ASIC Corporations (CSSF-Regulated Financial Services Providers) Instrument 2016/1109

The ASIC Corporations (CSSF-Regulated Financial Services Providers) Instrument 2016/1109 gives a limited exemption from parts of the Australian financial services licensing regime. In broad terms, an eligible CSSF-regulated financial services provider does not have to comply with Part 7.6 of the Corporations Act, other than Divisions 4 and 8, when it provides certain financial services in Australia to wholesale clients.

This is a targeted cross-border exemption. It is not a general permission for foreign financial services businesses to operate in Australia. The instrument is confined to a specific category of Luxembourg provider, a specific list of financial services, a specific list of financial products, and a wholesale-client-only setting.

For businesses, the practical point is that reliance on this instrument needs to be checked carefully. A provider can be genuinely regulated in Luxembourg and still fall outside the exemption if it is the wrong type of entity, has the wrong CSSF authorisation, serves the wrong client type, offers the wrong service, deals in the wrong product, or has not completed the required ASIC-facing steps.

The instrument applies only to a CSSF-regulated financial services provider as defined in the instrument. That means the provider must be a body corporate incorporated in Luxembourg. This is an important threshold point. The exemption is not drafted as a broad exemption for any foreign business, and it is not framed around individuals or sole traders.

The body must also have a current authorisation from the CSSF to carry on business in Luxembourg as either one of the following:

On top of that, the body’s primary business must be the provision of financial services. It must also either be registered in Australia under Division 2 of Part 5B.2 of the Corporations Act, or have an Australian agent when it first purports to rely on the instrument and then not fail to have an agent for any consecutive period of 10 business days.

The instrument defines an agent as a natural person ordinarily resident in Australia or a company whose name and address have been given to ASIC in writing for the purposes of the instrument, and who is authorised to accept service of process from ASIC and, for proceedings relating to a financial services law, from the persons referred to in subsection 659B(1) of the Corporations Act.

The note to the instrument says that the operation of the instrument in relation to partnerships is affected by the Corporations Act. In practical terms, businesses should not assume that a partnership can rely on this exemption. The core definition is directed to a body corporate incorporated in Luxembourg.

The exemption only applies where the covered financial services are provided in Australia to wholesale clients. It does not apply to retail clients.

The instrument uses the Corporations Act concept of wholesale clients. That means the provider and the Australian recipient need to check client classification under the Act rather than relying on a commercial label or the size of the deal alone. A sophisticated transaction is not automatically enough.

If there is any doubt about whether the Australian recipient is a wholesale client, the provider should not assume this instrument is available. Australian counterparties should also be careful here, because a provider may be eligible in every other respect and still fall outside the exemption if the client is not properly classified as wholesale.

The exemption does not apply to all financial services. It only covers the following financial services when provided in Australia to wholesale clients:

Even then, those services are only covered when they relate to the financial products listed in the instrument. Those products are:

So the right question is not just whether the provider is eligible in general. You also need to ask whether the exact service and the exact product fall within the lists above. If they do not, the provider cannot rely on this instrument for that activity.

The instrument also defines an eligible deposit product as a deposit-taking facility that is not a deposit product as defined in section 761A of the Corporations Act.

The exemption is not automatic. Before relying on it, the provider must give ASIC several things.

The deed is a significant compliance step. In practical terms, it is a formal legal document by which the provider agrees to key enforcement and cooperation terms. The deed must provide that the provider submits to the non-exclusive jurisdiction of Australian courts in relevant proceedings, agrees to comply with Australian court orders about the covered financial services, and, if the provider is not registered under Division 2 of Part 5B.2, allows service of process on its Australian agent. It must also include a covenant that, on written request of either the CSSF or ASIC, the provider will give or vary written consent and take all other practicable steps to enable and assist disclosure of information or documents between the CSSF and ASIC. The deed must be irrevocable unless ASIC gives prior written consent.

Separately, before providing financial services in Australia to a wholesale client, the provider must give the client written disclosure containing prominent statements to the effect that the provider is exempt from the requirement to hold an Australian financial services licence for those services and that it is regulated by the CSSF under foreign laws that differ from Australian laws.

For Australian counterparties, these are useful checkpoints. If a provider cannot show that it has completed the ASIC notice, consent and deed steps, or if it has not given the required client disclosure before services are provided, you should not assume the exemption is available.

Once a provider is relying on the instrument, the compliance work continues. The provider must provide each covered financial service in Australia in a manner that would comply, so far as possible, with the CSSF regulatory requirements if the service were provided in Luxembourg in like circumstances.

The provider must also notify ASIC in writing no later than 15 business days after it becomes aware, or should reasonably have become aware, of certain matters. These include each significant change to, including termination of, any licence or registration relevant to the financial services the provider provides or intends to provide in Australia, each significant exemption or other relief obtained from CSSF regulatory requirements relevant to those services, and each significant enforcement action, significant disciplinary action or significant investigation taken by another foreign regulatory authority against the provider in a foreign jurisdiction in relation to financial services provided there.

There is a limited carve-out for notification of a significant investigation if, after taking reasonable steps to enable written notification to be given to ASIC, the provider is prohibited by law from giving that notification, but only to the extent of the prohibition.

ASIC can also give a written notice directing the provider to give ASIC, within the time specified in the notice, a written statement containing specified information about the financial services provided by the provider in Australia or the financial service business operated by the provider in Australia. The provider must comply.

These obligations show that the exemption is conditional and supervised. It is not a one-off filing exercise. Providers need systems to monitor regulatory changes, foreign investigations, agent continuity and ASIC correspondence.

A provider cannot rely on the instrument if ASIC has notified the provider or its agent that the provider is excluded from relying on it, unless ASIC later withdraws that notice.

A provider also cannot rely on the instrument if it fails to comply with a condition and one of the instrument’s timing rules is triggered. First, the provider loses the ability to rely on the instrument if 15 business days have passed since it became aware, or should reasonably have become aware, of matters giving it reason to believe it had failed, other than in an immaterial respect, to comply with a condition, without providing ASIC with full particulars of the failure to the extent the provider knows them or would have known them if it had undertaken reasonable enquiries. Second, the provider cannot rely on the instrument if 30 business days have passed from ASIC receiving those particulars without ASIC notifying the provider that it may continue to rely on the instrument.

There is also a grandfathering limit. On or after 1 April 2020, a provider can only rely on the instrument if it was able to rely on it on 31 March 2020.

For businesses dealing with a provider, this means eligibility is not static. A provider may have been eligible at one point but later lose the ability to rely on the exemption because of an ASIC exclusion, a compliance failure, or the 1 April 2020 limitation.

If your business is dealing with a Luxembourg provider under this instrument, do a practical scope and compliance check before proceeding.

These checks matter because the instrument is narrow and condition-based. If any key element is missing, the provider may need an AFSL or another exemption for the Australian activity.

The instrument commenced on 16 November 2016. The current compilation referred to here was in force on 5 December 2025. The instrument states that it is repealed at the end of 31 March 2027.

There is also an important operational date inside the instrument itself. From 1 April 2020 onwards, only providers that were able to rely on the instrument on 31 March 2020 can continue to rely on it.

Businesses with ongoing arrangements should identify early whether those arrangements depend on this exemption and what licensing or exemption pathway will apply after 31 March 2027.

This page is based on the Federal Register of Legislation compilation of the ASIC Corporations (CSSF-Regulated Financial Services Providers) Instrument 2016/1109 in force on 5 December 2025.

Because this instrument operates within the broader Corporations Act framework, businesses should also check the current law on wholesale client status, Part 5B.2 registration, and any later legislative changes before relying on an exemption position for a live transaction.