The Alternative Investment Fund Managers Directive (2011/61/EU) ("AIFMD") must be implemented by member states by July 22, 2013. The aim of AIFMD is to introduce a harmonized regulatory framework across the EU for EU-established alternative investment fund managers ("AIFM"). An AIFM is any legal or natural person whose regular business is to manage one or more alternative investment funds ("AIF").

Broadly, the definition of AIF encompasses all non-UCITS funds constituted as a company, under a contract or in any other legal form. This means that AIFMD does not affect managers of funds covered by the UCITS IV Directive (2009/65/EC) but rather managers of hedge funds, private equity funds and other AIFs (such as venture capital funds or real estate funds).

On May 5, 2013 two draft Acts were published in Spain to implement AIFMD:

  1. A draft act to amend Act 35/2003, of November 4, on collective investment schemes ("CIS Act"), applying to open-ended AIFs. These are defined in the draft act as collective investment schemes that invest funds acquired from the public, spreading risks among investors, the units of which are, directly or indirectly, repurchased or reimbursed at the request of the holder, at least, annually.

A draft act to regulate closed-ended AIFs ("VC draft Act"). These are defined in the draft act as collective investment schemes where disinvestment of partners or investors is subject to the following conditions to avoid potential conflicts of interests: (a) all investors must divest simultaneously and (b) the amount received by each investor must be proportional to its investment. Closed-ended AIFs include private equity and venture capital funds and other investment companies. Until this new VC draft Act is approved, closed-ended AIFs are still considered as securities and, therefore, the safe harbors established in the Prospectus Directive regarding the private placement regime will be applicable.

Both drafts are preliminary documents still subject to changes and the Parliamentary process for their approval has not yet started.

One of main concerns of industry is how AIFMD would impact in the marketing of AIF and, in particular, which will be the position of the States as regards the private placement regimes. In this document, we provide a brief overview of the marketing provisions included in the two draft acts. We also briefly explain the rules that affect an EU or non-EU AIFM when marketing the units or shares of a EU or non- EU AIF in Spain. Thus, we specify whether the targeted investors are retail or professional clients, and whether the AIFM is offering or placing shares or units of an open-ended or a closed-ended AIF.

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