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Contents
- Preliminary Material
- Main Text
- 1 The Alternative Investment Fund Managers Directive
- Preliminary Material
- I Terms of Reference
- II General Provisions of the AIFMD
- 1 Subject matter and scope (Articles 1–2)
- 2 Exemptions (Article 3)
- 3 Determination of AIFM (Article 5(1))
- 4 Types of AIFM and AIFs
- III Authorization to Manage an AIF
- 1 Overview: EU AIFMs and non-EU AIFMs
- 2 Authorization and passporting of EU AIFMs
- 3 Authorization and passporting of non-EU AIFMs
- 4 Application for authorization by EU and non-EU AIFMs
- 5 Conditions for granting authorization
- 6 Procedural aspects
- A Consultation of authorities in other Member States
- B Term for granting authorization (Article 8(5))
- C Rejection of an application (Article 8(3))
- D Restriction of authorization (Article 8(3))
- E Disagreement about authorization of a non-EU AIFM (Article 37(8))
- F Authorization effective (Article 8(5))
- G Changes in the scope of the authorization (Article 10)
- H Withdrawal of authorization (Article 11)
- I Central public register (Articles 7(5) and 37(10))
- IV Operating Requirements
- 1 Overview
- 2 General duties (Article 12)
- A General
- B Acting in the best interest of the AIF or the AIF’s investors and the integrity of the market
- C Due diligence
- D Requirements to governing body and personnel AIFM
- E Fair treatment of investors in the AIF
- F Inducements
- G Best execution
- H Order handling
- I Execution of subscription and redemption orders
- J Selection of counterparties and prime brokers
- K Individual portfolio management
- 3 Remuneration (Article 13)
- 4 Conflicts of interest (Article 14)
- 5 Risk management (Article 15)
- 6 Liquidity management (Article 16)
- 7 Investment in securitization positions (Article 17)
- A Securitizations and securitization special purpose entities (SSPEs)
- B Investment by an AIF in securities issued by an SSPE
- C Retention requirements (Articles 51 and 54 Implementing Regulation)
- D Conditions for sponsors and originators (Implementing Regulation, Article 52)
- E Conditions for AIFM (Implementing Regulation, Article 53)
- 8 General organizational requirements (Article 18)
- 9 Valuation (Article 19)
- V Delegation of AIFM Functions
- 1 General
- 2 Conditions for delegation
- A General
- B Justification delegation
- C Delegation arrangements in writing; clear allocation of rights and obligations
- D Features of the delegate
- E Portfolio and risk management
- F Effective supervision; AIFMD conditions not undermined
- G Selection, monitoring, and review of delegates, instruction, and withdrawal
- H Conflicts of interests
- 3 AIFM’s liability not affected by delegation
- 4 AIFM may not become a letter-box entity
- 5 Sub-delegation
- VI Depositary
- 1 General
- 2 Single depositary for each AIF
- 3 Depositary contract
- A Parties to the contract
- B Written form
- C Services to be provided
- D Safe-keeping and oversight function
- E Depositary liability in case of delegation
- F Period of validity, amendment, termination
- G Confidentiality
- H Transmission of information
- I Re-use of assets/rehypothecation
- J Amendment of AIF rules, instruments of incorporation, offering documents
- K Sale, subscription, redemption, issue, cancellation, and repurchase
- L Oversight and control
- M Third parties
- N Money laundering and financing of terrorism
- O Cash accounts
- P Escalation procedures
- Q Insolvency risk to third party to whom safe-keeping is delegated
- R Depositary enquiries
- S Reviewing depositary performance
- T Specification of national law
- 4 Entities that may act as depositary
- 5 Location depositary
- 6 Monitoring by depositary of AIF’s cash flows
- 7 Safe-keeping of financial instruments to be held in custody
- A Financial instruments to be held in custody
- B Proper registration
- C Records and segregated accounts
- D Reconciliations
- E Due care
- F Custody risks throughout the custody chain
- G Fraud, poor administration, inadequate registering, or negligence
- H Verification of ownership rights
- I Delegation of custody functions
- J Look-through approach
- 8 Safe-keeping of assets other than financial instruments that can be held in custody
- 9 Oversight of operational functions
- 10 Duty to act in the best interest of the AIF and its investors
- 11 Conflicts of interest
- 12 Re-use of assets/rehypothecation by the depositary
- 13 Delegation of safe-keeping functions
- 14 Liability of depositary
- 15 Duty of information towards competent authorities; sharing of information between competent authorities
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- 1 Leveraged AIFs (Article 25)
- 2 AIFMs managing AIFs which acquire a (non-)controlling participation in (non-)listed companies (Articles 26–30)
- IX Marketing AIFs in the EU
- 1 Marketing of EU AIFs in the home Member State or the Member State of reference (Articles 31 and 39(2))
- 2 Marketing of EU AIFs in Member States other than the home Member State or Member State of reference (Articles 32 and 39(4))
- 3 Marketing of non-EU AIFs in the EU (Articles 35 and 40)
- 4 Marketing of non-EU AIFs in the EU subject to national regimes by EU and non-EU AIFMs (Articles 36 and 42)
- 5 Marketing to retail investors (Article 43)
- X Competent Authorities and Supervisory Powers
- XI Transitional and Final Provisions
- 2 United Kingdom
- Preliminary Material
- I Pre-AIFMD Regulatory Framework
- II Regulation of National AIFs after the AIFMD
- III General Provisions of the AIFMD and the Implementing Regulation
- IV Authorization of AIFMs
- V Operating Conditions for AIFMs
- VI Transparency Requirements
- VII AIFM Managing Specific Types of AIF
- VIII Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Introduction
- 2 Article 31—marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—conditions for managing AIFs established in other Member States
- 5 Consequences of violation of conditions for EU AIFMs to market and manage EU AIFs in the EU
- IX Specific Rules in Relation to Third Countries
- 1 Article 34—conditions for EU AIFMs that manage non-EU AIFs not marketed in the EU
- 2 Articles 35 and 36—conditions for marketing in the EU with and without a passport of non-EU AIFs managed by an EU AIFM
- 3 Articles 37 to 41—authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 4 Article 42—conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 5 Consequences of violation of specific rules in relation to third countries
- X Marketing to Retail Investors
- XI Competent Authorities and Supervisory Powers
- XII Concluding Remarks
- 3 France
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by EU AIFMs
- 4 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by non-EU AIFMs
- 6 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 4 Germany
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violation of conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by an EU AIFM
- 4 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 6 Consequences of violation of specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 5 Ireland
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- 1 Regulation of AIFMs and national AIFs prior to the AIFMD
- 2 Regulation of national marketing of AIFs prior to the AIFMD
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by an EU AIFM
- 4 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 6 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 6 Italy
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than in the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by EU AIFMs
- 4 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 6 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 7 Luxembourg
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- 1 Implementation table
- 2 Section 1 (Articles 12 to 17)—General requirements
- 3 Articles 18 and 19—Organizational requirements
- A Article 18—General principles
- B Article 19—Valuation
- C Article 20—Delegation of AIFM functions
- D Article 21—Depositary
- a General
- b Wider range of eligible service providers
- c Intellectual safe-keeping under UCITS versus verification of ownership under AIFMD
- d Cash monitoring
- e Custody of financial instruments—impact on sub-custody and strict liability to return
- f Force majeure
- g Delegation
- h Alignment of UCITS and AIFM regimes
- i Additional oversight duties of a depositary under AIFMD/UCITS
- j Impact on sponsor’s operation of AIF on offering documentation
- 4 Consequences of violating operating conditions
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by EU AIFMs
- 4 Articles 37 to 41—Authorization of non-EU AIFMs managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by non-EU AIFMs
- 6 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 8 The Netherlands
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 General
- 3 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 4 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by an EU AIFM
- 5 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 6 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 7 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 9 Spain
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by an EU AIFM
- 4 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 6 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 10 Sweden
- Preliminary Material
- I Introduction
- II Pre-AIFMD Regulatory Framework
- III Regulation of National AIFs after the AIFMD
- IV General Provisions of the AIFMD and the Implementing Regulation
- V Authorization of AIFMs
- VI Operating Conditions for AIFMs
- VII Transparency Requirements
- VIII AIFM Managing Specific Types of AIF
- IX Rights of EU AIFMs to Market and Manage EU AIFs in the EU
- 1 Implementation table
- 2 Article 31—Marketing of shares or units of EU AIFs in the home Member State of the AIFM
- 3 Article 32—Marketing of shares or units of EU AIFs in Member States other than the home Member State of the AIFM
- 4 Article 33—Conditions for managing AIFs established in other Member States
- 5 Consequences of violating conditions for EU AIFMs to market and manage EU AIFs in the EU
- X Specific Rules in Relation to Third Countries
- 1 Implementation table
- 2 Article 34—Conditions for EU AIFMs which manage non-EU AIFs not marketed in EU
- 3 Articles 35 and 36—Conditions for marketing in EU with and without a passport of non-EU AIFs managed by an EU AIFM
- 4 Articles 37 to 41—Authorization of non-EU AIFMs and managing and marketing AIFs in the EU
- 5 Article 42—Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM
- 6 Consequences of violating specific rules in relation to third countries
- XI Marketing to Retail Investors
- XII Competent Authorities and Supervisory Powers
- XIII Concluding Remarks
- 1 The Alternative Investment Fund Managers Directive
- Further Material
