Insights

Update: Following an enquiry, the MFSA have clarified that they used the term ‘trustee’ to cover all fiduciaries authorised by the MFSA in terms of the Trusts and Trustees Act (Cap. 331 of the Laws of Malta), and therefore as covering also administrators of private foundations and also fiduciary mandataries.

The MFSA clarified that, therefore, while the extension of the period for filing the financial statements that are to accompany the Annual Compliance Return apply to administrators also, the other obligations relating to the RBO and the ACR itself remain unaffected. The MFSA was urged to publish this clarification as soon as possible for the benefit of all authorised entities.

The MFSA emphasised that, as it had outlined in previous communications, it expects regulated firms to “take all reasonable measures in order to have appropriate contingency plans in place to be able to deal with any eventuality relating to the outbreak of COVID-19.”

Indeed, insofar as trustees are concerned, in the draft Rulebook for Trustees that the MFSA has issued for consultation in December 2016 (and which is scheduled to replace the 2005 Code of Conduct for Trustees) the MFSA had already contemplated the inclusion of an express obligation on trustees and administrators of private foundations to have a Business Recovery Plan. Clause 7.19 of the draft Rulebook provides, in fact, that “7.19 The Authorised Person shall have in place a documented business interruption recovery plan which shall take into account all of its critical functions.” Following feedback provided by STEP Malta on the consultation, including on the BRP, STEP was invited by the MFSA to provide further proposals on the BRP, which STEP Malta did, for the MFSA’s consideration.

Situations such as the present one show how important a BRP is to a licensed entity (and any business really) and the MFSA recognises in the Circular that “it is aware of the increasingly difficult conditions being faced currently, and presumably to be faced in the immediate future, by licensed entities in effectively responding to unprecedented challenges in terms of ensuring operational continuity, whilst also adhering to their regulatory obligations.”

For this reason, and recognising the significant effects that the present situation is presenting to the financial services sector, the MFSA considered it both:

(a) necessary; and
(b) proportionate;

to apply flexibility in the applicable deadlines for the submission of regulatory reporting falling due in the coming months. This measure will enable the licensed entities to focus on ensuring the continuity of their businesses while, naturally, not neglecting their various regulatory obligations. It must be emphasised that the flexibility being applied by the MFSA applies to the regulatory filings, but not to the underlying obligations that are anyway expected to be complied with at all times, including challenging ones such as the present ones.

For the above reason, the MFSA indicates that it is accepting a delay of the reporting deadline for some of the regulatory filings due by licensed entities in March and April 2020. It also declared that it was not inclined to accept delays for submissions/publications due by May/June 2020 but that in view of the evolving situation with respect to the novel coronavirus outbreak, which the MFSA was closely monitoring, it would reassess the situation later.

The MFSA emphasised that the flexibility it was applying was aimed at striking “the right balance between providing the necessary relief to licensed entities, whilst maintaining its objective of ensuring the protection of markets and consumers/investors. The MFSA’s approach, in fact, is to allow a limited delay in the submission of information required in terms of the applicable legal and regulatory framework. No requirements will be waived or disapplied.”

While the MFSA will be closely monitoring the situation both locally and at EU level, it has invited licensed entities to report to the MFSA any material information relevant to their financial position immediately upon becoming aware of it.

The MFSA’s circular tackles various licensed entities, such as:
(i) guarantors of listed companies
(ii) listed companies
(iii) credit institutions
(iv) financial institutions
(v) insurance and reinsurance undertakings
(vi) insurance intermediaries
(vii) pensions schemes
(viii) pension service providers
(ix) investment firms (cat.1-4)
(x) investment funds and fund managers (including UCITS and UCITS Man Cos, AIFs and AIFMs, PIFs, de minimis AIFMs, recognized persons – RFAs, RICCs, PCISs

Trustees and CSPs

The MFSA also addresses certain timeframes applicable to trustees and CSPs. However, the MFSA firstly makes it clear that insofar as the Register of Beneficial Owners is concerned, seeing that these “have been introduced to ensure adequate, accurate and up-to-date data in the register of beneficial owners”, the MFSA will continue to apply the requirements and the applicable timelines.

Insofar as other requirements applicable to Trustees and CSPs are concerned the only extension granted relates to Trustees’/CSPs’ Audited Annual Financial Statements, where the MFSA has granted an extension of two (2) months to all entities in scope for filing the next submissions that were otherwise due by March or by April 2020.

Unfortunately, with regard to both the Trustees’/CSPs’ Annual Compliance Return, and the CSPs’ Statement of Solvency the MFSA indicated that it is not inclined to grant an extension in respect of the next submissions due by March or by April 2020 (although it indicated that it may exceptionally consider one), and in the latter case, since most CSPs have already submitted their Statement of Solvency, the MFSA indicated that it will continue requiring these submissions.

What about administrators of private foundations?

For some reason, the MFSA’s Circular has not tackled the position for administrators of private foundations, even if only to clarify that no concessions are perhaps being granted there. Indeed, administrators of private foundations authorized under article 43(12)(b) of the Trusts and Trustees Act (Chapter 331 of the Laws of Malta) are also required to file an Annual Compliance Return, which must be accompanied by financial statements and they are also subject to the Register of Beneficial Ownership rules for foundations. Clarifications from the MFSA are being sought on this matter.

Useful Contact Details

The MFSA listed the various contact email addresses for the different sectors, which are being reproduced below: