Guidelines on key concepts of the AIFMD - Esma - Europa

Annex IV – Feedback on the discussion paper1. ESMA received 48 responses to the consultation on the discussion paper (DP) on key concepts of theAIFMD and types of AIFM. Responses were received from alternative investment fund managers (andtheir associations), associations of publicly listed real estate companies and associations of investmentcompanies, depositaries, banking associations), an advisory and audit firm, an association of pensionfunds, law firms, lawyers’ associations and public authorities.General comments2. A couple of respondents pointed out that the discussion on some of the issues in the DP is prematureand that a more useful debate on these issues could be had only once the Level 2 measures have beenfinalised.3. An asset managers association was of the opinion that the sections III (Definition of AIFM) and IV(Definition of AIF) of the DP went beyond the mandate received under Article 4(4) of the AIFMD sincetechnical standards should not identify any policy orientations or suggest interpretations which go beyondthe terms of the AIFMD.4. A respondent was generally supportive of the approach taken in the CP and supported ESMA’s focuson the development of further criteria to determine whether a particular business has a “defined investmentpolicy”, but discouraged ESMA from placing too much emphasis on a Q&A approach to developguidance as suggested in paragraph 3 of the DP.5. A depositary generally agreed with ESMA’ proposals and suggested ESMA to develop guidelines forthe approval of delegates who do not hold an authorisation or registration for the purposes of assetmanagement.6. Some respondents asked to address certain questions, which are not covered by the CP:A private equity and venture capital association asked whether and in what circumstances a set ofarrangements between several legal or natural persons should be considered to be a single AIF ormultiple AIF.This respondent stressed that the essential future of an AIF is that it must be an “undertaking”:even if this term is not defined in Community law, it is likely to encompass certain pooled investmentvehicles, but mere parallel investment arrangements and ordinary corporate and joint venturearrangements should not be caught by the definition, even if one of the participants is a fund.For instance, in a private equity fund where there are several “parallel” limited partnerships havinga common general partner and a common AIFM, each undertaking (limited partnership)should be properly regarded as a separate and distinct AIF. Also a private equity AIF structured asa limited partnership may have amongst its limited partners another limited partnership and theselimited partnerships may have a common AIFM: if the second limited partnership has the featuresof an AIF, then there will be two separate AIFs, one a feeder fund into the other, whereas if it is notthe case, there will be one AIF, which is the main fund limited partnership.An asset managers association asked to clarify the transitory provisions under Article 61 of theAIFMD:22