The Council has released an issues note on the AIFM Directive proposal. Among the issues are:

  • scope of coverage, exemptions and risks of double authorisation: in particular the Presidency thinks the definition of an AIF must be clearer and there must be a decision on whether closed-ended funds are covered (but in any event these funds should comply with the PD rather than any applicable AIFMD requirements). It suggests excluding collective investment undertakings that raise capital without promoting the sale to their units to the public anywhere in the EU. On double authorisation, there is a clear need to consider how the AIFMD will work alongside MiFID, the BCD and UCITS Directives;
  • capital: the Presidency suggests closer alignment with UCITS IV;
  • valuation: again, the Presidency suggests following the UCITS model so an independent valuer would not always be required;
  • depositories: there are concerns on the planned limitation of eligible depositories to EU credit institutions and on the rules on liability. It seems clear some of the proposals are unworkable and others would significantly increase costs for investors;
  • delegation: again, the Presidency suggests aligning requirements more closely with the UCITS model;
  • leverage: the Presidency recognises it is difficult to decide when an AIF is highly leveraged but there is a need to address the potential systemic risk from leverage and concentration of leverage;
  • controlling influences: there are concerns about the overlap with other legal requirements; and
  • third country issues: an overwhelming majority of Member States are against imposing undue restrictions on opportunities and capital flows, especially for institutional investors. The Presidency suggests several ways to deal with this.