Luxembourg Client briefing: Circular CSSF 21/789 – Fund manager self-assessment, management letter, separate audit report

The Commission de Surveillance du Secteur Financier (CSSF) has issued Circular CSSF 21/789[1] (the Circular) which concerns - with only few exceptions - all Luxembourg authorised investment fund managers[2] (IFMs or the Addressees). The Circular introduces three new supervisory tools that apply for financial years ending on or after 31 December 2021. They are described hereafter.

• A self-assessment questionnaire: Addressees have to submit a self-assessment questionnaire form (SAQ) to the CSSF for each financial year. The first submission of the SAQ is due within 6 months after the end of the Addressee’s financial year. The following submissions are due within 4 months after the end of the Addressee’s financial year.
• A separate audit report: The Luxembourg authorised auditor of an Addressee (réviseur d’entreprises agréé – REA) has to issue a separate report to the Addressee (rapport distinct - the Separate Report) to verify the Addressee’s replies to the SAQ. The Addressee must transmit the Separate Report to the CSSF within 7 months after the end of the Addressee’s Financial Year. However, for the first Separate Report, the REA has 9 months after the end of the Addressee’s financial year to issue the Separate Report.
• A management letter: The REA of the Addressees must produce a management letter (lettre de recommendations – Management Letter) or a confirmation that the REA has no comments (the No Comment ML). The Addressees must transmit the Management Letter with their comments (or the No Comment ML) to the CSSF within 7 months from the end of their financial year.

If an Addressee’s CSSF authorisation ends, the deadlines for submission of the SAQ and the Separate Report and the Management Letter (or the No Comment ML) apply from the date of the end of authorisation.

More about the SAQ

The content of the SAQ depends on the scope of licence of the Addressee. The Addressees shall self-assess their compliance with the legal and regulatory requirements applying to them. The SAQ contains no questions on AML/CFT. This topic is covered inter alia via Circular CSSF 21/788.

The SAQ must only be submitted after it has been reviewed and validated by the responsible persons of the Addressee[3] (the Responsible Persons). Accordingly, the Responsible Persons shall establish adequate processes within the Addressee to make sure that they receive all necessary information to respond to the SAQ in due time.

More about the Management Letter

The Management Letter form is made available to the REA by the CSSF via eDesk. The Circular requires that the Management Letter must take into account, at least, the following (the Findings):

“- an important weakness or a point needing improvement communicated to whom it concerns in accordance with:

• ISA 260 “Communication with those charged with governance”;
• ISA 265 “Communicating deficiencies in internal control to those charged with governance and management”;

- any other weakness or point needing improvement which, based on the professional judgement of the REA, is of sufficient importance to be brought to the attention of the IFM’s responsible persons or the CSSF.”

The Management Letter must also follow up on any Findings of previous financial years that have not been closed. The Responsible Persons must comment on any Findings and include in particular:

“- a detailed explanation of the reasons and circumstances related to the occurrence of the weakness or point needing improvement raised by the REA; - a detailed explanation of the measures taken or decided in order to remedy the weakness or point needing improvement and to prevent their recurrence in the future. These measures must be accompanied by a detailed remediation plan and a related timetable”.

If the Responsible Persons do not respond to the REA and/or do not take remedial action in relation to Findings in a timely manner, the REA shall mention in the Management Letter that the REA did not receive comments on the Findings from the Responsible Persons.

More about the Separate Report

The REA must fill in the Separate Report via eDesk. To verify the Addressees’ responses to the SAQ, the CSSF has defined a series of procedures in the Separate Report that must be completed by the REA. The results of the procedures are answers to “mainly closed-ended questions and they do not entail an opinion” in accordance with auditing or other standards.

Miscellaneous

The Circular reminds that general requirements about filings via the CSSF’s eDesk portal are set out in Circular CSSF 19/721 and that a general user guide is available to Addressees and REA on the eDesk portal.

Procedures and explanations on preparing the SAQ, the Separate Report and the Management Letter are provided on the CSSF’s eDesk portal under the heading “Investment funds and vehicles / Investment fund managers” in the “Collective Investment Sector Reporting Tool” box.

[1] Circular CSSF 21/789 of 17 December 2021 - Practical rules concerning the self-assessment questionnaire to be submitted annually by investment fund managers. Engagement of the réviseurs d'entreprises agréés (approved statutory auditors) of investment fund managers and practical rules concerning the management letter and the separate report to be drawn up annually
[2] The Circular contains a list of the enitities in scope. This list includes all investment fund managers as defined in Circular CSSF 18/698, except management companies authorised according to article 125-1 of the law of 17 December 2010 on undertakings for collective investment (the 2010 Law) and management companies authorised in accordance with chapter 18 of the 2010 Law.
[3] Responsible persons means 1) the management body (“organe de direction”) under Article 1(26) of the 2010 Law, 2) the governing body (“organe directeur”) under Article 1(4) of Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision and 3) senior management (“instances dirigeantes”) as defined in part I of Circular CSSF 18/698.