Article published on 7 July 2020 www.igniteseurope.com

Luxembourg’s finance minister has warned that the UK’s plans to diverge from EU regulations for the financial services industry are threatening the country’s future access to the EU market post-Brexit, the Financial Times reports.

Pierre Gramegna, who has spoken out in favour of preserving the EU’s close links with the UK’s financial services industry, tells the publication that the UK government’s expectations of enhanced equivalence are “in contradiction” with its demand for sovereignty in terms of financial services rules.

Mr Gramegna says in the Financial Times interview that Luxembourg wants to “make sure that we still have a footbridge left” even if the links between the UK and the EU become looser, saying it “would be in the interest of both sides”.

He warns, however, that this “can only be achieved if both sides have the will to do so”.

Mr Gramegna believes the UK’s objectives are hard to reconcile, according to the Financial Times.

“The UK at the same time says ‘as soon as we will be out we will be 100 per cent sovereign again and be able to choose what we do with our own regulation’,” he tells the publication.

“That sounds to me in contradiction with the idea of having an enhanced equivalence. You cannot defend the two things in parallel.”

The EU and the UK last month missed a deadline to conclude equivalence assessments, with both sides blaming each other for failing to complete the assessments.

Michel Barnier, the European Commission’s chief Brexit negotiator, said in a speech last week that the UK had only completed four out of 28 questionnaires relating to areas of financial regulation where equivalence can be granted.

Mr Barnier noted the UK is demanding regulatory divergence from the EU while “trying to keep as many single market benefits as it can” to “make it easy to continue to run EU businesses from London, with minimal operations and staff on the continent”.

The Financial Times says Mr Gramegna’s warning shows that even sympathetic governments have lowered their expectations for their future relationships with the UK because of the UK government’s negotiating position.

The Grand Duchy has been at the forefront of EU governments demanding that the bloc adopt a pragmatic attitude towards market access for financial services.

Luxembourg is Europe’s largest investment fund domicile, with locally-registered funds being sold in over 70 countries globally and managing nearly €4.5 trillion in assets.

Article published on 6 July 2020 www.igniteseurope.com

Non-EU fund managers will be able to service professional investors in Luxembourg without requiring a licence under new regulations that could be a boon for UK firms after Brexit.

The Commission de Surveillance du Secteur Financier recently passed two measures to ease access for third-country funds to investors in Luxembourg.

The CSSF says authorised portfolio managers and investment advisers from countries including the US, Switzerland, Japan, Canada, Hong Kong and Singapore can passport their services to Luxembourg without requiring a presence in the Grand Duchy, provided their clients are defined as professional investors under Mifid II.

This could include investment services such as managed accounts, funds of funds, private banks and family offices.

The CSSF says firms from these jurisdictions will only be required to obtain a licence if the firm already has a Luxembourg branch, is servicing retail investors or the Grand Duchy is the principal location where the firm’s principal business activities related to Luxembourg clients is taking place.

Benoit Kelecom, Luxembourg-based counsel at law firm Van Campen Liem, says it is likely that this principal business location “will generally be deemed to be located where the portfolio management or advisory teams are”.

Mr Kelecom says that with portfolio management teams at non-EU firms unlikely to be located in the Grand Duchy, third-country funds will not be deemed to be rendering services in Luxembourg and so will not require a licence.

“This is rather good news for UK asset managers in the context of the continuation of their services post Brexit,” he says.

Augustin de Longeaux, partner at Simmons & Simmons, adds that the new circular puts forward “a very relaxed and flexible regime” for third-country firms.

“Firms are still able to access the Luxembourg market without needing to register. It is only a sub-set of the market but it is a large and important one,” he says.

Mr de Longeaux says that while it is very likely that the UK will be added to the CSSF’s list of equivalent financial regimes after Brexit, an acrimonious end to the UK’s negotiations with the EU would threaten that status.

“If the EU deemed the UK as not equivalent, it would be very difficult for Luxembourg not to follow suit,” he says.

Mr de Longeaux adds that the circular is “a useful clarification” as to which jurisdictions the CSSF recognises as equivalent to its own regime.

“Before applications were decided case by case, now we have clarification that you can still access professional clients on a ‘reach-in’ basis,” he says.

Delegation arrangements for Ucits and alternative investment funds distributed to investors in Luxembourg will continue to be subject to the measures in Ucits and the Alternative Investment Fund Managers Directive.