LIECHTENSTEIN Law and Practice Contributed by: Bernhard Rankl, Nicolai Binkert and Alexander Appel, Schurti Partners Attorneys at Law Ltd
instruments or investment funds to disclose wheth- er and how ESG factors are taken into account. It focuses on increasing transparency and uniformity when it comes to indices, and also introduces two new categories of benchmarks – namely the EU cli- mate-transition benchmarks and the EU Paris-aligned benchmarks. Regulation (EU) 2020/852 (Taxonomy) This regulation embodies the main pillar of the EU sustainability strategy and the so-called Green Deal. It provides an investment tool and classification system – the so-called “green list” – that facilitates sustain- able investments by identifying the degree to which commercial activities can be considered environmen- tally sustainable. It provides for additional disclosure requirements (eg, on the alignment of financial prod- ucts with the taxonomy), aims to further strengthen investor protection and also to avoid so-called “green- washing”. The FMA indicated in one of its latest reports on supervisory matters relating to sustainable finance that sustainability remains a priority, and that, in view of the topic’s significant relevance, its broad range of subjects, and the vast detail applicable to these, it has set supervision priorities. It is thus placing particular emphasis on the environmental aspects of ESG fac- tors, transparency and disclosure requirements, prac- tices in relation to identifying investors’ sustainability preferences, greenwashing and the integration of ESG into risk management and business strategy. 2. Authorisation 2.1 Providing Financing to a Company Regulatory Framework for Providing Financing As a member of the EEA, Liechtenstein has estab- lished the same regulatory framework for providing financing in Liechtenstein as other members of the EEA, which is outlined below. Liechtenstein banking license requirement The requirement to apply for a Liechtenstein bank- ing license not only entails the submission of very detailed and extensive documentation (eg, a business plan, envisaged organisational structure, appropriate
statutes and regulations) but also requires a certain minimum corporate structure and substance in Liech- tenstein. The latter requires, inter alia, a Liechtenstein entity as an applicant for the license, appropriate busi- ness premises in Liechtenstein and at least one mem- ber of the management board who must reside in or near Liechtenstein so that they can reach the bank’s premises within a reasonable time. Establishing a branch in Liechtenstein Banks from other EEA member states can establish a branch ( Zweigniederlassung ) in Liechtenstein, mean- ing that the bank’s license obtained in the home mem- ber state is notified or “passported” to Liechtenstein as the host member state by the supervisory authority Banks from other EEA member states can render financing services on the basis of the freedom to provide services, meaning that no physical presence is established in Liechtenstein so that the services are rendered on a cross-border basis. This form of “passporting” also takes place via a notification by the supervisory authority of the respective home member state to the FMA. Reverse solicitation of the home member state. Freedom to provide services Rendering financing services on a “reverse-solicita- tion” basis refers to transactions that were initiated and concluded on the exclusive initiative of the bor- rower, meaning that the bank in question did not direct its business towards clients in Liechtenstein – ie, the bank neither directly nor indirectly promoted or solicit- ed its services to clients and/or the public in Liechten- stein. We note, however, that the concept of reverse solicitation has only been transposed expressly into national law for investment services provided by non- EEA firms and for some types of investment funds. The limitation to third-country firms, coupled with the available EU guidelines, could be understood to imply that this exemption may not be invoked by EEA firms, as doing so could be perceived as circumventing the EEA passporting regime. However, there is no pub- lished guidance from the Liechtenstein FMA available which would prohibit EEA firms from providing servic- es on a reverse-solicitation basis. Consequently, the provision of financing on the basis of reverse solici-
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