necessary to its scrutiny. It must include at least the following elements:

 

  1. Draft articles of association of the pension fund;
  2. Draft pension rules (Art. 69(1) of the Law);
  3. Draft technical note (Art. 70 of the Law);
  4. Draft statement of its investment-policy principles (Art. 53(6) of the Law);
  5. For the pension funds managing professional pension schemes operating occupational pension schemes for which they cover against biometric risk and/or guarantee either the investment performance or a given level of benefits shall also submit a financing plan (Art. 53(4) of the Law);
  6. An activities schedule of the pension fund (Art. 53(4) of the Law);
  7. Composition of the board of directors, the board of managers and the supervisory board of the pension fund. The dated and signed curriculum vitae of these persons, the recent extracts from their police record, a copy of their ID card, as well as their duly signed declaration of honor (cf. Section: Forms) (Art. 53(5) of the Law);
  8. Information relating to the custodian;
  9. Identity of the asset and/or liability managers, where applicable; 
  10. Information on the administrative and accounting organisation;
  11. Draft custodian agreement as well as draft agreements to be concluded with any other service providers;
  12. Identity of the réviseur d’entreprises agréé (approved statutory auditor) and a copy of the engagement letter signed with the réviseur d’entreprises agréé (Art. 90 of the Law).

 

The CSSF reserves the right to request any other information it deems necessary for the prupose of processing the application file.