Luxembourg Transparency Law and Market Abuse Regulation-new mandatory reporting portal

The Luxembourg financial supervisory authority (Comission de Surveillance du Secteur Financier (the "CSSF")) implemented on 4 March 2022 the mandatory use of a new reporting portal for the purpose of filing regulated information under the Luxembourg law of 11 January 2008 on transparency requirements for listed issuers (the "Luxembourg Transparency Law") as well as, among others, PDMR notifications (notifications done by persons discharging managerial responsibilities and persons closely associated with them) and inside information under Regulation (EU) 596/2014 on market abuse (the "Market Abuse Regulation" and the "e-RIIS Portal", respectively).

Please  follow  this link.

The e-RIIS Portal, does, however, not have an impact on any filing obligations which arise under the Luxembourg law of 21 July 2012 on mandatory squeeze-out and sell-out of securities of companies admitted to trading, nor does it affect any reporting obligations that might arise under the Luxembourg law of 19 May 2006 on takeover bids.

The e-RIIS Portal is similar in structure and approach to the E-Prospectus Portal which the CSSF put in place for the purposes of filing prospectuses back in March 2021. In the case of the e-RIIS Portal the CSSF is also taking a flexible approach for the time being and still allows issuers, shareholders and PDMRs to file information using the old format, i.e. by providing it by way of an email to transparency@cssf.lu or market.abuse@cssf.lu until 30 May 2022. However, in the long run the use of the e-RIIS Portal will replace any email submissions and filings will only be possible via the portal.

As mentioned, until now market participants usually submit such information using emails and email pdf-attachments. From an identification security perspective this approach has, however, the disadvantage that a person can file particular information and documents with the CSSF on behalf of issuers or offerors without having to first identify themselves. As was the case with respect to the introduction of the E-Prospectus Portal this system could therefore not conclusively guarantee the appropriate level of traceability of the persons filing information.

Consequently, the CSSF decided to require that the various security certificates guaranteeing the identity and authentication of its users provided by LuxTrust must now also be used for the e-RIIS Portal.

1. What does it mean in practice?

In order to file regulated information under the Luxembourg Transparency Law, any PDMR notifications or any other applicable information to be filed under the Market Abuse Regulation the submitting person is now required to proceed through the e-RIIS Portal. In order to log into the portal, a LuxTrust certificate (i.e. an identification tool) is required. In this respect various identification options are accepted by the CSSF. A physical token, smartcard or a mobile app (among others) can be used in order to connect with the e-RIIS Portal and certify one's identity ("who you are") and authenticate oneself ("how do you prove who you are?"). When choosing the most appropriate LuxTrust device, one should take into account the identification process (online or face-to-face) and the delivery time of the different products.

Subsequently, once a LuxTrust device has been obtained a CSSF e-RIIS account (the "e-RIIS Account") needs to be created by the submitting person through which the reporting of the relevant information will be done. The CSSF also refers to such e-RIIS Accounts as "User Accounts". As is the case with the E-Prospectus Portal any natural person filing information on behalf of the issuer needs to have their own e-RIIS Account in order to allow for the person(s) to be able to submit information/documents and receive communications from the CSSF. In this respect, it is important to note that, although LuxTrust offers products for individuals and for professionals (i.e. a product issued for a specific individual person but which relates to a particular corporate entity, e.g. the issuer or relevant shareholder), several employees cannot share a single LuxTrust product, i.e. a company-related, certificate.

Luxembourg residents who already have a LuxTrust identification tool (such as a token, smartcard or mobile app etc.) should, however, not encounter any difficulties and can continue to use such devices in order to connect to the e-RIIS Portal.

Persons located outside of Luxembourg in most instances will not yet have a LuxTrust device. For such foreign-based persons the possibility to obtain an identification tool online by contacting LuxTrust (the process of which involves an identity verification procedure during a video call) exists. In order to obtain access to the e-RIIS Portal the easiest approach for users located abroad would be to acquire the LuxTrust mobile app and to download it on their mobile as this tool would avoid the necessity of having a physical object like a token or a particular identification card, for which use often a card reader might also be necessary, sent abroad from Luxembourg.
Finally, it should not be overlooked that persons who have already created their own account for the purposes of the E-Prospectus Portal can use this e-Prospectus account for accessing the e-RIIS Portal.

2. Are there any specific validation aspects to be taken into account?

Any e-RIIS Account must be assigned to one or more so-called reporting entities. Reporting entities consist of (1) issuers of securities and (2) holders of securities and can be existing reporting entities or new reporting entities still to be created. Existing reporting entities are all the issuers which are subject to the Luxembourg Transparency Law. However, for entities or persons other than issuers subject to the Luxembourg Transparency Law the status of reporting entity must still be created in the e-RIIS Portal. While several e-RIIS Accounts can be assigned to one single reporting entity an e-RIIS Account can be assigned to different reporting entities as well.

These "new" reporting entities are mainly (1) shareholders subject to shareholders' notifications under the Luxembourg Transparency Law, (2) issuers who must comply with the filing obligations as regards inside information under the Market Abuse Regulation without such information qualifying as regulated information under the Luxembourg Transparency Law (i.e. in the case of an Euro MTF listing only) or (3) PDMRs and persons closely associated with them with respect to (a) issuers subject to the Luxembourg Transparency Law and the Market Abuse Regulation or (b) issuers who are only subject to the latter. In this respect, it is important to note that in case of filings an issuer of securities, which is not subject to the Luxembourg Transparency Law, the creation of the new reporting entity must be validated by the CSSF before any filings can be done.

However, in both cases, i.e. in the case of an existing reporting entity or a new reporting entity, the first e-RIIS Account assigned to a reporting entity must always be validated by the CSSF and is assigned the role of a so-called Super User. Such Super User going forward is allowed to make any additional assignments of other e-RIIS Accounts to the relevant reporting entity without any specific validation having to be effected in that respect. From a practical perspective this means that a reporting entity can have several users effecting filings for the entity with the Super User being the first and main user registered and the only one to be validated by the CSSF.

3. Who does this affect?

As mentioned above, any person who intends to file information under the Luxembourg Transparency Law and/or the Market Abuse Regulation after the transition period has ended will only be allowed to do so via the e-RIIS Portal using one of the LuxTrust identification tools.

This means that the obligation to use the portal applies to (1) issuers, (2) shareholders and (3) PDMRs and the persons closely associated to them.

- Issuers

Consequently, all regulated information arising under the Luxembourg Transparency Law (including inside information within the meaning of the Market Abuse Regulation) will thus have to be filed via the portal. With respect to regulated information the use of the portal, however, only affects the filing requirement. The obligation to also effectively disseminate (publish) such information and to store it with the OAM operated by the Luxembourg Stock Exchange is not affected by the implementation of the e-RIIS Portal.
Furthermore, it should not be overlooked that issuers of securities, the securities of which have only been listed on the Euro MTF, and PDMRs and persons closely associated with them in such Euro MTF listed issuers, despite the issuer not being subject to the Luxembourg Transparency, are also required to do the relevant filings via the e-RIIS Portal.

- Shareholders

Shareholders in the context of the filing of shareholders' notifications with the CSSF under the Luxembourg Transparency Law will also need to use the e-RIIS Portal. The same applies to the filing requirement vis-à-vis the CSSF which the issuer is required to comply with once it has received such a notification from the relevant shareholder since from an issuer's perspective a shareholder notification also constitutes regulated information and as such must be published, stored with the OAM and filed with the CSSF accordingly.

- PDMRs

As mentioned above PDMRs and persons closely associated to them will be required to use the e-RIIS Portal for the purpose of filing the relevant PDMR notification under article 19 of the Market Abuse Regulation. In this context, it is worth remembering that vis-à-vis an issuer whose home Member State for transparency purposes is Luxembourg the notification also constitutes regulated information pursuant to the Luxembourg Transparency Law and therefore a CSSF filing obligation arises in this respect for the issuer as well. Moreover, the issuer is obliged to publish and store with the OAM such information pursuant to article 19 of the Market Abuse Regulation.

4. More information

For more information or any help required in connection with the above our Luxembourg Ashurst Capital Markets team would be pleased to assist you.