Luxembourg Legal Update November 2015
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Luxembourg Legal Update November 2015 2 Luxembourg Legal Update Contents Banking, Finance and Capital Markets 3 Data Protection & Technology 9 Employment 10 Funds and Investment Management 11 Litigation 17 Tax 23 Glossary 28 Luxembourg Legal Update 3 We are pleased to provide you with the latest edition of our Luxembourg Legal Update. The newsletter provides a compact summary and guidance on the new legal issues which could affect your business, particularly in relation to banking, finance, capital markets, corporate, litigation, employment, funds, investment management and tax law. Other New Delegated, Implementing and other Banking, Finance and Capital Regulations Markets Over the past few months, a number of other new Commission Delegated, Commission Implementing and EU Developments other EU Regulations and texts have been published. These include, amongst others: Solvency II CRD IV/CRR: On 14 September 2015, the European Insurance and Occupational Pensions Authority (EIOPA) published its N°2015/1278 of 9 July 2015 amending Implementing second set of guidelines under Solvency II. The guidelines Regulation (EU) 680/2014 on implementing technical are addressed to national competent authorities (NCAs) or standards (ITS) with regard to the instructions, financial institutions, and cover: templates and definitions for supervisory reporting of institutions under the CRR financial stability reporting N°2015/1555 of 21 September 2015 supplementing the extension of the recovery period Regulation 575/2013 with regard to regulatory the exchange of information within colleges technical standards for the disclosure of information in the implementation of long-term guarantee measures relation to the compliance of institutions with the methods for determining market shares for reporting requirement for a countercyclical capital buffer in reporting and public disclosure accordance with Article 440 recognition and valuation of assets and liabilities N°2015/1556 of 21 September 2015 supplementing Regulation 575/2013 with regard to RTS for the governance transitional treatment of equity exposures under the the own risk solvency assessment (ORSA). internal ratings-based (IRB) approach These guidelines have been added to the list of guidelines a corrigendum dated 21 September 2015 to on the EIOPA website. NCAs have until 14 November 2015 N°2015/880 on the extension of the transitional periods to confirm whether they comply, or intend to comply, with related to own funds requirements for exposures to each set of guidelines. central counterparties set out in the CRR and Wolfsberg Group: New FAQs on risk assessments for Regulation 648/2012. AML/CTF, sanctions, and bribery and corruption EMIR: On 7 September 2015, the Wolfsberg Group published new N°2015/1515 of 5 June 2015, regarding the extension FAQs on AML/CTF, sanctions, and bribery and corruption of the transitional periods relating to pension scheme risk assessments. The FAQs are intended to promote arrangements (PSAs), has been published in the effective risk management while supporting the prevention Official Journal. of abuse of the financial system for criminal purposes. Solvency II: N°2015/1602 of 5 June 2015 on the equivalence of the solvency and prudential regime for insurance and reinsurance undertakings in force in Switzerland, 4 Luxembourg Legal Update based on Articles 172(2), 227(4) and 260(3) of protect investors and manage systemic risk by Solvency II. avoiding a recurrence of the flawed "originate to BRRD: distribute" models. EBA Opinion N°2015/15 on technical advice on The Proposal contains two main parts. The first is devoted protected arrangements in a resolution situation. to rules that apply to all securitisations, whilst the second part focuses only on STS securitisation. Mortgage Credit Directive EBA Guidelines N°2015/19 on passport notifications Globally, under the Proposal, all of the sectoral legislation for credit intermediaries under the Mortgage Credit relating to due diligence and risk retention are replaced by Directive. a new uniform regime applying to all "institutional investors" a term defined to include credit institutions, investment European System of Central Banks firms, insurance undertakings, reinsurance undertakings, ECB Guideline (EU) 2015/1197 amending Guideline institutions for occupational retirement provision, alternative ECB/2010/20 on the legal framework for accounting investment fund managers, UCITS management and financial reporting in the European System of companies and internally managed UCITS. The new rules Central Banks (ECB/2015/24). for risk retention will have a number of novel features Securitisation Regulation Proposal compared with the existing Capital Requirements On 18 February 2015, the European Commission unveiled Regulation rules. The two principal changes are the its long-expected plan to boost funding and growth across introduction of a dual direct/indirect approach, and the Europe by creating a Capital Markets Union ("CMU"), a true exclusion of certain originators from being risk retention single market for capital across the 28 EU member holders. Likewise, new transparency rules contained in the states. The Commission's Green Paper on Building a Proposal will replace those set out in Article 8b of the Credit Capital Markets Union ("Green Paper") was aimed at Rating Agencies Regulation. stimulating debate on the measures needed to identify and The other major impact of the Proposal is also to introduce remove the many obstacles standing in the way of a deep the concept of STS. The STS standard means that the and integrated single European capital market. product complies with several criteria and that a prudent A technical consultation on "simple, transparent and and diligent investor will be able to analyse the risk standardised" ("STS") securitisation was launched involved. alongside the Green Paper. The consultation closed on 13 Please refer to our client briefing The Proposed May 2015 and led on 30 September 2015 to a proposal for Securitisation Regulation for further details on the above. a regulation of the European parliament and of the council laying down common rules on securitisation and creating a The New Market Abuse Regulation European framework for simple, transparent and The currently applicable Market Abuse Directive (the standardised securitisation, and amending Directives "MAD"), adopted in 2003, has established a pan-EEA 2009/65/EC, 2009/138/EU and Regulation (EC) framework as regards both insider dealing and market N°1060/2009 and (EU) N°648/2012 ("Proposal"). manipulation. This framework has been implemented into Luxembourg legislation by the law of 9 May 2006 on market This Proposal aims to: abuse, as amended (the "Luxembourg Market Abuse Law"). restart markets on a more sustainable basis, so that A review of MAD in the wake of the financial crisis led the simple, transparent and standardised securitisation can European Commission to propose an update of the act as an effective funding channel to the economy framework. This resulted in the adoption of a new Market allow for efficient and effective risk transfers to a broad Abuse Regulation (the "MAR") and a new directive on set of institutional investors as well as banks criminal sanctions, also known as "MAD 2", in April 2014. allow securitisation to function as an effective funding The MAR will become applicable in Luxembourg on 3 July mechanism for some longer term investors as well as 2016. banks Below is a summary of the principal points, amongst others, which will be amended or implemented, as the case may be, by the MAR. Luxembourg Legal Update 5 Scope of the market abuse regime extension a new threshold system will, however, be The MAR will apply to a wider array of securities and introduced. This means that transactions will only need to derivatives than the current MAD, which is only applicable be reported once a threshold of EUR 5,000 is exceeded in in relation to financial instruments admitted to trading on the a calendar year. However, EEA Member States may EEA's regulated market within the meaning of the MiFID increase this threshold to EUR 20,000. (Whether that will Directive. From 3 July 2016 onwards the MAR will also be the case in Luxembourg is, however, not yet clear.) cover financial instruments admitted to trading on Legislation multilateral trading facilities (MTFs), such as the EuroMTF market in Luxembourg, and organised trading facilities Transparency Law and Prospectus Law (OTFs). Bill N°6860 dated 17 August 2015 Obligation to disclose inside information to the public Bill N°6860/00 amending the current Luxembourg legal The previous point will lead to the requirement that issuers framework regarding the transparency requirements for of securities admitted to trading on an MTF or an OTF will issuers of securities and prospectus for securities has been have to publish inside information whenever such lodged with the Luxembourg Parliament. The Bill primarily information arises, provided they have requested or implements EU Directive 2013/50 – amending the EU approved the admission to trading. Furthermore, should an Transparency Directive 2004/109/EC – and the EU issuer opt to delay the disclosure of inside information it will Prospectus Directive 2003/71/EC, and foresees have to inform the competent supervisory authority (i.e. the corresponding amendments to the Transparency Law and CSSF in Luxembourg) thereof and explain in writing why the Prospectus Law. The proposed amendments include: such delay