On 11 July 2017 the European Securities and Markets Authority (“ESMA”) has published two updated questions and answers documents (“Q&A”) on the application of the Alternative Investment Fund Managers Directive (“AIFMD”) and the Undertakings for the Collective Investment in Transferable Securities Directive (“UCITS”). The present article will cover the main updates on such Q&A registered across 2017, highlighting the orientation of the ESMA on certain selected issues related to the AIMFD.
Notification of AIFs
On 6/4/2017 ESMA clarified that the AIF marketing passport may only be used for marketing to professional investors as defined in Article 4(1)(ag) of AIFMD. Hence, any other cross-border marketing activity to non-professional investors (such as the categories of “qualifying investor”, “informed investor”, or “semi-professional investor” as defined across certain Member States) cannot be carried out benefitting from the AIF marketing passport.
Reporting obligations to national competent authorities (Articles 3, 24 and 42, AIFMD)
In relation to the conversion modalities of the total value of assets under management by an AIFM, on July 2017 the authority clarified that the AIFMs should use the rounded values of the AIFs in its base currency. Then, AIFMs should divide these rounded values by the corresponding rate of one unit of the base currency in Euros.
Looking at the specific report information on the breakdown between retail and professional investors, ESMA clarified that when said information is not available, AIFMs should report ‘0’ in the relevant boxes (questions 119 and 120) disclosing the non-availability of the information.
A further interesting clarification provided on July 2017 deals with purchases of loans in the secondary market and the criteria to measure the AIF exposure in relation to those loans. According to ESMA, the notional value of the loan may be inappropriate and overestimate the risk exposure. Accordingly, the AIF should report the valuation of the loan, as it is reported in the calculation of its NAV. During the life of the loan, the AIF should then measure the exposure in relation to that loan using the same valuation rules as the ones used for the calculation of its NAV.
Notification of AIFMs
On June 2017, ESMA clarified certain aspects dealing with the information disclosure regime featuring the programme of operations drafted by an AIFM with respect of the management of AIFs domiciled in another Member State. Where specific AIFs cannot be identified at the time of the notification, the AIFs to be managed may be identified by their investment strategy, referring also to the scope of its authorisation if the AIFM has only been authorised to manage certain types of AIFs. Differently, where the AIFM is able to identify specific AIFs, these should be identified by their name and national identifier. Information on those funds should also include their investment strategies.
AIFMD and EMIR
A final interesting focus deals with a specific question relating to the impact of the so called EMIR (Regulation (EU) 648/2012) on AIFMD.
Asked whether an AIF, subject to the clearing obligation in accordance with Article 4(1) of EMIR, can invoke the exemption for intragroup transactions, ESMA outlined that an AIF can only make use of said exemption if (i) it has been established to form part of the same group as the counterparty to the OTC derivative contract and if (ii) it fulfils all the criteria for intragroup transactions set out under EMIR. Benefitting from said intragroup exemption, the AIF shall not be considered a distinct entity and will not be treated separately for other purposes under EMIR as well.