I. Background
- The Alternative Investment Fund Managers Directive (AIFMD) puts in place a comprehensive frame-work for the regulation of alternative investment fund managers within Europe. The extensive requirements with which AIFMs must comply are designed to ensure that these managers can manage AIFs on a cross-border basis and the AIFs that they manage can be sold on a cross-border basis.
- The AIFMD framework is made up of the following EU legislation:
2a. Directive 2011/61/EU1, which was adopted in 2011. It is a ‘framework’ Level 1 Directive which has been supplemented by technical delegated and implementing measures.
2b. Commission Regulation (EU) No 231/20132, Commission Regulation (EU) No 447/20133 and Commission Regulation (EU) No 448/20135.
- ESMA is required to play an active role in building a common supervisory culture by promoting common supervisory approaches and practices. In this regard, the Authority develops Q&As as and when appropriate to elaborate on the provisions of certain EU legislation or ESMA guidelines.
- The European Commission has already published its own Q&A on AIFMD5.
II. Purpose
- The purpose of this document is to promote common supervisory approaches and practices in the application of the AIFMD and its implementing measures. It does this by providing responses to questions posed by the general public and competent authorities in relation to the practical application of the AIFMD.
- The content of this document is aimed at competent authorities under AIFMD to ensure that in their supervisory activities their actions are converging along the lines of the responses adopted by ESMA. However, the answers are also intended to help AIFMs by providing clarity as to the content of the AIFMD rules, rather than creating an extra layer of requirements.
III. Status
- The Q&A mechanism is a practical convergence tool used to promote common supervisory approaches and practices under Article 29(2) of the ESMA Regulation.6
- Therefore, due to the nature of Q&As, formal consultation on the draft answers is considered unnecessary. However, even if they are not formally consulted on, ESMA may check them with representatives of ESMA’s Securities and Markets Stakeholder Group, the relevant Standing Committees’ Consultative Working Group or, where specific expertise is needed, with other external parties.
- ESMA will review these questions and answers on a regular basis to identify if, in a certain area, there is a need to convert some of the material into ESMA guidelines. In such cases, the procedures foreseen under Article 16 of the ESMA Regulation will be followed.
IV. Questions and answers
- This document is intended to be continually edited and updated as and when new questions are received. The date each question was last amended is included after each question for ease of reference.
- General questions on the practical application of the AIFMD may be sent to the following email address: AIFMD-questions@esma.europa.eu. However, questions that relate specifically to technical IT issues regarding the AIFMD reporting requirements (such as on the XSD documents or the IT technical guidance) should be sent to: info.it.aifmd@esma.europa.eu.
Reference
- DIRECTIVE 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010
- COMMISSION DELEGATED REGULATION (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision.
- COMMISSION DELEGATED REGULATION (EU) No 447/2013 of 15 May 2013 establishing the procedure for AIFMs which choose to opt in under Directive 2011/61/EU of the European Parliament and of the Council
- COMMISSION DELEGATED REGULATION (EU) No 448/2013 of 15 May 2013 establishing a procedure for determining the Member State of reference of a non-EU AIFM pursuant to Directive 2011/61/EU of the European Parliament and of the Council
- http://ec.europa.eu/yqol/index.cfm?fuseaction=legislation.show&lid=9
- Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC Regulation, 15.12.2010, L331/84.