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SEPTEMBER 2017 www.wildgen.lu _WILDGEN INSIGHTS CODIFICATION OF THE EUROPEAN TRADEMARK REGULATION On 14 June 2017, the European Parliament and the Council of the European Union adopted Regulation (EU) 2017/1001 of 14 June 2017 on the European Union Trade Mark Read more on page 4 NEW CSSF CIRCULAR ON IT OUTSOURCING RELYING ON A CLOUD COMPUTING INFRASTRUCTURE On 17 May 2017, the Luxembourg Supervisory Authority of the Financial Sector (CSSF) published the CSSF Circular 17/654 (Circular 17/654) Read more on page 5 NEW EU PROSPECTUS REGULATION Regulation 2017/1129/EU of the European Parliament and of the Council of 14 June 2017 Read more on page 6 ESMA UPDATES ITS Q&AS ON THE APPLICATIONS OF THE UCITS AND AIFM DIRECTIVES On 11 July 2017, the European Securities and Markets Authority (ESMA) updated its Q&As Read more on page 8 NEW TRANSPARENCY RULES FOR CROSS-BORDER TAX PLANNING INTERMEDIARIES On 21 June 2017, the European Commission proposed new tax transparency requirements for intermediaries Read more on page 10 ABOUT WILDGEN Since 1923, Wildgen has been at the heart of law practice in Luxembourg. It is today one of the best known and well-respected law firms in Luxembourg, possessing a strong track record and continuing to offer sound technical expertise. As a full-service business law firm, we represent Fortune 500 companies and a wide variety of closely and publicly held corporations, partnerships, emerging businesses and individuals, investment funds, private equity houses as well as leading banking and financial institutions and leading insurance and reinsurance service providers. We enjoy a solid reputation in a wide range of practice areas: Administrative Law, Aviation & Maritime, Banking & Finance, Capital Markets, Corporate Finance, Corporate Law, Employment and Pensions, Energy, Insurance & Reinsurance, Intellectual Property & Telecommunications, Media and Technologies, Investment Funds, Islamic Finance, Litigation and Arbitration, Mergers & Acquisitions, Private Equity and Venture Capital, Restructuring & Insolvency, Real Estate, Securitisation, Tax. _WILDGEN INSIDE WILDGEN EVENTS Read more on page 11 3 P a g e
4 WILDGEN INSIGHTS Codification of the European Trademark Regulation Florence Delille (Senior Associate), Guillaume Dally (Associate) - July 2017 _On 14 June 2017, the European Parliament and the Council of the European Union adopted Regulation (EU) 2017/1001 of 14 June 2017 on the European Union Trade Mark. 1 This new regulation, published on 20 June 2017, codifies the various amendments to Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark 2. florence.delille@wildgen.lu guillaume.dally@wildgen.lu The new regulation will repeal Regulation (EC) No 207/2009 and shall apply from 1 October 2017. It provides no substantive amendments to the European trade mark system. However, it is a welcome codification of all amendments made to the Community Trademark Regulation of 2009. It notably includes the amendments introduced by Regulation (EU) 2015/2424. 3 As a reminder, this new regulation introduced, among other things: The notion of the European Union Trademark and the European Union Intellectual Property Office replacing the Community Trade Mark (CTM) and the Office for Harmonization in the Internal Market (OHIM), respectively; An amendment of the fee structure by setting up a new one-class-per-fee instead of the old option of paying for 1 Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union Trade Mark (codification), OJ L 154, 16.6.2017, p. 1 99. 2 Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community Trade Mark, OJ L 78, 24.3.2009, p. 1 42. 3 Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community Trade Mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community Trade Mark and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs), OJ L 341, 24.12.2015, p. 21 94. Copyright 2017 Wildgen S.A.
5 a class for each additional product class applied beyond the third; and The abolition of the requirement that a trade mark should be represented graphically This new regulation therefore constitutes a very useful tool for all trade mark practitioners. The article can be read on our website. New CSSF Circular on IT Outsourcing Relying on a Cloud Computing Infrastructure Charles Krier (Director), Peggy Muck-Belabbes (Associate) - July 2017 _On 17 May 2017, the Luxembourg Supervisory Authority of the Financial Sector (CSSF) published the CSSF Circular 17/654 (Circular 17/654) on IT outsourcing relying on a cloud computing infrastructure. charles.krier@wildgen.lu peggy.muck@wildgen.lu Circular 17/654 was prepared in the context of a cloud workstream performed by the CSSF with the view of analysing the functioning and management methods of cloud services provided by certain major players in this area, including public clouds, and following a study conducted by the European Union Agency for Network and Information Security (ENISA). The CSSF, by contributing to the said study, concluded that, overall, the extent of adoption of cloud computing by the European financial sector was low. The core aim of Circular 17/654 is thus to clarify (i) the definition of cloud computing as well as (ii) the requirements to be followed in a scenario where outsourcing relies on a cloud computing infrastructure by always considering the cloud specifies in the context of an outsourcing and by distinguishing it from standard IT outsourcing (typically to an entity of the group or to a Support PFS).
6 To define the concept of cloud computing, the CSSF has relied on recognised terms that are used by international organisations, such as ENISA, and based its definition on the seven following criteria that set the scope of Circular 17/654: on-demand self-service; broad network access; resources pooling; rapid elasticity; measured service; no access by the provider to the data/system of the consumer without its prior consent and without a monitoring mechanism available to the consumer, apart from exceptional situations; and no manual interaction of the provider regarding the day-to-day management of resources. The full article can be read on our website. New EU Prospectus Regulation Daniel Krauspenhaar (Senior Associate) - August 2017 _Regulation 2017/1129/EU of the European Parliament and of the Council of 14 June 2017, on the prospectus to be published when securities are offered to the public, or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (the Regulation ), officially became effective on 20 July 2017. daniel.krauspenhaar@wildgen.lu Direct applicability in the EU Member States The Regulation is directly applicable in the EU Member States, and gradually supersedes Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading (amending Directive 2001/34/EC), as well as the national transposition laws. With regard to Luxembourg, the Regulation affects the law on prospectuses for securities of 10 July 2005 (the Prospectus Law ). Copyright 2017 Wildgen S.A.
7 It can be expected that the European capital market will be governed by a single Regulation in the future; national differences will be permitted only on a minimum scale according to the Regulation. Essential Changes This Regulation constitutes an essential step towards the completion of the Capital Markets Union, as set out in the Communication of the Commission of 30 September 2015, entitled Action Plan on Building a Capital Markets Union. The aim of the Capital Markets Union is to help businesses tap into more diverse sources of financing from anywhere within the European Union, make markets trade more efficiently and offer investors and savers additional opportunities to put their money to work, in order to enhance growth and create jobs. Significant changes, in comparison with the Directive 2003/71/EC and the Prospectus Law, include inter alia the simplified prospectus requirements for secondary issuances and small and medium-sized enterprises ( SMEs ).These changes will be achieved via the introduction of the EU Growth prospectus, a brand new type of prospectus, primarily for SMEs, for which a specific registration document and a standardised format is provided. Furthermore, the conditions set out for frequent issuers will be improved by reducing the period of time required for the application by the introduction of a universal registration document, which must be submitted to the relevant authority. This registration document includes information regarding the legal, business, financial, accounting, future prospects, management and shareholder participation of the enterprise. In addition, the presentation of the risk factors has been reviewed, so as to include only the significant risk factors with regard to investment decisions. Moreover, the summaries in the prospectuses have been simplified. The overall number of risk factors regarding the issuers and the securities, as well as possible guarantors, contained in the summary cannot exceed 15. The summary is
8 now limited to a total of seven A4 pages. Ultimately, the prospectus summary shall as much as possible bear the appearance of the pattern set out in Regulation 1286/2014/EU of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products, with regard to the key information document; if securities should be governed by both regulatory areas, the contents can broadly be reused in order to reduce costs. The full article can be read on our website. ESMA Updates its Q&As on the Applications of the UCITS and AIFM Directives Antonios Nezeritis (Partner) - September 2017 _On 11 July 2017, the European Securities and Markets Authority (ESMA) updated its Q&As on the application of the UCITS Directive (UCITS Q&A) and the AIFM Directive (AIFMD Q&A). UCITS Q&aA antonios.nezeritis@wildgen.lu ESMA has added to the general section of the UCITS Q&A a question on issuer concentration with respect to index-tracking UCITS. ESMA confirms that the 40% limit set out in Article 52(2) of the UCITS Directive does not apply to index-tracking UCITS which comply with the requirements set out in Article 53 of the UCITS Directive. Copyright 2017 Wildgen S.A. ESMA also added a new section to the UCITS Q&A on the independence of management boards and supervisory functions. As a reminder, Chapter 4 of the Commission Delegated Regulation (EU) 2016/438 of 17 December 2015 supplementing Directive 2009/65/EC of the European Parliament and of the Council with regard to obligations of depositaries (Regulation) provides for such independence requirements. The question is whether a person who served in the management body or
supervisory body of an entity within a group or was otherwise employed by such an entity fulfils the independence requirement under the aforementioned article 24 in the event that this person has ceased to have any function within the entity. ESMA is of the opinion that such a person should be deemed to fulfil the independence requirement only after an appropriate cooling-off period following the termination of that person s function with the relevant entity. ESMA does not indicate how long the cooling-off period should be, but only that, among others, it should be proportionate to the length of the employment with the entity in question. Interestingly enough, the CSSF had indicated in the latest update to its frequently asked questions on the laws and regulations governing undertakings for collective investment in transferable securities (please see our article The CSSF updates its UCITS and AIFMD FAQs) that a cooling-off period of 12 months should be respected for a person to be considered as an independent member if that person was previously involved with, or linked to, either the UCITS Management Company (or the selfmanaged SICAV) or the depositary (or any other entity within the group to which such they belong). AIFMD Q&A The first additional question relates to how alternative investment fund managers (AIFMs) should convert the total value of the assets under management into Euro, the currency that must be used for reporting purposes. ESMA indicated that the AIFMs should divide the rounded values calculated in the base currency of the alternative investment funds (AIFs) by the corresponding rate of one unit of the base currency in Euro. AIFMs should report the rounded values in Euro and the base currency and the value of the exchange rate used for the conversion. 9 The second question relates to how an AIF should measure its exposure in relation to a loan purchased in the secondary market. As the notional value of the loan may overestimate the risk exposure, ESMA is of the opinion that the AIF should report the loan value that was used to calculate its net asset value (NAV).
10 Finally, ESMA confirmed, with respect to consolidated reporting, that AIFMs should report the NAV in the base currency of the AIF. The article can be read on our website. New Transparency Rules for Cross-Border Tax Planning Intermediaries Lionel Bonifazzi (Partner) - September 2017 _On 21 June 2017, the European Commission proposed new tax transparency requirements for intermediaries. With this proposal, the European Commission wants to combat tax abuse and ensure a fair level of taxation across the European Union, particularly given the central role played by intermediaries regarding fiscal evasion. lionel.bonifazzi@wildgen.lu A table explaining the new reporting requirements that will take effect on 1 January 2019 is available on our website. The full article can be read on our website. Copyright 2017 Wildgen S.A.
WILDGEN INSIDE 11 WILDGEN EVENTS 14 SEPTEMBER 2017 10 TH ANNIVERSARY ISA JAHRESKONGRESS IN MALLORCA _From 14 to 16 September, Mevlüde- Aysun Tokbag, Investment Fund Partner, Head of Wildgen German Desk and Member of the ISA International Network, and Pierre Metzler, Senior Partner, take part in the 10th ISA Jahreskongress in Mallorca. The topic of the 10th Anniversary of the ISA Kongress will be "The international private customer" More information on our website. 19 SEPTEMBER 2017 ALFI GLOBAL DISTRIBUTION CONFERENCE IN LUXEMBOURG _Wildgen is exhibiting at the ALFI (Association of the Luxembourg Fund Industry) Global Distribution Conference to be held on 19-20 September 2017 at the European Convention Center in Luxembourg- Kirchberg. This two-day conference attracts the biggest names in the international asset management and global fund distribution community. More information on our website.
12 05 OCTOBER 2017 LEARN AT LUNCH RAIF: HAVE EXPECTATIONS BEEN MET? _Wildgen invites you to a Learn at Lunch session on Luxembourg Reserved Alternative Investment Funds (RAIFs) to be held on 5 October 2017. The RAIF regime was adopted on 23 July 2016. Combining the legal and tax features of specialised investment funds (SIFs) and investment companies in risk capital (SICARs), but without direct supervision by the CSSF, the RAIF was viewed as a major addition to the Luxembourg investment funds toolbox. More information on our website. 17 OCTOBER 2017 WILDGEN 4 WOMEN LAUNCHING _Wildgen invites you to join the official launching of "Wildgen 4 Women" on 17 October. The topic of the 10th Anniversary of the Celebrate with us and our partners of the initiative: ADEM, Asian University for Women, Diversity Charter and Fondsfrauen and learn more about how we learn more about how we will create and foster a strong, supportive and solid network for talented women.. More information on our website. Copyright 2017 Wildgen S.A.
13 24 OCTOBER 2017 2017 LONDON TAX CONFERENCE _David Maria, Tax Partner at Wildgen is very delighted to take part, as a speaker, in the 2017 London Tax Conference to be held on 24 October 2017. In today s tax transparent and globalised world, wealth owners and their advisors face a set of new and demanding regulatory and tax compliance challenges. Recent developments in the area of tax transparency and exchange of information for tax purposes have created a competitive landscape in which efficiently complying with tax laws is a key to success. More information on our website. 25 OCTOBER 2017 PARIS TAX CONFERENCE _David Maria, Tax Partner at Wildgen is very delighted to take part, as a speaker, in the 2017 Paris Tax Conference to be held on 25 October 2017. The 2017 Paris Tax Conference will discuss the most recent developments in French tax law, both from a domestic tax law perspective, as well as from an international comparative law point of view for selected jurisdictions. More information on our website.
14 03 NOVEMBER 2017 LUXEMBOURG ART WEEK VIP EVENT _On 3 November, Wildgen and Capital at Work organise a special preview event during the 2017 LUXEMBOURG ART WEEK. Wildgen has the pleasure to sponsor the 2017 Luxembourg Art Week and to organise, in association with Capital at Work, a VIP lunch followed by a privileged and private guided visit. More information on our website. Copyright 2017 Wildgen S.A.
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16 69, boulevard de la Pétrusse L-2320 Luxembourg Tel: +352 40 49 60 1 Fax: +352 40 44 09 info@wildgen.lu www.wildgen.lu Follow Wildgen on Twitter, LinkedIn and Facebook: ----------------------------------- If you have a friend or colleague that you think might find this newsletter informative, why not taking it away for him/her? ----------------------------------- To subscribe to this newsletter or to contact us, please send an email to marketing@wildgen.lu ----------------------------------- The present newsletter contains general information only. It is not intended to be, and should not be relied upon as, a comprehensive Copyright statement 2017 of the Wildgen law. Therefore, S.A. WILDGEN cannot accept any liability for any errors, omissions or opinions contained herein and for the implementation of the principles set out without its active involvement.