Communication to the investment fund industry on regulatory requirements in relation to Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial services sector (SFDR) and upcoming entry into force of SFDR Level 2 provisions (SFDR RTS)
1. Reminder of the deadline of 1 January 2023 for specific updates of UCITS and AIFs precontractual and periodic documents
Commission Delegated Regulation (EU) of 2022/1288 of 6 April 2022 supplementing Regulation (EU) 2019/2088 of 27 November 2019 on sustainability-related disclosures in the financial services sector (SFDR RTS) requires financial market participants to present by 1 January 2023, for financial products subject to Articles 8 and 9 of SFDR, precontractual and periodic disclosure information in the format of templates set out in the annexes of the SFDR RTS. The SFDR RTS further outline mandatory website product disclosure requirements applicable to financial market participants through the requirement of a separate website section titled, ’Sustainability-related disclosures’.
Regulation (EU) 2020/852 of 18 June 2020 on the establishment of a framework to facilitate sustainable investments (“Taxonomy regulation” (TR)) amending Regulation (EU) 2019/2088 requires financial market participants for those financial products subject to Articles 8 and 9 of SFDR to provide by 1 January 2023 for transparency in precontractual documents and periodic reports with regard to the environmental objectives referred to in Article 9, points (c) to (f) of TR.
2. Filing of updated precontractual documents and periodic reports with the CSSF in view of the upcoming entry into force of the SFDR RTS
The CSSF informs those financial market participants which have not yet submitted to the CSSF the required updates to the prospectus/issuing documents of UCITS and/or AIFs in accordance with the provisions of the SFDR RTS and TR as set forth under Section 1 above, that the CSSF expects to receive the updated precontractual documents by 31 October 2022 at the latest.
The CSSF will give priority for visa-stamping to those issuing documents/prospectuses of UCITS/AIFs for which updates are limited to reflect only the sustainability related disclosure changes referred to under Section 1 above. Provided that submissions made following the filing procedure set out below are complete, compliant and received by the CSSF by 31 October 2022, the CSSF will endeavour to release the visa stamp prior to 31 December 2022.
In this context, financial market participants will need to follow the below procedure:
- Each duly updated UCITS prospectus, including only the sustainability related disclosure changes,should be filed for visa stamp with an accompanying RTS confirmation letter. A template of the said RTS confirmation letter will be made available shortly as an update to the present communication.
- Each CSSF authorised AIF which, on the basis of Article 6(3) of SFDR, is obliged or intends to publish the precontractual disclosure templates in an annex to its issuing document/prospectus shall submit the issuing document/prospectus to the CSSF within the set deadline.
The updated precontractual documents for visa stamping shall be filed electronically with the CSSF in accordance with the provisions set out in Circular CSSF 19/708 relating to the electronic transmission of documents to the CSSF1.
The CSSF informs the financial market participants that annual reports, issued as from 1 January 2023, of UCITS and AIFs, whether these AIFs are managed by a registered or authorised AIFM, shall comply with the product disclosure requirements in periodic reports laid down in article 11 of SFDR and further clarified by the SFDR RTS, including the information to be presented in an annex to the annual reports by using the mandatory templates.
For the UCITS and regulated AIFs (UCIs subject to part II of the 2010 Law, Specialised Investment Funds, Investment companies in Risk capital) domiciled in Luxembourg, the CSSF reminds industry participants that the annual reports of these funds, including the required product disclosures in periodic reports referred to above, shall be filed electronically with the CSSF in accordance with Circular CSSF 19/708 relating to the electronic transmission of documents to the CSSF.
The CSSF also highlights that Luxembourg domiciled UCITS management companies and authorised AIFMs have to ensure that the annual reports of UCITS and AIFs they manage and which are domiciled in other jurisdictions than Luxembourg have to comply with the periodic disclosure requirements laid down in the SFDR and SFDR RTS.
The CSSF expects to receive a dedicated precontractual and periodic disclosure template per sub-fund/compartment. The precontractual and periodic disclosure templates shall not be amended except as foreseen under Article 2 of the SFDR RTS, i.e. the size and font type of characters and the colours. In case a financial market participant deems sections of the precontractual or periodic template not to be relevant for a given fund or sub-fund/compartment, those sections shall still be maintained in the precontractual and periodic disclosure template and shown as being not applicable. The CSSF expects financial market participants to present the required precontractual and periodic disclosure information exclusively in the dedicated templates, except for those disclosure items which are required under SFDR and not foreseen to be disclosed in the aforementioned templates.
Financial market participants are further informed that the European Supervisory Authorities envisage to publish shortly on their websites Word versions of the mandatory disclosure templates.
3. Regulatory developments
The CSSF draws the attention of financial market participants and financial advisers to the following publications and milestones:
- Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 as regards nuclear energy and fossil gas activities, amending Commission Delegated Regulations (EU) 2021/2139 and 2021/2178 has been published on 15 July 2022 in the Official Journal of the European Union and will enter into force on 1 January 2023. In this respect, the European Commission has invited the European Supervisory Authorities to propose by 30 September 2022 at the latest amendments to the SFDR RTS in relation to the information that should be provided in precontractual documents, on websites, and in periodic reports about the exposure of financial products to investments in fossil gas and nuclear energy activities. As a consequence, the CSSF draws the attention of financial market participants that the SFDR RTS, including the disclosure templates, may be subject to further changes. However, no further details on the contemplated contents and timing of those changes are yet available.
- The European Securities and Market Authority (ESMA) has published on 31 May 2022 a Supervisory Briefing on Sustainability risks and disclosures in the area of investment management. This Supervisory Briefing has been developed by ESMA to promote convergence on the supervision of sustainability-related disclosures as well as the supervision of how fund managers integrate sustainability risks in their organisational framework and decision-making process. The Supervisory Briefing aims to provide guidance to National Competent Authorities regarding the supervision of sustainability-related disclosures and integration of sustainability risks. The Supervisory Briefing also sets out important principles regarding disclosures under SFDR.
- The launch of a Common Supervisory Action exercise (CSA) in relation to sustainability risks and disclosures is currently under discussion at ESMA level. This CSA is contemplated to start in the course of 2023 and will be focusing on both SFDR Level 1 and Level 2 provisions, taking into account the above referred Supervisory Briefing.
4. Data collection exercise
The CSSF intends to launch in the near future a dedicated 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. Further details on timing and practical proceeding of the data collection will be communicated at a later stage.
1 The updated precontractual documents shall be uploaded in clean and track change version; where a notice is foreseen to inform investors on prospectus/issuing document update, this notice shall also be uploaded and submitted to the CSSF. Relating to UCITS, the RTS confirmation letter shall be duly filled out and merged with the prospectus in track change version. Further technical details are available in the RTS confirmation letter.