News on sustainability-related disclosures in the financial services sector
The CSSF published on 27.07.2022 a communication concerning the 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). It reminds in particular :
_ the deadline of 1 January 2023 for specific updates of UCITS and AIFs precontractual and periodic documents;
_ the filing of updated precontractual documents & periodic reports with CSSF.
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 (templates are 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 SFDR RTS 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.
The prospectus/issuing documents of UCITS and/or AIFs has to be updated in accordance with the provisions of the SFDR RTS and TR. The CSSF expects to receive such 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 be compliant with SFDR RTS and TR in order to release the visa stamp prior to 31 December 2022. In this context, financial market participants will need to follow the specific procedure detailed in the Communication of the CSSF.
The 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 (SIF), Investment companies in Risk capital (SICAR)) domiciled in Luxembourg, the annual reports of these funds, including the required product disclosures in periodic reports referred to above, shall be filed electronically with the CSSF.
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.
We will keep an eye on these points :
1. 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 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 SFDR RTS, including the disclosure templates, may be subject to further changes.
2. 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. It 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 these subjects and also sets out important principles regarding disclosures under SFDR.
3. The launch of a Common Supervisory Action exercise (CSA) in relation to sustainability risks and disclosures is currently under discussion at ESMA level.