FSA survey on AIFMD – aiming to provide support to AIFMs

On 11 March 2013, the Financial Services Authority (“FSA”) published new web-pages on the Alternative Investment Fund Managers Directive (“AIFMD”), including an online survey for completion by UK-based fund managers.

The aim of the survey is to gather information on the likely volume, nature and timing of applications for authorisation under the AIFMD and, in particular, to use the information gathered to support those managers who may need early authorisation so as to continue operating in other EEA jurisdictions after 22 July 2013, the implementation date of AIFMD.

Issues with the transitional period

The AIFMD allows fund managers that are already managing or marketing alternative investment funds (“AIF”) a transitional period of 12 months from 22 July 2013 to become AIFMD-compliant and apply for authorisation.

The transitional period will not, however, apply to fund managers that wish to begin managing an AIF for the first time after 22 July 2013. Equally, member states need not extend the transitional provisions to managers from other EEA states who already manage or market AIFs in that member state.

Under the AIFMD, member state regulators have 3 months to consider applications for AIFMD authorisation and can extend this period by a further 3 months. The FSA have, to date, intended to accept applications for authorisation only from 22 July 2013. Given the 3-month consideration period, and the lack of any requirement on member states to extend transitionals to foreign AIFMs, this may mean that the earliest that a UK-based fund manager can use the AIMFD passport to market or manage AIFs across the EEA could be October 2013.

This delay could mean that UK fund managers who already manage or market AIFs in other member states will have to stop doing so on 22 July 2013. Concern in the industry around this delay and its potential to disadvantage UK fund managers may have triggered the present survey and the FSA has indicated in the new information provided that it may consider accepting applications for authorisation before 22 July 2013.

Responses to the survey

The survey closes on 28 March 2013 and must be completed by those firms whose business will be affected as a result of not being authorised under AIFMD such that they are unable to continue to manage or market elsewhere in the EEA following the implementation date. The FSA is keen to ensure that any disruption to fund managers is minimised and that the FCA (as it will be after 1 April 2013) is best placed to assist UK fund managers.

Amongst other things, fund managers are asked to provide comments in respect of the following:

  • whether they expect to manage any AIFs;
  • whether they expect to be above or below threshold, if already established;
  • whether they will make use of private placement rules in other EEA states;
  • whether they have funds that will be EEA AIFs or expect to have them in other EEA jurisdictions and when;
  • when and how many EU passports they will require;
  • whether they market funds that will be EEA AIFs or expect to market them in other EEA jurisdictions and when;
  • when they plan to make an AIFMD application to the FSA; and
  • whether they have started discussions with depositaries.

The FSA’s long-awaited second consultation paper is also expected imminently, to be followed by a third consultation paper from the FCA in May and its policy statement in June.

In the meantime, HM Treasury has also published on 14 March 2013 its further consultation on transposition of the AIFMD.

Links to the survey and information about the survey can be found here.