Guidelines on key concepts of the AIFMD - Esma - Europa

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Table 1: Breakdown of Non-UCITS funds by categoryFund types30/06/2012 31/12/2011EUR bn %chg (2) Number of Funds EUR bnNumber ofFundsSpecial / Institutional 1,608 7.60% 8,488 1,495 8,490German "Spezialfonds" 876 6.60% 3,730 822 3,762British investment trusts 82 7.90% 298 76 307French employees savings 88 1.60% 2,301 87 2,342Luxembourg "other" funds 92 8.70% 929 85 938Real-estate funds 263 1.50% 1,099 259 993Other 353 10.00% 5,296 321 5,149TOTAL 2,486 7.10% 18,411 2,322 18,219(2)end June 2012 compared to end December 2011.Source: EFAMA.7. Notwithstanding the data already available in the Commission’s IA and in Table 1 above, in order toassess the costs and benefits of its draft guidelines, ESMA saw merit in carrying out a mapping exerciseamong the competent authorities of the Member States of the existing population of funds whichwill be captured by the AIFMD and of the potential impact on these figures of the rules proposed in thepresent consultation paper. The mapping of the population captured by the AIFMD was considerednecessary to the extent that the definition of AIF in the final text of the Directive is not the same as theone in the European Commission’s initial proposal (COM(2009) 207 final) 7 .8. Indeed, according to Article 3(a) of the European Commission proposal, an AIF was defined as “anycollective investment undertaking, including investment compartments thereof whose object is thecollective investment in assets and which does not require authorisation pursuant to Article 5 of Directive2009/…/EC [the UCITS Directive];”, whereas Article 4(1)(a) of the AIFMD defines AIFs as being“collective investment undertakings, including investment compartments thereof, which: (i) raisecapital from a number of investors, with a view to investing it in accordance with a defined investmentpolicy for the benefit of those investors; and (ii) do not require authorisation pursuant to Article5 of Directive 2009/65/EC;”.9. The mapping of the population impacted by the AIFMD was carried out in Q3 2012 and showed theresults disclosed in Table 2 below.Table 2: Funds captured by the AIF definition and impact of the draft guidelinesAustriaEstimates of funds captured by the definitionof AIF in Article 4(1)(a) of the AIFMDN/AImpact of the draft guidelines on theestimateRoughly half of the potential AIFs will beexcluded from the scope.7Available at: http://ec.europa.eu/internal_market/investment/docs/alternative_investments/fund_managers_proposal_en.pdf.16
Belgium More than 100 funds No substantial impact.Finland 250-300 funds N/AFrance 8,700-11,700 funds Approximately 1600 funds could be impacted.GermanyAbout 4,000 funds (+350 new closed-ended fundsexpected each year)To be determined.Ireland More than 2,000 funds To be determined.ItalyAbout 660 fundsNo more than 5% additional entities areestimated to be captured.Liechtenstein About 400 funds No impact expected.Luxembourg At least 2000 funds N/AMalta Less than 500 funds No material impact.Netherlands About 1,400 fundsThe impact is expected to be of around 5-10%in terms of funds captured.Slovak Republic 20-30 funds No material impact.Spain About 330 funds No impact expected.Sweden Less than 400 funds No impact expected.UK Approximately 2,700 funds N/ATOTAL Between 23,460 and 26,520 funds Overall no substantial impactSource: Competent authorities of the EEA Member States.10. Based on the above data, this cost-benefit analysis assesses the qualitative and quantitative costs andbenefits that will potentially arise from the different policy options identified by ESMA. Stakeholders’views are sought on these costs and benefits; quantitative data would be particularly useful in helpingESMA reach a final decision on the best approach.3. Problem definition11. Given the uncertainties surrounding the entities which should be captured within the scope of theAIFMD, ESMA considered that guidelines on key concepts of the AIFMD would add most value ifthese were aimed at ensuring a common understanding of the different entities captured by the definitionof AIF within the Directive (and, therefore, of which entities have to be considered as AIFMs).12. The baseline scenario for this cost-benefit analysis would be the application of the requirements in theLevel 1 Directive (i.e. the provisions in Articles 4(1)(a) of the AIFMD) without any further specification.This would leave discretion to AIFMs and national competent authorities to determine whetheran entity has to be considered an AIF and whether the provisions of the AIFMD apply to it and itsAIFM. This could lead to a lack of harmonisation in the application of the provisions of the Level 1 Directiveacross the alternative investment industry.13. Indeed, uncertainty on the notions used to define AIFs may lead to regulatory arbitrage and to inconsistentsupervisory practices. For instance, an entity could be considered as falling within the scope ofthe AIFMD by one competent authority whereas a competent authority in a different Member Statecould consider that the same entity falls outside the scope of the AIFMD. This would be particularlyproblematic in the context of the EU passport introduced in Article 32 of the AIFMD.17
Page 1 and 2: Consultation paperGuideline
Page 3 and 4: Table of ContentsI. Executive Summa
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Page 9 and 10: 18. Furthermore, ESMA also confirms
Page 11 and 12: 28. Therefore, ESMA proposes to cla
Page 13 and 14: Annex I - Summary of questionsQ1: D
Page 15: Annex II - Cost-benefit analysis1.
Page 19 and 20: Benefits19. The expected benefits o
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Page 23 and 24: i. this respondent asked to confirm
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Page 27 and 28: tion of “marketing” in Article
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Page 31 and 32: stitutional investors) in order to
Page 33 and 34: clarifying how the group exemption
Page 35 and 36: 63. Furthermore, according to a cou
Page 37 and 38: 78. A banking association asked to
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Page 41 and 42: Q7: Do you agree with the details p
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