In February 2014, the European Securities and Markets Authority (ESMA) published a "Questions and Answers" document regarding the application of the AIFMD. This Q&A should not be confused with the answers that the European Commission has issued to questions received by them relating to the transposition of the AIFMD.
ESMA's Q&As are chiefly directed at competent authorities in EU member states (namely the FCA in the UK) to promote a common supervisory approach and practice. However, the responses will also be useful for fund managers as they are likely to provide clarity on the approach to be taken by the authorities on topical issues.
ESMA's intention is to update the Q&A as and when appropriate. The current draft covers matters such as
- Whether AIFMs that wish to market new investment compartments of AIFs (when the AIF is already notified) undertake a new notification? See question 4, but the answer given is yes;
- When applying the new remuneration rules for the first time, which accounting period should be used by AIFMs that have (i) performed activities under the AIFMD before 22 July 2013 and (ii) submitted an application for authorisation under the AIFMD between 22 July 2013 and 22 July 2014? This is covered in question 1a, and the answer confirms that the relevant rules start applying as of the date of authorisation, however, in relation to variable remuneration, AIFMs should apply the rules for the calculation of payments relating to new awards of variable remuneration to their identified staff (as defined in the Remuneration Guidelines) for performance periods following that in which they become authorised. So the AIFMD regime on variable remuneration should apply only to full performance periods. The Q&A provides a few worked examples in order to explain this further.
While this document will not answer every question it should be counted among the resources to which firms may turn for additional guidance about the application of the AIFMD.