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Portrait ofAurélien Hollard

Aurélien Hollard

Partner | Avocat à la Cour

CMS DeBacker Luxembourg
Rue Charles Darwin 5
L-1433 Luxembourg
Languages English, French, German

Aurélien heads the Investment Funds practice. He is specialised in the formation of alternative investment funds (AIFs) and has significant experience in structuring funds for private equity, venture capital, private debt, real estate and infrastructure.

Aurélien assists both local and international clients in the structuring of Luxembourg AIFs, whether organised as unregulated (SV, SCSp, Sàrl), semi-regulated (RAIF) or regulated (SIF, SICAR, Part II) funds. He also advises institutional investors in their investments as well as management companies in their legal and regulatory requirements.

Aurélien also assist local and international clients in their securitisation and capital market transactions, for both debt and equity, whether exempted, publicly authorised and/or listed.

Aurélien also leads sustainable and digital campaigns within CMS and is therefore deeply involved in ESG and fund tokenisation. He is a fully qualified lawyer admitted to the Bars of Paris and Luxembourg.

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"A visionary in the emerging fields of blockchain-based instruments"

Legal500, 2022

"One of the rare lawyers who combines an ability to legally innovate and implement the innovation"

Legal500, 2022

The 'very proactive and hands-on' Aurélien Hollard has a 'wealth of knowledge across investment funds', particularly as it relates to alternative investment strategies – including a growing number of ESG mandates.

Legal500 2021

"Mastering the engagement from A to Z."

IFLR1000, 2021

"Always excellent in all our day-to-day work, but particularly great when we ask off-piste regulatory questions where there is a need to consider different scenarios and solutions. We highly value such a partner as we navigate new markets and a changing funds regulatory landscape."

IFLR1000, 2021

"Proactive client management."

IFLR1000, 2021

"Deep knowledge about the legal and regulatory frameworks in capital markets; commitment to quick and high-quality service."

IFLR1000, 2021

"Brilliant lawyer with pragmatic views. Knows what our needs are and is very approachable."

IFLR1000, 2021

"Professionalism and expertise."

IFLR1000, 2021

"Aurelien is an industry veteran, who is pragmatic and business focused, providing advice which keeps clients like us clear of the fringes of potentially grey legal areas - many of which are present when dealing with emerging technologies. He is also highly competent in combining first principles thinking with concrete, actionable advice."

IFLR1000, 2021

"Aurélien Hollard combines expertise, innovation and interpersonal skills."

Legal500, 2021

"Aurélien Hollard is one of the most client-centric partners I have worked with."

Legal500, 2021

"Aurélien Hollard was always available and approachable. He provided specific support and guidance on important topics. He is also able to explain complex topics at the right level and guide on the risk profile of decisions."

Legal500, 2021

Memberships & Roles

  • Digital Strategy Committee (ABBL- Luxembourg Bankers' Association)
  • Financial Services and Regulatory Working Group (Invest Europe)
  • Luxembourg fund association (ALFI)
  • Inclusive Finance Network (InFiNe)
  • European Impact Investing Luxembourg (EIIL)
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  • 2016, Certified Expert in Microfinance, Frankfurt School of Finance & Management, Germany
  • 2010, Master in International Business Law and Management, ESSEC Business School, France
  • 2009, LLM in Business Law, University of Cologne, Germany
  • 2007, Bachelor in Business Law, University of Nancy, France
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During European Microfinance Week, LuxFLAG brought together the European impact investment industry in Luxembourg for a panel discussion focused on impact labels, especially the LuxFLAG Microfinance Label, and their potential for promoting sustainable investments. After a short talk about the historical evolution of the microfinance market, the discussion addressed the regulatory implications for impact asset managers. This session can be of a particular interest for investors looking for microfinance investment opportunities who need to understand the current challenges asset managers face when making impact investment decisions. Investment professionals, but not only, will share their vision of the future developments in microfinance in the financially excluded regions and their implications for the investment fund industry. Panel Speakers:  Aurélien Hollard, CMS LuxembourgAnna Letta, LuxFLAGBenoit Bouet, re­sponsAb­il­ityTA­TIANA Kalinina, Triodos Investment Management
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Private debt funds and loan origination activities under Luxembourg law...
Introduction In recent years, both investors and investment managers have been keen to develop debt instruments for meeting the demand of alternative sources of financing for small and medium-sized enterprises (SMEs), in particular when they are unable to secure credit from the traditional banking system.One of the main instruments for implementing a private debt strategy in Luxembourg is the private debt fund, which is attracting more and more interest from investors and investment managers for several reasons.Indeed, Luxembourg private debt funds experienced a 51% growth in assets under management between June 2022 and June 2023, reaching EUR 404.4 billion [1]. The economic rationale appears to be the steady increase in interest rates since 2021 [2], which has priced out a large number of SMEs while promising higher and stable profits for investors over the medium to long term. Judging by the continued growth of private debt funds, it appears that investors expect interest rates to at least remain at their current level as long as the European Central Bank succeeds in mitigating inflation.  Another factor which helps explain the steady growth of private debt funds is the Luxembourg regulatory framework, which facilitates (under certain conditions) lending activities for investment funds. The upcoming entry into force of the amendments to Directive 2011/61/EU (AIFMD) on alternative investment fund managers (the so-called AIFMD II) [3], which will set a harmonized framework for loan origination across the EU, will likely further bolster the current market trends for private debt funds.In this context, cautious optimism in the foreseeable future appears warranted for this asset class and it would not be surprising if it took up a greater proportion of fund managers’ portfolios.This newsflash will first provide a brief overview of the loan origination regime currently applicable in Luxembourg, before outlining the changes that AIFMD II will bring, particularly for non-regulated funds. Part 1:  Luxembourg’s attractive lending regime for private debt funds It is worth noting at the outset that there is currently a patchwork of domestic rules on loan origination, which leads to an uneven playing field across the EU. Until the implementation of AIFMD II (expected Q1 2026), each national regime (including in Luxembourg) will still be applicable, which means that regulatory convergence is unlikely before then and forum shopping by market participants will likely continue in the next few years.Do­mest­ic­ally, the approach chosen by Luxembourg has been to accommodate debt funds’ strategies through its general investment management framework [4]. The well-known Luxembourg investment fund toolbox has already proved to be attractive to managers looking for a favourable jurisdiction in which to establish their funds, and private debt funds are no exception. In addition, the Commission de Surveillance du Secteur Financier (CSSF) had already designed a framework [5] to regulate private debt funds, but it has also allowed the development of a market practice for lending operations (including loan origination), especially for alternative investment funds [6] (AIFs).Lending operations (which include loan origination) are regulated in Luxembourg pursuant to article 28-4 of the Luxembourg law of 5 April 1993 on the financial sector (the LFS), which requires professionals to be authorized by the CSSF when engaging in the business of granting loans to the public for their own account.The CSSF has set out certain narrow and specific exemptions for private debt funds originating loans:i) Statutory exemption from the requirements laid down in article 28-4 of the LFS for regulated funds:This exception concerns in particular specialized investment funds (SIFs) governed by the law of 13 February 2007 relating to SIFs, undertakings for collective investment (UCIs) authorized under Part II of the law of 17 December 2010 relating to UCIs and investment companies in risk capital (SICARs) governed by the law of 15 June 2004 relating to SICARs.Simply put, these vehicles, when originating loans, are not subject to a CSSF licence because they fall outside the scope of the LFS but remain, nevertheless, subject to other applicable Luxembourg legislation, including consumer protection rules and reg­u­la­tions.In­cid­ent­ally, despite long-standing diverging market views, unregulated funds (such as reserved alternative investment funds (RAIFs) governed by the law of 23 July 2016 relating to RAIFs) are not covered by the LFS statutory exemption and therefore do require CSSF approval to engage in loan origination, unless they can qualify for other exemptions available for unregulated funds.ii) Exemption available for unregulated funds:The CSSF has provided some guidelines on several cases where article 28-4 of the LFS does not apply to Luxembourg AIFs that originate loans.There are objective exemptions that do not necessitate a deep legal analysis (so-called “safe harbours”), such as where:the loans are provided on an irregular basis, and would therefore not constitute a professional activity;the loans are issued exclusively intra-group; andeach loan granted has a nominal value of at least EUR 3,000,000 and is granted exclusively to “pro­fes­sion­als” as that term is defined in the Luxembourg Consumer Code.In addition, unregulated funds could also benefit from an exemption when the loan is not granted to the public but, according to CSSF guidelines, to “a limited circle of previously determined persons”.This notion, however, remains vague and must be interpreted on a case-by-case basis. For this reason, it is strongly recommended that a thorough legal analysis is conducted and that a request for a negative clearance letter is submitted to the CSSF in order to prevent any legal uncertainty regarding the applicability of this exemption. Part 2: The upcoming regime of loan origination under AIFMD II To this day, rules set by each Member State generally do not provide sufficient guidance and clarity on how a loan origination activity should be lawfully conducted (including in Luxembourg, as described in Part 1).   The so-called AIFMD II will provide a minimum number of safeguards and risk procedures for funds aiming to engage in loan origination. The new set of rules is warmly welcomed by the industry, as it will not only provide additional clarity but also create a level playing field across jurisdictions, thereby strengthening the private debt market by providing more business opportunities to funds, while also establishing a high level of protection for investors.   For a full description of the key features implemented by AIFMD II, please refer to our previous article.As with any new or upcoming regulation, AIFMD II already raises questions that will need further clarification from the legislator.After a transitional period, existing AIFs that originate loans or gain exposure to loans through third parties (regardless of whether an AIF meets the definition of loan-origination AIF) will need to implement effective policies, procedures and processes for assessing their credit risk. It is worth noting, however, that we do not have more details on these procedures at this time. From a Luxembourg perspective, one could expect that these requirements will be similar to the ones already prescribed by the CSSF for AIFs engaged in loan ori­gin­a­tion/par­ti­cip­a­tion (see footnotes 5 and 6).Market participants are also eagerly awaiting the regulatory technical standards to be issued by the European Securities and Markets Authority (ESMA) for clarification on liquidity management tools (LMTs) for loan origination AIFs that will remain open-ended at the end of the transitional period.For the time being, one should be mindful that point 9(a) of the recitals of AIFMD II clearly states that “AIFs granting loans to consumers are subject to the requirements of other instruments of Union law applicable to consumer lending”.It is also legitimate to ask whether the CSSF position will evolve following the entry into force of AIFMD II and especially on the notion of “public”. Would the notion be narrowed to allow loan origination AIFs to make the most of the new regime? If this were the case, it may encourage unregulated funds qualifying as loan origination AIFs to dispense with having to submit a request to the CSSF for a negative clearance letter.In the meantime, Member States remain free, of course, to “lay down national product frameworks that define certain categories of AIFs with more restrictive rules”, although such considerations will have to be weighed against the risk of seeing managers favouring other more welcoming jurisdictions in which to domicile their loan origination funds.Our team will continue to monitor the path favoured by the Luxembourg legislator going forward, but it remains optimistic that it will continue to skilfully balance investor protection considerations while also safeguarding the competitive advantage that Luxembourg has built over the years in the private debt market fund space.More generally, to find out more about the possibilities and opportunities for structuring a debt strategy in Luxembourg, please see the following article, which summarises the features of a Luxembourg securitisation vehicle that could be an interesting alternative for a private debt strategy. [1] ALFI/KPMG Private debt fund survey 2023[2] Key ECB interest rates, European Central Bank’s website (ht­tps://www.ecb.europa.eu/stats/policy_and_ex­change_rates/key_ecb_in­terest_rates/html/in­dex.en.html)[3] Final text of political agreement on AIFMD II has been published, 15.11.23, CMS Newsflash (ht­tps://cms-lawnow.com/en/eal­erts/2023/11/fi­nal-text-of-polit­ic­al-agree­ment-on-aifmd-ii-has-been-pub­lished)[4] The Luxembourg private debt funds scene – an asset class on the rise, 2017, JurisNews Investment Management vol. 5 – N°3/2017, page 95[5] Questions and answers on the statuses of “PFS” - Part II, point C7, 15 June 2021, CSSF[6] CSSF FAQ - Luxembourg Law of 12 July 2013 on alternative investment fund managers, point 22, 16 December 2022, CSSF
CMS Expert Guide to Crypto Regulation in Luxembourg
Disclaimer: This chapter was last updated on 5 September 2023 and does not reflect any subsequent developments. The information provided is intended for general informational purposes and should not be...