On 27 March 2013, the European Commission’s (the “Commission”) online questions and answers section (the “Q&A”) on the alternative investment fund managers directive (the “AIFMD”) was published.

The Commission has produced answers to 67 questions covering the following topics:

  • Co-operation between the competent authorities of the Member States;
  • Definition of an alternative investment fund (“AIF”);
  • Delegation;
  • Depositary;
  • Issues related to private equity;
  • Issues related to master AIFs and feeder AIFs;
  • Issues related to private equity;
  • Marketing to retail investors;
  • Markets in financial instruments directive (“MiFID”) firms and MiFID related activities;
  • Own funds;
  • Passport issues;
  • Remuneration;
  • Reporting requirements;
  • Responsibilities of the competent authorities of the Member States;
  • Scope and exceptions;
  • Transitional provisions;
  • Transposition; and
  • Valuation.

Of particular interest are the answers to the questions posed in respect of the transitional provisions for the implementation of the AIFMD and those in respect of MiFID firms and MiFID related activities as discussed below.

In addition, it can be noted that the Commission has also suggested that the European Securities and Markets Authority produce guidelines on certain issues, most particularly the alignment of the dates of delivery of information under the reporting requirements.

Transitional Provisions

The Q&A provides responses to 6 questions relating to the transitional provisions in place and states that “during the one year transitional period alternative investment fund managers are expected to comply, on a best efforts basis, with the requirements of the national law transposing the AIFMD”. The Q&A goes on to confirm however, that only after the transitional period of one year are the obligations under the AIFMD legally binding. The Commission has not provided a definition of “best efforts”.

MiFID Firms and MiFID Related Activities

Pursuant to Article 6(4) of the AIFMD, Member States are permitted to authorise alternative investment fund managers to perform certain MiFID related activities. The Q&A highlights the fact that this is an exemption to the general rule and that the passporting provisions under the AIFMD do not apply to the MiFID related activities.