Fund Distribution Alert 2022-22

On 20 September 2022, the CSSF in Luxembourg published a FAQ titled “Cross Border Distribution of Funds - Guidance on Marketing Communications”. The FAQ answers several questions regarding art. 4 of Regulation (EU) 2019/1156 on facilitating cross-border distribution of collective investment undertakings as well as the CSSF Circular 22/795. 

The FAQ notes that its applicability is identical to the Circular 22/795 (i.e. Luxembourg “investment fund managers” or “IFMs”) and that what constitutes marketing communications is aligned with the ESMA Guidelines on the matter. It furthermore confirms that funds domiciled outside of Luxembourg and marketed to investors in the European Economic Area are also in scope if managed by Luxembourg management companies or AIFMs.  

The FAQ specifies that IFMs shall be involved in the process of preparation and validation of marketing communications through its senior management and/or its internal control functions. The involvement is furthermore defined and the CSSF lists that the IFM must:

• apply a 4-eyes principle in reviewing marketing communications and put a sign-off process based thereon in place. Special attention should be made as to the consistency of the communication with legal and regulatory documents;
• implement procedures and arrangements to assure compliance of marketing communications throughout its distribution network;
• include compliance and breaches of marketing materials in the compliance report required under point 260 of CSSF Circular 18/698.

The CSSF provides further information and examples on procedures and systems which can be used, including outsourcing preparation and reviews to third parties.

As a follow-up to Circular 22/795, the CSSF specifies in the FAQ that provision of information on marketing communications are to be provided by IFMs to the authority upon request. If requested, the following information is to be provided:

• Types of marketing communication used;
• Country(ies) of dissemination of the communication (EEA only);
• Targeted investors.

As a next step and as of January 2023, IFMs must also be able to link the above information to their funds and any applicable sub-funds, as well as identify if any ESG information was included.

On a final note, the CSSF specifies that it has the authority to request a copy or reproduction of any marketing communication in scope as part of its verification process.

The FAQ can be accessed in full here.

Feel free to contact us should you require additional information.

Partner
+352 22 51 51 7892
said.fihri@kpmg.lu

Director
+352 22 51 51 7271
stephanie.zedda@kpmg.lu