EU Directive on Alternative Investment Fund Managers (AIFMs)
from the International Association of Hedge
Funds Professionals (IAHFP)
Proposal for a Directive on Alternative Investment Fund Managers
Chapter I
General provisions
Article 1
Subject matter
This Directive lays down the rules for the authorisation, ongoing
operation and transparency
of the managers of alternative investment funds (AIFM).
Article 2
Scope
1. This Directive shall apply to all
Alternative Investment Fund Managers (AIFM) established in the
Community, which provide
management services to one or more alternative investment funds (AIF)
irrespective
of:
(a) whether the AIF is domiciled inside or outside of the Community;
(b) whether the AIFM provides its services directly or by
delegation;
(c) whether the AIF belongs to the open-ended or closed-ended type;
(d) the legal structure of the AIF and of the AIFM.
An
Alternative Investment Fund Manager (AIFM) authorised in accordance with this Directive to provide
management
services to one or more AIF is also entitled to market shares or
units of these AIF to
professional investors in the Community subject to the conditions
laid down in
Chapter VI and, where relevant, Article 35.
2. This Directive shall
not
apply to any of the following:
(a)
Alternative Investment Fund Managers (AIFM)
which either directly or indirectly through a company with
which the
AIFM is linked by common management or control, or by a substantive
direct
or indirect holding, manage portfolios of AIF whose assets under
management,
including any assets acquired through use of leverage,
in total do
not exceed a
threshold of 100 million Euro or 500 millions euros when the
portfolio of AIF
consists of AIF that are not leveraged and with no redemption rights
exercisable during a period of 5 years following the date of
constitution of each
AIF;
(b) AIFM established in the Community which do not provide
management
services to AIF domiciled in the Community and do not market AIF in
the
Community;
(c) UCITS or their management or investment companies authorised in
accordance
with Directive 2009/…/EC [the UCITS Directive];
(d) credit institutions which are covered by Directive 2006/48/EC of
the European
Parliament and the Council of 14 June 2006 relating to the taking up
and
pursuit of the business of credit institutions (recast);
(e) institutions which are covered by Directive 2003/41/EC of the
European
Parliament and the Council of 3 June 2003 on the activities and
supervision of
institutions for occupational retirement provision13;
(f) institutions which are covered by the First Council Directive
73/239/EEC of 24
July 1973 on the coordination of laws, regulations and
administrative
provisions relating to the taking-up and pursuit of the business of
direct
insurance other than life assurance14, Directive 2002/83/EC of the
European
Parliament and of the Council of 5 November 2002 concerning life
assurance
and Directive 2005/68/EC of the European Parliament and Council of
16
November 2005 on reinsurance and amending Council Directives
73/239/EEC,
92/49/EEC as well as Directives 98/78/EC and 2002/83/EC16;
(g) supranational institutions, such as the World Bank, the IMF, the
ECB, the EIB,
the EIF, other supranational institutions and similar international
organisations,
in case such institutions or organisations manage one or several
AIFs.
3. Member States shall ensure that AIFM not reaching the threshold
set out in
paragraph 2(a) are entitled to be treated as
Alternative Investment Fund Managers (AIFM) falling under the
scope of this
Directive.
4. The Commission shall adopt implementing measures with a view to
determining the
procedures under which AIFM managing portfolios of AIF whose assets
under
management do not exceed the threshold set out in paragraph 2(a) may
exercise their
right under paragraph 3.
Those measures, designed to amend non-essential elements of this
Directive by
supplementing it, shall be adopted in accordance with the regulatory
procedure with
scrutiny referred to in Article 49(3).
Article 3
Definitions
For the purpose of this Directive, the following definitions shall
apply:
(a) 'Alternative investment fund'
or AIF means any collective
investment undertaking, including investment compartments thereof whose object
is the
collective investment in assets and which does not require
authorisation
pursuant to Article 5 of Directive 2009/…/EC [the UCITS Directive];
(b) 'manager of alternative investment funds '
or AIFM means any
legal or natural
person whose regular business is to manage one or several AIF;
(c) 'Valuator' means any legal or natural person or company valuing
the assets or
establishing the value of the shares or units of an AIF;
(d) 'management services' means the activities of managing and
administering one
or more AIF on behalf of one or more investors;
(e) 'Marketing' means any general offering or placement of units or
shares in an
AIF to or with investors domiciled in the Community, regardless of
at whose
initiative the offer or placement takes place;
(f) 'Professional investor' means any investor within the meaning of
Annex II of
Directive 2004/39/EC;
(g) 'Retail investor' means any investor who is not a professional
investor;
(h) 'home Member State' means the Member State in which the AIFM has
been
authorised pursuant to Article 6;
(i) 'host Member State' means a Member State, other than the home
Member
State, within the territory of which an AIFM provides management
services to
AIF or markets shares or units thereof;
(j) 'Competent authorities' means the national authorities which are
empowered by
law or regulation to supervise AIFM;
(k) 'Financial instrument' means an instrument as specified in Annex
I Section C of
Directive 2004/39/EC;
(l) 'Leverage' means any method by which the AIFM increases the
exposure of an
AIF it manages to a particular investment whether through borrowing
of cash
or securities, or leverage embedded in derivative positions or by
any other
means;
(m) ‘Qualifying holding’ means any direct or indirect holding in an AIFM which
represents 10% or more of the capital or of the voting rights or
which makes it
possible to exercise a significant influence over the management of
the AIFM
in which that holding subsists. For this purpose the voting rights
referred to in
Articles 9 and 10 of Directive 2004/109/EC of the European
Parliament and of
the Council of 15 December 2004 on the harmonisation of transparency
requirements in relation to information about issuers whose
securities are
admitted to trading on a regulated market17 shall be taken into
account;
(n) 'Issuer' means any issuer of shares domiciled in the Community
within the
meaning of Article 2(1)(d) of Directive 2004/109/EC;
(o) 'Representatives of employees' means representatives of
employees as defined
by Article 2(e) of Directive 2002/14 of 11 March 2002 establishing a
general
framework for informing and consulting employees in the European
Community.
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