AIFM (Alternative Investment Fund Managers)

Overview

The AIFM (Alternative Investment Fund Managers) Directive establishes an harmonised regulation framework for alternative funds distributed in the EU. In return, with the European passport, AIFMs are offered new opportunities to deploy their management services and distribute their Alternative Investment Funds (AIFs) in all EU Member States.

The AIFM Directive includes an harmonisation of the fund depositary function which is mandatory for each AIF.

The European Commission has adopted two regulations dated 12 July 2018, directly applicable from 1st April 2020. These regulations, published in the OJEU of 30th October 2018, amend the obligations of depositaries on the safekeeping of financial instruments held by alternative investment funds and UCITS: 

• delegated regulation 2018/1618 amending delegated regulation 231/2013 (AIF),
• delegated regulation 2018/1619 amending delegated regulation 2016/438 (UCITS). 

In particular, the following are specified:

• the regime for the segregation of assets in the sub-custody chain,
• the protection of assets in the event of the insolvency of the depositary or sub-custodian.

The ESMA consultation of 26 November 2018 on the integration of sustainability criteria into AIFM and UCITS regulations ended on 30 January 2019.

The final report following this consultation was issued on 30 April 2019:

ESMA's technical advice to the European Commission on integrating sustainability risks and factors in the UCITS Directive and AIFMD, 30 April 2019 (ESMA34-45-688).

Nota bene:

Publication in the OJEU of Directive (EU) 2019/1160 of 20 June 2019 amending Directive 2011/61/EU, which aims to remove obstacles to cross-border marketing of UCITS, supplemented by Regulation (EU) 2019/1156 of 20 June 2019.

Member States have until 2 August 2021 at the latest to adopt and publish the national provisions necessary to comply with the Directive. They must apply these provisions from 2 August 2021.

The Regulation is applicable as from 1 August 2019 but some articles (Art. 4, §1 to 5; Art. 5, §1 and 2; Art. 15 and Art. 16) are only applicable as from 2 August 2021.

The reports by KPMG (January 2019) and the Commission (June 2020) on the functioning of the AIFMs have highlighted that the main objectives of the Directive have been achieved. On the basis of these reports, as well as the support of ESMA which - in a letter dated 18 August - recommended changes to the directive in 19 different fields, the European Commission launched a consultation on 22 October 2020 prior to the revision of AIFMD which will close on 29 January 2021.

The consultation, which is part of the Commission's objective to create the Capital Markets Union (CMU), will aim both to gather views on how to make the European AIF market more efficient and to gauge the appetite of market participants (AIF managers, distributors, industry representatives, investors and investor protection associations as well as financial market authorities and citizens more broadly) for an amendment to the Directive.

Following this consultation, the Commission is expected to submit, in the course of 2021, its draft revision of the AIFM Directive.

Main provisions

AIFMD establishes conditions of accreditation for investment management firms.

• Rules regarding their capital, delegation of management, organisation, risk management, funds' use of leverage, remuneration policies and practices, valuation by the investment manager itself or by an outside expert, reporting to the authorities and provision of information to investors.
• Depositary mandatory for each structure and obligation to send reporting to national competent authorities.

Challenges and opportunities for AIFMs

• AIFM authorisation
• Delegation of functions (portfolio management and/or risk management)
• Depositary mandatory
• Remuneration policy
• Conflict of interest
• Independent valuation of assets
• Transparency
• Leverage
• Marketing passport facilitating cross-border distribution
• Reporting to National Competent Authorities

CACEIS HELPS FUND MANAGERS COMPLY WITH AND TAKE FULL ADVANTAGE OF THE AIFM DIRECTIVE

• AIF Structuring and Distribution
• Luxcellence & AIFMD Substance Requirements
• Risk Management Support for AIFMs/AIFs
• Middle and Back Office Activity Outsourcing for AIFs
• Depositary & Banking Services for AIFMs/AIFs
• AIFM Reports to National Competent Authorities

More information

• On 30 July 2015, ESMA issued an advice on the application of the passport to non-EU AIFMs and AIFs in accordance with the rules set out in Art. 35 and Art. 37 to 41 of AIFMD
• The level 1 directive (available here) is supplemented by a level 2 regulation (available here)
• Directive (EU) 2019/1160 of 20 June 2019
• Regulation (EU) 2019/1156 of 20 June 2019