Financial Services: Asset management and investment funds Norway

Commission Delegated Regulation (EU) 2021/1255 (the "Regulation") includes new rules for alternative investment fund managers ("AIFMs") to take into account sustainability risks and sustainability factors. The Regulation is already in force in the EU, and enters into force in Norway 1 January 2023.[2]

The Regulation is part of EUs comprehensive legislative package on sustainable finance, and clarifies that sustainability factors should be taken into account by AIFMs as part of their duties towards investors. It is therefore no longer sufficient to only assess relevant financial risks, also sustainability risks, as referred to in Regulation (EU) 2019/2088 (SFDR)[3], should be taken into account. Hence, this is no longer a choice for AIFMs (which it was pursuant to SFDR).

The Regulation formally amends Delegated Regulation (EU) 231/2013[4] (the "DR"), which deals with amongst others general operating requirements for AIFMs, and includes a requirement for AIFMs to take into account sustainability risks with regards to due diligence and internal routines, as well as to ensure that the AIFM retain the necessary resources and expertise for the effective integration of sustainability risks. Furthermore, where AIFMs consider principal adverse impacts of investment decisions on sustainability factors as described in SFDR, those AIFMs shall take into account such principal adverse impacts when complying with the due diligence requirements in art. 18 of the DR.

The Regulation should be viewed in conjunction with SFDR, however the requirements apply irrespective of the SFDR classification of the alternative investment fund(s) under management.

In practice, most AIFMs already regards sustainability risks as something that might impact the value of an investment. However, the Regulation implies a legal requirement to take sustainability risks into account when amongst others conducting due diligence and ongoing monitoring of investments.

When considering the Regulation and the implementation of its requirements, the AIFM should in particular consider whether it effects:

1. Existing routines and policies (including due diligence procedures and checklists, risk management routines etc.)
2. The need for recruitment, training etc.
3. Website disclosures made in accordance with SFDR
4. Fund documentation and information made in accordance with SFDR
5. Conflicts of interest policies and regulations (cf. also that the Regulation stipulates that AIFMs shall ensure that when identifying the types of conflicts of interest, the existence of which may damage the interests of an AIF, they shall include those types of conflicts of interest that may arise as a result of the integration of sustainability risks in their processes, systems and internal controls)
6. Reporting to investors

Schjødt recently opened its Danish office in Copenhagen. The Copenhagen office is fully integrated with Schjødt's existing offices, and will operate in accordance with the values, commitment and commercial mindedness that have enabled us to develop and succeed in Norway and Sweden, and in the UK. Schjødt provides advice for asset managers and investment funds in Norway, Sweden and Denmark thereby covering legal aspects and practice from these jurisdictions. This is of particular interest in relation to financial regulatory matters such as sustainable finance with delayed implementation in Norway. Should sustainable finance (or other asset management/investment funds matters) be of interest, not only in Norway, please do not hesitate to reach out.

[1] https://www.finanstilsynet.no/nyhetsarkiv/nyheter/2022/nye-regler-om-fondsforvateres-handtering-av-barekraftsrisiko/

[2] At the same time, similar rules will apply for UCITS; https://eur-lex.europa.eu/legal-content/DA/TXT/PDF/?uri=CELEX:32021L1270&from=EN.

[3] SFDR also enters into force in Norway 1 January 2023: https://www.finanstilsynet.no/...

[4] This regulation is already in force in Norway.