As of 21 July 2014, the transitional period under AIFMD came to an end in the UK (subject only to an additional transitional period for UK AIFMs which submitted a completed application before 22 July 2014 for variation of permission to become a full scope AIFM or for registration as a small sub-threshold AIFM and are waiting for a decision or registration by the FCA).
AIFMD passporting regime
EU AIFMs marketing EU AIFs now have access to an EU wide passport to market these AIFs to professional investors. There is however, no passport available for AIFs managed by non-EU AIFMs or for non-EU AIFs managed by EU AIFMs until at least 2016 and therefore it will be necessary to comply with new national private placement regimes introduced under AIFMD to market such AIFs in the EU, except in cases of genuine reverse solicitation.
National private placement regimes
National private placement regimes under AIFMD are implemented by individual member state and, although AIFMD imposes certain minimum requirements, many states impose stricter or additional requirements. To comply with the private placement regime in an EU state, it is generally necessary to register the AIF with or obtain marketing authorisation for the AIF from the regulator in that country. In some jurisdictions, for example France and Germany, a lengthy prior approval process, stretching to as much as eight months, will be required to market by way of private placement.
FCA and CSSF updates on applications for AIFMD
In the UK, as of Friday 18 July, the FCA had received 984 applications, of which 609 were due to be authorised by the close of 22 July 2014. A further 93 applications are due for imminent authorisation. The remaining applications are being processed in line with the deadlines laid out in the AIFMD.
The FCA is reminding firms that they “should ensure they are aware of how the AIFMD impacts them and ensure that they are fully compliant with all relevant AIFMD requirements from 22 July 2014. This applies even if firms took advantage of the extension of the transitional period announced by HMT in December 2013. However, firms using the extended transitional period will not be required to comply with the marketing provisions in the HMT regulations as they will not be able to market their funds into the EEA until they are authorised.”
In Luxembourg, the CSSF confirmed that as of 22 July, they had received a total number of 773 applications, with a total of 215 requests for authorisation and 558 requests for registration. Following the processing of the 215 requests for authorisation, 151 entities have been approved as AIFM by the CSSF as at 22 July 2014. Furthermore, a total of 487 entities have been granted the status of registered AIFM under the provisions of Article 3(2) of the AIFM Law as at 22 July 2014. The remaining 71 applications for registration are either incomplete as at 22 July 2014 or have been withdrawn by the applicant.
New FCA forms and updates to ESMA Q&A
In light of the end of the transitional period, the FCA has updated their AIFM webpage to include links to new in-force AIFMD forms.
ESMA has also updated its Q&A on the application of the AIFMD, regarding particular questions about reporting to national competent authorities under Articles 3, 24 and 42, depositaries and calculation of leverage.