Special serie COVID-19 - n°5 Impact on reporting deadlines for investment funds

In the context of the difficult evolving situation in connection to COVID-19, most companies are currently facing unprecedented legal issues within their organisations. As a result, they have to adapt significantly their way of working to go through this unique time in the best possible and efficient manner. In order to assist you in this task, we have identified several hot topics. We propose to present each of these points in a separate newsletter, to be published within the coming days, where we will provide you with practical hints to approach the situation efficiently.

The fifth  issue of our special serie will focus on the extension of reporting deadlines for investment funds in the context of the health crisis.
Given the unprecedented scale of the health crisis caused by the Covid-19 global pandemic and the impossibility for economic life to carry on its normal course, it appears appropriate to suspend certain statutory deadlines.
With regards to the financial sector, the ESMA, for instance, took actions aiming at extending publication deadlines under the Transparency Directive (cf. ESMA Public Statement 31-67-742 – 27 March 2020). Luxembourg authorities are taking measures that go in the same direction, notably in respect of the investment fund industry. Among them, the bill of law 7540 extending certain deadlines provided for in the sectorial laws of the financial sector during the state of crisis was tabled in the Chamber of Deputies on 26 March 2020 (the “Bill of Law”). These days, the CSSF has also published documents along the same lines regarding regulatory reporting.
     1.   Bill of law 7540 extending certain deadlines provided for in the sectorial laws of the financial sector during the state of crisis

The Bill of Law aims to extend the deadlines only for the drawing up and publication of certain periodic reports which are not subject to harmonisation at European level. Maintaining the usual deadlines would indeed expose financial sector entities and their managers to liabilities and sanctions that would be unfair in the current circumstances.

Such periodic reports are:

  • the audited annual report to be made available to the investors by SICARs, SIFs and RAIFs by virtue of the applicable laws to such types of funds;
  • the half-yearly and audited annual reports to be published by Part II UCIs by virtue of the Law of 17 December 2010 on undertakings for collective investment [1] .

According to the Bill of Law, the deadline for making available / publishing the relevant report would be extended for a period of three months only if such deadline has not expired on 18 March 2020 and if the report relates to a period closed before the date on which the state of crisis ends.
In addition, article 10 of the Bill of Law intends to entitle the CSSF to extend, for a period up to 3 months, the deadlines in respect of the drawing up and the publication of any other periodic reports provided for in the laws it enforces. 
The extension of deadlines provided for in the Bill of Law for regulated investment funds is in line with those foreseen in the bill of law 7541 extending the filing and publication of the annual accounts, the consolidated accounts and the related reports during the state of crisis, notably for commercial companies. Therefore, unregulated investment funds which are not covered by the Bill of Law but are falling within the scope of the title II of the law of 19 December 2002 concerning the trade and companies register would also benefit from an extension of three months notably for filing and publishing annual accounts according to the bill of law 7541.
     2.  Other deadline extensions decided by the CSSF
On 25 March 2020, the CSSF announced by means of a press release that the long form report drawn up based on the CSSF circular 02/81, may exceptionally be remitted up to 4 months after the annual general meeting of the fund, excluding delays for such annual general meeting granted by the government through exceptional measures. Both delays shall not be applied cumulatively.
In addition, the CSSF published a FAQ, the question 7 of which concerns the extension of the deadlines for reports to be submitted notably by UCIs, SIFs, SICARs and investment fund managers. To the extent that a submission within the usual deadline is not possible without compromising the quality of the reporting, such deadlines are extended or suspended as follows:

[1] UCITS are logically excluded from such measure as the deadline to publish these reports is enshrined in the UCITS Directive. For the same reason, the deadline provided for in the law of 12 July 2013 on AIFM to make available annual report is not modified as it is the strict implementation of the AIFMD.