Background
On 17 December 2021, the CSSF issued CSSF Circular 21/788 regarding guidelines for the Collective Investment Sector on the CSSF AML/CFT external report (the “Circular”).
Purpose
The purpose of the Circular is to provide guidance on the report dedicated to anti-money laundering and terrorism financing risks (the “Report”) that is to be drawn up by an external auditor and submitted to the CSSF.
Scope
The requirement to prepare and submit the Report applies to all Luxembourg investment fund managers, including registered AIFMs and to all Luxembourg investment funds supervised by the CSSF for AML/CFT purposes.
The legal basis for such requirement arises from Article 8-2(1) of the law of 12 November 2004 on the fight against money laundering and terrorist financing which allows the CSSF to require auditors to carry out on site verifications or investigations of persons subject to its supervisory powers and Article 49 of CSSF Regulation 12-02 of 14 December 2012 on the fight against money laundering and terrorist financing (the “Regulation”), pursuant to which the audit of a professional’s annual accounts shall also include compliance with the legal and regulatory AML/CFT obligations and which specifically foresees the introduction of such a report.
Exemptions
The Report is not required for Luxembourg investment funds, which have appointed an investment fund manager (whether the investment fund manager is established in Luxembourg or abroad).
For exempted funds, the external auditor of the investment funds must nevertheless perform anti-money laundering work as foreseen under Article 49(1) of the Regulation.
Who prepares the Report?
All professionals, which have the legal requirement to appoint a réviseur d’entreprises agréé (approved statutory auditor or “ASA”), shall also appoint the same ASA to prepare the Report.
All other professionals subject to the Circular but not under an obligation to appoint an ASA for purposes of auditing their annual accounts must mandate an ASA for the specific purpose of preparing the Report.
Content of the Report
The Report is divided into two sections: (i) a section concerning the corroboration of answers given by the supervised entity in scope in the context of the CSSF’s annual AML/CFT online survey, and (ii) a section dedicated to sample testing or specific work to be performed by the ASA. The ASA shall review the latest AML/CFT online survey that is submitted on the CSSF’s eDesk platform by the supervised entity in scope and respond to a number of questions determined by the CSSF.
The Report also allows the ASA and the supervised entity in scope to comment on the results of the work performed.
Submission of the Report
The compliance officer in charge of the control of compliance with the professional obligations (“responsable du contrôle du respect des obligations professionnelles” - RC)) or the person responsible for compliance with the professional obligations (“responsable du respect des obligations professionnelles” – RR) or a member of the board of the entity (or equivalent) remains in charge of submitting the Report via eDesk. It is to be submitted on an annual basis within six months of the end of the financial year.
For the year ended December 31, 2021 an extension of three (3) extra months is granted for the submission.
A user guide has been made available on eDesk to supervised entities in scope and ASAs
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