Regulatory aspects

On 26 March 2020, a draft law n°7540 was submitted to the Chambre des Députés of Luxembourg (Draft Law n°7540) 1 , which relates to the extension of certain deadlines relating to accounting obligations of entities of the financial sector, including inter alia the SICARs2 , SIFs3 , UCIs Part II4 and RAIFs5 , in order to take into account the exceptional circumstances caused by COVID-19.

Within this scope, the Draft Law n°7540 intends to extend the following:

  • SICARs – The deadline so as to make the annual reports together with the report of the réviseur d'entreprises (statutory auditor) available to the investors6 is extended from 6 months to 9 months, as from the end of the period to which these reports relate;
  • SIFs – The deadline so as to make the annual report available to investors7 is extended from 6 months to 9 months, as from the end of the period to which the report relates;
  • UCIs Part II – The deadlines so as to publish8 (i) the annual report is extended from 6 months to 9 months, as from the end of the period to which it relates; and (ii) the half-yearly report is extended from 3 months to 6 months, as from the end of the period to which the report relates; and
  • RAIFs – The deadline so as to make the annual report available to investors9 is extended from 6 months to 9 months, as from the end of the period to which the report relates.

However, such extensions are only applicable to reports whose deadlines have not been reached as at 18 March 2020 and which relate to a period ended as at the date of end of the state of crisis declared on 18 March 2020. Such measures introduced by the Draft Law n°7540 are also applicable to the deadlines falling between 18 March 2020 and the entry into force of the Draft Law10.

Furthermore, the CSSF may, during the state of crisis, extend the deadlines applicable in respect of the establishment and publication of periodical reports that are not set out in the Draft Law, and that are set out in the laws that the CSSF ensures the enforcement11 up to 3 months.

In this context, on 26 March 2020, the CSSF amended its FAQ relating to COVID-1912, in order to precise that deadlines for, inter alia, the following documents relating to SICARs, SIFs, UCI Part II and AIFM, may be extended provided that the CSSF is informed thereof:

  • the annual reporting O 4.1./ O.4.2 (UCI) on the basis of Circular IML 97/136 to be submitted to the CSSF within 6 months (for non-UCITS) as from the reference date – this deadline may be extended until 30 June 2020;
  • the monthly reporting O 1.2. (UCIs with formal guarantee) to be submitted to the CSSF within 10 days following the end of the month – this deadline may be extended until 30 June 2020;
  • the quarterly reporting G.2.1. (SIAG/FIAAG) on the basis of Circular CSSF 18/698 to be submitted to the CSSF within 20 calendar days following the end of the preceding month – this deadline may be extended until 31 August 2020;
  • the quarterly reporting G.2.1. (AIFMs) on the basis of Circular CSSF 15/633 to be submitted to the CSSF within 20 calendar days following the end of the preceding month – this deadline may be extended to 40 calendar days following the end of the preceding month;
  • the management letter on the basis of Circular CSSF 02/81 to be submitted to the CSSF within 6 months (for non-UCITS) as from the reference date – an additional period of 3 months may be granted;
  • the semi-annual reporting K3.1 (SICAR) on the basis of Circular CSSF 08/376 to be submitted within 45 calendar days following the reference date – this reporting may be suspended until further notice;
  • the closing documents to be provided annually by AIFM pursuant to sub-points (3) to (15) of point (3) of Annex 2 to Circular CSSF 18/698 to be submitted within 5 months following the closing date of the AIFM's financial year – for the AIFMs which closed their financial year on 31 December 2019, this deadline may be extended until 31 August 2020; for the AIFMs whose financial year closed after 31 December 2019, this deadline may also be extended by 3 months;
  • the management letter to be submitted by AIFMs within the month following the ordinary general meeting that approved the annual accounts and at the latest seven months after the closing date of the AIFM's financial year – an additional period of 1 month may be granted;
  • the quarterly reporting of authorised AIFMs with the list of managed AIFs – this deadline is extended until 30 June 2020;

Corporate aspects

On 27 March 2020, a draft law n°7541 has been submitted to the Chambre des Députés of Luxembourg (Draft Law n°7541) 13, which relates to the extension of the deadlines relating to the filling and publication of annual accounts, consolidated accounts and related reports during the state of crisis.

Within this scope, the Draft Law n°7541 intends to:

  • extend the following deadlines14 as set out in the Luxembourg law of 19 December 2002 relating to the trade and companies register ("RCS") as well as the accounting and the annual accounts of enterprises, as amended ("2002 Law"), for a period of 3 months:
    • the deadline for the filling with the RCS of the annual accounts and the balance of accounts referred to in the Luxembourg standardised chart of accounts15;
    • the deadline for the publication with the Recueil électronique des sociétés et associations of the annual accounts as well as the related reports16;
    • the deadline for the publication of the non-financial statement in the form of a separate report, or so as to make such statement publicly available on the enterprise's website17;
    • the deadline for the publication of the statement relating to the corporate governance in the form of a separate report, or so as to make such statement publicly available on the enterprise's website18;
    • the deadline for the publication with the Recueil électronique des sociétés et associations of the report relating to payments made to the benefit of governments19;
  • extend the following deadlines20 as set out in the Luxembourg law of 10 August 1915 on commercial companies, as amended ("1915 Law"), for a period of 3 months:
    • the deadline for the publication of the consolidated accounts and the related reports21;
    • the deadline for the publication of the consolidated non-financial statement in the form of a separate report, or so as to make such statement publicly available on the parent enterprise's website22;
    • the deadline for the publication with the Recueil électronique des sociétés et associations of the report relating to payments made to the benefit of governments23;
  • suspend, for a period of 3 months, the deadlines24 relating to the failure by the managers and directors so as to (i) submit to the general meeting within 6 months after the end of the financial year, the annual accounts, the consolidated accounts, the management report, the certificate of the person entrusted with the audit and (ii) publish such documents in violation of the requirements of articles 461-8, 710- 23, 813-4 and 1770-1 of the 1915 Law and article 79 of the 2002 Law.

As a result, any business having its financial exercise closing as at 31 December 2019 and that shall in principle file its annual accounts with the RCS at the latest on 31 July 2020 will be granted an additional period of 3 months. Therefore, such company will benefit from an extended deadline until 31 October 2020.

However, the Draft Law n°7541 only applies to annual accounts, consolidated accounts as well as related reports which relate to a period ended as at the date of end of the state of crisis declared on 18 March 2020 and whose deadlines for the filling and publication have not been reached as at 18 March 202025.

Footnotes

1. Available on the following website (French version only): https://chd.lu/wps/portal/public/Accueil/TravailALaChambre/Recherche/RoleDesAffaires?action=doDocpaDetails&id=7540

2. Article 4 of the Draft Law n°7540

3. Article 6 of the Draft Law n°7540

4. Article 7 of the Draft Law n°7540

5. Article 8 of the Draft Law n°7540

6. Cf. article 23(2) of the law of 15 June 2004 relating to the Investment company in risk capital, as amended

7. Cf. article 52(2) of the law of 13 February 2007 relating to specialised investment funds, as amended

8. Cf. article 150(2), paragraph 2, of the law of 17 December 2010 relating to undertakings for collective investment, as amended

9. Cf. article 38(2) of the law of 23 July 2016 on reserved alternative investment funds, as amended

10. Article 9 of the Draft Law n°7540

11. Article 10 of the Draft Law n°7540

12. https://www.cssf.lu/fileadmin/files/FAQ/FAQ_Covid_19_260320_eng.pdf

13. Available on the following website (French version only): https://www.chd.lu/wps/portal/public/Accueil/TravailALaChambre/Recherche/RoleDesAffaires?action=doDocpaDetails&id =7541&backto=p0/IZ7_28HHANET20F2A0A91N6L0M0CE3=CZ6_D2DVRI420G7Q402JEJ7USN3851=M/#Z7_28HHANET2 0F2A0A91N6L0M0CE3/%3E

14. Article 1 of the Draft Law N°7541

15. Cf. article 75, paragraph 1, of the 2002 Law

16. Cf. article 79, paragraph 1, of the 2002 Law

17. Cf. article 68 bis, paragraph 5, of the 2002 Law

18. Cf. article 68 ter, paragraph 2, of the 2002 Law

19. Cf. article 72 septies of the 2002 Law

20. Article 2 of the Draft Law N°7541

21. Cf. article 1770-1, paragraph 1, of the 1915 Law

22. Cf. article 1730-1, paragraph 5, of the 1915 Law

23. Cf. article 1760-4 of the 1915 Law

24. Article 3 of the Draft Law n°7541

25. Article 4 of the Draft Law n°7541

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.