Ireland: Funds Quarterly Legal And Regulatory Update: 1 January 2023 To 31 March 2023

1. APPROACHING DEADLINES ¹

2. UCITS & AIFMD

2.1 Central Bank publishes Dear Chair Letter on Undue Costs

On 24 March 2023, the Central Bank published a Dear Chair letter in which it:

1. highlights the main findings of the inspection carried out by the Central Bank on costs and fees charged to UCITS as part of the ESMA common supervisory action to assess UCITS management companies' compliance with relevant cost-related provisions contained in the UCITS framework (CSA);
2. sets out the Central Bank's expectations and identifies the key actions to be taken by all firms to mitigate these issues; and
3. requires both UCITS management companies and AIFMs to conduct a gap analysis against the findings and expectations outlined in the letter and where appropriate, put a plan in place by the end of Q3 2023 to address any gaps identified.

The letter confirms that while the scope of the CSA did not include a review of AIFMs, it expects AIFMs to consider the findings and actions of this review with respect to cost and fees charged to AIFs.

For more information on the key findings of the Dear Chair letter, please see a Dillon Eustace briefing here

Key Action Points

Fund management companies should carry out a gap analysis between their existing costs/pricing processes and the supervisory expectations outlined by the Central Bank in its Dear Chair letter and, where appropriate, put a plan in place by the end of Quarter 3 2023 to address any gaps identified.

2.2 ESMA publishes updated Q&A on the application of the UCITS Directive

On 3 February 2023, ESMA updated its Q&As on the application of the UCITS Directive.

A newly added Q&A addresses the issuer concentration rules set down in Article 52 of the UCITS Directive which requires a UCITS not to invest more than 20% of its assets in deposits made with the same "body".

ESMA confirms that reference to "body" in this context should be interpreted as meaning "credit institution" as mentioned in Article 50(1)(f) of the UCITS Directive.

The Q&A on the Application of the UCITS Directive can be accessed here.

2.3 ESMA Q&A on AIFMD

On 10 March 2023, ESMA published an updated Q&A on AIFMD, in which ESMA considered what constitutes a "substantive direct or indirect holding" for the purposes of determining whether an AIFM meets the threshold applicable to registered AIFMs (sometimes referred to as "sub-threshold AIFMs") under Article 3(2) of the AIFMD.

ESMA confirms that the "substantive direct or indirect holding" refers to situations where the AIFM manages the portfolios of AIFs through its direct or indirect holding in a company and notes that this "covers, for instance, situations whereby the AIFM de facto has the power to impose decisions on the AIF portfolio composition, its asset allocation or its risk management. Article 3(2)(a) AIFMD does not set a quantitative threshold. The notion of "substantive direct or indirect holding" shall be assessed on a case-by-case basis by AIFMs supervisors".

The updated Q&A can be accessed here.

2.4 Trialogue Negotiations on AIFMD and UCITS reforms begin

On 8 March 2023, the first trialogue meeting between the European Commission, the Council of the EU and the European Parliament on proposed AIFMD and UCITS reforms was held, during which each institution outlined their positions on the proposed amendments to existing delegation rules and liquidity management rules and the introduction of a pan-European loan origination regime amongst others.

The second political trialogue meeting is scheduled to be held on 19 April 2023 with the Swedish Presidency of the Council of the EU indicating that it aims to reach agreement by June 2023 when its term ends.

For an overview of some of the key issues to be monitored by Irish fund management companies and their funds during the trialogue negotiations, please refer to our briefing on the topic which is available here.

2.5 Central Bank publishes revised Q&A on UCITS

On 24 March 2023, the Central Bank published a revised Q&A on UCITS as well as updated web-based guidance on the filing of PRIIPS KID with the Central Bank.

Please see section below entitled "PRIIPS" for further details.

2.6 ESMA publishes revised AIFMD Reporting IT Technical Guidance

On 6 January 2023, ESMA published Revision 5 of its AIFMD Reporting IT Technical Guidance.

The new IT technical guidance Revision 5 introduces new validation rules making more fields mandatory or with stricter rules to improve data quality.

Revision 4 of the Guidance will continue to apply until November 2023 when Revision 5 will become applicable. The exact date on which Revision 5 will become applicable will be published in due course.

Revision 5 can be downloaded here.

3. CENTRAL BANK OF IRELAND

3.1 Central Bank (Individual Accountability Framework) Act 2023 and Central Bank Consultation Paper on the Individual Accountability Framework (CP 153)

On 9March 2023, the Central Bank (Individual Accountability Framework) Act 2023 (Act) was signed into law.

The Act was introduced to promote accountability within the financial services sector and is intended to make individuals in key positions individually responsible for their actions within the scope of their roles. This includes senior management, directors and other decision makers with an impact on the firm's overall performance, with the ultimate goal being an improvement in integrity and stability.

The Act comprises four pillars:

• Introduction of New Business and Individual Conduct Standards: The Act introduces new conduct standards for both firms and individuals working for such firms. All firms regulated by the Central Bank will be required to comply with business conduct rules, including obligations such as acting honestly and with due skill, care and diligence. All individuals performing controlled functions (CFs) in a regulated firm will be required to comply with common conduct standards. Senior executives will also have to comply with additional conduct standards related to running the part of the business for which they are responsible;
• Senior Executive Accountability Regime (SEAR): This will require in-scope firms to set out clearly and fully where responsibility and decision-making lie within the firm's senior management;
• Enhancements to the current Fitness & Probity (F&P) Regime: This will include clarifying firms' obligations to proactively certify that individuals carrying out CF functions are fit and proper; and
• Amendments to the Administrative Sanctions Procedure (ASP): A key change will be the Central Bank's ability to take enforcement action under the ASP directly against individuals for breaches of their obligations rather than only for their participation in breaches committed by a firm.

On 13 March 2023, the Central Bank published its Consultation Paper 153 (CP153) containing draft regulations and guidance which set out how it proposes to implement the new Individual Accountability Framework (IAF) following the signing into law of the Act on 9 March 2023.

CP153 contains draft implementing regulations including (i) SEAR Regulations, (ii) Fitness and Probity Certification Regulations and (iii) Holding Companies Regulations.

CP153 also includes draft Guidance proposed by the Central Bank which seeks to provide further clarity in terms of its expectations for the implementation of SEAR, the conduct standards applicable to CF functions, PCFs and those who may exercise significant influence on the conduct of the firm's affairs and certain aspects of the enhancements to the F&P regime.

The Central Bank has proposed the following implementation timeline:

• Conduct standards applicable to individuals working in regulated firms: 31 December 2023.
• F&P Regime - certification (and inclusion of Holding Companies requirements): 31 December 2023.
• SEAR Regulations – obligations on prescribing responsibilities of different roles and requirements on firms to clearly set out allocation of those responsibilities and decision-making are set to apply to in-scope firms: 1 July 2024.

The Central Bank has also confirmed that the business standards which will apply to all regulated firms under the Act are being reviewed as part of the current review of the Central Bank's Consumer Protection Code and accordingly has not yet provided a proposed timeline for implementation of those business standards in CP153.

To view the full article, click here.

Footnote

1. Funds falling within the scope of Article 8 or Article 9 of the SFDR must file updated pre-contractual annexes contained in Commission Delegated Regulation 2023/363 which contain additional disclosure obligations relating to exposure to Taxonomy-aligned fossil gas and nuclear energy economic activities with the Central Bank "as soon as possible and at the earliest opportunity". Please

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