Legal Update

First amendment proposal on AIFMD II Proposal. Key points

Legal Update | May 25, 2022

CAPITAL MARKETS

Following up to our previous briefing on AIFMD II proposal, please find below the last developments on this topic.

As background, on 25 November 2021 the European Commission published its proposal for a Directive amending the AIFM Directive (Directive 2011/61/EU) and UCITS Directive (2009/65/EC) (the AIFMD II Proposal).

Once the feedback period elapsed, the AIFMD II Proposal went through the ordinary legislative procedure and the European Parliament has just officially published its first amendment proposal.

Capital Markets: First amendment proposal on AIFMD II Proposal

We present below the main draft amendments to the AIFMD II Proposal adopted by the Committee on Economic and Monetary Affairs of the European Parliament:

• the ancillary services that may be undertaken by an AIFM have been extended with “any other ancillary service which is not a service listed in Section A of Annex I to Directive 2014/65/EU, which represents a continuation of the services already undertaken by the AIFM or a use of internal competences and which does not create conflicts of interest that could not be managed by additional rules”;
• ESMA peer review analysis of the supervisory activities on delegation to third-country institutions has been removed;
• the “external” distributors that are directly appointed by the fund, without acting on behalf of the AIFM, are excluded from the AIFM’s responsibility in terms of delegation arrangements;
• new requirements with respect to the information to be provided by the AIFM to the competent authorities in relation to the AIFs managed:
• the total amount of leverage of the net asset value employed by the AIF;
• information regarding delegation arrangements concerning portfolio management or risk management functions and in particular:
• information on the entities to which such functions have been delegated;
• information on the function delegated, the type of delegation (full or partial), and the date of the delegation agreement or contract;
• where sub-delegation arrangements are in place, the same information in respect of the sub-delegates and the functions sub-delegated;
• the date of conclusion and expiration of the delegation and sub-delegation arrangements;
• a description of the periodic due diligence measures carried out by the AIFM to oversee, monitor and control the delegate, including the date of performance of those measures, the issues identified and, where relevant, the measures and timeline adopted to address those issues.
• new categories of “professional investors” are provided, by adding conditions as EUR 100K investment threshold or self-certified investors;
• insertion of “loan origination” and “shareholder loan” clarifying definitions;
• insertion of the AIFMs’ prohibition from “managing AIFs whose investment strategy is to originate loans with the sole purpose of transferring those loans to third parties (“originate-to-distribute”)”.

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What’s next?

Further to the European Parliament’s amendments, the European Council has to further analyze the Parliament’s position.

Under the ordinary legislative procedure, the Council may (i) decide to accept the Parliament's position and in such case the directive is adopted, or (ii) amend the Parliament's position and the proposal is returned to the Parliament for a second reading. There is no time limit on the first reading neither at the Parliament nor at the Council.

In the same way, there can be up to three readings which will end either with a directive of the Parliament and of the Council, or with a rejection of the AIFMD II Proposal.

We will continue to follow up on this topic.

This document is intended for informational purposes only, does not represent legal advice and does not focus on particular cases.

For further information or analysis on specific matters, please contact Alexandra Niculae.