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EUROPE AIFMD - EU

What’s in there? The Commission has adopted a draft delegated act on 18 December 2014 based on the opinion and advice delivered by ESMA. The draft delegated act defines the scope of re- porting and subsequently establishes a three-tier reporting obligation: « Information concerning the EU passport for EU AIFMs managing EU AIFs: reporting of this type of information facilitates assessment of the use made of the “European passport”, of the ef- fectiveness of cooperation among competent authorities, of the effective functioning of the notification system, of investor protection is- sues related to AIFs marketed or managed from another Member State and of the effectiveness of the collection and sharing of information in relation to the monitoring of systemic risks. « Information on the applicable national regime concerning the marketing of non-EU AIFs by EU AIFMs: The type of information to be provid- ed by the NCAs to ESMA includes information on the marketing of EU and non-EU AIFs in accord- ance with Articles 36 and 42 of the AIFMD, on the management of EU AIFs by non-EU AIFMs, on the existence and effectiveness of coopera- tion arrangements with third countries on issues of investor protection in relation to marketing and management under the national regimes and on problematic features of the third country regulatory and supervisory framework. « Information regarding the impact of the func- tioning of a dual system: This information should support the assessment of how both systems function (EU passport and third coun- try passport), the potential market disruptions and distortions in competition or any general or specific difficulties encountered by Europe- an managers when establishing themselves or marketing funds in third countries.

What’s next? The draft delegated regulation will be submit- ted to the EU Council and Parliament for official adoption. AIFMD - ESMA publishes updates to Q&A on the AIFMD Background The Alternative Investment Fund Managers Di- rective (“AIFMD”) sets up a coherent framework for the regulation of alternative investment fund managers within Europe. The main aim of the AIFMD is to ensure that the managers are able to manage AIFs on a cross-border basis and that those AIFs can be sold on a cross-border basis. The European Securities and Market Authori- ty (“ESMA”) Q&A document aims at promoting common supervisory approaches and practices in the application of the AIFMD and its imple- menting measures. It does so by providing re- sponses to questions posed by the general pub- lic and competent authorities in relation to the practical application of the AIFMD. What’s in there? On 9 January 2015, ESMA published updates to Q&As on the AIFMD. In this version, four new questions have been added which concern the on-going reporting required under AIFMD: « Question 50 relates to the way AIFMs should report information on subscriptions and re- demptions over the reporting period. For this purpose, AIFMs should report the value of sub- scription and redemption orders and not the number of subscription and redemption orders. Furthermore, information should be reported for the month of the cash-flows and not for the month of the subscription and redemption or- ders unless it is the same month.

Commission adopts Delegated Regulation on NCA reporting obligations under Article 67(3) of the AIFMD Background Directive 2011/61/EU (the “AIFMD” or “the Di- rective”) established a common regulatory and supervisory framework applicable to all alterna- tive investment fund managers (AIFMs) pursuing activities in the EU. This framework covers AIFMs established in a Member State ("EU AIFMs"), as well as AIFMs established in a third country ("non- EU AIFMs") which manage or market in the Union alternative investment funds (AIFs) established in the EU or in a third country (EU AIFs or non-EU AIFs, respectively). Article 67 (1) of the Directive mandates ESMA – upon request of the Commission - to provide an opinion on the functioning of the EU passport under Article 36 AIFMD and the national private place- ment provisions under Article 42, as well as an advice on the extended application of the passport to the marketing of non-EU AIFs. The information reported quarterly to ESMA by national competent authorities (“NCAs”) under Article 63(3) should be instructive in the formulation of ESMA’s opinion and advice. In December 2013, the European Commission (the “Commission”) issued its request for an opinion and advice to ESMA on the possible content of a delegated act concerning the information to be provided under Article 67(3). ESMA submitted its final report to the Commission on 26 March 2014.

THE COMMISSION DRAFT DELEGATED REGULATION CAN BE FOUND HERE.

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