On 1 July 2011 and after some delay, the Alternative Investment Fund Managers Directive (AIFMD) (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:174:0001:0073:EN:PDF) was published in the Official Journal of the EU. The Directive applies to alternative investment fund managers (AIFMs) established in the EU which manage one or more alternative investment funds (AIFs) irrespective of where the AIFs are located, whether or not they are listed or what legal form the AIF takes. The Directive also applies to AIFMs established outside the EU which manage one or more AIF established in the EU or which market one or more (EU or non-EU) AIF within the EU.

To assist you in navigating your way around the Directive, we have produced an index, which is divided into two sections:  

  • Index to the Recitals (http://www.herbertsmith.com/NR/rdonlyres/F90A288A-D091-4A3F-8BDE-2E302C0C3FE4/0/AIFMDIndextorecitals201161EU.pdf); and
  • Index to the AIFMD (http://www.herbertsmith.com/NR/rdonlyres/F90A288A-D091-4A3F-8BDE-2E302C0C3FE4/0/AIFMDIndextorecitals201161EU.pdf)

Accordingly, the deadline for Member States to transpose the AIFMD into national law is 22 July 2013, being two years after the Directive came into force (21 July 2011). AIFMs to which the Directive applies will then have one year to submit an application to be authorised under the AIFMD, the deadline being 22 July 2014.

In respect of marketing, the passport regime for EU AIFMs managing the EU AIFs will begin in 2013. Those EU AIFMs which manage non-EU AIFs and non-EU AIFMs will have to wait until at least 2015.  

On 13 July 2011, the European Securities and Markets Authority (ESMA) published a press release (http://www.esma.europa.eu/data/document/2011_214.pdf) announcing the publication of its consultation paper (http://www.esma.europa.eu/data/document/2011_209.pdf) seeking views on its proposed approach to the implementing measures in relation to certain aspects of the Alternative Investment Fund Managers Directive. The paper contains details of the provisions it is proposing to recommend to the European Commission, which is responsible for drafting the Level 2 implementing measures which will subsequently be adopted at the EU level by the Commission, and ESMA have been mandated by the Commission to provide to it advice in this respect.

The deadline for comments is 13 September 2011. ESMA will then finalise its advice in light of the responses received with a view to submitting its formal advice to the Commission by the stated deadline of 16 November 2011. The consultation does not cover third party issues, in respect of which ESMA has promised a separate consultation.