On 26 May and 13 June 2023 ESMA published its updated Q&A on the application of the AIFMD (the “Q&A”). The answers to the questions in the June update were provided by the European Commission.
Pre-marketing of AIFs
In it May update ESMA clarified that non-EU AIFMs are not allowed to carry out pre-marketing activities pursuant to Article 30a of the AIFMD. ESMA further stated that national laws, regulations and administrative provisions may allow non-EU AIFMs to carry-out pre-marketing activities at national level and where this is the case, non-EU AIFMs do not benefit from a passport allowing them to carry out these activities in other Member States. ESMA also reminded that such national laws, regulations and administrative provisions should not in any way disadvantage EU AIFMs vis-à-vis non-EU AIFMs.
The European Commission clarified that the pre-marketing obligations applicable to AIFMs pursuant to article 30a of the AIFMD are applicable to third parties who conduct pre-marketing on behalf of an authorised EU AIFM.
The updated Q&A further clarifies that registered sub-threshold AIFMs are not subject to the obligation to notify pre-marketing unless national rules provide otherwise.
In the last update to the section regarding notification of AIFs, the European Commission stated that even in the case where there are no investors in a host Member State, for all AIFs that are not closed-ended or not an ELTIF, AIFMs wishing to de-notify the arrangements previously made for marketing the shares or units of an AIF in that Member State, have to comply with the obligations set out in Article 32 a(1) of the AIFMD (i.e. publication of a blanket offer to repurchase, intention to terminate arrangements is made public, contractual arrangements with financial intermediaries or delegates are modified or terminated).
Notification of AIFMs
A new question was added asking whether an AIFM that has passported management activities to a host Member State may passport in that host Member State only the other functions that an AIFM may additionally perform in the course of management of an AIF which are referred to in Point (2) of Annex I to the AIFMD. It was confirmed that they cannot. The activities referred to in Annex I, Point 2 (which includes administration, marketing and activities relating to the assets of AIFs) are ancillary to the activities referred to in Annex I, Point 1 and cannot be exercised independently from those including in the case when an AIFM passports their services in another Member State.
Calculation of leverage
The response to a new question 8 in the Section “Calculation of leverage” makes clear that when calculating leverage of an AIF whose core investment policy is to invest in real estate directly or indirectly, the AIFM shall include the exposure contained in financial or legal structures involving third parties controlled by the AIF. Thus an AIFM must include the exposure contained in structures such as special purpose vehicles controlled by the AIF and put in place to acquire real estate assets.
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