knowledge | 17 November 2021 |

Central Bank Confirms ‘Fast-Track’ Filing Process for Sustainability Disclosures

On 16 November 2021, the Central Bank of Ireland (the “CBI”) issued a notice of intention entitled: ‘Process clarifications for UCITS and AIFs precontractual documentation updates in relation to the Taxonomy Regulation and Level 2 measures in relation to the Sustainable Finance Disclosure Regulation’ (the “Notice”) here.

The Notice details the CBI’s ‘fast-track’ filing process to assist firms meet the impending deadline of 1 January 2022 in respect of pre-contractual document updates relating to the climate change mitigation and climate change adaptation objectives under the Taxonomy Regulation and the deadline of 1 July 2022 for the disclosures required pursuant to the Sustainable Finance Disclosure Regulation (“SFDR”) regulatory technical standards1 (the “SFDR RTS”), also known as the SFDR Level 2 disclosures.

We have summarised the key aspects of the CBI’s ‘fast-track’ filing process in the box below:

 

The ‘fast-track’ filing process

Certification

Both UCITS management companies and Alternative Investment Fund Managers (“AIFMs”) will be required to certify compliance with the relevant requirements, i.e., the Taxonomy Regulation and the SFDR RTS, via an attestation.

A ‘Responsible Person’ shall certify that the amendments made are in accordance with the Taxonomy Regulation and the SFDR RTS and do not contain any other amendments to the precontractual documentation.

The above attestation along with the relevant revised final dated documents (prospectus/supplement) for UCITS, RIAIFs and QIAIFs are required to be submitted to a dedicated mailbox at the CBI by close of business on the relevant date (see further detail on relevant dates below).

‘Responsible Person’

For the purpose of the above certification, the CBI defines a ‘Responsible Person’ as follows –

  • a ‘Responsible Person’ of a UCITS is the UCITS management company or the UCITS Self-Managed Investment Company (“SMIC”); and
  • a Responsible Person of an alternative investment fund (“AIF”) is the AIFM or the AIF SMIC, or in the case of an AIF with a non-EU AIFM the ‘Responsible Person’ is the AIF itself.

Form of attestation

In respect of the Taxonomy Regulation, the attestation must state that ‘the revised disclosures contained therein have been made in order to comply with the requirements of the Taxonomy Regulation, that such revised disclosures comply with the Taxonomy Regulation and that no other changes are being made at this time’.

In respect of the SFDR RTS disclosures, the attestation must state that ‘the revised disclosures contained therein have been made in order to comply with the requirements of the Level 2 measures in relation to SFDR, that such revised disclosures comply with the SFDR RTS and that no other changes are being made at this time’. (Note: the CBI states it will keep the SFDR attestation under review and may revise in accordance with developments in respect of the SFDR RTS).

Filing deadlines

Taxonomy Regulation-related filings may be made from the date of publication of the Notice and must be made no later than 14 December 2021. The CBI states that on an exceptional basis, it may permit an extension to this deadline where a reasonable rationale explaining why such an extension is necessary for a specific fund can be provided.

SFDR RTS-related filings may be made at any point after 31 March 2022 and must be made no later than 27 May 2022 (Note: the CBI states these dates may be revised depending on developments in respect of the SFDR RTS).

Other updates to documentation

The CBI notes that the ‘fast-track’ filing process is only available for Taxonomy Regulation/SFDR RTS related disclosures. Any other changes must comply with the usual CBI review process for the relevant fund and the CBI notes such changes should be submitted to allow sufficient consideration time.

New fund/sub-fund applications

The Notice provides that the ‘fast-track’ filing process is only available for funds that have received approval from the CBI.

The CBI confirms that where a new fund/sub-fund application is currently under review by the CBI then the disclosures made in relation to the Taxonomy Regulation and/or the SFDR RTS should be included therein.

Will the fast-track process be available after 1 January 2022 /1 July 2022?

The CBI confirms that the ‘fast-track’ filing process will not be available after the relevant deadlines of 1 January 2022 for the Taxonomy Regulation disclosures and 1 July 2022 for SFDR RTS disclosures. Where a submission is made to the CBI after those deadlines, the CBI confirms that those disclosures will be subject to review and may be subject to comment.

Prescribed format for submissions

There is a prescribed format for email submissions detailed in the Notice.

CBI confirmation of receipt

The CBI confirms that a noting/confirmation of receipt will issue following the submission of each update.

The CBI states it intends to undertake a review of a sample of the submissions received and will engage with those selected applicants on a bilateral basis where queries arise in respect of the applications that fall within the sample. On this basis, the CBI notes that it may require revisions to documentation to be made at a later date.

 

Comment and next steps

The CBI’s confirmation of a ‘fast-track’ filing process is a welcome development for asset managers who can now work towards the first filing deadline of 14 December 2021 for Taxonomy Regulation-related disclosures.

Asset managers should bear in mind the CBI’s emphasis that responsibility rests with the relevant management company to ensure compliance with the applicable requirements and that the ‘fast-track’ filing process ‘should not be seen as providing scope for a lesser quality of disclosures than would otherwise be produced’. In this respect, asset managers should also note recent CBI comments confirming it will be ‘closely scrutinising’ how investment funds are complying with their supervisory obligations under the Taxonomy Regulation and the SFDR (here).


  1. The most recent version of the SFDR RTS are contained in the attached final report of the ESAs dated 22 October 2021 here

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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